Ghose and Rampini, JJ.
1. The plaintiff in this suit sued for the possession of certain jungle lands as belonging to his village Sealgazra. The defendant pleaded in his written statement that the claim was barred by limitation; that the suit was barred by the provisions of Section 13 of the Civil Procedure Code by reason of a decree in suit No. 434 of 1880, which he (the defendant) had obtained against the plaintiff; and that the lands appertained to his mokurari village Chaksha.
2. The Munsif found for the plaintiff. He held that the lands belonged to the plaintiff, and were not covered by the decree which the defendant had obtained against the plaintiff, and that the claim was not barred by limitation. On appeal by the defendant, a question was raised for the first time whether the suit was not barred by the provisions of Section 244 of the Code of Civil Procedure by reason of the defendant having been put in possession of these lands in execution of his decree. The Subordinate Judge seems to have found that the defendant took possession in 1883 in execution of the decree, but that the executing Court made no enquiry as to the complaint then made by the plaintiff as to defendant having taken possession of more lands than were covered by the decree, and he has held that the lands being outside the decree, the plaintiff is entitled to maintain this suit. There is, however, a passage in the judgment of the Subordinate Judge which leaves it doubtful whether he did not mean to hold that, though the defendant took possession at the time of execution of the decree, he was not put in possession by the officers of the Court. In the result, the Subordinate Judge affirmed the decree of the Court of First Instance.
3. In second appeal, it has been contended before us, on behalf of the defendant, that upon the finding arrived at by the Subordinate Judge, that the defendant obtained possession of the lands in execution of the decree, the suit is barred by Section 244 of the Code.
4. It seems to us that, if the Subordinate Judge has found that the defendant was put in possession of the lands in execution of the decree by the officers of the Court, the case would clearly fall within the purview of the ruling in Mudhun Mohun Singh v. Kanye Doss Chuckerbutty 12 B.L.R. 201. It would appear that immediately after the defendant's taking possession of the lands, the plaintiff applied to the Munsif executing the decree, on the 11th May 1883, and complained that the defendant had been given possession of land in excess of that decreed to him; upon which the Munsif recorded the following order: 'The decree-holder has been put in possession of the lands decreed. The decree-holder has not taken out execution for costs. The case struck off the file.' This order appears to us to mean that the Munsif then held that the decree-holder had been put in possession of only the lands decreed to him, and not of any excess land as maintained by the plaintiff (the then judgment-debtor)
5. If then the defendant was put in possession (as the plaintiff alleged in his petition of the 11th May 1883) of the excess lands in execution of the decree in 1883, the present suit would seem to be barred by the provisions of Section 244, which lay down that such a question as this must be decided by order of the Court executing the decree and not by separate suit. This has not been denied before us, but reliance has been placed by the respondent on the rulings of this Court in Purmessuree Persad Narain Singh v. Jankee Kooer 19 W.R. 90 and Azizuddin Hossein v. Ramanugra Roy I.L.R. 14 Cal. 605 and we had been asked to regard the plaint in this suit as an application made to the Court executing the decree, the suit having been instituted in the same Court as had jurisdiction to execute the decree. We think that this view may be accepted, as the suit does not fail for want of jurisdiction, and the fact that the plaintiff has made his application in the form of a suit may be regarded as a merely formal defect which has done nobody any harm, except himself, as he had paid a higher Court fee than he need have paid. The facts of this case are, no doubt (as was contended by the vakil for the appellant), somewhat similar to those of Second Appeal No. 1690 of 1893, decided by this Bench on the 14th instant, but in that case the suit was not brought in the Court which had jurisdiction to execute the decree, and the plaintiff in that case had been guilty of gross laches, having slept over his rights for a period of 11 years 7 months.
6. And there are other considerations which lead us to hold that we should not give effect to the plea as to jurisdiction raised by the defendant. This question is not a pure question of law, but a question which would depend upon facts. And therefore it was all the more incumbent upon the defendant to have raised it in the Court of First Instance. There was no issue in that Court whether the defendant had been put in possession of the lands in execution of the decree, and therefore the Subordinate Judge in appeal was not properly called upon to decide this question upon the materials that were then before him. Then, again, the decision of the Subordinate Judge has just left it in doubt whether he meant to find that the defendant was put in possession through the officers of the Court commissioned for that purpose; for if he was not put in possession through the officers of the Court the case would not fall within the ruling of this Court in Mudhum Mohun Singh v. Kanye Doss Chuckerbutty 12 B.L.R. 201.
7. Upon these grounds we dismiss this appeal, but we do not allow the plaintiff higher costs than he would be entitled to had he made an application under Section 244.