Grimwood Mears, C.J. and Pramada Charan Banerji, J.
1. This litigation appears to have had a very chequered career. In the year 1910 a suit was brought in the Revenue Court by the present appellant for the ejectment of the defendants from certain plots of land. The court of first instance, that is, the Assistant Collector of the first class, decreed the claim and ordered ejectment. An appeal was preferred from that decree to the Commissioner and the appeal was dismissed. The case was then taken to the Board of Revenue, and the Board of Revenue held that the appeal from the decree of the court of first instance ought to have been preferred to the District Judge. Accordingly an appeal was preferred in the court of the District Judge and it succeeded and the claim of the plaintiff was dismissed in 1912. A second appeal to this Court was also dismissed, Meanwhile, after the passing of the decree of the court of first instance that decree was put into execution and the present appellant obtained possession of the holding by ejectment of the tenants. After the decree of the District Judge and the High Court, the respondent applied to the Assistant Collector under Section 144 of the Code of Civil Procedure for restitution, that is, for restoration of possession to them. This application was rejected by the Assistant Collector, who was of opinion that the remedy of the respondents was one under Section 80 of the Agra Tenancy Act. From this order the respondents appealed to the District Judge. The District Judge, considered that the decision of the court of first instance rejecting the application was not correct, but he held that the order of the court of first instance was final and no appeal lay to him. On this ground he dismissed the appeal. A second appeal was preferred to this Court and was heard by a learned Judge of this Court. He set aside the orders of the courts below and directed possession to be restored within a term fixed by him in his order. From this decision of the learned Judge of this Court this appeal has been preferred under the Letters Patent.
2. We find it difficult to agree with the reasons given by the learned Judge for his decision. Those reasons were summarized to us by Dr. Sen on behalf of the respondents, and he supports them, but without assigning any reasons for doing so. The learned Judge held that 'the court of first instance' referred to in Section 144 was not a Revenue Court, but the Civil Court which heard the appeal from the order of the first court. With this view we cannot agree. In a suit under the Tenancy Act the court of first instance is the Revenue Court which heard the suit, and not the court of appeal. The learned Judge says that the decree of the High Court was a decree directing possession to be restored. This is not so. The decree of this Court only dismissed the appeal preferred to it from the decree of the District Judge in the suit for ejectment. The effect of the decree of the District Judge was to entitle the respondents to be restored to possession, and for recovering possession the remedy of the respondents was to apply under Section 144 of the Code of Civil Procedure, and this application for restitution is to be made to the court of first instance under the provisions of the section. The section further provides that no separate suit will lie for recovery of possession where the decree of the court of first instance has been reversed by a higher court. The learned Judge's opinion that a separate suit could be brought and the application was to be deemed to be a suit cannot be supported in view of the provisions of Section 144 itself, which forbids the institution of a separate suit. The learned Judge of this Court further held that the appeal to the High Court might be deemed to be a regular suit for possession or an application for delivery of possession. As we have pointed out, an application for delivery of possession could only be made to the court of first instance and not to this Court. This Court does not execute its own decree and even if the decree of this Court was a decree directing possession to be restored, the application for restoration of possession could only have been made to the court of first instance and not to this Court. Therefore, in our opinion, the learned Judge of this Court was not entitled to make an order for restitution. Dr. Sen's main contention was that the order of the court of first instance refusing to grant the respondent's application was a decree within the meaning of Section 2 of the Code of Civil Procedure, and that, therefore, an appeal lay to the District Judge. This contention is concluded by the principle of the ruling of the Full Bench in the case of Zohra v. Mangu Lal (1906) I.L.R. 28 All. 753. That was, it is true, a case in which the question was whether an appeal lay from an order in execution of a decree passed by an Assistant Collector of the first class. It was held that under the whole scheme of the Tenancy Act a distinction was made between an 'order' and a 'decree' and that the word 'decree' in Section 177 of that Act was a decree in a suit and did not include an order which, if the definition of a decree applied to the case, might be deemed to be a decree under the Code of Civil Procedure. The learned Judges who decided the Full Bench case made a distinction between a decree in a suit and an order. It was held that an appeal lay from a decree in a suit, but an order passed by an Assistant Collector of the first case was not a decree and was not open to appeal. The principle laid down in the Full Bench case equally applies to the present case and upon that principle we must hold that the learned District Judge was right in holding that no appeal lay to him. In this view the appeal to this Court ought to have been dismissed. No doubt it is a hard case, but under the provisions of the law we are unable to interfere in the matter.
3. We accordingly allow the appeal, set aside the decree of the learned Judge of this Court and restore the decree of the lower appellate court, In the circumstances of this case we direct the parties to pay their own costs of the two appeals to this Court.