JUDGMENT 1. The suit out of which this appeal arises was brought to obtain possession of certain laud. The Plaintiffs allege that they sued for this land, obtained a decree and were put in possession of it. The Defendant has, however, remained in actual possession, and so they sue him again. In the lower Courts, the suit was fought out on the question of limitation, and the result of the contest has been in favour of the Plaintiffs. 2. The Defendant in this Court raises an entirely new plea that the suit is not maintainable under the provisions of sec. 244. The pleader for the Appellant relies on the case of Madhu Sudan Das v. Gobinda Priya 4 C.W.N. 419 : S.C. ILR 27 Cal. 34 (1899). The lower Courts have followed the decision in the case of Shama Charan Chatterji v. Madhab Chandra Mookerji ILR 11 Cal. 93 (1884). The learned pleader for the Appellant contends that that case has been wrongly decided. 3. The learned pleader for the Respondents urges that it is not open to the Appellant to raise here the plea that the suit is not maintainable and cites cases of Azizuddin v. Ramanugra ILR 14 Cal. 605 (1887) and Biru Mahata v. Shyama Churn ILR 22 Cal. 483 (1895). In the former of these cases, it was contended in second appeal that the suit would not lie, as the matter might and should have been determined in the execution department. But it was held that the point being one not raised in the pleadings or before either of the lower Courts, and being a point which went exclusively to the jurisdiction of the Court it could not be raised in second appeal. In the latter of these two cases, the facts were similar to those of the present case. The plea that under the provisions of sec. 244 the suit was barred was raised for the first time in second appeal. But it was held that it was incumbent upon the Defendant to raise the plea of jurisdiction in the Court of first instance, the question being not a pure question of law, but a question which would depend upon the facts. 4. But it is unnecessary for us to decide whether the Appellant can now raise the plea that the suit is barred under sec. 4. But it is unnecessary for us to decide whether the Appellant can now raise the plea that the suit is barred under sec. 244 for we think we are bound to follow the ruling of this Court in Shama Charan v. Madhab Chandra ILR 11 Cal. 93 (1884). The Plaintiffs have no other means of redress than a suit such as the present. They cannot apply for further execution of their decree, for (1) their application is barred by limitation and (2) their decree has already been executed and they are not entitled to further execution. On the whole, too, we consider that the rule laid down in Shama Charan v. Madhab Chandra ILR 11 Cal. 93 (1884) that the delivery of formal possession in execution of a decree for possession gives a cause of action against a Defendant who remains in occupation of the premises which may be enforced in a regular suit is one consonant with justice. The Defendant who remains in actual occupation notwithstanding execution must be regarded as a trespasser who commits a fresh act of dispossession and this undoubtedly gives a fresh cause of action. For these reasons we dismiss this appeal with costs.