Hill and Wilkins, JJ.
1. The material facts of this case are as follows:
2. In October 1896 Ram Chandra Mistry, the petitioner in this matter, charged four persons, Nobin Mirdha, Mohesh Mondal, Rajkishore Manbhi and Latim Shil (the opposite party), before the Deputy Magistrate of Ferozepore with offences under Sections 147, 148 and 326 of the Penal Code, alleging inter alia that they with some fifty or sixty armed men had forcibly deprived him of possession of certain land held by him as the tenant of one Lokenath. On the 21st December 1896, the Deputy Magistrate found two of the four accused persons guilty of the offence of rioting under Section 147, the other two of the offence of rioting being armed with a deadly weapon under Section 148, and Nobin Mirdha he further found guilty of an offence under Section 326; and he sentenced them accordingly to various terms of imprisonment. He at the same time made an order under Section 522 of the Code of Criminal Procedure for the restoration of the petitioner to possession of the disputed land. This order was carried into effect during the same month.
3. The opposite party then appealed to the Court of Session, which, in the first instance, upheld the decision of the Deputy Magistrate. They afterwards, however, petitioned this Court with the result that the case was remitted to the Court of Session for retrial. Among other matters indicated for the guidance of the Court of Session the learned Judges pointed out that it was necessary under the circumstances of the case to come to a finding as to which of the two contending parties was in actual possession of the disputed land when the occurrence complained of took place. Upon the retrial the learned Sessions Judge came to the conclusion that the opposite party were at that time in actual possession, and, in respect of any violence they had used, he also held that, with the exception of Nobin Mirdha, they had acted within the right of defence of their property. He accordingly set aside the convictions and sentences under the rioting sections of the Code. In the case of Nobin Mirdha he held that the right of private defence had been exceeded, and therefore maintained his conviction under Section 326. He, however, reduced his sentence to one of six months' imprisonment, and as that period had then expired, ordered his release. The learned Judge further set aside the order passed by the Deputy Magistrate under Section 522 of the Code of Criminal Procedure. An application was then made to the Deputy Magistrate by Nobin Mirdha and his party to be restored to possession of the disputed land, but this was refused, the Deputy Magistrate being of opinion that it did not appear from the order of the Court of Session that Ram Chandra was to be turned out of possession for the purpose of replacing the other side in possession. Thereupon Nobin Mirdha applied to the Court of Session for relief in the matter, and that Court, on the 23rd of September 1897, passed the following order on the application:
I can give no further orders than what I have done. I have cancelled the Deputy Magistrate's order under Section 522, and all proceedings under that section are necessarily rendered null and void. I can give no orders to the police, but it is the duty of the Deputy Magistrate to give effect to the order of the Appellate Court, and also to maintain order and peace.
4. This was followed by another application by Nobin Mirdha and his party to the Deputy Magistrate for restoration of possession, and on the 27th September the Deputy Magistrate passed an order for the issue of a perwanna to the Police directing them 'to give effect to the orders of the Sessions Judge at once.'
5. It is to this order of the Deputy Magistrate, as being 'vague and misleading,' that the rule in this ease is in terms confined, but at the hearing, the question which was, with our permission, chiefly discussed, was the legality of the order made by the Court of Session reversing the order passed by the Deputy Magistrate on the 21st December 1896, under Section 522 of the Code as well as of the order of the 23rd September 1897, by which the Court of Session in effect directed the Deputy Magistrate to carry out the order of reversal. It was contended on the part of the petitioner that both these orders were made without jurisdiction, and reliance was placed on the circumstance that no procedure is laid down by the Code effecting restitution of possession when a person has been ousted in pursuance of an order made under Section 522. On the part of the opposite party it was contended that when an Appellate Court comes to a conclusion different from that of a Subordinate Court upon the question of possession it must, upon principle, possess the power of undoing that which has been unlawfully done by the latter Court; that otherwise the action of the Courts might lead to grave injustice, and that as for the absence from the Code of any prescribed procedure for restoring to possession a person who has been wrongfully dispossessed it did not advance the argument for the other side, since the Code was likewise silent as to the procedure to be followed for giving effect to such an order when properly made. In the one case, as in the other, it was said it lies with the executive to carry out the orders of the Court. The learned Counsel for the petitioner in support of his contention cited the cases of Basudeb Surma Gossain v. Nasiruddin (1887) I.L.R. 14 Cal. 834 and Queen-Empress v. Fattah Chand (1897) I.L.R. 24 Cal. 499. In the former case the learned Judges, while