JUDGMENT

Campbell, J. - It is not the practice of the High Courts in India to take action under Section 439 of the Code of Criminal Procedure on'a report by a District Magistrate which has for its object interference with a decision by a Court of Session, vide Queen-Empress v. Karamdi [1896] 23 Cal. 250, Emperor v. Jamna Bai [1905] 28 All. 91, Emperor v. John Francis Lobo [1916] 41 Bom. 47 and In re Angumuthu Vanathrian (Madras High Court). In the last named ruling it was stated that a District Magistrate, if he considers a Sessions Judge's order illegal, should more the Public Prosecutor to bring it before this Court. In the present instance the learned District Magistrate has not even arranged that his recommendation should be supported by Counsel. I must decline, therefore, on the present reference to examine the correctness of the learned Sessions Judge's decision that Fazal Dad is entitled to restitution.

2. Since, however, the case has been brought to my notice, I take the opportunity of correcting an error which is evidently due to an oversight and which, if allowed to stand may give further trouble in the future. The learned Sessions Judge has purported to act under Section 89 of the Code of Criminal Procedure and that section provides that if the property has been sold, the person from whom it has been taken under Section 88 shall be entitled to recover not the property but only the nett proceeds of the sale. Fazal Dad in his original application prayed that he might be given either the property or the sale proceeds. The detailed order in the case by which it was referred to this Court for action on the revision side was written by one Sessions Judge and the final order after return by this Court with a direction that the Sessions Judge should himself dispose of the appeal preferred to him, was written by another Sessions Judge. The latter appears to have overlooked the precise terms of Section 89. Accordingly, I alter the learned Sessions Judge's order of the 1st of March 1922 to the extent of substituting for the words "the property in question" the words "the nett proceeds of the sale of the property in question."