JUDGMENT

Harrison, J. - The first point to be decided is whether this appeal has been correctly stamped with Rs. 4 as a miscellaneous appeal. Counsel for the respondent contends that the application being one under Section 144, Civil P.C., for restitution, in consequence of the judgment of this Court having varied the judgment of the District Judge, which had been actually executed at the time, the stamp should be ad valorem, and he relies upon Jiwa Ram v. Nand Ram A.I.R. 1922 All. 223, Rajnath Das v. Balmukund , and Balmukund Marwari v. Basanta Kumari Dasi A.I.R. 1925 Pat 1, while on the other side in Somasundaram Pillai v. Chokalingam Pillai [1917] 40 Mad. 780, Kurgodigowda v. Lingam Gouda [1917] 41 Bom. 625 and Hamid Ali v. Ahmed Ali A.I.R. 1921 Bom. 67, the contrary view has been taken. In Hamid Ali v. Ahmed Ali A.I.R. 1921 Bom. 67 the Pull Bench decision of the Patna Court was considered and dissented from. The learned District Judge has followed that view and, after considering all the authorities, I find that 1 cannot agree with him. Applications under Sections 47 and 144 are classed together when referred to in Section 2 of the Code and are obviously kindred and similar applications though there is a real distinction that when a decree has been actually executed and the property has passed, the application is of the nature of an application to recover possession. It is in consequence of the decree passed by the High Court that the application is made under Section 144 and it is in a sense a mere accident that because the decree has been fully executed the petitioner is prevented from coming to the Court under Section 47 and is compelled to take action under Section 144, Civil P.C. It would be most inequitable that he should be penalized by being forced to stamp his application ad valorem, and adopting the reasoning contained in 45 Bom. 1137, I find that the application has been duly stamped and I direct that the amount paid in excess in the District Court be refunded.

2. The respondent then takes a second preliminary objection that the decision of the learned District Judge contains a finding of fact on the only point agitated and the appeal does not lie. It is unnecessary to give a history of the previous litigation between the parties and it is sufficient to say that the question of whether the petitioner had been in possession at a certain time of a portion of a house, which is the subject-matter of dispute, was left open at the time the appeal was decided by this Court though it was held that he was certainly not a tenant. The finding of the District Judge is that he has failed to establish that he was in possession of any part of the house. He says:

I therefore agree with the lower Court on the facts and find that Rahmat Ali was not in possession of any portion of the house and is not entitled to restitution.

3. This finding cannot be challenged in second appeal. I dismiss the appeal with costs.