OlnrtifU Hatu i^rliuol IGibrarg Cornell University Library KF 2880.W39.4B47 Reports of summarv cases determined In t 3 1924 025 018 452 ..»,.». The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924025018452 REPORTS SUMMARY CASES DETERMINED IN THE PRESIDENCY SUDDEE COURT. Comprising Reports from 1834 to 1852, WITH AN INDEX. BY J. CAERAU. )^u1DIi0l^eti tt> ^iittfovitvi CALCUTTA: F. CABBERY, BENGAL MTLITARY ORPHAN PRESS. 1853, ^2.^ iK ADVERTISEMENT. It having become necessary to reprint the Reports of Summary Cases, determined in the Presidency Sudder Court, from the year 1834 to the end of 1852 ; the work offered to the pubKc, which is pubhshed by authority, and under the revision of the Judges of the Presidency Court, contains every order now in force. All cases which have been subsequently over-ruled or superseded have been omitted, and notes have been append- ed to some of the reports, pointing to more recent laws bearing upon the points ruled, and facilitating reference to circtdar orders on the subject. J. CARRAU. SUMMARY CASES. November 5, LALA HURNERAESr, MOOKTEAR or SHAH BEHA- REE LAL AND SHAH GOVIND LAL, Petitionee. This was an appeal from an order of the judge of Patna. 1834. Nawab Abbas Kooli Khan had borrowed a large sum of money from the bankers, for whom the petitioner appeared ; and in the bond, which was executed on the occasion, a clause was inserted to There is no the effect that the profits of a jaghire, held by the nawab, should be theattachment applied to the payment of the debt. The debt not having been under Regida- paid, the lenders sued, and, whUe the action was pending, applied t'"" ^^- °^ for an attachment of the profits of the jaghire, under Regulation H. progtg of a of 1806. This was at first granted by the judge, but, subsequently, jaghire, to a contrary order was passed by him, under the impression that, the J^"^* *^ ^^ent jaghire being a pension from the Government, the profits could not ;„ ^n action for be attached. From this order the petitioner appealed to the Sud- debt, der Dewanny Adawlut. The Court, (present Mr. D. C. Smyth,) reversed the last order of the judge, being of opinion that there was no legal objection to the attachment of the profits of the jaghire held by the defendant, REMARKS. Money pensions are exempt from attachment in satisfaction of decrees, the law requiring the stipend to be paid to none but the stipendiaries, and thereby rendering their receipts indispensable as vouchers. Such is not the case with the profits of eleemosynary grants of land. • 1834. Edmund KENT HUME, Petitionee. This was a summary appeal from the decision of the zillah court of Dacca. November 21. Bebee Mariam, the wife of the petitioner, died on the 19th May 1833, leaving -a legacy of rupees 6,000 to the two daughters ^^n ^ttech- of Khachick Seetagassee, they being at the time minors. The pe- (under the titioner was appointed by the will executor to the estate of the de- provisions of ceased, and obtained probate accordingly from the Supreme Court. tion"v.!'Regu- Messrs. Bird and Sarkies, the guardians of the girls, filed a suit in lation II. of the zillah court of Dacca, (on the 15th September 1834,) to obtain J^*^^)/^^"'^^^ from the petitioner, as executor of the will of Bebee Mariam, the tim of the ''"^^ sum of rupees 6,000, the amount of the legacy aforesaid. On period fixed by the 16th September 1834 they filed a second petition, praying the Court for A 2 SUMMAEY CASES IN THE furnishing se- that the judge would take security from tlie petitioner for the curity, held to amount they claimed, as they understood he intended transferring the whole of his personal property and removing himself from the jurisdiction of the court ; and to substantiate this assertion, they referred to the papers in another suit pending in the court against petitioner. The judge, considering the assertions of Messrs. Bird and Sarkies borne out by the documents referred to, ordered the nazir of the court, on the l7th November 1834, to. take security from the petitioner within five days. That officer having reported that the petitioner had refused to give the security required, the judge issued an order on the 18th November for the attachment of the petitioner's indigo factories, and all the property appertaining thereto. From this order the petitioner now appealed summarily to the Sudder Dewanny Adawlut. On the 21st November 1834, the Court, (present Mr. D. C. Smyth,) ordered the release of petitioner's property, on the ground that the attachment was illegal, having been carried into effect before the expiration of the five days granted ; observing that even had it taken place after the lapse of that period, so short a time was insuf- ficient for obtaining the requisite security, and that it appeared unjust to attach so valuable a property (which the petitioner stated to be worth a lac and a half of rupees) on account of a claim amounting to only rupees 6,000. The judge was, therefore, directed to allow a further period of ten days, and if in that time the petition- er did not give the security called for, the judge was to attach any property pointed out by the plaintiffs as belonging to the petitioner. An application for a review of the above order, preferred by the plahitiffs in the suit in the zillah court, was rejected by the Sudder Dewanny Adawlut. EDMUND KENT HUME, Petitionee. 1834. Tmsewas a summary appeal from certain interlocutory ordere r^ T 77 passed by the zillah court of Dacca. It appeared that Messrs. Bird and Sarkies, the guardians of the Held that a children of Wards Stephanoos, had been permitted by the zillah bound before J^'^S^ *° institute a suit against the petitioner in forma pauperis, admitting a without hearing his objections to their so doing ; in addition to which party to sue m jjjg petitioner had been called upon by the judge to furnish security to hear the ob- to ''^e amount of rupees 30,000, within two days from the date of jections which the order, in consequence of a suit having been preferred for that b°''the oDDoffte ^'"O""' against him as executor to the estate of Bebee Mariam, who party. A rea- had left a legacy to the wards of the plaintiffs, and for the payment sonable time of which the action was brought. The petitioner further stated alUrwedfor pro- *^** '^^® factories had been seized by the court in consequence of cming the re- his not having complied with the court's orders within the time quisilc scciu-ity prescrib ed : he therefore prayed that the judge's order, admitting SUDDER DEWANNT ABAWLUT. tJie plaintiffs to sue in forma pauperis, might be reversed, and his property released from attachment. The Court, (present Mr. D. C. Smyth,) adverting to the circumstances stated by the petitioner, was of opinion that this was a case in which the ziUah judge should have permitted the petitioner, as defendant, to show cause, agreeably to Clause 6, Sec- tion v.. Regulation XXVIII. of 1814, why the plaintiffs should not be allowed to sue in forma pauperis, and ought not to have ad- mitted the institution of the suit in this form in so hasty and irregu- lar a manner. The Court considered that a notice should have been served on the defendant, permitting him within fifteen days to urge any objections he might have to state. With reference moreover to the order of the zillah judge, directing the petitioner to give secu- rity to the amount of rupees 30,000 within two days, the Court held tliat this was altogether unreasonable and contrary to the intention of Clause 1, Section V., Regulation II. of 1806, which prescribes that "a reasonable time" should be given. An order was therefore given, setting aside the order of the court below, which had admit- ted the plaintiffs to sue as paupers, as well as the requisition of mal- zaminee and the attachment of the factories. under the pro- visions of Clause 1, Sec- tion V. Regu- lation II. of 1806,before the property of the defendant can be legally at- tached. BEJOY GOVIND BURRAL and his Motiiee ANtJND- MAI, Guardian of his Minor Brothers, JADOONDN- DUN, MODHOOSOODUN, BHOOBUN MOHUN, and MUDUN MOHUN, Petitioners. Kietichunder Ddtt died on the 5th July 1816, survived by two sons, Mohanund and Purmanund, and by three daughters, Anund Mai, Sanund Mai, and Poornanund Mai. Purmanund died an un- married minor, and Poornanund a childless widow. Mohanund also died childless, but survived by his wife, Durb Mai. In the execution of a decree of the city court of Moorshedabad, on the 20th September 1833, Bejoy Govind Burral, Jadoonundun, Modhoosoodun, Bhoobun Mohun and Mudun Mohun, the. five sons of Anund Mai, and Kalidas Dhur and Srinath Dhur, the two sons of Sanund Mai, obtained joint and undivided possession of the estate of their maternal uncle Mohanund, who had died childless. Sanund Mai after this, in Magh 1240 (1834) bore a third son (Doorga Das Dhur) and advanced her claim for a moiety of the property. In this she was opposed by her nephew, Bejoy Govind, and her own sister, Anund Mai. The claim was inquired into by the acting judge, who, on the 26th September 1834, on the opinion of the pundit, awarded a sixth of the property to Kalidas and Sriijath, including Doorga Das, as possessing equality of right of brothers in the estate of his maternal uncle. From this an appeal was preferred by Sanund Mai, and cross appeal by the applicants, who maintained the claim to be barred by a decree of court. 1834. December 30. A son, born after decree made, cannot summarily got possession of property ad- judged to his brothers and cousins, who were parties thereto, not- withstanding the opinion of the pundit, that such af- ter-born son had equali- ty of right of brothers in the ancestral estate of his maternal uncle. But this was held by the Sudder Dewanny A- dawlut not to SU5IMAEY CASES IN THE naiTow his re.- medy by legal recourse to the institutioii of a regular suit. The Court, (present Mr. D. C. Smyth, officiatmg judge,) on the 30th December 1834, remarked, that the judge had not correctly stated the facts of the case in his roobukaree of the 26th September 1834. After the death of Kirtichunder, the disputed property devolved on his son, Mohanund, and after him on his wife, Durb Mai, who held possession during her lifetime. The judge should have, therefore, stated in the propositus to the pundit, that the property belonged to the two latter. This he did not do. The Court, therefore, before going to final judgment, conceived it essential to consult with their pundit, who was called up, and questioned whether, after the death of Mohanund and his wife, the property would devolve on his two sisters or on their sons. The pundit distinctly replied, that the sisters' sons had a rightful claim to the property. On further inter- rogation as to which of the sisters' sons were to succeed to the pro- perty, i. e., whether those who were born, or those who may here- after be bom ; and if any, in what proportion ; the pundit replied, that those of the sisters' sons who were living and those who might he horn hereafter, were all entitled to succeed, with equality of right to the property. On further question put by the Court, the pundit admitted that the sisters' sons in right of themselves were heirs to the property of their maternal uncle, and not in right of their mothers. The Court, referring to this exposition of the Hindu law, as propounded by their pundit, held " that although Doorga Das Dhur, the third son, is a rightfid claimant to a share of the estate of Mohanund ; yet since Doorga Das Dhur was not a plain- tiff to the suit decided by the Moorshedabad city court, on the 25th of June 1833, he can, therefore, lay no claim to the posses- sion of any share in the property already adjudged to the plaintiffs, unless his right thereto be decreed to him by a regular suit under Regulation IV. of 1793. Out of the whole litigated property, therefore, according to that decree, let Bejoy Govind, and Anund Mai, as the guardian of her minor sons, Modhoosoodun, Jadoonun- dun, Bhoobun Mohun, and Mudun Mohun, each retain possession of two annas, five gundahs, three cowries and one krant ; and Alam Chunder Dhur (who has been confirmed by this Court as the guardian of Kalidas Dhur and Srinath Dhur) retain four annas, eleven gundas, one cowrie, and one krant. Let him also, as the appointed guardian of Doorga Das Dhur, the third son of Sanund Mai, either make an amicable adjustment with the oppos- ing parties, or institute a regular suit for the recovery of his ward's (Doorga Das Dhur's) right and interest to a'fehare of the disputed property."* EEMARK. A suit was instituted on the part of Doorga Das Dhur, but failed. See page 224, vol. VI., S. D. A. Reports. * Reported by Mr, Sevestre. SUDDEB DEWANNY ABAWLBT. RAM RANA BEOPAREE, Petitioner. The petitioner had purchased 500 maunds of salt from Shakur Mohun Mundul, and taken out two rowannahs for this quantity, and was proceeding with the same laden on bullocks to Chupra, in company with Bindrabun Mundul, another merchant, who had Hke- wise 500 maunds of salt protected by a single rowannah. Both despatches were allowed to pass the salt chowkies of Shaipore, Kutnugger and Jehanpore ; the darogahs at these stations having examined the salt and duly endorsed the passes. On their arrival at Midnapore, the usual search was instituted by the darogah, who afterwards endorsed the rowannahs as corresponding with the salt which they accompanied. On their reaching Elaheepore, a village about three miles from Midnapore, the darogah of the latter place overtook the merchants and prohibited the salt from being moved onwards ; he then went himself to the superintendent of the salt chowkies at Midnapore, and, having verbally represented to that officer that the owner was passing the despatch illegally to Chupra, received instructions from the superintendent to attach the salt and bullocks ; thereupon, taking with him the nazir, together with some burkundauzes and peons of the superintendent's establishment, the darogah brought the salt and bullocks to the superintendent's office. This officer had the salt weighed, without emptying it, however, from the bags in which it was packed, and, finding an excess to the quantity specified in the chelans, submitted the case for the orders of the Salt Board, recommending the sale of both the salt and the bullocks under the provisions of Section XLI. Regulation X. of 1819. The Board directed the superintendent to forward the case to the ziUah judge for adjudication agreeably to Section CXII. of the aforesaid Regulation. In consequence of the owners having objected in the zillah court to the method which had been adopted by the superin- tendent of weighing the salt in the bags in which it was carried, that court directed ftie salt superintendent to re-weigh the salt, after having emptied it out from the bags. On receipt of the superintendent's report, which still exhibited a greater increase than that allowed by the Regulation (although less than formerly re- ported) over and above the quantity stated in the three passes, the zillah judge directed the confiscation and sale of all the salt, together with the bullocks on which it had been conveyed ; and he likewise levied a fine (according to Section XLI. Regulation X of 1819) upon the owners of the salt. From this order the petitioner, one of the owners, appealed sum- marily to the Sudder Dewanny Adawlut, praying that the order of the lower court might be reversed on the following grounds, viz. that the attachment had been effected by the darogah after he had examined the despatches and duly endorsed the rowannahs which accompanied, and after the salt had been allowed to pass at three other stations previously, and to proceed so far as three miles from liis station ; that the weighment of both the despatches as one instead of separately was unjust, as it did not show in whose portion the excess existed ; that as two rowannahs covered the despatch January 27. Two despatch- es of salt be- longing to dif- ferent mer- chants, and covered by se- parate rowan- nahs, having been weighed together, and declared liable to confiscation by the salt officers and zillah judge under the pro- visions of Sec- tions XLI. and CXIII.Regula- tionX. of 1819, held by the Court of Sud- der Dewanny Adawlut that the quantity belonging to each merchant ought to have been separate- ly weighed ; and the order for confiscation accordingly re- versed. The Court further held that the salt darogah having exa- mined the des- patches of salt, endorsed the rowannahs, and allowed them to pass his sta- tion, acted ir- regularly in subsequently stopping them. b SUMMARY CASES IN THE belonging to the petitioner, the quantity specified in these as his should have been separately weighed, and the excess, if any, put down to either in which it appeared ; lastly, that the judge of the zillah would not receive the explanation which the petitioner wished to offer with regard to the excess which had been stated to exist in his quantity of the salt attached. The Court, (present Mr. D. C. Smyth,) considered the pro- ceedings of the superintendent of the salt chowkies to be irregular, on account of his having weighed the whole quantity as one despatch, whereas he" should have weighed the quantity belong- ing to each merchant separately, and compared the same with the pass or passes produced by him ; the Court also considered the conduct of the Midnapore darogah to have been illegal, on account of his seizing the despatches after they had proceeded three miles beyond his station towards their destination, especially after he had once examined them and endorsed the accompanying chelans ; and finally the Court considered that the judge had acted contrary to Section CXIII. of Regulation X. of 1819, in not receiving the explanation which the petitioner was desirous of offering. For these reasons the decision of the lower court was set aside, and the salt and bullocks were directed to be released and restored to the petitioner. Mr. Braddon concurred with Mr. D. C. Smyth, and final orders were issued accordingly. The same order was passed on the appeal of the other merchant, Bindrabun Mundul. 1835. February 5. In an action for the recove- ry of property attached by an ameen appoint- ed by the col- lector under in- structions from the civil court, the plaintiff, in making the col- lector a party to the suit, would be liable to a nonsuit under the pro- visions of Sec- tion XXXVIII. Regulation XI, of 1822. RAJAH RAJ GUNGADHUR, Petitionek. This was a~ summary appeal from the dectsion of the additional judge of Dacca. It appeared that the petitioner had sued an ameen, appointed by the collector, under instructions from the civil court of the zillah, for the purpose of attaching certain lands ; together with other persons, for the recovery of seven beegahs, valued at 1,424 rupees, at which amount the plaintiff laid his suit. The case was made over to the additional judge, by whom it was nonsuited, on the ground that the plaintiff should have included the collector among the defendants, he being the officer who had deput- ed the ameen. On appeal to the Sudder Dewanny Adawlut, the Court, (pre- sent Mr. D. C. Smyth,) reversed the order of the lower court on the ground that the making the collector a defendant would have been altogether irregular ; indeed had the plaintiff done so, he would have been liable to have been nonsuited under the provisions of Section XXXVm. Regulation XI. of 1822. The additional judge was directed therefore to restore the case to the file and try it upon its merits. SUDDEE DEW^VNNY ADAWLUT. PETRUSE NECOSE POGOSE, one op the Guardians OF JOACHIM GREGORY, Petitioner. Br virtue of the will of Khwaja Necose Marcar, made on the 22iid Aghun 1236 B. E., (6th December 1829,) his two sons, Gregory and the petitioner, became entitled, in equal moieties, to his real and personal estates, and jointly obtained undisturbed possession of the same. Gregory, two months after, by his will, dated the 26th Magh 1236, appointed Catharina executrix, and the petitioner executor, and constituted them the guardians of his minor son, Joachim Gregory, to whom he left his moiety of the property of which he was seised mider the will of his father. The judge of zillah Backergunge, (Mr. C. Cardew,) on charges of mismanagement and riot preferred by Catharina against the petitioner, on the 24th January 1835, directed his removal under Section XXVI., Regulation V. of 1812, and appointed a surburakar (manager) over the whole estate in the district. Applicant on the 5th March preferred a summary appeal to the Sudder Dewanny Adawlut, on the ground of the irrelevancy of the section cited. Upon this the Court, (present Mr. D. C. Smyth, officiat- ing judge, and Mr. T. C. Robertson, judge, on the 12th March and 4th April 1835,) thus decided : — " The judge of zillah Backergunge, under a mistaken idea of an affray hav- ing occurred between both the executor and executrix for possession of the property in dispute, has appointed a person to manage the whole estate. This is beyond his compe- tency, because, from the papers before the Court, no affray or disturbance seems to have occurred, and because the petitioner and his brother Gregory are appointed jointly the executors to the will of their late father, Khwaja Necose Marcar, of which probate has been granted by the Supreme Court at Calcutta ; and this sustains its validity. For the appointment of a second person to the office vacated by the death of one out of two executors, the Regulations in force make no provision ; but according to English and Mahomedan laws, the surviving executor succeeds to the trust jointly and severally held by both the executors, and one may act in default of the other, uiJess the testator have divided, their functions, and unless also each of the executors be circumscribed in that which has been allotted to him. The appointment of a person as surburakar, under these circumstances, is clearly illegal. Sec- tion XXVI. Regulation V. of 1812, under which the zillah judge admits he has made the appointment, only refers to affray and dis- putes arising between proprietors of joint undivided estates, tend- ing to stop the realization of the public revenue, and is, therefore, not relevant to this case. And although Catharina Bebee prefers charges of mismanagement and incapacity against the petitioner, still, unless a regular suit is instituted, the zillah courts are prohibited, under the provisions of Regulation V. of 1 799, from interfering in such matters by a summary suit." Order accordingly.