setting aside an order made by a Magistrate under Section 517 of the Code, stated expressly that they were unable to order restitution of the property. In the latter also the Court set aside an order made under that section, but it was considered that the question of the restitution of the property was not before the Court, and the learned Judges, therefore, expressed no opinion upon it. It can hardly therefore be claimed as an authority in support of the petitioner's contention. It was, however, argued on the authority of Basudeb Sarma's case, (1887) I.L.R. 14 Cal. 834, that if, notwithstanding the provisions of Section 520 of the Code, a superior Court has not authority to direct the restoration of property affected by an order made under Sections 517 of the Code, the same must be the case with respect to property affected by an order under Section 522. We are not prepared, on the authority of this case, to commit ourselves to such a position. It may, indeed, be that the consideration which weighed with the learned Judges, who decided the case was, as the learned Counsel contended, that the Code does not provide any procedure for effecting restitution when possession has changed under an order made under Section 517, and if this was in fact their reason the case might perhaps be applied by way of analogy to the present case. But their reasons are not disclosed. They merely say that in this respect they follow the case of In re Annapuna Bai, (1877) I.L.R. I Bom., 630, in which likewise the reasons by which the learned Judges were guided are not stated. We think too, we may add, that it would be unsafe to conclude merely because the Legislature has not provided a remedy by way of restitution for a person, who has been improperly deprived of the possession of property of the kind to which Section 517 relates, that it, therefore, intended that a person improperly deprived of the possession of immoveable property in pursuance of an order made under Section 522 should be without a remedy of that nature.
6. On behalf of the opposite party Sir Griffith Evans referred us to a passage from the case of Rodger v. Comptoir D'Escompte de Pans (1871) L. R. 3 P. C. 465 (475) in which the Judicial Committee of the Privy Council refer to the duty of all Courts to take care that the act of the Court does no injury to any of the suitors. His contention was that since it was shown by the finding of the Court of Session on the question of possession remitted to it by this Court that his clients had been injuriously affected by the action of the Magistrate, by which the petitioner had been placed in possession, the power must be inherent in the Courts and ought to be exercised of redressing this wrong by restoring to them the possession of which they had been wrongfully deprived. We need not say that in a case which we considered to be a fit one in all respects for its application we should not hesitate to enforce the principle referred to. The question, however, now before us is not whether we should ourselves exercise the power, if we possess it, of ordering the persons previously in possession to be restored to possession, but is confined to the legality of the reversal by the Court of Session of the Magistrate's order under Section 522 and of the subsequent measure taken to give effect to its reversal. And if under the law as it stands the Magistrate's order was not open to review in the Court of Session, we think our proper course is to apply the law as we find it. We might, it is true, if satisfied that the ends of justice would be best served thereby, refuse to exercise the revisional powers of the Court in favour of the petitioner, but on the whole we think that more harm than good might now result from the adoption of that course. In our view of the law, the Court of Session, dealing as it did in the present case as a Court of Appeal with the judgment of the Deputy Magistrate convicting the accused, exceeded its jurisdiction in setting aside the order made under Section 522. Our primary reason for this opinion is that an order passed under that section must be subject to the general rule laid down by Section 404 of the Code; that no appeal shall lie from any order of a Criminal Court except as provided for by the Code; while there is, so far as we are aware, no provision made by the Code for an appeal from an order under Section 522. Nor can such an order be regarded as an integral part of the judgment appealed from, so as to stand or fall, according as the judgment is upheld or reversed. If that were so, the Legislature would no doubt have so provided. But it seems to have been intended, and the reasons for this are not difficult to conceive, that an order giving possession under the section being once made should, in so far as the Criminal Courts are concerned, have finality. We are strengthened in this view by the consideration that in the case of orders made under Section 517, which falls within the same chapter of the Code, very precise provisions are laid down by Section 520 in respect of the powers which may be exercised by superior Courts.
7. We should add that Sir Grif (sic) jith Evans relied also on Ambler v. Pushong (1885) I.L.R. 11 Cal. 365 but in the view which we take of the case we do not think that it is in point.
8. We make the rule absolute and set aside the order of the learned Sessions Judge, reversing the order made by the Deputy Magistrate under Section 522, as well as his order of the 23rd September 1897, and also the order of the Deputy Magistrate passed on the 27th September.