* 1835. April 4. Sec. XXVI. Regulation V. of 1812, decla- ratory of the competency of the zillah judge to interfere in cases of dis- putes between proprietors of joint undivided estates for the due discharge of the public revenue, held by the Sudder Dewanny Adawlut to be decidedly in- applicable to the removal of executors and guardians, in possession of property, under the provisions of Regulation V. of 1799. * Reported by Mr. Sevestrc, SUMMARY CASES IN THE 1835. June 2. The highest legal rate of in- terest award- ed, under the circumstances, from the date of the decree to the date of payment, not- withstanding that the bond on which the decree was founded speci- fied a lower rate of Interest. DUKHNA DOSSEA, Petitioner. This was an appeal from an order of the judge of Jessore. The petitioner had obtained a decree for principal, and interest at 7 annas per cent, per mensem, the rate stipulated in the bond, against certain defendants; provision being at the same time made in the decree, that interest was to be charged till the day of payment. The question arose as to whether the interest from the date of the decree was to be charged at the rate specified in the bond, or at the highest legal rate of 12 per cent, per annum. The zillah judge was of opinion that it must be limited to the rate specified in the bond. On the appeal of the petitioner, the Sudder Dewanny Adawlut, (present Mr. D. C. Smyth,) observed that, had the debt been paid as soon as the decree was passed, the present question could not have arisen, but that as the defendant had not paid the debt, but had, on the contrary, throvm every obstacle in the way of its realiza- tion by the petitioner, he was of opinion that, in the absence of any specification on this particular point in the decree, the petitioner was entitled to recover interest at the highest legal rate. June 3. V Six different actions having been institut- ed, for as many villages, to set aside a single deed of con- veyance of the WLiole, and having been decided toge- ther by the courts of ori- ginal jurisdic- tion and first appeal, the Sudder De- wanny Adawlut, under the cir- cumstances, al- lowed the cases to be consoli- dated, and ad- mitted one spe- cial appeal from the six decrees. E.USSIK LAL DUTT, Petitioner. This was an application for permission to file one special appeal from six different decisions, under the following circumstances. One Suroop Chunder Huldar, and others, preferred a claim to certain property, held by the petitioner under a deed of conveyance executed to him by a Hindu female, who, they alleged, had no legal power to alienate the property forming the subject of transfer. They accordingly sued as heirs at law (after the death of the female) to the party from whom she inherited a life-interest, to set aside the conveyance ; but broke up the claim into six separate ac- tions, that being the number of villages involved in the litigation. The cases were first tried by the sudder ameen of Midnapore, and by him decided, at one and the same sitting, in favor of the plain- tiffs. The decisions were similarly confirmed, on appeal, by the judge of the district. The petitioner now applied for permission to file a single special appeal from these several decisions, in the Sudder Court. By the Court. — Mr. D. C. Smyth. — " The breaking up of the claim into six different actions was wrong at the outset, and the plaintiffs should have been compelled to bring but one action, the object being to set aside a single document, and to obtain from the court a declaration of its invaHdity, so as not to bar the right of the plaintiffs on the death of the female incumbent. I would comply with the application, and allow the petitioner to file a single special appeal. I request another voice." Mr. Braddon. — " It would have been better had the plaintiffs instituted a single action; but I am not aware that the institution of SUDDER DEWANNY ADAWLUT. 9 six actions was absolutely Illegal. I do not think that one appeal is admissible." Mr. Rattray concurred with Mr. Smyth. EEMARK. The civil courts would probably now nonsuit actions instituted under the circumstances here stated, with reference to the principle recognized in the Sudder Court's Circular of the 11th January 1839. PUNCHANUN ROY, Petitionee. This was an appeal from an order of the judge of Midnapore. One Debnarain Roy had instituted an action for the recovery of a large sum of money, but died while it was pending. The parties who appeared to represent him were his daughters on the one hand, and the petitioner, his brother's son, on the other. The petitioner admitted that the daughters would, in ordinary cases, succeed before a. nephew ; but that, in the present case, they were barred by a legal disability, their mother having been afflicted with the elephan- tiasis, and the daughters having been born while she was suffering from that disease. These facts were denied on the part of the daughters. The zillah judge rejected the application of the petitioner, and admitted the daughters to represent the original plaintiff. From this order the petitioner appealed to the Sudder Dewanny Adawlut. The Court, (present Mr. D. C. Smyth,) was of opinion, that the order of the judge, admitting the ordinary legal heirs to represent the deceased, was perfectly correct. The petitioner had his remedy against them by a regular action. 1835. June 26. An objection - made to the re- presentation by the legal heirs of a plaintiff who died pendente lite^ on the ground of a special legal disability, ovepniled ; and the objec- tor referred to a regular ac- tion. MIRZA HOSSEIN, Petitionee. This was a summary appeal from an order of the zillah judge of Hooghly. The petitioner had obtained a decree against one WuleeooUah, and applied, in execution of judgment, for the sale of certain pro- perty, previously taken possession of by the assignee appointed by the Insolvent Court in Calcutta, to manage the property of the defendant on behalf of his creditors. His application was therefore ■ refijsed by the zillah judge, whose order, in appeal, was confirmed by the Sudder Dewanny Adawlut, (present Mr. D. C. Smyth,) with reference to the rule of the Act of Parliament of the 9th of George IV. Section XLL, Cap. 73. 1836. April 4, A zillah court cannot sell, in execution of its own judgment, property in the possession of an assignee ap- pointed by the Insolvent Court in Cal- cutta, 10 Sinvr MA HY CASES IN THE 1836. June 4, Held that a zillah, judge was not war- ranted in re- fusing payment of.money to a party in conse- quence of ob- jections urged to such pay- ment, in the form of a letter addressed to him by an at- torney of the Supreme Court, PETRUSE NICHOLAS POGOSE, Petitioner. This was an appeal from an order of the judge of Backergunge. It appeared that a sum of 28-13, realized in execution of a de- cree obtained by the late father of the petitioner, was in deposit in the treasury of the zillah court, for payment of which to himself the petitioner had made application. The judge refused it, on the ground of having received from Mr, Swinhoe, an attorney of the Supreme Court, a letter, together with copy of an order of the Supreme Court, which, it was alleged, prohibited the payment. On appeal, the Sudder Dewanny Adawlut, (present Mr. D. C. Smyth,) observed that under Section XIX. Regulation III. of 1793, the zillah judge was not authorized to act in the matter upon any application made to him in the form of a letter ; and that as his order was foimded upon that, it must be reversed, and payment of the money made to the petitioner, unless opposed in due and prescribed form. 1836. September 12. Property pledged to sa- tisfy an even- tual judgment of a Mofussil coui't, was sub- se quently mort- gaged to ano- ther party, sold by the sheriff of Calcutta in exe- cution of a judgment of the Supreme Court, and possession thereof given under judgment of a zillah court. Held that the lien of the decree- holder, to sa- tisfy whose claim the pro- perty was ori- ginally given in pledge, is cot thereby affected. GOUE SOONDREE GOSATN, Petitioner. This was a summary appeal from an order of the judge of 24 Pergumiahs. The petitioner had obtained a decree, In the zillah court, against certain parties. The defendants appealed, and stayed execution of the decree on security furnished by them. The sureties were Byjnath Nag and others, proprietors of a 6 annas share of Dhee Kaguzpookreah, in zillah Nuddea, who pledged a 2 annas share to satisfy the eventual judgment against the defendants, and executed a security bond to that effect on the 22nd August 1826. Subsequently, that is in the year 1828, the proprietors mortgaged the whole 6 annas share to moonshee Mahomed Ameer, who finally obtained judgment against them in an action instituted on the mort- gage bond in the Supreme Court. The 6 annas share was sold by the sheriff, and purchased by moonshee Mahomed Ameer himself on the 30th January 1834. Objections were made by the proprie- tors to his taking possession. He sued them in the civil court of Nuddea on the ground of the sale by the sheriff, obtained judgment in his favor, and in execution got possession. The decree obtained by the present petitioner not having been satisfied by the original defendants, he took out execution against the 2 annas share of the Dhee, which had been pledged by the sureties ; but the zillah judge, on objections being urged by moon- shee Mahomed Ameer, refused to grant execution against the pro- perty thus pledged. On appeal to the Sudder Dewanny Adawlut, the Court, (present Messrs. Braddon and D. C. Smyth,) observed that the security bond, on which the petitioner claimed execution, was dated prior to the mortgage bond executed to moonshee Mahomed Ameer j and that, therefore, the petitioner had a prior lien on the 2 aunas share STJDDER DEWANNY ADAWI.tIT. 11 pledged as security for the satisfaction of the decree given against his debtors, and which neither the subsequent mortgage, the sheriff's- sale, nor the decree founded thereon, in any wise effected. They held, therefore, that the order of the judge must be reversed, and the sale of the 2 annas share effected in satisfaction of the petitioner's claim, unless it was otherwise discharged. SOONAMONEE DOSSEE, Mothee of KAilCHUNDER, MiNOE, Son op GUNGA CHURN, deceased. Petitionee. This was a summary appeal from an order of the zillah judge of Mymensing. In a suit which was pening in the zillah court of Mymensing, the petitioner, who was the plaintiff, had applied to the court to summon and examine as a witness one Rajnarain Ghose. The witness attended in pursuance of the summons, but pleaded that he was the managing agent of the defendant, and should, therefore, be exempted from examination on behalf of the plaintiff. The zillah judge admitted the plea, and dismissed the witness without examina- tion. The Sudder Court, (present Messrs. Smyth and Barwell,)held that the reason given was quite insufficient for the exemption of the agent of the defendant from examination as a witness on the motion of the plaintiff, and accordingly reversed the order of the zillah judge. REMARK 1S36. September 22. There is no legal bar to the managing agent of the property of one of the parties to a civil suit being summon- ed and examin- ed as a witness on the motion of the opposite party. The agent in the above case was not a mooktear employed in the courts, but an agent for the management of the property of liis principal. PIARMONEE DEBEA and BHAGWUTTEE DEBEA, Petitionees. This was a summary appeal fi-om an order of the judge of Beerbhoom. A small sum of money, realized in execution of a decree, obtained by one Trelochun Sircar, was in deposit in the treasury of the zillah court. The decree-holder died, and upon this three persons appeared claiming the right of representation, viz. Piarmonee Debea, his widow, who claimed to succeed as the legal heir of the deceased ; Rajkomaree, the widow of the son of the deceased, who claimed on the ground of having obtained permission to adopt a ^n from her husband, who bad died before his father, and Bhagwuttee Debea, who claimed as heir under a deed of gift alleged to have been executed by Trelochun in favor of NufTer Chand Sirkar, her father-: in-law. It was objected to the widow, by the other claimants, that she had the elephantiasis, (which however was denied by herself,) 1836. September 27. Held that on applications by three distinct parties to re- present a de- ceased decree- holder, (one as the legal heir, and the others on special pleas,) the zUlah court should have recognized the 12 SUMIHAIIT CASES IN THE legal heir ; leaving the other claim- ants to resort to regular ac- tions for the establishment of their res- pective claims. and could not therefore legally succeed ; and the pleas of permission to adopt, and of the deed of gift set up by the other two claimants, • were denied by their opponents respectively. The judge made inquiry into their several claims ; and, after taking evidence to each, decided in favor of Eajkomaree, on the ground of her proved per- mission from her husband to adopt a son. From this order separate appeals were preferred to the Sudder Dewanny Adawlut by the other claimants. By the Court, (present Mr. D. 0. Smyth.) — " The zillah judge acted irregularly in entering summarily into the special pleas advanced by Rajkomaree and Bhagwuttee Debea. It was suificient for him to have ascertained who was the legal heir, and, having done that, to recognize such heir, leaving the other parties to apply to the civil court by regular actions if they chose to adopt that course. The judge's order must therefore be reversed, and the widow of the deceased be permitted to represent him, until the summary order is set aside by a decree on a regular action." 1837. January 28. A question having arisen as to whether a minor Hindu widow should reside in the house of her husband's family, or in that of her own father, the Sudder Dewanny Adawlut ruled, under the cir- cumstances, that she should remain under the protection of her father. KASHEE CHIINDER MUSTOFEE, Petitionee. This was a.n appeal from an order of the judge of zillah Hooghly. It appeared that one Eumesh Chunder Dutt, the proprietor of cer- tain estates in Hooghly, died, leaving his widow, Kummul Komaree, a minor, to whom he had bequeathed the whole of his property, to be held in trust for a son, whom, on her attaining her majority, sh& was to adopt, under the written authority of her husband. The will further provided that the mother of the testator should be the guardian of his widow during her minority, and see to the per- formance of the conditions and requirements of the wUl. On the death of her husband, a question arose as to whether the widow should reside in the house of her husband's mother, or in that of the petitioner, her own father. The ziUah judge, having consulted the pundit of his court, passed orders to the effect that she should reside with her late husband's mother, which she was unwilling to do. From this order the petitioner appealed to the Sudder Dewanny Adawlut. The case was first laid before Mr. Braddon, who put the follow- ing question to the pundit of the Sudder Dewamiy Adawlut; "A Hindu wddow, who is a minor, and, during her husband's lifetime, had never gone to his house, but who has received authority from him to adopt a son on attaining her majority, is unwilling to go to the famil^ dwelling of her husband, now occupied by his brother. According to the Hindu law, as current in Bengal, can she be compelled to go ?" The pundit was directed to refer to the provi- sions of the will before submitting his reply. The pundit replied that if there was a husband's brother or such near male relation of the husband residing in his dwelhng who could SUDDEK DEWjVNNY ADAWLUT. 13' give protection to the widow, she ought to go to her husband's house. But that if not, she was not required to leave the protection of her father's house. On receipt of the above reply, Mr. Braddon recorded his opinion that the widow should be allowed to remain at her father's house, and proposed to reverse the order of the zillah judge. Mr. Rattray, before whom the case was next brought, observed, that according to the statement of the pleaders on both sides, it appeared the widow was of age ; she therefore was at liberty to go where she pleased, and, consequently, the interference of the court was not required. With this expression of his opinion, Mr. Rattray directed the case to be again laid before Mr. Braddon. Mr. Braddon. — « Regulation XXVI. of 1793, fixes the age of majority for JHindus at 18 ; nor is there anything to limit its provisions only to males. Now the widow of Rumesh Chunder Dutt has not attained that age, and must still be dealt with as a minor." Mr. Money was for upholding the order of the zillah judge with reference to the term of the will. Mr. Hutchinson concurred with Mr. Braddon, and made final the order proposed by him. MIRTINJAI BOSE, Guardian of MOTI LAL SOON- DREE, Petitioner. The petitioner had been appointed by the Sudder Dewanny Adawlut guardian to his ward. He now applied for a summary order to certain parties, who disputed the ward's right to some estates claimed by him on her behalf, directing them to make over the papers and accounts, which would enable him to proceed with the collection of the rents. The Court, (present Mr. D. C. Smyth,) held that they could not summarily interfere, and referred the petitioner to the usual remedy of an action at law. 1837. March 13. The Sudder Dewanny Adawlut will not interfere summarily to put a guardian in possession of the papers and accounts of property, to which the right of liis ward is contested. LUKHENARAIN PAL, Petitionee. The petitioner was confined in the jail of zillah 24 Pergunnahs, in execution of a decree of the Calcutta Court of Requests, which the judge of that district was enforcing under the provisions of Regulation XVI. of 1812, and had applied to be released as an insol- vent under the rules of Section XL, Regulation TL. of 1806. The ziUah judge held, that as the decree under which petitioner was confined had been passed by the Court of Requests, he could not release him under the rale cited. 1837. September 18. A debtor con- fined in the jail of 24 Pergun- nahs, in execu- tion of a decree of the Court of 14 SUMMARY CASES IN THE Requests, is en- The petitioner then appealed to the Sudder Dewanny Adawlut; titied to the be- ^nd the case having been brought before Mr. D. C Smyth, he laid of Section XI. ^^^ following minute before his colleagues for their opinion : Regulation II. " With reference to Section II. Clause 1, of Regulation XVI. of insolVe°ntr" ^^^^' ^^^■^^''7 *e judge of the 24 Pergunnahs is authorised to proceed to execute the judgments of the Court of Bequests, in the same mode as is prescribed for executing his own decrees, I wish to have the opinion of the Court as to whether persons confined under such judgments are, or are not, to have the benefit of Section XL Regulation II. of 1806 ; that Regulation being passed for the relief of insolvent debtors in confinement under decrees of the civil courts. I myself am clearly of opinion that they are entitled to the benefit of that law." The Court at large concurred with Mr. D. C. Smyth, who accordingly passed orders reversing that of the zillah judge. JUGGURNATH SOOKUL, Petitionee. 1838. This was an appeal from an order of the judge of Mymensing. — — The petitioner had lent a sum to the guardian of a minor, in ^'^ ' order to save the minor's estate from sale for arrears of revenue. A guardian The guardian had been appointed by the uncle of the father of having borrow- ^^^^ ^ r^ Mussulman,) and had entered upon the duties of his ed money to •". ^ . " . . , ■ -i mi t i save his ward's ofhce without the mtervention ot the civil court, x he debt not estate from sale liaving been paid, the petitioner brought his action against the venue^heldthat guardian, and having obtained a decree took execution against the such estate is minor's estate. hable to be at- The decree was referred for execution to the principal sudder in execution of a ameen, before whom a servant of the boy's father objected to the decree obtain- sale of the minor's property, on the ground that the decree had been ed against the giyen against the guardian. The principal sudder ameen over- pwme'nt of the ruled the objection, and ordered the attachment and sale of the debt, property. The judge however overruled his order, observing that the guardian was not competent to borrow money on the ward's account in the manner he had done. On appeal to the Sudder Dewanny Adawlut, the Court, (present Messrs. Rattray, Braddon, Hutchinson and Reid, — dissentient Mr. Money,) on proof that the money was expended for the benefit of the estate, concurred with the principal sudder ameen, and held, that under the circumstances, the estate of the minor was liable for the debt. WAHEED-OON-NISSA, Petitionee. Foe the realization of the amount adjudged by a decree of court in favor of Luchmun Narayan v. Chowdhree Jib Lai, the property of the latter was brought to public sale under the provisions of Re- The offer of gulation VII. of 1825. The sale was conducted by Lala Choonee to tTice^oper- ^*'' ^^ authorized ameen of the city of Patna, on the 2nd July 1838. ty, sold in the Poorun Singh mider the authority of the petitioner bought Mehal December 10. SUDDEE DEWAKNY ADAWLUT. 15 Sera for rupees 226, and paid in the amount, which, with the pre- scribed report of the ameen, was immediately forwarded to the court of the principal sudder ameen. The plaintiff Luchmun, objecting to the sale made by the ameen, offered by petition rupees 600 to have the property transferred to him. The principal sudder ameen di- rected a re-sale. Petitioner opposed the proposed order of re-sale. She instanced the roobukaree of the Sudder Dewanny Adawlut held in the case of Budden Singh on 21st February 1837 as a case in point. The principal sudder ameen rejected her petition. She appealed to the judge of Patna, who, on the 11th August 1838, affirmed the same. From this order she preferred a summary appeal to the Sudder Dewanny Adawlut on the 7th November 1838. The Court, (present Mr. J. F. M. Eeid,) — " It is clear that the plaintiff petitioned the principal sudder ameen's court to cancel the sale of Mehal Sera after it had been concluded with the first purchaser. Had the plaintiff made this offer at the time the sale took place, it would have been accepted. This he did not do. After sale he raised objections, which cannot now be taken into consideration by the Court, because no irregularity of any kind has been established in the sale so as to render it void. Let, therefore, the sale of Mehal Sera made to applicant be upheld as good and valid; and let the order of the judge of Patna, dated the 11th August 1838, be reversed."* execution of his decree, for more money tliau was paid by tlie first purchaser, rej jected by the Sudder Dewan- ny Adawlut, the sale being otherwise un- exceptionable. BHYEUB CHUNDER BOSE, Guardian of DOOEGA DAS EOY, Appellant, JOSEPH NICHOLSON THOMAS, Eespondent. GOOEOO DAS EOY, Petitioner. Eespondent, while moonsiff of Sulkea, was deputed by the judge of ziEah Jessore, under instructions from the Calcutta Court of appeal, to mstitute certain local inquiries in the case of Khalkalu Khalee, in which appellant (the guardian of petitioner,) Joynarayan Eoy, and Bhowany Eoy, were defendants, and Baboo Srenarayan Singh was plaintiff. Eespondent, who reported in favor of the zemindar of pergunnah Naldy, was subsequently charged by appel- lant and Sheryar Khan, with bribery and corruption in the exercise of his public functions, which however they failed in toto to establish. Eespondent, therefore, on the 6th November 1832, instituted an action against them for recovery of damages for injury sustained by his character, which he estimated at rupees 10,000, and obtained a decree from the ziUah court, which, on appeal by appellant as guardian of petitioner, was, on the 4th August 1836, reduced to rupees 1,000 by the Sudder Dewanny Adawlut. 1839. January 29. A decree for damages against A., who alleged himself to be the guar- dian of B. and C, held by the Sudder Dewan- ny Adawlut to be personal, and not to confer on A, any ex- emption from liability, nor subject the estate of B, and C. to be sold in execu- tion thereof. * Reported by Mr. Sevestre, 16 StJMMAET CASES IN THE In the execution of the decree, under the provisions of Section XV. Eegulafion XXVI. of 1814, the ziliah judge, Mr. Baillie Gelding, on the 31st August 1838, directed the sale of the petitioner's and of his brother's property, because the action was instituted on behalf of tlie minors who, remarked the zillah judge, would have derived benefit if the alleged corruption had been proved against the respondent. From this petitioner, on the 24th November, preferred a summary appeal to the Sudder Dewanny Adawlut, and, after reciting the facts above stated, maintained " that according to the Regulations in force, a claim for damages for injury to character could only be laid against the individual who had inflicted the injury ; and that upon this principle the Sudder Dewanny Adawlut had, in their final decree, held appellant and Sheryar Khan answerable." Appellant, who on the 26th December, appeared to defend the case, pleaded his non-liability, because he had gratuitously acted as guardian under directions received from the mother of the petitioner, for whom, he admitted, he had, as such guardian, prosecuted the Khalkalu Khalee action. The Court, (present Messrs. WUliam Braddon and J. F. M. Eeid,) — " The decree in favor of Mr. Joseph Nicholson Thomas, the respondent, against Bhyrub Chunder Bose and Sheryar Khan, is of a personal nature, and does not affect the petitioner and his brother. The orders of the zillah judge, therefore, directing payment to be made by the sale of property belonging to the petitioner and his brother (notwithstanding the fact of Bhyrub Chunder Bose being the guardian of the petitioner and of other individuals) is opposed to equity and justice. The estate of the petitioner ought not, therefore, to be brought to sale in the execution of the decree obtained by respondent, but that of the appellant (Bhyrub Chunder Bose) and of Sheryar Khan, by whom it should be satisfied."* 1839. March 6, The orders of the zillah judge who refused to ad- mit, without deposit, the bid of a decree- holder for property under sale in execution of his own de- TAHIR MAHOMED, Petitionee. This was a summary appeal, preferred by petitioner to the Sudder Dewanny Adawlut, from the orders of the judge of zillah 24 Pergunnahs, who on the 13th March 1838, had confirmed the rejection, by the deputy collector, of the bid of rupees 200 offered by petitioner for the purchase of property put up for sale in the exe- cution of his decree, and accepted that of Keenoomundul for the same for rupees 78. His petition was this: " The collector of Calcutta and Deehee Punchanungaon, who was directed by the judge of zillah 24 Pergunnahs, under the provisions of Regulation VH. of 1825, to bring to public sale the property of my debtor, Muddun Mistree, divided it into three lots, and fixed the 22nd September * Reported by Mr. Sevestre. SUDDER DEWANNY ADAAVLUT. 17 1837 for the sale of the same. Eajnarayan Bose and Rarachand Thakoor having bid a very unmarketable price, I offered rupees 550 for the whole. This the deputy collector, who conducted the sale, refused to accept, and postponed the sale. I appealed to the zillah court, and pending orders on my petition, the deputy collector, during my absence and without further notice, effected tlie sale of the two lots on the 10th May, to Keenomundul and Keenoram Holdar. I renewed my complaint to the commissioner of revenue, who directed me to apply to the civil court. I did so ; but before any orders could be passed on my petition the deputy collector, on the 8th December, resumed the sale of the third lot, and decUned receiving my bid. I appealed to the zillah judge, who called for a report. This was sent in. It stated that I had failed to pay the deposit, and that the sale of the two lots had been confirmed by the commissioner of revenue. I now pray the Court to direct my bid to be taken, and proceeds thereof de- ducted from the amount adjudged in my favor." The Court, (present Messrs. R. H. Rattray and J. F. M. Reid) : — " Petitioner himself is the decree -holder. He is the individual to whom the proceeds of the sale are to be made over. It was there- fore improper in the zillah judge to reject a higher bid for the third lot put up at auction, and to close the sale with Keenoomundul, on the ground that the petitioner had failed to pay the prescribed deposit. As the property was to be sold in satisfaction of the claim of the petitioner, the sum receivable by him must be looked upon in the light of the prescribed deposit and purchase-money. It is, therefore, nothing but equitable that so much of the order of the zillah judge (dated the 13th March 1838) as upholds the sale of the third lot should be set aside ; and the petitioner allowed to purchase the property".* cree, reversed by the Suddei' Dewanny Adawlut, SERAJ-OON-NISSA KHANUM, Petitionee. This was an application for a review of the orders passed on the 22nd March 1838, by the late Mr. J. R. Hutchinson, a judge of the Court, who had directed the attachment of such portion of the petitioner's pension as would satisfy the decree of the city court of Patna, obtained against her by Bukshee Begum and G-ulbahar. The motion was supported by twof precedents of the Court to which petitioner solicited attention. The Court, (present Messrs. Charles Tucker and J. F. M. Reid,) referring to Mr. Hutchinson's ground of decision, which was to the effect "that Regulation XII. of 1814, referred only to pensions granted to invalid native officers and soldiers, and not to jaghires converted to money allowances," held "that Construction 788, printed at page 99 of volume 11. dated the 3rd of May 1833, * Reported by Mr. Sevestre. t One is noticed in the judgment of the Court, and the other will be found at page 100 of the 2nd volume of the Construction Book, C 1839, April 6. Held that a pension grant- ed by Govern- ment is not liable to be at- tached in satis- faction of a de- cree of court ; and is payable only to the par- ty to whom the Government may have as- signed it. 18 SUMMARY CASES IN THE made no distinction between allowances granted for support on retirement from services rendered, and those granted for resumed jaghires ; and that in Kadir Alee and others, v. Mussummat Chowrassee, decided by the Sudder Dewanny Adawlut on the 6th February 1830, it was finally ruled, that no part of the pensions granted by Government was Uable to attachment in satisfaction of decrees of court. The pension enjoyed by the petitioner being a grant of a similar nature, it would be improper to sanction the payment of it to any party except the petitioner, to whom the Government has specifically assigned it. If any part of the petitioner's pension have been paid to the decree-holder, let it be psiid back to her."* 1839. April 9. The orders of the zillah court rejecting the summary application of the petitioners to execute their decree, sixteen years after date thereof, affirm- ed on appeal by the Sudder Dewanny Adawlut. SHEIKH HOSSEIN BtTKSH and others. Petitioners. A DECREE was passed in 1818, in favor of the petitioners, in the register's court in zillah Tirhoot. After sixteen years, they obtain- ed an order from the court of appeal, in 1835, to execute the decree. The zillah judge, (Mr. H. S. Oldfield,) on the 4th January 1837, decUned to interfere in the matter by a summary suit, because the motion appeared to him to be clearly barred by lapse of time, and by a decision of the Sudder Dewanny Adawlut, reported at page 280, volume II. of the Select Reports. He accordingly rejected the application. The petitioners preferred a summary appeal to the Sudder Dewanny Adawlut on the 29th March. The Court, (present Messrs. Charles Tucker and J. F. M. Eeid, Mr. William Braddon, dissentient.) — " The orders of the zillah judge, refiising to execute the decree because passed in 1818, are in every respect proper. No good or sufficient grounds have been found to render the interposition of the Court necessary. Let the appeal of the petitioners therefore be dismissed."* ^ 1839. May 18. A person not In confinement for the satisfac- tion of a decree of a civil court, cannot obtain the benefit of the rule re- garding insol- vents in Sec- tion XI. Regu- lation II. of 1806. KHWAJA AKEAM NECOSE POGOSE, Petitionee. This was a summary appeal preferred by petitioner from the orders of the judge of zillah Mymensing, who declined to arrest Gungapersad Surma, in the execution of his decree, and had directed the issue of the prescribed process for the attachment and sale of his property, according to Section XL Eegulation H. of 1806. Gimgapersad Surma filed a schedule of his effects in order to take the benefit of the provisions of Section XI. Regula- tion n. of 1806, which was impugned by petitioner as not being a true and correct statement, but, on the contrary, a dishonest attempt to defraud his creditors. * Reported by Mr. Sevestre. f See Summary Decision of the Court at large, dated 2lst January 1852, Mr. Sandes, Receiver of the Supreme Court, Petn. Rep. pp. 67 to 71. SUDDER DEWANNY ADAWLUT. 19 Th« Court, (present Mr. J. F. M. Reid.)~«It appears from a reference to the second paragraph of the Court's letter to the judge of zillah Mymensing, dated the 18th Novenvber 1836, that the pro- visions of Section XI. Regulation II. of 1 806, are intended (as appears from the preamble thereof) solely for the relief of insolvent debtors who may be in confinement in the execution of a decree of court, and may have, upon oath, filed a statement of their property, whether held in their own names, or in the name of any other person, or jointly with others. Section XL Regulation II. of 1806, can afford no relief from personal attachment in cases of alleged insolvency until the debtor has been in actual confinement. This section is, therefore, inapplicable to the case previous to imprisonment. But the zillah judge has directed the release of Gungapersaud Surma, the debtor, before the attachment of his person. This the zillah judue was • incompetent to do. He should, first, have confined the debtor, and then, as above stated, acted in conformity with the provisions of Regulation II. of 1806." Order accordingly.* 1839. July 2. LAL MOHUN BOSE, Petitioner. Mahomed Nazim, the nazir of the civil court of zillah Hooghly, and Syud Gholam Moorteza, that of West Burdwan, were directed by the zillah judge to ascertain the malzaminee security furnished by Gopaul Chatteijee for performing the judgment that Held by the might be passed on the appeal case of Ramdhun Chatterjee. Both ^anu Ad ' the nazirs reported on the sufficiency of this security, and delivered lut that the in an accurate statement of the property pledged. Ramdhun was J'^gulations ia accordingly left in possession of property already adjudged to the pro'^^de" any petitioner. On trial of the appeal, judgment again went in favor of summary re- the petitioner. In execution of this decree, it was found, that the J^^'^y against security was defective, that Ramdhun had died, and that his in appeed cases surety (a younger brother) had no property. from the in- Petitioner now moved the principal sudder ameen's court for ^''^'^'^icy of redress ; but was directed to apply for the execution of his decree nounced'by the against the property of the two nazirs of Hooghly and West i^zii" of a civU Burdwan, as the best means to satisfy his adjudged claim. On ~n^ '°. ^^ . objection, urged by the nazir of West Burdwan to this mode of ficient for the procedure, the principal sudder ameen reversed his former order, performance of This, on appeal by the petitioner to the zillah judge of West but'thaHhe*' Burdwan, was affirmed on the 15th February 1839, on the grounds injured party that the nazir of his court was not guilty of any collusion ; and F?"^ ""'y liave that no good and sufficient cause had been shown to impugn the ^J^g iMtitation security and to levy judgment passed against the nazir. " It has of a regular not been established, (remarked the zillah judge,) whether any ™* under the •ir 1 • 1 1- • ii_ • > 1 i I. r ii, t 1. J provisions of wiliul misrepresentation m the nazir s statement ot the property had Regulation IV ever been made, wliich could justify the application of Section XHI. of 1793. Regulation XIII. of 1808 to the case." * Reported by Mr, Sevestre, 20 SUMMAKY CASES IN THE Still dissatisfied, petitioner, on the 16th May 1839, preferred a fui-ther summary appeal to the Sudder Dewanny Adawlut. The substance of the grounds of the appeal were these : — " I. The decisions of the lower courts are in contravention of the rules prescribed by Circular Order, No. 198 ; for the nazir, on the bare statement of the surety, accepted security of lands under the de- signation of lakhiraj, which proved afterwards to be mal. II. The quantity of ground allowed by the nazir for the tank ' is three beegahs, valued at rupees 400, which, in fact, is no more than one beegah. III. No ground has been assigned, nor is there any- thing in the record of the case to show, why the principal sudder ameen has reversed his former order, which held the nazir respon- sible for the insufficiency of security, verified and reported by him • to be good and sufficient, for the eventual performance of the judg- ment appealed against." Mr. J. F. M. Reid, who heard the petition, was of opinion that no summary inquiry could be instituted on the charge preferred. Mr. Reid, therefore, rejected the application, — save the applicant's right to bring, if he chose, a regular action against the nazir. Mr. Reid's order was thus expressed : — " By Construction 53 (dated November 1809) it has been •ruled by the Court, that the Regulations in force do not admit of summary investigation and decision upon claims of recovery against the nazirs of the civil courts, in cases of alleged injuries to parties, from neglect of duty or other miscon- duct. Claimants in such cases must institute a regular suit, to be tried and decided speedily ; and security may be taken from the nazir complained against to perform the judgment upon such claims. By Construction 1014 (dated June 17th 1836) the Court have moreover held that there is no regulation expressly declara- tory of the responsibility of nazirs of the criminal courts under similar circumstances ; but that, upon general principles, in the event of its being shown, on a civil prosecution, that the nazir of a criminal court had wilftdly misrepresented the value or sufficiency of any security in regard to which he had been directed to inquire and report, and that loss had ensued in consequence of such mis- representation on his part, he would be liable to the payment of damages at the discretion of the court before whom the suit was brought."* SHUMS-OON-NISSA KHANUM, Appellant, 1S39, August 15. Under the provisions of RAYJAN KHANUM foe self, and as the Guardlw of hek Minor Son SAYDAT ALEE, Respondent. After an appeal had been allowed in this case by the Sudder Dewanny Adawlut to the King in Council, it was ordered, on the 7th September 1835, that " if the respondent, under the provisions of Section XI. Regulation XIII. of 1808, gave good and sufficient " Reported by Mr. Scvestre. SUDDEK DEWANNY ADAWLUT. 21 malzaminee security to perform the decree which may be passed in SectionXI. Re- appeal, in a sum equal to one year's produce of the adjudged pro- ^?'fgJo" ^h"' perty, she should obtain possession of the same, otherwise the Sudder' De- appellant should have possession upon the same security as is requir- wanny Adaw- ed to be given by the respondent." _ 'gtati^tnt The respondent accordingly gave security. His sureties were of secvirity, Abdool-azeez, and five other individuals. They bound themselves equal to one and pleHged " half an anna out of the one and a half anna share ^f tj,g adjudg- of Pergunnah Buldah Khal," to satisfy the decree which might be ed property, to passed on the appeal. The security was verified by the nazir, and, ^® entered into upon his report, accepted as good and sufficient by the judge of My men- dent during an sing, on the 10th December 1836. The attachment was therefore appeal to the withdrawn, and the respondent left in possession of the property. ^,'"^u™ ^°^l mi 11 • ■ II- ■ ^ 1 1 1 n 1 ™i "^^ what 1 he appellant, conceiving herselr aggneved, appealed to the oud- the zillah court der Dewanny Adawlut, on the ground of the inadequacy and insuffi- had accepted as ciency of the security furnished by the respondent. ficient to an- The Court, (present Messrs. William Braddon, Charles Tucker, swer the judg- and John Fleming Martin Reid, dissentient Mr. D. C. Smyth,) held ™ent. "that if the respondent, in addition to the security already given, were to furnish within three months further security in the sum of rupees 30,000, so as to make the amount of the security 40,000, such sum would be accepted as equal to one year's produce of the property adjudged ; but if the respondent failed to give the addition- al security required in the sum of rupees 30,000, the property should be held in attachment, during the appeal, by the collector of the dis- trict at the expense of the party who may be ultimately declared en- titled thereto." The grounds of this decision were these : " The sudder jumma of the adjudged property is rupees 15,237, 7 annas, 9 gundahs, and its yearly produce about 40,000. The ' one anna share of Pergunnah Buldah Khal,' sold on the 27th April 1837, for arrears of Government revenue, realized 20,100 rupees, and though a ' three cowrie share of the Pergunnah' was sold on the 18th of May 1835 for 11,300 rupees, still that took place before the sale of the ' one anna share.' The account sale of the ' one anna share' clearly indicates the estimated value of the ' half anna share of Pergunnah Buldah Khal,' which was pledged to satisfy the decree appealed against to His Majesty in Council, to be rupees 10,050: security in such sum is certainly not equal to one year's produce of the adjudged property, paying a revenue of rupees 15,237, and yieldinj; an annual profit of 40,000 ; and is also in- adequate and insufficient to answer the decree that may be passed upon the appeal preferred to his Majesty in Council. Tlie orders of the zillah judge are therefore overruled."* * Reported by Mr. Sevestre. 22 SmiMAEY CASES IN THE JUGGUTCHUNDER BONNEEJEE AND GOVlNB CHUNDER BONNERJEi;, PLAiNTiFrs, versus ISHURCHUNDER MOOSTOFEE, Defendant. 1839. The defendant instituted a summary suit under Section XV. Regu- "~ ~ ~~ lation VII. of 1799, against plaintiiFs jointly as farmer and mjizamiir, for enforcing payment of certain arrears of rent due from them for Held by the Deehee Doobrah, and obtained a decree, when the farm was attach- wannv^Ad^lut ^^ ^"'^ placed under the management of a sezawul. The plaintiffs that it is not subsequently instituted a regular suit in the civil court of Nuddea, competent to under the provisions of Regulation IV. of 1793, to reverse this courts to stay decision. The case was referred for trial and decision by the zillah the execution judge to the principal sudder ameen. Plaintiffs now moved the Court of a summary foj- the trial of their case out of the order in which it was filed ; and Regulation prayed that the execution of the summary award against them should VII. of 1799, be stayed tiU final decree had passed. The motion was supported ''r'h'tf^*''f''^' I'y ^ pi'scedent of the lower court. The execution of the summary regular suit to decree was accordingly stayed by the principal sudder ameen, (Izzut set aside such Alee,) on the 25th September 1839. On opposition, offered by decree. defendant, the principal sudder ameen, on the 30th September 1839, suspended the execution of his former order and made a direct reference on the subject to the Sudder Dewamiy Adawlut, agreeably to the spirit of the second paragraph of the Circular Order, No. 59, Volume lil. Plaintiffs, as petitioners, now appeared by vakeel to defend the case. The substance of their defence was this : It is no where set forth in the Regulations that the civil courts are not, upon tender of good and sufficient security and under any circumstances, to stay the execution of a summary decree after a regular suit shall have been instituted for its reversal. The Court, (present Mr. J. F. M. Reid,) — " By Construc- tion, No. 738, dated the 16th November 1832, it is not competent to the zillah judge to stay the execution of a summary award under Regulation VII. of 1799, pending the trial of a regular suit instituted in the civil court to set aside that award. Nor does the interference of the court, in this instance, appear barred and contrary to the letter of that Construction. The orders of the principal sudder ameen, dated the 25th September 1839, for staying the execution of the summary decree under Regulation VII. of 1799, are therefore reversed, and the petition of the petitioners rejected."! * The same ruling was laid down in the case of Raja Moduarain Singh, 21st April 1853. Present W, B. Jackson, See Bentjalee Gazette, No. 688, Page 233. t Reported by Mr, Sevcsti'o, SUDDER DEWANNT ABAWLUT. 23 EAM SUNDER BANERJEA, Petitioner. This was an appeal from an order of the principal sudder ameen of Moorshedabad. The petitioner had been required to give security, under the pro- visions of Section IV. Regulation II. of 1806, in an action brought against him in the civil court, in failure of which he had been com- mitted to jail. On judgment being given against him, and before execution, had been sued out by the plaintiff, he applied for his release, under the benefit of the rules for insolvents, in Section XI. Regulation H. of 1 806. The principal sudder ameen rejected the application, on the ground that execution of the decree had not been taken out by the decree-holder. The Court, (present Mr. Reid,) held the reason to be insufficient, and reversed the order of the principal sudder ameen, directing him to proceed imder the rules in question. January 20, A debtor confined in consequence of inability to give security under Section IV. Regulation II.ofl806,inay, after decree passed and before execu- tion taken out, be admitted to the benefit of the insolvent rules. GOBIND CHUNDER ROY, Guardian of Musst. JADOMUNNEE, &c.. Petitioner. The petitioner applied to the judge of the 24 Pergunnahs for permission to deposit a sum of money alleged by him to be due as rent to the proprietor, Rammohun MuUick, for a certain parcel of ground held by the petitioner in behalf of his wards ; but from which he apprehended the proprietor meditated dispossessing them, as he had refiised to receive the rents. The zUlali judge refused to receive the deposit ; and from his order the present appeal was preferred. The Court at large were of opinion that the zillah judge's order was correct, as since the transfer of all summary proceedings in matters connected with rent from the civil courts to the collectors, it would be irregular in the former to receive deposits of the kind alluded to.* 1840. April 16. Application for permission to deposit in court rents which the proprietor of the land refus- ed to receive, rejected. KASHEENAUTH BONNERJEA and others, Appellants, versus BRIJMOHUN MITTER, KAFEEL-UD-DEEN and others, Respondents. This case was decided by the third and fourth judges of the Sudder Dewanny Adawlut (Messrs. Courtney Smith and William Dorin) on the 17th November 1821, and a review of judgment reject- ed by them on the 18th February 1822 and 22nd February 1823, respectively. The respondents on the 28th May 1838, after the 1840. May 25. Held that an application for review of expiration of seventeen years, again moved the Court, on a stamp of judgment is not lull value, for a review oi this decision. cognizable by * Reported by Mr. Sevestre. 24 SmULUlT CASES IN THE clsioQ passed in the case. the Court after Mr. William Braddon, who first heard the application on tlie 7th twelve''*ea^^ March 1839, doubted the genuineness of the documents filed with from the date *^^ petition of review, because they were neither produced at the of the final de- time the first application for review was filed, nor subsequent thereto when both the deciding judges abovementioned continued attached to the Court. Mr. Braddon was of opinion that transcripts of two collectory perwannahs exhibited by the respondents, were not good and suflScient evidence for the admission of the review. Mr. Braddon, therefore, proposed to reject the application as groundless and inad- missible, and to refer the matter to another judge, because the second review was desired on the decision of a case finally dis- posed of by two judges of the Court who had rejected the first review. In conformity with this order the case next came on for hear- ing on the 10th August 1839, before Mr. Charles Tucker. Mr. Tucker, after carefully inspecting the documents referred to by Mr. Braddon, and perusing the grounds of review and the precedents produced by the respondents on the occasion, wished to know if the Court had ever before decided any case in which a second review (after rejection of the first by the deciding judge) had been applied for by the aggrieved party, and also whether the Court had ever admitted such second review after the lapse of a considerable period of time, such as appeared to have occurred in the case under consideration. He therefore directed the serish- tadar of the Court to report on the point referred. The return of the serishtadar (dated the 13th September) showed no cases of admission of review after the expiration of twelve years from the date of judgment. On the 25th May 1840, Mr. Tucker resumed consideration of the case, and was joined by Mr. David Carmichael Smyth and Mr. John Fleming Martin Reid. The Court then passed the followdng final order : — " Reviewing the circumstances of this case, we find that the appellants have been in undisturbed and quiet possession of the property under judgment of tliis Court for a pftiod of upwards of twelve years, which is a good and sufficient ground to bar the review. We can therefore on no ground whatever take cognizance of the petition for a review of the order, rejecting the review of judgment, passed by the Court on the I7th November 1821 ; and we direct that it be accordingly rejected.* Reported by Mr. Sevestre. SUDDEE DEWANNY ADAWLUT. 25 BAKSHN BAY, Appellant, TAIJ SINGH AND OTHERS, RESPONDENTS. On the 3rd of January 1838, the appellant, who had obtained a final decree for certain villages from the Presidency Sudder De- wanny Adawlut against the respondents, moved the Court, under the provisions of Sections IV. and V., Regulation V. of 1798, to institute a summary inquiry into the fictitious purchase of the pro- perty which, she alleged, had been made by the respondents in the name of Mahabeer Pursaud and Hyder Hossein, through the intervention of the respondents' under-farmers, Govind Singh and Mohummud Jafiar, who had collusively withheld the public dues and effected the sale. Mr. Wigram Money, one of the deciding judges who heard the application read, directed the court below to cite and examine wit- nesses to establish the facts charged by the appellant, and to send up its proceedings with a report. This being done, the case by distribution came on for hearing before Mr. Charles Tucker, on the 27th April 1839, — Mr. Money having retired to England. Mr. Tucker, who read the proceedings held iia the case by Mr. Money, doubted the legaHty of the summary inquiry which had been instituted under Section TV. Regulation V. of 1798 ; and, interrogating the vakeel of the appellant, was informed that the Court, (present Mr. Henry Shakespear,) had, on a former occasion, commanded a similar inquiry. Mr. Tucker directed production of the precedent. This being filed and duly considered, Mr. Tucker, on the 11th May, remarked that an inquiry had certainly been ordered to be made in the case cited ; but that it did not indicate whether the inquiry ought to be made by a summary or regular suit. Mr. Tucker, therefore, directed the serishtadar to report if there were any other cases in point. The report submitted, furnished a reply in the negative. Mr. Tucker, resuming consideration of the case on the 8th June, referred the point, through the register of the Court, to the consideration of the English sittings. On the 4th instant, the case having reverted to Mr. Tucker, for disposal in the Persian Department, Mr. Tucker now held that the inquiry contemplated by Section IV. Regvdation V. of 1798, in the case of the purchase of property made in feigned names, must be instituted by a regular suit, as that section, and the existing rules for the institution of summary inquiries and suits, did not provide for the question before the Court. Mr. Tucker, how- ever, deemed it proper, the summary inquiry having been directed by his predecessor in office, to submit the case for the opinion of his colleagues generally. Mr. R. H. Rattray, who next heard the case, on the 5th Sep- tember 1839, differed from Mr. Tucker. Mr. Rattray was of opinion, that in the concluding part of Section IV. Regulation V. of 1798, it was clearly stated, that whenever any land or other property for wliich a decree had been made, but which during D 1840. June 13. The institu- tion of an in- quiry into a plea of fictiti- ous purcliase made at a re- venue sale after judgment passed, by a party to the suit, consti- tutes a new- cause of action under Section IV. Regulation V. of 1798, and cannot be look- ed upon as carrying out the original in- tentions of the court passing the decree. 26 SUMMARY CASES m THE appeal had been left in possession of the appellant, might be sold by Government for arrears of revenue due from appellant, and be purchased by the respondent, the purchaser, in the event of such property being finally adjudged to him in the appeal, was en- titled to recover from the appellant, so left in possession, the full amount of his purchase-money, and all expenses attending the pur- chase, vfith interest at twelve per cent, per annum, in addition to the sum which might be adjudged to be due to him on account of profits arising from such land. " The same rule (remarked Mr. Rattray) is applicable to the appeUant, if the ultimate judgment in appeal be in his favor. If the respondents of this case have purchased the property, adjudged to the appellant. In the fictitious name of their under-farmers, and if such purchase has been clearly established, the appellant can recover the same in the execution of his decree, without the institution of a regular suit. Such seems to me to be clearly the intent and spirit of the provisions of the Eegulation under discussion." Mr. Edward Lee Warner, on the 16th April 1840, recorded his opinion that Section IV. Regulation V. of 1798, provided for a summary inquiry into a fictitious purchase, because it was connected with the execution of a decree, which was in that manner disposed of. But as regarded this case, Mr. Lee Warner remarked, that in his judgment the auction sale could not be summarily set aside, because the appellant had not conformed to the rules laid down in Section XI. Regulation XIII. of 1808, as it was evident from the commissioner's roobukaree that the appellant knew that the sale was about to take place for arrears of revenue due to Government ; and the commissioner, in his roobukaree of the 13th July 1837, had stated that the sale was confirmed by him, as it had been made on account of arrears of revenue, and which sale (observed Mr. Lee Warner) had also been confirmed by the Board. " It cannot there- fore, in my opinion," continued Mr. Lee Warner, " be reversed, by a summary inquiry, without the institution of a regular suit under Eegulation IV. of 1793. I therefore agree with Mr. Tucker in this respect."* On the 1st June 1840, Mr. David Carmichael Smyth, who next heard the case, held that recourse must be had to a regular suit under the provisions of Regulation IV. of 1793, and that no sum- mary inquiry could be instituted to contest the validity or otherwise of the sale of property which had been made by the revenue authorities for recovery of arrears of revenue. Mr. Smyth remarked, that three permanent judges of the Court (himself included) had recorded their opinion that a regular suit should be instituted for an inquiry into the alleged fictitious purchase ; but as Mr. Charles Tucker, one of the judges from whom the order for reference of the case to all the judges of the Court emanated, had not stated whether it should also go before the two additional judges attached to the Court, Mr. Smyth, with reference to this omission, and to the remark of the * Reported by Mr. Sevestre, SDDDEE DEWANNT ADAWLUT. 27 vakeel of appellant, that the case had been pending decision for upwards of one year, which retarded the institution, by his client, of a regular suit, passed this order : — " Let the register, in accordance with the resolution passed by the Court, on the 3rd December 1836,* submit the case to Mr. l\icker, to determine if it should also go before the additional judges." Mr. Tucker did not think it necessary to refer it to any of the addi- tional judges; he therefore referred the case back to Mr. D. C. Smyth to pass such orders as might seem to him proper and expedient. On the 13th instant, the case accordingly came on for disposal before Mr. Smyth, who made final the judgment proposed by Mr. Tucker, in which Mr. Lee Warner and himself had concurred.f MUSUMMUT POOTEE BEGUM, Petitionee. Meer Nawab, a Moslem, had one son, Meer Hajee, and two daughters, Nawasee Begum (alias Muzharee Begum) and Saha- beh Begum. Meer Hajee died, survived by his wife, Pootee Be- gum, and his father, Meer Nawab. Meer Nawab before his death divided his real property between his two daughters and daughter- in-law, Pootee Begum. To the two former he gave a moiety, and to the latter the remainder, reserving to himself and wife a life interest in the property so conveyed. Pootee Begum failing to get her assigned allowances arising out of her quota of the property, which she estimated at rupees 1,330, 7 annas, 8 pie, brought an action for the same, and obtained a decree in the court of the pundit principal sudder ameen of Patna on the 19th July 1836. On the 18th July 1838, Muzharee Begum and Sahabeh Begum intervened. They prayed that execution of the decree should be postponed. They denied the claim of Pootee, and pleaded the ex- haustion of assets by payment of expenses incurred in the burial of Meer Nawab. On the 26th August they alleged the debt to have been contracted by Meer Nawab himself, to which, they contended, they were not hable. After citation and examination of witnesses upon oath on both sides, the case was heard, on the' 18th January 1839, by Syud Imdad AJi, additional principal sudder ameen of the city of Patna, when he rejected the objections of the interveners as groundless, and passed this judgnjent : — " Let the nazir levy (within eight days) the misappropriated sum of rupees 591, 13 annjis, 3 pie, subject on failure of payment to a sale of the interveners' property. Let the wearing apparel and other personal property of the deceased. 1840. June 17. Held on the opinion of tlie law officer of the Sudder De- wanny Adaw- lut, that an heir of a de- ceased Ma- homedan is not liable to pay the debts of his father, save pro tanto assets to which he may have avowedly suc- ceeded. * The resolution alluded to, provides that when a judge of the Court may wish to refer to the other judges any doubtful point of law, he shall draw up in English a brief statement of the case, for the opinion of the English sittings, after obtaining which he shall either dispose of the case himself, or with two or more judges sitting with him, t Reported by Mr. Sevestre, 28 SUMMAET CASES IN THE now with depositaries, be brought to sale and proceeds appro- priated to petitioner's decree ; and let balance be satisfied from the deceased's own property ; not from that of the interveners. Peti- tioner is competent to institute a regular action against Rehmat Ali Khan, a bond creditor to the estate of the deceased." From this decision petitioner appealed to Mr. R. E. CunlifFe, the acting city judge, who affirmed the same on the I7th April 1839. The ground of this appeal was, that the whole amount of the decree ought to have been levied against the interveners, who had succeeded to the property of Meer Nawab as his representatives, and not only the amount directed to be levied by the additional principal sudder ameen. Petitioner, still dissatisfied, preferred a further summary ap- peal to the Sudder Dewanny Adawlut, on the 15th June 1839, urging the same pleas as those advanced in the two courts below. Mr. J. R M. Reid, who heard the appeal on the 22nd July 1839, before going to final judgment, directed the acting city judge to retain the attachment on the disputed property till further orders. Mr. Reid, in the mean time, called on the law officer of the Court to declare whether a person, succeeding to the property of a deceased debtor, was legally bound to pay only those debts for which there were available assets ; or whether he was liable to liquidate the whole of his debts, without any reference to the amount of assets in his hands. On the 28th August 1839, the chief cazee replied: "By law, the heir is liable to pay the deceased's debts to the extent* of the assets to which he may have succeeded, but is not bound f to pay the whole of his debts. According to the Mahomedan law, debts which must be satisfied before legacies and claims of inhe- ritance, J lie only against the estate of the deceased debtor." On this futwa, on the 17th June 1840, Mr. Reid, who now resumed consideration of the case, directed that the decree should be executed against the interveners to the extent of the assets received by them from the estate of the deceased. § TARNEE PURSHAUD NAYARUTNA BIIUTTA- CHARJYA, Petitionee. 1&40. This case originated from certain defalcations brought to the notice of Government by Mr. Richard Macan, when in charge of June 19. jjjg j,j^ administration of the zillah of Burdwan in 1837. The Sureties of result of the treasury accounts, prepared by native clerks under the a treasurer of superintendence of Mr. Macan, indicated that various sums of money, a zillan court ^ . -^„ onrv i j i!_ i* ^ • ^ i i i held to be res- amountmg to rupees z\),ooy, rtad, trom time to time, been embezzled ponsible for by five different treasurers, who had in succession held the office of defalcations * See Macnaghten's Maiomedan Law, Book I. Chap. XI. Prin. 1, t See idem. Precedents of Inheritance, Chapter I. Book II, Case VJII. J See idem. Book I. Chap. I, Prin, 5, § Reported by Mr. Sevestre, STJDDEE DEWANNT ADAWLUT. 29 treasurer previous to Mr. Macau's appointment to the district, and embezzle - Fakeer Chand Bose, one of the treasurers, appeared to have em- ™™*' J?"'^" Ill tr\ ni'A r\ ^ ' • , ' rr during the pe- bezzled rupees 19,2o4-0-b m two items, viz. one, a sum oi rupees riod they had 17,896-4-7 not brought to credit; and the other a sum of rupees guaranteed 1,357-11-11, being an excess of expenditure not contained in the andhmest ad- monthly accounts. During the period of ten years that Fakeer ministration Chand Bose had held the office of treasurer he had changed his °f his office sureties no less than five times. Each surety in his turn pledged g^^gj, L.^o't-" himself to be responsible for the honest and faithful administration withstanding of the office of the treasurer. Mr. James Curtis, who succeeded ™ acquittance Mr. Macan as the judge of the district, made a careful examination ^^^;y granted of the accounts ; and, after ascertaining the exact amount of the by the zillah defalcations and embezzlements that had occurred during the time court, that each of these individuals had held the office of treasurer, direct- ed the nazir of his court to realize the same from theni and their sureties respectively. In conformity with this direction, the nazir proceeded to recover rupees 2,029, 9 annas, and 8 gundas, the amount of two items charged as defalcations by Fakeer Chand Bose, in the years 1822 and 1828, when petitioner and his father were individually and sepa- rately sureties. The zillah judge, Mr. Curtis, after hearing the grounds on which the petitioner claimed to be relieved from this payment, was clearly of opinion, from the evidence before him, that the defalcation had in fact occurred when petitioner and his late father were sureties for the honest administration of the office of the treasurer, rejected his apphcation, whence arose this appeal to the Sudder Dewanny Adawlut. The substance of the grounds of the appeal were these : 1st. Non-liability (under the provisions of Section XVI., Regu- lation in. of 1794,) after a discharge by the former zillah judge from security. 2d. Non-responsibility for losses alleged to have been sustained subsequent to such discharge, and the undoubted Uabihty of those, and their heirs, who succeeded petitioner as sureties of the late treasurer. 3d. Inadmissibility of the claim after a lapse of fourteen years and removal, by death, of the treasurer. 4th. Liability of his heirs to make good the alleged embezzle- ments and defalcations. Mr. Halhed : — " I find the liability of petitioner and of his late father, for defalcations committted during the time they were sureties of the treasurer, clearly estabUshed. I direct recovery of the defalca- tion from their estates ; because it occurred at a time when they singly and individually had guaranteed the honest and faithful admi- nistration of his office by the treasurer. The zillah judge had no power whatever to release the sureties, until a true and correct account of the receipts and disbursements of the treasury of the court had been rendered by the treasurer, and every satisfaction afforded by him in that respect." 30 strmiAET cases in the Mr. Tucker : — " I am of opinion that the petitioner is not liable for any defalcation, and that bis successor was to blame for not taking a proper account of the receipts and disbursements of the treasury of the civil court when he undertook the responsibility. The individual who succeeded petitioner as the surety of the late treasurer, was in duty bound to take a strict and rigid account of the funds ; aud if then any defalcation appeared, it would of course have been chargeable to petitioner, and he would have been bound to replace the same." Mr. Reid concurred with Mr. Tucker. Mr. Lee Warner also concurred so far as that the amount of the alleged defalcation should not be summarily demanded from the petitioner ; but that the fact of the defalcation having occurred, and the hability of the petitioner, should form the subject of a regular action. Messrs. Rattray, Braddon, and D. C. Smyth, concurred with Mr. Halhed, aud made final the judgment proposed by him. 1840. GEORGE JOSEPH JORDEN, Petitionee. Tecs was a reference from the judge of zillah Backergunge on June 22. the application of the petitioner, who objected to the continuance of Catherine D'Rozario in the management of the estate of the Sudder De- minor children of John Brown. Brown had married a daughter wanny Adaw- of Catherine D'Rozario, by whom he had four children ; and on lut have the jjjg Jg^th of the parents, the maternal erandmother, the said power 01 sunQ.— . , ^ ^ marily inter- Catherine D'Rozario, took charge of the estate, not by the order or fering to the with the sanction of any judicial authority, but of her own accord, with recHnKttie an- reference to the relation in which she stood to the orphan children pointment of a of Brown. co-guardian Inquiry showed that there was much cause to apprehend that the act conjointW interests of the minors were greatly neglected, under the management with the of Mrs. D'Rozario ; but the majority of the Sudder Dewanny guariBan and Adawlut were of opinion that she could not be summarily ejected minor's estate from the management and guardianship which she had assumed, under Regula- After considerable discussion the Court were of opinion that VTQQ^' h^ though Mrs. D'Rozario could not be summarily ejected, there was no such' guardian legal bar to their summary interference to the extent of directing the and manager appointment of another guardian and manager, under Regulation V. "Sifted'' fOT^" °^ 1'^^^' *° '''^* conjointly with her. The zillah judge was accord- the proper ingty ordered by the Court, (present Messrs. Tucker, Smyth, and management Reid,) to select and nominate for the confirmation of the Court, a of the estate, pjopgj person to act as co-guardian jointly with Mrs. D'Rozario. STXDDEE DEWANNY ADAWLUT. 31 SYUD MAHOMED All KHAN, Appellant, versus NAGAR-AEA BEGUM and others. Respondents. On the 1st of July 1837, the respondents had applied for a re- view of the judgment passed against them on the 1st April, by the Sudder Dewanny Adawlut, (present Messrs. W. Braddon and F. C. Smith,) and again by a supplementary petition, on the 5th of August, brought to the notice of the Court the under-valuation which the appellant had put on the Ktigated property. The deciding judges admitted the review on the 25th September 1837. The supplementary petition was disposed of by Mr. Braddon, on the 19th March 1838. He proposed that the lower court should be directed to inquire into the facts alleged by the respondents. But Messrs. R. H. Rattray and Wigram Money, concurrently overruled this on the 22nd of May. The judgment of J;he 1st of April 1837, was moreover finally affirmed on trial of the review by Mr. C. Tucker, on the 18th of June 1840. The respondents however had, on the 3rd of August 1839, pre- sented a petition to the Sudder Dewanny Adawlut, for leave to enter an appeal to the Queen in Council against the interlocutory order, which had barred the inquiry prayed for by the petition filed on the 5th August. The Court. — (Present Messrs. E. H. Rattray, C. Tucker and J. F. M.Reid).—" By Construction No. 1 102, dated 18th August 1837, no appeal can lie to Her Majesty in Council from the orders passed from the Court in miscellaneous cases. The rules proclaimed by Her Majesty in Council on the 10th of April 1838, and published for generaJ information in the Calcutta Gazette of the 6th October 1838, page 713, differ merely from the rules contained in Regulation XVI. of 1797 in this respect, viz. that in all cases in which the value of the matter in dispute amounts to the sum of Company's rupees 10,000 or upwards, an appeal shall lie to Her Majesty in Council. But respondents pray to be allowed to prefer an appeal from an interlo- cutory order of the Court. Now the words ' judgment, decree, or decretal order' in the new rules and orders for appeal to England, clearly refer to decisions or judgments passed by the Court in regular cases. There is nothing in these terms which render interlocutory orders appealable to the Queen in Council. The prayer of the res- pondents cannot therefore be granted."* 1840. June 20. No appeal lies from an interlocutory order of the Sudder De- wanny Adaw- lut to the Queen in Council. * Reported by Mr. Seveatre. 32 SUJISIAEY CASES IN THE Jvdy 22. The sum- mai-y prohibi- tion by the zillah judge to establish a haut, because it interfered with a neigh- bouring haut, overruled by the Sudder Dewanny Adawlut. DHUN KHAN, Pbtitionek. Tk& petitioner established a haut, named Eaheemgunge, to be held on two particular days in the month. Owing however to dis- putes between his co-sharers and Murarichunder Das, the inter- ference of the magistrate became necessary, on the 10th July 1835, when the haut days were altered. An appeal from this was made to the commissioner of Dacca, who, on the 27th November, reversed the orders passed by the magistrate, and declared the petitioner and his co-sharers competent to hold the haut on any day they liked. Three years after this, Murarichunder Das petitioned for the removal of the haut. The' officiating judge of zillah Sylhet, (Mr, Stainforth,) on the 23rd November 1838, complied, because the haut appeared to him to have been recently established. Prom this petitioner preferred a summary appeal to the Sudder Dewanny Adawlut on the 2Ist February 1839. The Court, (pre- sent Mr. J. F. M. Reid,) on the 29th April 1839, doubting the pro- priety of the interference in the matter by the civil judge, called for explanation. The zillah judge in answer stated that being petitioned by Murarichunder Das to prevent continuance of the haut Eaheem- gunge, as contrary to a decree of the Dacca court of appeal (copy of which he annexed) and finding its establishment to be directly contrary to that decree, he had directed its discontinuance. The Court, after a further reference to the zillah judge, passed the following final order : " The judge of zillah Sylhet, referring to the decree passed by the court of appeal of Dacca on the 14th May 1818, has directed the discontinuance of the haut established by petitioner. The par- ties to that decree were Murarichunder Das, appellant, and Alee Reza and six others, respondents ; and the court of appeal only directed the discontinuance of the haut established by Alee Reza and others. It has no connexion whatever with the haut established by petitioner, who was not even a party to that suit. The interfer- ence in the matter by the zillah judge on- the ground of a decree passed by the court of appeal is, therefore, improper. Let the order of the 23rd November 1838 passed by the judge of zillah Sylhet be reversed." Order accordingly.* 1840. September 8, The produc- tion of the original deed of mortgage BABOO GOPAL LAL THAKOOR, Petitioner. This was an appeal from an order of the judge of Dinagepore. The petitioner had apphed to the judge of zillah Dinagepore for issue of notice, under Section VIII., Regulation XVII. 1806, as preliminary to the foreclosure of a mortgage held by him on certain estates. The judge called for the mortgage bond before issuing the notice. The petitioner, who was desirous of keeping the bond in his * Reported by Jlr, Sevestre. SDDDER DEWANNT ADAWLUT. 33 own possession, appealed to the Suddev Dewanny Adawlut, on the prior to the ground that the order of the judge went beyond the law. issue of notice Tlie Court, (present Mr. Reid,) observed that the rule cited did uMer'section not require the production of the bond, in order to the issue of the VIII. Resula- notice, and reversed the judge's order. tion xvil. of ■* ° 1806, is not necessary. RAJA MOTEE LAL OOPADYA, Appellant to the King in Council, versus JUG-URNATH GURG, Respondent to the I&ng in Council. This was an application to the Sudder Dewaiihy Adawlut, made 1840. under the following circumstances : The appeUant sued Musst. Munha, and others, in the zillah court September u. of Midnapore, for possession of the zemindaree of Pergunnah The Sudder "Mysadul, &c., and obtained a decree on the 18th July 1805. Dewanny •U . , ••! i> ^ -i ■',,.. rt Adawlut can- Un an appeal to the provincial court ot Calcutta, the decision of not levy costs the zillah court was reversed on the 3rd July 1806 ; and it was in an appeal ordered that the defendant should recover possession with mesne profits, ^ ^^\ ^"iP^h and costs, and the decision of the provincial court was confirmed by the decree of the Sudder Dewanny Adawlut on the 20th November 1807. ^^^ P."^y Raja Motee Lai Oopadya applied to the Court for the admission not^providr of an appeal to His Majesty in Council, which was allowed on the for. 28th September 1808 ; but, before the proceedings were translated and forwarded to England, a razeenama having been filed, the ap- peal Was struck off, on the 9th December 1808. In the meantime the Raja indicted before the Supreme Court certain parties for assault and false imprisonment, for the pilrpose of forcing him to execute the razeenama. They were convicted and sentenced to different degrees of punishment, and the sentence was confirmed, on the 6th March 1813, by His Majesty in Council, on an appeal by the convicted persons. He had also brought a suit of ejectment in the Supreme Court for three houses situate in Calcutta, on the same plea as that on which he sued to recover the zemindaree, and obtained a decree in his favor on the 17th March 1812. On the 21st August 1812, the Raja filed two petitions, the one praying the Court to review the case, and the other praying them to allow an appeal to the King in Council. The Court, after hearing evidence in support of the plea that he had been compelled by force to execute the razeenama, rejected the petition of review, on the 12th April 1815, but admitted the appeal to the King in Council. On the 30th April 1836, the appeal having been heard by His Majesty in Council, the order of this Court, of the 12th April 1815^ was confirmed ; and it was ordered that the following sums should be paid to the East India Company for costs for bringing the appeal to a hearing : viz. by the appellant the sum of £2,873-3-4, and by the respondent £2,296-8-10. 34 SUMMARY CASES IN THE On the 31st July 1837, on a petition of the Government pleader, tlie decree of the Privy Council was sent to the zillah for the recovery of the amount due to Government. Eaja Ram Nath . Gurg, the heir of the deceased respondent, Jugumath Gurg, now prayed the Court to levy from the appellant the amount which he had paid to Government on account of the costs due from him. The decision of the Privy Council did not provide for the levying of the fees in question, and the Court, (present Mr. Eeid, after con- sulting with his colleagues,) held that costs not provided for by the decree of the Privy Council could not be levied from the appellant.* 1840. November 16. and 1841, June 16. The Sudder Dewanny Adawlut re- fused to carry into execution a razeenama. or deed of ad- justment and compromise between the parties, no final decree having been passed, and the value of the stamp for the petition of appeal having been returned. EAJA MITTEEJEET SINGH, Appellant, versus KOOE HEYT NAEAIN SINGH, Eespondent. This was an application by the respondent, for the enforcement of an alleged decretal order, under the following circumstances. On the 30th May 1820, the respondent instituted a suit, in the provincial court of Patna, against his father, Eaja Mitteijeet Singh, for self and as guardian of his minor son Koor Modh Narain, to set aside a deed of gift, whereby the Eaja assigned to his younger son, to the prejudice of himself, the eldest son, the great bulk of his estate, ancestral and acquired. By this deed 2188 mouzahs and 3 kunwas, assessed with a jumma of rupees 3,06,674-3-0, were assigned to Koor Modh Narain ; and 103 mouzahs and half a pie, assessed at rupees 14,297, to the plaintiff; while provision was also made for Mirza Khan Bahadoor and Aga Furhut Ali, who are alleged to be sons of the Eaja by a Mahomedan woman. The suit was laid at rupees 9,62,913-9-0. The Eaja defended the suit, and pleaded that the improper con- duct of his eldest son justified his settling the estate on his younger son. On the 13th February 1822, Mr. J. B. Elliott, one of the judges of the provincial court of Patna, passed a judgment in favor of the plaintiff, setting aside the deed of gift as invalid under the Hindu law. From this decision, Eaja Mitterjeet Singh appealed to this Court, but before the appeal came to a hearing the parties came to an amicable adjustment of their dispute, and filed before the judge of zillah Behar a razeenama and solehnamah, by which it was agreed that the Eaja should pay to Koor Heyt Narain, his eldest son, a monthly allowance of rupees 2,500, and to his younger son a monthly allowance of rupees 2,000 ; and that on the Eaja's death, the estate, with the exception of certain villages settled on Mirza * See case of Government, Petitioner, verstis Hurgovind Ghose, Opposite Party, — Sadder Dewanny Adawlut Reports for April 1853, p. 437. StIDDEK DEWANNY ADAWLUT. 35 Khan Bahadoor aud Aga Furhut Ali, should be divided between his two sons, the elder taking 9 annas and the younger 7 annas thereof. These documents were admitted by Mr. Courtney Smith, who, on the 4th March 1824, directed the parties to act according to the terms of their engagements, and struck the case off the file, charging the costs to the appellant, and returning to him the full value of the stamped paper on which the petition of appeal was written, viz., rupees 2,000. On the 16th November 1840, Raja Heyt Narain Singh peti- tioned the Court, alleging that Raja Mitteijeefr Singh died on the 30th October 1840 ; and prayed the Court to order that the estate should be divided according to the terms of the engagements, as directed by Mr. Courtney Smith's [as he calls it] decree. Raja Modh Narain Singh opposed the Court's interference, on the plea that the case was adjusted by razeenama, and no decretal order passed which could be executed. Raja Heyt Narain filed copies of proceedings of Mr, Courtney Smith, dated the 15th May and 1st July 1824, from which it appeared that he directed the Patna provincial court to pay certain costs incurred in this Court, and to call on Raja Mitteijeet to pay to the petitioner the monthly allowance due to him ; also a proceeding of Mr. J. R. Hutchinson, dated 20th December 1837, in which he directed that the petitioner should receive interest on all instalments of his monthly allowsince not paid at the end of each month. On the present application being laid before Mr. Reid he ob- served : " There does not exist a doubt in my mind as to the course which ought to be pursued on the present occasion. As no decree was passed, and the appellant received back the value of the stamp of his petition of appeal, under Note 4, Article 10, Schedule B, Regulation X. 1829,* the further interference of the Court is barred ; and I do not think the interference of Mr. Courtney Smith will justify a repetition of what appears to me illegal. Mr. Hutchin- son's order I consider as merely laying down a principle to guide the Patna court in following up Mr. Smith's order, in regard to interest on unpaid instalments of the moshahira. " I would at once reject the petition of Raja Heyt Narain ; but the orders already passed by Mr. C. Smith render it necessary that another judge should concur vnth me in the order. I will therefore send the papers for another voice, unless the Court at large deem it proper to rule that the petition must be rejected." The Court at large were of opinion that the case should be judicially disposed of, by the proceedings being laid before another judge ; Mr. D. C. Smyth entirely concurred with Mr. Reid, and made final the order proposed by him. * See also Cii-cular Order 20th July 1838, No. 10 of Volume III. which clearly explains the law in cases of this nature, and Construction No. 208, dated 1st June 1815. 1840. 36 SUMJIAEY CASES IN THE EAM GOPAL JEWUN, Petitioner. This was an appeal from an order of the judge of Midnapore. December 9. The petitioner had tendered security [malzaminy] for a defendant in a civil action, under the provisions of Clause 1, Section V. Re- ofaziUah" gulation II. of 1806. The suit was dismissed in the zillah court; judge releasing and, on the application of the petitioner, an order was passed by the ^>^n^ ^^c^t? J"''S® absolving the petitioner from farther liability as surety. The for a defendant flantifF in the action bowevei; appealed to the Sudder Dewanjiy nnder Clause Adawlut, by which the judgment of the zillah court was reversed, Reg^atiOT n! *"*! }^^ ^^^" ^°°^ °"* execution against the defendant jointly with the of 1806,) from petitioner. The latter then, with reference to the former order releasing liability on the him from liability under the security bond, applied to the zillah St"frthe ?""'■' *° ^® reKeved from the claim under the Sudder decree. The court of origi- judge observed that the former order was passed solely with refer- nal jurisdiction, ence to the judgment as it then stood, but could not apply to any vent the execu- ^l^red state of circumstances, occasioned by a different decision in tion against the the appellate court, and that, therefore, execution was rightly taken same surety of (,„( against the petitioner. ed by^^an'^apl ^ ''^'^ opinion the Court of Sudder Dewanny Adawlut, (present pellate court Mr. Reid,) concurred. in reversal of the zillah court's judg- ^""^"^ ment. SHAH AHMED ALLI, Petitioner. 1840. This was an appeal from an order of the judge of Patna. The petitioner had obtained a decree, awarding to him the right of pre- emption of certain lands, and decreeing possession to him thereof The right of on condition of payment by him in one month of the amount of pur- rdecreed*'°on chase-money. The petitioner failed to tender or deposit the money condition of within the time prescribed ; and on a subsequent application, with payment in one a tender of the money, the judge refused execution of the decree, on "urchLe"/ **"" *® g™""'* of failure of condition. money) lost by On appeal by the petitioner, the Sudder Dewanny Adawlut, failm-e of pay- (present Mr. Reid.) confirmed the iudge's order. ment within ^^ ^ •" ° the time pre- scribed. ' December 26. MAHARAJA MEHTAB CHUND, RAJA or BURDWAN, Petitioner. jg^g The petitioner held a. decree, in course of execution in the Hooghly zillah court, against certain parties, who possessed pro- December 29. perty in Cuttack. Application having been made to the zillah The Raja of court of Cuttack for attachment and sale of the defendant's property, Burdwan hav- and claims having been preferred to it by certain other persons, a attend to a no- '>o'i<^e of the Cuttack court was served upon the petitioner, through tice of court the Hooghly court, requiring hhn to appear, if he wished to do so, on the ground in order to rebut the claims set up. He failed to appear, and the service. SUDDER DEWANNY ADAWLUT. 37 claims having been admitted, an order was passed for the release of that the usual the property from attachment. From this order the petitioner "}°''^ °^ s^"'- appealed to the Sudder Dewanny Adawlut, complaining that the was not *^fol- notice had not been sent to him enclosed in a letter as was the lowed, the Sud- usual practice in the civil court of Burdwan, the district in which he Adawl?tT M°^ resided ; and praying that the order of the judge of Cuttack might that he was be reversed, and the petitioner admitted to show cause against the bound to attend release ordered. the"* saSe "time The Court, (present Mr. Eeid,) rejected the application, observ- his objections ing that there appeared nothing to show that the judge of Cuttack to t^e mode of was acquainted with the practice of the Burdwan court in regard to °°"""° the mode of serving notices upon the Raja, and that, instead of taking no notice of the requisition, it was the duty of the Raja to have complied with it, and to have represented to the Court any objections that he had to make as to the mode of service. KISHENKISHORE ROY, Petitionee. The petitioner had been arrested in execution of a decree, and 184!. confined in the civil jail of zillah Chittagong. When first imprisoned • his daily subsistence allowance, payable by his creditor, was fixed at J*""*'"y ^5. four annas, but was subsequently reduced by the zillah judge, on the Held, that a application of the creditor, to two annas per diem. zillah judge was On appeal to the Sudder Dewanny Adawlut, the Court, (present in reducing the Mr. Reid,) held that, without sufficient reason, such as that of proved subsistence al- fraudulent alienation of property, the zillah judge was not authorized ^''^^'^'^°^^?"- , . ,, r r J' .•*.<=> soner confined xn reducing the allowance made to the petitioner. in the zillah jail. Order accordingly. merely on the ^ ^_^___^ application of the creditor and without suffici- BIMLA DIBBEA CHOWDRAIN and KASHEKAUNTH «"' ''^^^ being UCCHARGE, Petitionees. shown. In a letter addressed to the Sudder Dewanny Adawlut by the 1341 judge of Mymensing, dated 12th December 1838, that ofiicer request- ed the opinion of the Court on the question " whether zemindars and January 15. farmers, Hindu or European, have any right under the Regulations to Held by the collect from their ryots (being Mahomedans) fees belonging to cazees?" Courtonasum- The Court, after consulting their law officer, informed the judge that ^^thaUt is'not persons of the classes abovementioned had no right to collect such competent to a fees. On this the judge of Mymensing issued a proclamation pro- zemindar to col- hibiting the collection by such persons of the fees appertaining to the taining to the office of cazee. The petitioners then applied to the Sudder Dewan- office of cazee. ny Adawlut to have this proclamation recalled, on the ground that it The question, of had been customary in their estate to require payment of the fees, the was still left collection of which had been prohibited. open to a regu- By the Court— Mr. Rdd:—" I am of opinion that no zemindar has ^^ z'^,^ndLr"''^ a right to levy any fees appertaining to the office of cazee ; the ques- think proper to tion of right, however, can be finally settled only by a regular suit, tfy it. 38 SUMMAEY CASES IN THE I would not interfere to direct the judge to recall the proclamation issued by him, but merely intimate to him that should any suit of the nature contemplated be instituted, the question of right should be tried without reference to the proclamation issued by him." Mr. Tucker concurred with Mr. Eeid. February 2, The removal of an embank- ment having been ordered by a decree of Court, held that the decree was sufficient autho- rity to prevent the erection on another spot of another em- bankment hav- ing the same effect. ROOP CHUNDER KUPALEE, Mookteak on the part op BABOO HURISCHUNDER BOSE, &o., Petitionees, versiis MAHOMED USGHUREE. It appeared that the defendant had erected an embankment, by which the influx of water into certain property belonging to the petitioners was prevented. Li order to contest the right of the defendant to erect the embankment, the petitioners had brought an action against him in the city court of Patna, and obtained a decree from the principal sudder ameen, Ajodhea Pershad Tewaree, which was affirmed on appeal to the judge, Mr. A. Smelt. In execution of the decree the embankment was removed ; but the defendant then erected another on a different spot, which, however, had the same effect of keeping the water out of the property of the petitioner. On this the petitioner applied to the principal sudder ameen to cause the removal of the embankment, the erection of which was, to all intents and purposes, an evasion of the decree. The principal sudder ameen, however, was of opinion, that as the order of the decree had been literally carried into effect, he could not summarily interfere on the present application. This order of the principal sudder ameen was affirmed by the judge. The petitioner then applied to the Sudder Court. Mr. J. F. M. Reid: — " The real object of the suit instituted by the petitioners, as well as the spirit of the decree given in their favor, was to prevent any obstruction on the part of the defendant to the influx of water into the property of the former ; and not merely the removal of a particular embankment, vrith implied permission to erect another embankment on another spot, which should have the same effect of keeping out the water. The mere removal of the former embank- ment is not sufficient to carry out the purposes of the decree : the erection of another embankment by the defendant for the same pur- pose must be prevented." Order accordingly. SUDDER DEWANNT ADA^V1.UT. 39 BUNMALEE BOSE, Appellant, versus RAJA BURDAKANT RAEE, Respondent. This was an application for a review of the judgment given by two fonner judges of the Sudder Dewanny Adawlut, on the 21st September 1840, in an action between the abovenamed parties. The decision of the Court was in favor of the appellant, and the application for a review was now preferred by the respondent. Mr. Tucker : — " The petitioner brings forward nothing new in his present application for a review ; he rests it entirely upon a docu- ment, upon which two former judges of the Court have already pronounced a clear and decided opinion : and the application is, in fact, an appeal to us from our predecessors upon points fully discussed and adjudged by them. — This in my opinion forms no ground for the admission of a review." Mr. Rattray concurred : Application rejected. 1841. February 10. Application for a review of judgment, on grounds already decided upon by former judges of the Sudder De- wanny Adaw- lut, rejected. RAM SUHAI BAJPAI, Petitionee. The petitioner and one Sheodyal Thakoor obtained a decree for certain monies in the Dacca court against Jugga Mohun Sein and others. The whole amount was paid in execution, by Jugga Mo- him Sein to Sheodyal Thakoor. The petitioner then applied to the city court for an order to compel payment by the latter of half the amount to himself; but his application was rejected by the judge, Mr. Cooke. From this order the petitioner appealed to the Sudder Dewanny Adawlut. Mr. Reid : — " The decree in favor of the petitioner and Sheodyal Thakoor was in general terms ; it specified no particular share or portion as payable to either of them. The petitioner cannot recover summarily from his joint decree-holder ; but he has his remedy by a I'egular action." Ordered accordingly. 1841. March 22. In the case of a joint deci'ee, without specifi- cation of the sums payable to each of the plaintiffs, pay- ment of the por- tions of the other decree- holders by one of them who has realized the whole amount, cannot be sum- marily enforced. CHUNDERNATH SURMA LUSHKAR, Petitionee. The petitioner appealed from the order of the judge of Dacca, confirming the sale of his property, which had been sold in execu- tion of a decree given against him. The plea set up was a com- promise between the petitioner and his creditor, which the judge, however, overruled, as no intimation of the compromise had been given to the Court in time to stay the sale. Mr. Reid : — " No intimation of the compromise was given to the Court before the sale : a receipt granted by the decree-holder to the petitioner was shown to the collector, but it was a receipt only for March 25. A compromise between a de- cree-holder and his debtor, of which timely in- timation was not given to the Court, execut- ing the decree, 40 SUMMARY CASES IN THE held to be a part of the amount, for the realization of which the sale was no sufficient ordered. The collector was clearly incompetent to stay the sale. fevevsaX of the ^^^^ judge's order must be upheld." sale of the debtor's pro- perty, made in execution of ~ ' ' ' such decree. 1841. April 6. The joint surety of a far- mer against whom, with his joint sureties, a decree had been given for ar- rears of rent, cannot be ab- solved from lia- bility on pay- ment of half the amount, the principal and each of the sureties being severally liable for the full amount of the decree, until it has been com- pletely satisfied. 1841. April 14, Rule regard- ing the order in which a decree is to be execut- ed against the heirs of the na- zir of a civil court, who had given in a false report of a sure- ty's property. PUDDUM LOCHUN MULLIC, Petitionee. This was an appeal from the order of the principal sudder ameen of Nuddea. The petitioner had become joint surety with another for a farmer, who had failed in payment of his rents, and against whom, jointly with the sureties, a decree had been given on the suit of the proprietor of the lands. The petitioner's application was to the effect that, as he was only a joint surety, he might obtain an acquittance from liability under the decree, on payment of half the amount adjudged in favor of the land-holder, the remaining half being demandable from the other surety. Mr. Reid : — " The appHcation cannot be complied with. The decree was given jointly against the principal and sureties, without specification of particular sums or proportions payable by each. Each of the defendants is responsible for the entire amount." Application rejected. MADABEE DAS SEE A, Petitionek. One Pyrag Dutt Pauree had obtained a decree in the zillah court of Mymensing against certain parties, which awarded to him a con- siderable sum of money due to him on account of rents. While the suit was pending, one of the defendants was called upon to give security to abide the final judgment ; the security was given, and the nazir of the court reported upon it in the usual manner. The return of the nazir was to the effect that the security was good, such report, however, being false. Subsequently the decree-holder, unable to recover the amount of his decree from the principals, brought an action against the surety, and the heirs of the nazir,* (the latter having demised) and obtained a decree against them. In the course * The action also included among the defendants the heirs of the party on whose security the nazir was appointed to his situation, but it was held on appeal by the Sudder Dewanny Adawlut, by the Court's decree of the 8th July 18-U, that those persons could not be made responsible, as, under the terms of the security bond, the sureties for the nazir could only be made accountable for losses caused by any act of embezzlement or malversation, on the part of th6 nazir, of the funds or property entrusted to him, but were not liable for the injury that might be occasioned by his making any false or erroneous returns to the Court. SUDDEE DEWANNY ADAWLUT. 41 of the execution of the last decree, the principal sudder ameen of Mymensing made a reference to the Sudder Dewanny Adawlut, before whom the case had been brought by an appeal on another part of it, for the Court's instructions as to the order in which the decrees should be executed against the several defendants in the two cases. The Court, (present Mr. Reid,) directed that the execution should proceed first against the principal in the first decree, then against the surety ; and then against the heirs of the late nazir; only in the event of failure to recover the amount from the principals and surety. HURRISCHUNDER BANERJEA, Petitioner. •' This was an appeal from an order of the principal sudder ameen of Cuttack. The petitioner had obtained a money decree against one Alee Buksh Elan, and had taken out execution against his property. Saudee Beebee, however, the wife of Alee Buksh Khan, had instituted an action against her husband, to recover the same property in lieu of dower settled upon her ; and on her application the sale of the property was ordered to be stayed until the decision of the suit pending between Saudee Beebee and her husband. From this order the petitioner appealed to the Sudder Dewaimy Adawlut. By the Court. — Mr. Reid : — " I see no reason for staying the sale pending the suit. The rights and interests of Alee Buksh will be sold; such sale, however, will not affect the rights of the wife. The order of the principal sudder ameen was reversed accordingly." 1841. April 14. Held, that the mere Institution of an action for real property, is no bar to the sale of the rights and interests of the defendant in such property, in execution of a money decree given against hini» RAM DOLAL LUSHKER, Petitionek. An action had been preferred against the petitioner in the court of the moonsiiF of Sherepore, zillah Mymensing, to which the petitioner pleaded that the property, which formed the subject of action, had been greatly undervalued by the plaintiff. The moonsiff did not enter into the plea thus set up, and the petitioner appealed to the zillah judge, who held that he could not interfere in an appeal from an interlocutory order of the kind complained against, passed in the course of the trial of a regular suit; but that the applicant must await the final decision of the suit, when he would be at Hberty to prefer a regular appeal, if dissatisfied with the judgment of the lower court. The petitioner then appealed to the Sudder Dewanny Adawlut. Mr. Reid : — " With reference to the rule laid down in Section IV. Regulation IV. of 1793, an appeal from an interlocutory order regard- ing the valuation of the property sued for, is admissible. Let the judge of Mymensing be informed accordingly."* April 19. Held that a summary ap- peal wililiefrom an interlocutory order passed in the course of a x-egidar suit, regarding the valuation of the property sued for. * See paragraph 3, CirciUar Order, i20th August 1841. Order, No. 65, 2nd February 1849. See also Circular 42 SUMMARY CASES IH THE April 20. The petition- er purchased a lot sold in exe- cution of a de- cree of court, and obtained a deed of sale from the zillah judge. The successor of the judge re- versed the sale on the applica- tion of the late proprietor, pre- sented some months after the sale had talen place. The court held that he was not warranted in so doing, and re- versed his or- der. KISHEN KAUNT NAIK, Petitionee. The petitioner had purchased certain property belonging to one Parbuttee Dasea, which had been sold on the 11th September, 1839, in execution of a decree against her, and had obtained a deed of sale from the judge of East Burdwan, under vfhose order the sale had been effected. On the 13th July, 1840, Parbuttee Dasea presented a petition to the judge, (the successor of the judge who had ordered the sale and granted the conveyance to the purchaser,) impeaching the regularity of the proceedings under which the sale had been held. The judge reversed the sale, and the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — Mr. Reid : — " The judge was not warranted in reversing the sale, on a petition presented many months beyond the period (one month) allowed by law for impeaching the regularity of sale proceedings. His doing so, moreover, after a deed of sale had been grjinted to the purchaser by his predecessor, was rescinding his predecessor's act, which he was not competent to do without the sanction of this Court previously obtained. The judge's order must be reversed." BUGHWAN DUTT SINGH, Plaintiff. 1841. April 20. An appeal to the Sudder De- wanny Adaw- lut from the judgment of a lower court, which has been struck off on default, is no bar to such court applying for sanction to review its own judgment. MIRZA AHMED HOSSEIN, Defendant. The plaintiff in this case obtained a decree from the principal sudder ameen of Bhaugulpore, from which an appeal was preferred by the defendant to the Sudder Dewanny Adawlut. The appeal was struck off on default. Subsequently, however, the defendant presented a petition to the principal sudder ameen, praying for a review of his judgment; and the principal sudder ameen now referred to the Court for instructions as to his competency to apply for permission to review a judgment, the appeal from which had been struck off on default by the Sudder Dewanny Adawlut. Mr. Reid : — " Let the principal sudder ameen be informed that as no judgment was pronounced by this Court on the merits of the appeal, he may apply for permission to review his judgment, under the spirit of Construction 1057, paragraph 2." SUDDER BEWANNT ADAWLUT. NUNDKISORE SHAW, Petitioner. 43 The petitioner had been defendant jointly with one Jyekishen Geer in a suit instituted against them by one Bimla Debea, who succeeded in obtaining a decree from the principal sudder ameen of zillah Mymensing. From this decision the petitioner and Jyekishen Geer preferred a joint appeal, which Jyekishen subsequently applied for permission to withdraw. On this the judge struck the case off his file. The petitioner then applied to the Sudder Dewanny Adaw- lut, for an injunction to the judge to restore the case. By the Court. — Mr. Rdd: — "The appeal having been jointly preferred, the judge was not authorized in striking it off the file on the application of one of the appellants. He will be directed to restore the case, and to proceed with it on the appeal of the petitioner." 1841. April 20. The Suddev Dewanny A- dawlut directed the restoration to the .file of the ziUah judge, of an appeal preferred joint- ly by two ap- pellants, but struck oif on the application of one of them. KISHEN DYAL SINGH, Petitionee. The petitioner held a farm of certain lands in pergunnah PoroakhaJee, which was recently in the possession of Ranee Pudma- muttee, under a claim alleged to be derived from her deceased husband. Baboo Dolar Singh and others had succeeded in obtaining a decree against the Ranee for the estate left by her husband, and, in execution of the decree, had taken possession of the pergunnah and ousted the petitioner from his farm. The petitioner applied to the judge of Purneah, for permission to hold his farm until the expiration of the period for which it had been granted, but his appli- cation was rejected. He then appealed to the Sudder Dewanny Adawlut. By the Court. — Mr. Seid: — " The judge was wrong in rejecting the application of the petitioner, merely upon the ground of a decree having been obtained by the party who had ousted him. Inquiry should have been made as to whether there had been any collusion or fraud in the contract of lease, under which the petitioner claimed to hold his farm. The judge will be instructed to make such inquiry, and proceed accordingly." 1841. April 26. A farmer cannot be oust- ed during the period of his engagement, by a party who has obtained a decree against his lessor, merely on the ground of such decree. See Construc- tion 540. SHEIKH SOOPUN, Petitionee. It appeared from the record of this case that one Sheikh Kyam- ooddeen held, in partnership with others, certain lands at a fixed rent, on which malikana was paid to other parties as proprietors. Kyam- ooddeen sold a portion of the land to the petitioner, which led to an 1S41, May 4, A party action against them both by one Oodan Singh, who claimed the having claimed right of pre-emption. To enforce his claim Oodan Singh sued in rire-emption iu the city court of Patna, and ottained a decree under instructions to certain lands, 44 SUJIMAET CASES IN THE and obtained a decree, is not at liberty to withdraw from his claim, in consequence of tlie resumption of tlie lands by Goverament, and the conclu- sion of a settle- ment with other parties. deposit the price of the land, which he did accordingly. Subsequently to this, the lands were resumed by the Government officers, and a settlement was made with the proprietors, thus ousting the parties between whom the several transactions above stated had occurred. Oodan Singh then applied for repayment of the sum deposited by liim in order to secure his right of pre-emption, but which had been made over to the petitioner. His application was refused by the principal sudder ameen, Syud Imdad Alee, but admitted by the judge, Mr. Smelt. The petitioner then appealed summarily to the Sudder Dewanny Adawlut. Mr. Reid : — " Oodan Singh has, by his own acts, placed himself in the position of the parties formerly in possession, from whom the petitioner purchased, and he is not entitled, in consequence of the subsequent resumption of the lands, to withdraw from his acts, and throw the loss entirely upon the petitioner." The order of the judge reversed accordingly. 1841. May 11. One of the heirs of a judg- ment creditor having realized the amount of the decree, held that another heir cannot summarily re- cover his por- tion of the debt from the party to whom pay- ment has been made.the reme- dy is by a regu- lar action. PETUMBER CHUCKEEBUTTEE, Petitionee. One Gouree Pershad obtained a decree against his debtor, and died before he had realized any portion of it. Pie was succeeded in his property by his son (the petitioner) and his brother, Kishenkaunt. The petitioner realized a considerable portion of the decree, but failing to pay any portion of it to his uncle, the latter made an application to the ziUah court of Eajshahye, to compel payment by the petitioner of such portion of the amount realized by him as was due to himself. The zillah judge called upon the petitioner to deposit a certain portion of the amount in court, on failure of which attachment was issued against the petitioner's property. From the judge's order the petitioner appealed to the Sudder Dewanny Adawlut. 3fr. Reid : — " There is a dispute between the petitioner and his uncle, as to the shares of the property of Gouree Pershad, to which they are respectively entitled. This cannot be summarily determined on an application of tliis kind ; nor can the petitioner be called upon by a summary order to refund, with a view to payment to another shareholder, any portion of the amount realized by him. The uncle has his remedy by a regular action against the petitioner." Zillah judge's order reversed. SUDDER DEWANNT ADAWLUT. 45 MUDOOSOODUN HOLDAR and others, Petitioners. The petitioners were amongst the number of bralimins who officiat- ed in rotation at the idol temple of Kalee at Kalee Ghaut. The profits of their turn of service were ordered for attachment by the judge of the 24 Pergunnahs, in execution of a decree given against Buddunchunder Holdar and others, who were declared by the decreeholder to be the officiating brahmins for the turn of service, claimed by the petitioners. Ftom the judge's order, the petitioners appealed to the Sudder Dewanny Adawlut. Mr. J. F. M. Reid, without entering into the question raised as to who was the officiating brahmin for the particular turn of service, observed, that the sums received by the brahmins who officiated at the temple were not for their private use, but for the purposes of the idol- worship, £md could not therefore be attached in execution of a decree founded on a private claim. The order of the judge was accordingly reversed. 1841. May 19. The profits of the tvu'n of service of a brahmin, offici- ating at an idol temple, cannot be attached in satisfaction of a decree for a private debt. BEGrLAR, Petitionee. The petitioner had obtained a decree against one Kuroonamye, a Hindu widow, for a sum of money due by her, the debt having been incurred personally by herself. Kuroonamye, after the death of her husband, Ramkishore Roy, had, with his consent previously given, adopted a son, by name fiada ICshwur Roy, who accordingly inherit- ed the estate of Ramkishore Roy. After the death of Kuroonamye, the petitioner took out execution against the property thus inherited by Rada Kishwur Roy. A reference was made on the subject by the judge of Dacca before whom the case was pending, that officer considering that, with reference to a former order of the Court, regarding the same property, he was unable to dispose of the application without the instructions of the Court. By the Court. — (Present Messrs. Rattray and Reid) : — " The estate of Ramkishore Roy, inherited by the son adopted by his widow under her husband's permission, is not liable for the personal debts of the widow. The petitioner is at liberty to bring a regular action to prove the habihty of the property, on the ground of the debt having been incurred to protect it from sale^ or other cause ; but this point cannot be summarilv decided." 1841, May 26. Execution of a decree against a Hindu wi- dow personal to herself, cannot be summarily had, after her death, against the estate of her husband, in possession of the son adopted by her with her husband's per- mission. The decree-holder may try the question of the liability of the property by a regular suit. 46 SUMMARY CASES IN THE 1S41. May 3l. An order of a zillali court dis- missing the suit of the petition- er, who sued to recover proper- ty which had escheated to the Govern- ment on default of succession, because the pe- titioner did not appeal &om a summary order rejecting' his claim, overrul- ed as against the practice of the courts. June 14. The lower court having given a decree for a sum less than the amount claim- ed, the defen- dant is at liber- ty to appeal, es- timating his appeal at the amount award- ed, instead of at that originally claimed. BUNGSEE DOSS UDHEKARI, Petitioner. On the death of one Gouree Prea Bushtomee, her property had been taken possession of by the public officers as an escheat to the Government. The petitioner claimed the same as heir to the deceased ; but a summary application to that effect made by liim to the zUlah court of Jessore, was rejected by the judge. The petitioner then instituted a regular suit against the Government for recovery of the property, which was dismissed by the zUlah court, on the ground of no appeal having been preferred from the former summary .order rejecting his claim, and which was therefore final and conclusive. The petitioner appealed summarily to the Sudder Dewanny Adawlut. By the Court. — Mr. Reid: — " The zillah judge's dismissal of the petitioner's suit on the ground stated, is against the practice of the Courts. The action to contest a summary order of the kind in ques- tion is quite regular, and must be tried on its merits." Order accordingly. LUKHENARAIN BURRAL, Petitioner. The principal sudder ameen - of Midnapore had given a decree against the petitioner, to the amount of rupees 890, in an action for recovery of rupees 1,793. The petitioner appealed to the zillah judge estimating his appeal at rupees 890, the amount awarded against him. The ju^ge directed hihi to lay his appeal at the amount of the original action. From this order the petitioner preferred the pre- sent appeal. By the Court. — Mr. Reid : — " The petitioner is required to estimate his appeal only at the amount of the award, vrith which he is dissa- tisfied. In such a case the amount of the original claim in no way affects the valuation in appeal." Judge's order reversed. 1841. June 15. A. is confined in execution of a decree at the instance of 6. wlio is, under a decree of Court, a debtor of C, Held that on GOPAL KISHEN DOSS, Petitioner. The petitioner had been imprisoned in the civil jail at Dacca, in execution of a decree obtained by a party, against whom again a decree had been given in favor of one Khoodee Debea, which was also in course of execution. On the holder of the decree against the petitioner neglecting to deposit the subsistence money requisite for his support in jail, it was deposited by IQioodee Debea. The petitioner applied to the zillah judge for his discharge, on the ground that his decree-holder had failed to deposit his subsistence" money ; but his application was refused with reference to the deposit made by SUDDER DEWANKY ADAWLUT. 47 Khoodee Debea. From the judge's order the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — Mr. Rdd: — "Klioodee Debea has a lien upon the decree given against the prisoner in favor of her debtor, and the judge's refusal to release him, under the circumstances, was correct." Application dismissed. IMRUT LALL, Petitionee. The petitioner had brought an action in the zillah court of Sarun for recovery of a debt alleged to be due to him. The case was dis- missed by the principal sudder ameen, to whom it had been referred, for want of evidence. On the application of the petitioner, the prin- cipal sudder ameen applied to the zillah judge for sanction to review his judgment, which was refused. The petitioner preferred the pre- sent appeal from the order of refusal to the Sudder Dewanny Adawlut. By the Court. — Mr. Reid: — "The question of the finality or otherwise of the order of a judge, refusing to allow a principal sudder ameen to review his judgment, has been laid by me before the Court at large ; and it has been ruled by both the Presidency and Western Courts that such order is final." Application rejected. B.'s neglecting to deposit the subsistence money for A,, C. may deposit it^ and detain A. in custody to enforce pay- ment. 1841. June 23, The order of a zillah judge refusing to al- low a principal sudder ameen to review his judgment, is final. CHUNDEE CHUEN MUJM0ODAR, Petitionee. This was a summary appeal from the order of Mr. J. Dunbar, judge of East Burdwan. It appeared that one Besumber Bydiabhoo- sun had applied to the judge, under the provisions of Section VIII. Regulation XVII. of 1806, for issue of the prescribed notice of fore- closure of a mortgage held by him on the property of certain persons mentioned in his application. The mortgagee stated that the following persons, viz. Musst. Gyamonee, Muddun Mohun Ghose, Banee Mohun Ghose, Mun Mohun Ghose, Dhunkishen Ghose, (father of Gopee Mohun Ghose and Mutra Mohun Ghose, minors,) had execut- ed the mortgage on receiving a loan from him of rupees 15,000. The notice was served, and no one appearing within the period allowed, the case was struck off the file, leaving the mortgagee to pursue the usual course of a regular action to foreclose. After the case was thus struck off, Musst. Gyamonee, Mun Mohun Ghose and Gopee Mohun Ghose filed petitions, alleging that they knew nothing of the mortgage or of the notice. They, however, together with Muddun Mohun Ghose and Banee Mohun Ghose subsequently filed petitions, stating that the transaction was a true and valid one, and that they had made an agreement with the vendee that they would pay the debt within a specified time, in failure of which the conditional sale was to be made absolute, and the property transferred to the 1841. June 28, It is not com- petent to a zil- lah judge to pass an order sum- marily, for fore- closure of a mortgage, not- withstanding the Tendor and vendee might certify to him an agreement, to the effect that the condi- tional sale should be made absolute with- out the neces- sity of further proceedings, in the event of a violation of the agreement by the vendor. 48 SUMMARY CASES IN THE mortgagee without the necessity of further proceedings. The vendor also tiled a petition assenting to the arrangement. On this the judge passed orders in conformity to the adjustment entered into between the parties, providing that unless the debt was paid within the specified time, the vendee should take possession of the property as proprietor, the conditional sale being made absolute. From the above order the petitioner appealed to the Sudder Dewanny Adawlut, as the relative and friend of Mutra Mohun Ghose, with a view to protect the interests of the minor, which were about to be sacrificed by the proceedings of the parties. Mr. Reid: — " Th^udge had no power to pass his order for making the sale absolute in the absence of a regidar suit, whatever agree- ment might have been come to. The order is stiU further irregular, in consequence of the judge having revived his proceedings in a case which had been already struck off by liim in regular course. The order of the judge must be reversed." 1841. June 30, The order of the zillah judge, declaring that a sale in execu- tion of a decree, which adjudged repayment of a loan previously advanced to protect the same property fi'om puhlic sale for arrears of revenue, had the same effect as such public sale, and can- celled all leases granted by the late proprietor, overruled. RAI MUKOOND KISHWUR, Petitionee. A CERTAIN estate, the property of Beejnath Sehai and others, was about to be sold for arrears of revenue,»when one Sheikh Futteh Alee advanced the amount of the arrear, and saved the estate from sale. Futteh Alee, not having been repaid the money thus advanc- ed, brought an action for recovery of the same, and obtained a decree in the city court of Patna, in execution of which he caused the sale of the identical property, for the protection of which he had paid the arrear due to Government by Beejnath Sehai and his co-sharers. The auction purchaser, in taking possession, and endeavoring to collect the rents from the ryots, was opposed by the petitioner, who stated that he held a farm of the property, under a lease granted to him by the late proprietors. On application to the judge, that functionary set aside the petitioner's lease, declaring that, under the circumstances of the case, the sale in execution of the decree in favor of Sheikh Futteh Alee had all the force of a sale for arrears of Government revenue, and cancelled all engagements made witli the late proprietors. From this order the petitioner preferred the present appeal. By tlie Court. — Mir. Reid : — " Whatever were the circumstances under which the debt of Beejnath Sehai and his co-sharers to Sheikh Futteh Alee was incurred, it cannot be considered otherwise than as a private transaction. The sale in execution of Sheikh Futteh Alee's decree transferred to the purchaser only the rights and interests of the debtors, and cannot affect bona jfide leases for the period of the engagements entered into between the farmers and the late proprietors." Judge's order reversed accordingly. SBBDER DEWANNY ADAWLUT. 49 RAMANATH CHUTTERJEA, Petitionee. The petitioner had been fined by the judge of Hooghly, Under the provisions of Section XXVH., Act XXIX. of 1838, for permitting the manufacture on his estate of contraband salt. From the judge's order he appealed to the Sudder Dewanny Adawlut, chiefly on the ground that the evidence in the case went to show, that the petitioner himself had given information against the parties who had manufactured the salt, which point however the zillah judge did not consider to have been established. By the Court. — Mr. Reid: — " The petitioner appeals under Section XXXII., Act XXIX. of 1838, on a matter of fact: the appeal must be rejected, no special grouhd, as required by the law, having been shown for its admission." 1841. July 13. Held that an appeal from a judge's order, under Section XXVII., Act XXIX. of 1838, inflicting a fine on a landholder for permitting the manufac- ture of contra- band salt on his estate, can be admitted only on special grounds. JADUB RAM SURMA, Appellant, versus RAMCHURN KER, Respondent. This was an action instituted by the respondent in the zillah court of Sylhet, which had been decided, first by the principal sudder ameen, then by the judge, and finally, on special appeal, by the Sudder Dewanny Adawlut ; the superior court (present Mr. J. R. Hutchinson, a former judge of the Court,) confirming in all points the decision and order of the zillah judge. When the decree of the Sudder Court was sent for execution to the zillah court, it was dis- covered, that a mistake had occurred in regard to costs, which were made payable by the party in whose favor the case had been decided, instead of the losing party. It then became a question, whether the decree of a former judge of the Court could be amended without an application for a review. The head ministerial officer was desired to report upon the previ- ous practice of the Court, after a reference to its records. His return was to the effect, that evident errors in the decrees of present or former judges had been amended without application for a review. In the case of a judge present in the Court, the error had been usually amended by himself ; and in that of a former judge, by two or more judges of the Court. Mr. Seid : — " The order in Mr. Hutchinson's decree regarding costs is evidently an error. According to former practice, which appears to me to be the proper mode of proceeding, two judges of the Court can correct the error without an application for a review. I would so act in the present instance." Mr. Lee Warner concurred. 1841. July IS. Mode of pro- ceeding to amend an evi- dent error in the decree of a former judge of the Sudder De- wanny Adaw- lut, ■without the admission of a formal -review. 50 STJMMAUT CASES IN THE 1841. July 15. The time of notice of fore- closure of a mortgage pre- scribed by Sec- tion VIII., Re- gulation XVII. of 1806, having expired on a Sunday, the Sudder Dewan- ny Adawlut held that a ten- der of the debt on the day fol- lowing, as a depositin court, should have been allowed. 1841, August 23. A debtor, de- clared by a de- cree jointly res- ponsible with others, cannot claim exemp- tion from fur- ther liability on depositing what he considers to be his share of the debt. PUZL-00-NI8SA, Petitionee. The petitioner had mortgaged certain property ; and the mort- gagee, with a view to foreclose the mortgage, had served her with the notice prescribed in Section VIII., Regulation XVII. of 1806. The day on which the notice expired fell on a Sunday, and on the following day, the petitioner tendered the amount of the debt due by her, as a deposit in coiu-t. The judge of zillah Hooghly refused to receive the deposit, in consequence of the time allowed having expired. From the judge's order the petitioner appealed to the Sudder. Dewanny Adawlut. Mr. Reid was for upholding the order of the lower court. Mr. D. C. Smyth : — " I am of opinion that the deposit tendered by the petitioner should have been received. The time allowed expired on Sunday, and as the petitioner tendered the deposit on the following day, I think she was within time." Mr. Lee Warner concurred with Mr. D. C. Smyth. HEERA SAHO, Petitioner. A decree had been obtained by certain parties jointly against the petitioner and others. The petitioner vnshed to deposit in Court what he alleged to be his portion of the debt, and to obtain an acquittance. His application was rejected by the zillah judge, and he then appealed to the Sudder Dewanny Adawlut. By the Court. — Mr. Reid: — " The petitioner has been de- clared by the decree jointly responsible with other of the defendants, and he cannot be absolved from liability on depositing what he alleges to be his portion of the debt." Application rejected. 1841. August 3l, Proof of in- tention to alie- nate, and of a refusal or neg- lect to give se- curity is requi- site, before a zillah court can attach the pro- perty of a de- fenc^nt under HURCHUNDER CHOWDREE, Petitionee. One Sumbhoochunder Chowdree had instituted an action against the petitioner in the zillah court of Mymensing, and followed up his petition of plaint by another petition, stating that the petitioner was about to remove his property, and praying that he might be called upon to give security, under the provisions of Section V., Regulation n. of 1806, to abide the judgment of the Court. On this the prin- cipal sudder ameen, to whom the case had been referred, without taking any evidence, as required by the rule above cited, issued a notification prohibiting the removal or alienation of the petitioner's property. From the order of the principal sudder ameen the petitioner appealed to the Sudder Dewanny Adawlut. STJDDER DEWAJWY ADAWLUT. 51 By the Court. — Mr. Reid : — "The first step taken should have Section V., Re- been to call for proof of the intention to alienate as indicated by some fgoe^™ ' ° overt act of the defendant ; then a call for security ; and then, in de- fault of security being given, an order for attachment of the defen- dant's property." Order accordingly. See Con- struction 190. THE EAJA OF BURDWAN, Petitioner. This was an appeal from an order of the judge of East Burdwan, dated 8th July, 1841. Eanee Bussunt Komaree had instituted an action against the petitioner, for the recovery of certain deeds relating to property which she claimed, alleged by her to be in his possession. At the instance of the Eanee, the petitioner was directed to deposit the deeds in Court, failing to do which, the ziUah judge fined him one-fonrth of the value of the stamp used for the petition of plaint in the case, citing as his authority Clause 3, Section Xn., Regulation XXVI. of 1814. The petitioner appealed to the Sudder Dewanny Adawlnt. By the Court. — Mr. Reid : — "The rule cited by the judge, refers to failure of parties to file their documentary evidence when directed so to do by the Courts, and does not in any way bear upon the case in question, in which the petitioner failed to deposit the deeds which formed the subject of the action. The order of the judge must be overruled." plEuntiff formed the 1841. September 7. Held, that a judge is not au- thorized by Clause 3, Sec- tionXI I., Regu- lation XXVI, of 1814, to fine a defendant one- fourth of the value of the stamp required for tlie petition of plaint, for failing to pro- duce certain do- cuments, the i-ecovery of which by the subject of action. BEGUMA JAN, Petitionee. The petitioner had purchased certain property sold in execution of a decree of court. While the property was under advertisement of sale, a clahn to it was set up by one Dhurm Sing, which having been rejected, he instituted a regular suit for it in the city court of Patna. On this the zillah judge directed that the purchaser (the petitioner) should not obtain possession of the purchase, until the judgment of the court had been pronounced on the claim of Dhurm Singh. From this order the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — Mr. Reid: — "The institution of a regular suit, by the claimant to the property sold to the petitioner, is no sufficient reason for withholding possession from the petitioner of the pro- perty purchased by her." Order accordingly. 1841. September 13, The institu- tion of a regu- lar suit, to set aside a sale of property sold in execution of a decree of court, is no sufficient reason for with- holding posses- sion of the pro- perty from the purchaser. 52 SUMMARY CASES IN THE 1841. September 20. In an action for damages, the defendant may appeal from the decree of the lower court to the amount of the sum awarded as damages, in- stead of at the amount of the damages laid by the plaintiff. CHUNDEECHUEN MOOKERJEA, Petitioner. The petitioner was defendant in an action for damages, laid at Es. 1,500, but in which Es 5. had been awarded to the plaintiff by the principal sudder ameen of Beerbhoom. The petitioner appealed to the judge against the award, stating the amount in appeal at Es. 5, and writing his petition of appeal on paper of the value required for that sum. The judge rejected his application, with leave to appeal at the amount of Es. 1,500. From this order the petitioner preferred the present summary appeal to the Sudder Dewa^ijny Adawlut. By the Court. — Mr. Reid : — "The judge*^ order is wrong. The petitioner is at liberty to appeaj, laying his appeal at the amount awarded against him." Zillah judge's order reversed. 1841. October S. An application for permission to sue in forma pauperis, to set aside a sum- mary decree for rent passed prior to the enactment of Regulation VIII. of 1831, rejected, incon- sequence of the application not having been preferred with- in one year from the date of the promulgation of thatReguIation. KISHEN KAUNTH HIJEA, Petitionee. One Gopaul Chatterjea had summarily sued the petitioner for arrears of rent, and obtained a decree, dated 29th November, 1829, in execution of which certain property belonging to the petitioner had been sold, and, in consequence of the arrears proved against the petitioner, had further resumed his holding and given a lease of it to other tenants. The petitioner applied to the judge of East Burd- wan, on the 21st December, 1839, for permission to sue in forma pauperis, with a view to set aside the summary decree, and to obtain damages for the injury alleged by him to have resulted from its operation, including the profits of the holding from which he had been dispossessed. The action was laid by him at Es. 9,942. The zillah judge gave permission to the petitioner to sue for the value of the property sold in execution of the summary decree, which amount- ed to about Es. 700, but refused his appUcation to sue in forma pauperis, for the remainder of his claim. From the above order the petitioner appealed to the Sudder Dewanny Adawlut. Si/ the Court. — Mr. Reid: — "The sale of the property and the ejectment of the petitioner from his holding were the necessary con- sequences of the summary decree obtained against him by Gopaul Chatterjea ; and these must be upheld unless the decree can be set aside. In fact the real object of the petitioner's application is to obtain permission to sue in forma pauperis, for the purpose of setting aside the decree. The question has been put by me to the Court at large, whether, with reference to Section VI., Eegulation VIII. of 1831, an action to set aside a summary decree for arrears of rent passed prior to that enactment, wiU lie, unless preferred within one year from the date of its promulgation. The Presidency and Western Courts are both of opinion, that such an action cannot be maintained, SUDDER DEWANNY ADAWLUT. 53 unless brought within the year ; and therefore the petitioner's appli- cation should have been rejected entirely, including that part of it with which the zillah judge has complied." Application rejected. ARRATOON AND OTHERS, Petitionees. This was an appeal from the order of the judge of Backergunge. It had been ascertained that illicit killarees, for the manufacture of salt, had been erected on the estate of the petitioners, who on proof of the fact, were sentenced by the zillah judge to the payment of a fine, xmder the provisions of Section XXVIL, Act XXIX. of 1838. Prom the orders of the judge, the petitioners appealed to the Sudder De- wanny Adawlut, pleading that their estate was given in farm, and that the farmer should be held responsible instead of the zemindars. By the Court. — Mr. Eeid : — " The zemindar cannot divest himself of the responsibility imposed upon him by the law cited, by giving his estate in farm ; the petitioners have been rightly fined, and the judge's order must be up\ield." Appeal dismissed. 1841, October 6. A zemindar does not relieve himself from liability to fine inder Section XXVII., Act XXIX. of 1838, for tlie erection of illicit killarees on his estate, by giving his estate In farm. ISREE DUTT, Petitiokee. The petitioner had been deputed as an ameen, to make a local investigation in connexion with a case before the principal sudder ameen of Shahabad, on an allowance of Rs. 30 a month. On the completion of the investigation, which occupied him four, months, he received the full allowance for that period. On summary appeal, pre- ferred on the special ground of excess of pajTnent made to the ameen, the zillah judge ordered a refund of one-half of the amount, considering that the investigation ought to have been completed in two months. The petitioner then filed a regular action against the party charged with the cost of the investigation, for recovery of the amount refunded : the ziUah judge however held that the action was inadmissible ; and from his order rejecting the plaint, the petitioner preferred the pre- sent appeal to the Sudder Dewanny Adawlut. By the Court. — Mr. Reid : — " The judge's order for refund of half the allowance granted to the petitioner caimot be contested by a regular suit. The application must be dismissed, and the judge's order rejecting the plaint upheld." 1841. December 13. The order of a court direct- ing a refimd of a portion of the allowajnce granted by a lower court to an ameen for conducting a local investiga- tion, cannot be contested by a regular suit against the party charged ■with the cost of the investiga- tion. 54 SUROIAUT CASES IN THE 1842. January 5. The petition- ers (Hindus) having obtained a decree decla- ratory of their right to claim the perform- ance of certain ceremonies by the members of their family, and damages for omission to perform them ; the Sudder De- wanny Adawlut held that it could be en- forced only in regard to the damages and costs of suit, and that each subsequent re- fusal to perform the rites con- stituted a sepa- rate ground of action. HOLAS RAM DEB and NUND RAM DEB, Petitionees, This was an appeal from the order of the judge of Sylhet, dated the 25th August 1841, refusing to confine Sooda Ram and pthers, because they would not, according to the terms of a decree of the Sylhet zillah court, dated 27th December 1827, perform the rite of Asoochdharun, which consists in the performance of certain ceremo- nies on the birth or death of any of the members of the family. The plaintiffs, alleging that they were members of the same family as the defendants, and that they suffered in caste in consequence of the omission by the latter to perform the ceremonies alluded to, sued to compel them to perform the rites, and to recover damages. The decree declared the plaintiffs entitled to claim the performance of the ceremonies, and awarded damages to the amount of a rupee. The decree had been followed for a time, but the defendants again neg- lected to perform the rite on the death of one of the female members of their family, and the petitioners sued out execution of the decree in order to compel them by imprisonment in the civil jail. Their ap- plication was refused by the zillah judge, and from his order they ap- pealed to the Sudder Dewanny Adawlut. Sy the Court. — (Present Mr. Reid) : — " Th^ decree is of that nature which can be executed only in regard to the levying of damages and costs of suit. If the defendants refuse again to perform the ceremonies, such refusal is a separate injury, for the recovery of damages for which a separate action may be instituted." Application refiised. 1S42. January S. MUDDUN MOHIIN MUJMOODAR, Petitionee. The petitioner was party to a suit decided by the sudder ameen, and afterwards, in appeal, by the judge of East Burdwan. Dissa- tisfied with the judge's decision, he applied to the zillah court for a rehearing; but Ms application having been rejected, he now appealed to the Sudder Dewanny Adawlut against the order of rejection. The Court, (present Mr. Reid,) held that the judge's order was final, and that the Sudder Dewanny Adawlut had no jurisdiction. A zillah judge having rejected an ap- plication for a rehearing of his own judgment in an appeal from the sudder ameen. had no jurisdiction in the case. held that the Sudder Dewanny Adawlut January 10. An estate having heen or- dered for at- tachment by the civil court NIL MADHOO SURMA CHOWDREE, Petitionee. An estate, in which the petitioner was a sharer, had been ordered for attachment under the provisions of Section XXVI., Regulation V. of 1812, in consequence of disputes between the proprietors; and a precept to that effect had been issued to the collector, as prescribed by Regulation V. of 1827, who accordingly completed the attach- ment. Subsequently on an application made by one of the sharers, SUDDEE DEWANNY ADAWLUT, 55 the civil court interfered in the management of the property, directing the collector to remove the surburakar or manager, and to give the estate in farm to one of the sharers, -who was desirous of taking it. From this order the petitioner appealed to the Sudder Dewanny Adawlut. Bi/ the Court. — (Present Mr. Reid) : — " The civil court may remove the attachment on cause shown ; but as long as the property is under attachment, the judge has no power, to interfere with the ma- nagement of it, which rests entirely with the revenue authorities, who are competent to pass such orders as they may think proper in regard to farming engagements, collection of rents, and details of management. The judge's order must be reversed." under Section XXVI., Regu- lation V. of 1812, and at- tached by the collector under Regulation V. of 1827, it is incompetent to the court to interfere with its internal management. 1842. EAM KUMUL KOMAREE, Petitioner, The petitioner had obtained a decree against one Rama Nund Mitter, in the zillah court of Moorshedabad, and taken out execution of the same. She had procured the attachment of certain property, J^auary lo. to which a claim was set up by a third party, and admitted by the In an appeal zillah judge, the claimant making no objections to the admission of ^"^ .*'*® P''^^" the claim. She appealed to the Sudder Dewanny Adawlut from the for^releasi" on order directing the release of the property from attachment. claim preferred, Bi/ the Court— (Present Mr. Reid J .— « The petitioner should techecf^b*^ the have stated her objections to the judge's order in the zillah court. They petitioner in ^ cannot be inquired into and admitted here, as by a court of first instance." execution of a Petition rejected. decree, the Sud- J der Dewanny Adawlut reject- ed the application, the objections to the release not having been made in the zillali court. MAHOMED EWAZ, Petitionee. One Munnee Lai Baboo, a landed proprietor, had sued the defendant before the collector of Burdwan, under Section XXX., Regulation II. of 1819, for recovery of a small parcel of land held by the latter as lakhiraj, and had obtained judgment in his favor, which was confirmed on appeal to the judge of the district. The petitioner made an application to the judge for a review of the order, which was rejected. He then applied summarily to the Sudder Dewanny Adawlut, praying that an injunction might be issued to the judge, directing him to review the judgment passed by him in the case. . The Court, (present Mr. Reid,) held that no summary appeal from an order rejecting a review could be allowed, and accordingly dismissed the application. 1842. January 13. A summary appeal does not lie to the Sud- der Dewanny Adawlut from the order of a zillah judge, re- jecting an ap- plication for a review of his own judgment. 56 SUMMAEY CASES IN THE 1842. Janu£iry 18. The institu- tion of a suit, between co- debtors, arising out of a judg- ment given against tbem jointly, in fflvor of a creditor, is no bar to tlie execution of tlie decree obtained by the latter. RAM DOSS BOSE, Petitioner. This was an appeal from an order passed by the judge of 24 Pergunnahs. The petitioner had obtained a decree jointly against two persons, and sued out execution of the same. One of the debtors then sued his co-debtor, to prove that the latter was alone liable for the debt, and for exemption from payment of any portion of the award given in favor of the petitioner. The plaintiff then applied for suspension of the execution of the petitioner's decree, until the suit pending between him and the other debtor was decided. The application was rejected by the principal sudder ameen, but admitted by the judge. On this the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Preserit Mr. MeidJ : — " The decree was given jointly against both the plaintiff and the defendant of the pending suit, and its execution cannot be suspended in consequence of dis- putes between them. The judge's order must be reversed, and the execution of the petitioner's decree allowed to proceed." 1842. January 31. The Sudder Dewanny Adawlut will admit a sum- mary appeal from an order of nonsuit. Property claim- ed under sepa- rate deeds must be separately sued for. But any number of decree-holders, attaching the same property, may be sued in the same plaint by a party lay- ing claim to it. JHOMAREE BEEBEE, Petitionee. This was a summary appeal from an order of the principal sudder ameen of zillah Beerbhoom. The petitioner had brought an action in the ziUah court of that district, claiming certain property which had been attached in the course of execution of two decrees, obtained separately by Eehmut-oolah and Kamut Hossein, against Gholam Murteza. The property was claimed by the petitioner under separate deeds of con- veyance to her. The principal sudder ameen, to whom the case was referred, non- suited the plaintiff for two reasons ; first, because the property was claimed under separate deeds and could not be sued for together ; and secondly, because a separate action against each attaching party was required. The petitioner applied summarily to the Sudder Dewanny Adaw- lut for a reversal of the order of the lower court. The Court, (present Ulr. Eeid,)' having first ascertained that it had been the practice of the Court to admit summary appeals from orders of nonsuit, passed the following order : " The first reason given by the principal sudder ameen, viz., that of the necessity of separate actions for property held under separate deeds, is good ; but his second reason is invsjid, as a claimant may sue in the same action any number of persons attaching the same property." Order confirmed for the first reason accordingly. SUDDER DEAVANNY ADAWI.UT. 57 BEEBEE SABUREE, Petitioner. This was an appeal from an order of the judge of Tipperah. The petitioner had preferred a claim to certain property situated in Dacca, which had been advertised for sale under process of the Tipperah court in execution of a decree. Her claim was rejected, and she then appealed to the Sudder Dewanny Adawlut. The Court, (present Mr. Reid,) without entering into the merits of the case, reversed the order of the judge of Tipperah, who had no jurisdiction over property situated in another district, and directed that the petitioner's claim be inquired into by the judge of Dacca, as directed by the printed Circular, No. 83, dated 8th May, 1840. February 1. A claim to property adver- tised for sale, in execution of a decree, must be investigated by the proper judicialauthori- ty of the dis- trict in which the property is situated. MUFEEZOODDEEN CHOWDREE, Petitionee. This was an appeal from an order of the judge of Rajshahye. The petitioner had summarily preferred a claim to property adver- tised for sale in execution of a decree given against another party, to whom, it was alleged by the decree-holder, the property belonged. His claim had been rejected, on which, before the sale had taken place, he instituted a regular action to prove his right, and applied to the zUlah judge to stay the sale until the decision of the suit com- menced by him. The judge rejected his application, on which he appealed to the Sudder Dewanny Adawlut. The Court, (present Mr. Reid,) held, with reference to former precedents, that the institution of an action by a claimant whose claim had been summarily rejected, did not necessarily bar the sale of the rights and interests in the property of the party against whom the decree had been given, until the decision of the suit commenced by the claimant ; that in the present instance no special reason for stopping the sale had been shown, and consequently there was no ground for interfering with the judge's order. 1842. March 14. The institu- tion of a regu- lar action by a claimant, after summary rejec- tion of his claim to pro- perty advertised for sale in exe- cution of a de- cree, does not necessarily bar the immediate sale of the rights and in- terest of the judgment debtor. SYUD AKBAR ALEE KHAN, Petitionee. The petitioner appealed from an order of the principal sudder ameen nonsuiting his claim to recover possession of certain lands from which, as alleged, the defendants had dispossessed him. The principal sudder ameen passed the order of nonsuit because the petitioner sued in one suit, without specification of particulars, for sundry portions of land, from which he had been dispossessed at various times. By the Court. — (Present Mr. Reid) : — " The petitioner sues for different parcels of land against the defendants, without specifying particulars, further than to make it appear that one of the defendants ejected him from one parcel at one time, and another of them frorri H 1842. March l4. In a suit for recovery of various portions of land from which the plaintiff alleged that he had been dispos- sessed at dif. ferent times, but did not 58 SUMMAEY CASES IN THE specify particu- lars, the Sudder Dewanny A- dawlut held that he was rightly non- suited. a second parcel at a different time, and so on through the several portions for which he sues. Under these circumstances the order of nonsuit was quite correct, and the petition to the Court must be rejected accordingly." 1842. March 21. A mere ar- rest, without commitnient to Jail, is -no bar. Tinder Section III., Regulation VI. of 1830, to the subsequent arrest and im- prisonment of a judgment debt- MUSST. BIMLA DEBEA CHOWDRAEST, Petitioxek. The petitioner appealed from an order of the judge of Mymensing. She had obtained a decree against certain persons who had been arrested, but were discharged without having been committed to jail in consequence of the petitioner failing to deposit their diet allowance. They were again arrested on a second warrant taken out by the petitioner, but the zillah judge was of opinion, with reference to the provisions of Section III., Regulation YI. of 1830, that they could not be imprisoned. On appeal to the Sudder Dewanny Adawlut, the Court, (present Mr. Reid,) observed, that under Construction No. 1090, the former arrest was no bar to the imprisonment of the defendants,* 1842, March 22. The vakeel of ajudgment cre- ditor having ap- plied on behalf of his client, praying that certain proper- ty belonging to his debtor might be publicly sold to him at a spe- cified sum, if more was not bid for it : it was held by the Sudder Dewan- ny Adawlut, that the client was bound by such an appli- cation, notwith- standing his subsequent de- claration that he had not au- thorized his va- keel to make it. SHEIKH BUEKUT HOSSEIN, Petitionee. One Bhoput Singh had obtained a decree against the petitioner in the zillah court of Bhaugulpore, in the course of execution of which, his vakeel petitioned on his part to the effect that he, (the decree- holder,) might be allowed to purchase a certain village belonging to the petitioner, for the sum of rupees 5,000. The village was sold by the Revenue authorities to a third party for rupees 4,000, but the judge of Behar, on the 30th June 1838, ordered that the sale should be set aside, and the lot again put up, and sold to the highest bidder above rupees 5,000, otherwise, to Bhoput Singh for that sum. From this order, Bhoput Singh, denying that he had authorized his vakeel to make such an application and ob- jecting to be bound by it, appealed to the Sudder Dewanny Adaw- lut, but was directed to submit his objections to the second sale to the zillah authorities in the first instance. The principal sudder ameen, to whom the case was subsequently referred, was of opinion that the vakeel of Bhoput Singh was not authorised to make the application he had done, and that his client could not be bound by it. The principal sudder ameen's order was, on appeal by the petitioner, con- firmed by the judge. The petitioner then applied to the Sudder De- wanny Adawlut. By the Court. — (Present Mr. Re'id) : — " The decree-holder bound himself in his vakalutnama to abide by the acts of his vakeel, * Under the strict enforcement of the Rule of Section II., Regulation VI. of 1830, which prescribes that no process of arrest shall issue without a deposit of diet money for thirty days having been previously made, the above question could not have arisen. SUDDEE DEWANNY ADAWLUT. 59 and to that engagement he must be held. His present denial of the act of his vakeel duly appointed, cannot avail ; and the order of the former judge must be upheld, the last order of the principal sudder ameen and judge being reversed." Ordered accordingly. SYUD INAIET HOSSEIN, Petitionee. This was an appeal from an order of the judge of Pumea, refusing to appoint a curator under the Rules of Act XIX. of 1841, to the estate of the petitioner's father, the late Haja Dedar Hossein. In the hearing of the case the question arose whether the com- plainant must appear in person to make the solemn declaration requir- 1842. April 13. Held, with re- fer^ice to the ed by Section III., of the Act, or whether such declaration can be Section III. made through an authorized agent. It was ruled that the complain- Act XIX. of ant must appear in person. ^^*]l (''^S^™" ^^ ^ mg the appoint- ment of curators for the protection of property against wrongful possession in cases of succes- sions,) that the complainant must appear in person to make the solemn declara- tion tliereby required. See Construction No. 1319. JOHN SMITHSON BROWN, Petitionee. The petitioner and his three younger brothers were the sons of Cecilia Brown, who left her property to her children, in the propor- tion of a 6 anna share to the petitioner, and the remaining 10 annas to be divided equally between the three younger sons. The will fixed the age of 21 years, as the period at which the younger children were to receive their respective shares of the 10 annas bequeathed to them, and appointed the husband of the testatrix, and her eldest son, the petitioner, executors, the latter on his attaining his majority. Up to the period of the present application the children had been under the care of the guardians, who had the management of their property. The petitioner now applied to be put in possession of his part of the property, on the plea that he had attained the legal age of majority, viz. ] 8 years. The Court, (present Messrs Tucker and Reid,) were of opinion that it was presumable from the will that the age of 21 was contem- plated by the testatrix as the period of her children attaining their majority, as well in the case of the petitioner, as of his younger brothers ; and accordingly rejected his application. 1842. April 14. The age of 21 was held as the period of the petitioner (a Christian) at- taining his ma- jority, with re- ference to the provisions of a will, under which he claim- ed the personal management of property be- queathed to him. 60 SUMMARY CASES IN THE 184?. April 18, An applica- tion for review of a summary order rejected, without inquiry into its merits, because, first, a copy of the or- RAJA KISHEN CHUNDER, Petitionee. The payment of a sum of money had been awarded against the petitioner by a decree of the Sudder Dewanny Adawlut which subse- quently, on the 25th November, 1840, was construed to mean that interest on the same was also recoverable by the decree-holder from the petitioner. On the 5th April, 1842, the petitioner applied for a review of the order of 25th November, 1840. By the Court. — (Present Mr. ReidJ : — " The petitioner has nei- ther filed a copy of the order of which he complains, nor has he given His petition is rejected der complained any reason for the delay in his application. mTrt^X accordingly." petition of i-e- view, and secondly, because no reason was given for the delay in making the application. 1842. April 18. Held that Sec- tion XXI., Act XII. of 1841, does not au- thorize a Col- lector in re- fusing to attach the surplus pro- ceeds of a sale for arrears of Revenue in de- posit in his of- fice, in obedi- ence to the or- ders of the civil court passed under Section v., Regulation II. of 1806. CHOONEE LAL SEIN, Petitionee. This was an appeal from an order of the principal sudder ameeu of Hooghly. The petitioner had lodged an action for about rupees 15,000 against one Gyamonee Dassea, and had applied to the principal sudder ameen, before whom the case was pending, to attach a sum equal to his claim, belonging to the defendant, in the hands of the collector of the district, being the surplus proceeds of an estate sold for arrears of revenue. The principal sudder ameen, after the usual inquiry, ordered the attachment as prescribed by Section V., Regulation II. of 1806, but the collector refused compliance with the order, on the ground that no decree had been passed, citing as his authority Section XXL, Act XII. of 1841. On this, the principal sudder ameen rejected the petitioner's application, referring him to the commissioner of revenue as the proper appellate authority, from the order of the collector. From this order the petitioner appealed to the Sudder Dewanny Adawlut. Bi/ the Court. — (Present Mr. Reid) : — " The law cited by the col- lector is no bar to the attachment of the money in his hands, and the order of the principal sudder ameen should have been immediately enforced by him. Had the collector any objection to urge to the order of the principal sudder ameen, he should have appealed to this Court, instead of refusing obedience (see Construction No. 1110.) The principal sudder ameen is also wrong in referring the petitioner to the commissioner of revenue. He should have repeated his order to the collector to attach, and have called upon that officer to put it into immediate execution." SUDl>EE DEWANKT ADAWLUT. 61 RAM CHAND ADHEEKAREE, Petitioner. This was an appeal from an order of the judge of East Burdwan. A decree for money had been obtained by one Punchanund Adheekaree against Brim Mye, the mother of the petitioner. On the death of the debtor, the decree-holder sued out execution against the petitioner, her son. The petitioner pleaded that his mother had deserted him when a child, and that he was not responsible for her debts. The plea was admittted by the principal sudder ameen, but his order absolving the petitioner from liability was reversed by the zillah judge. He then appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reidj : — " The proceedings in the Court of the principal sudder ameen tend to show that the petitioner's mother left her home for no good cause, but on the contrary under circumstances of a disreputable nature. The petitioner cannot be summarily made liable for her debts ; the decree-holder, if he pleases, may try the question of Uability by a regular suit." Ordered accordingly. 184?. April 18. In a case-of a summary claim against the son for the payment of the debts of his deceased mother, against whom a decree had been given, the decree - holder was, un- der the circum- stances, referred to a regular suit to try the ques- tion of liabiUty. MUSST. INDERJEET KOONWUR, Petitionee. This was a summary appeal from an order of the judge of Behar. The petitioner had instituted a suit in the zillah Court of Behar, which was referred to the principal sudder ameen of the district. She had appUed to the latter authority to issue process to cause the attendance of one Moonshee Cherag Alee, whose evidence in the case was necessary. The principal sudder ameen issued process accordingly, but, on the application of Cherag Alee that personal attendance in Court would be a disgrace to him, the zillah judge directed that his attendance should be dispensed with, and that if necessary interrogatories should be sent to him. From this order the petitioner appealed to the Sudder Dewanny Adawlut. Br/ the Court. — (Present Mr. Reid) : — " The judge was incom- petent to pass any order in this case ; the value of the suit being above rupees 5,000. But apart from this, the plea of disgrace attaching to personal attendance in court, is inadmissible, and as the witness resides in Behar, he must attend if required." 1842. May 2. A plea of dis- grace attaching to personal at- tendance in Court, urged by a party sum- moned to give evidence, held by the Sudder Dewanny Adawlut to be inadmissible. ISSEN KISHWUR UCCHARGE, Petitionee. This was an appeal from an order of the judge of Mymensing. The petitioner, recently a minor, and under the guardianship of a guardian appointed by the civil court, under Regulation I. of 1800, had attained his majority, and entered upon possession of his property. He laid claim to a promissory note in the possession of his guardian, which the latter resisted, and objected to give up the note. The 1842. May 9. A claim against a guar- dian appointed under Regula- 62 SUMMAEY CASES DJ THE tion I. of 1800, by his recent waa'd, cannot be summarily enforced. See Construction 720. judge, on application by the petitioner, refused to interfere summarily, and referred him to a regular suit. On appeal to the Sudder Dewanny Adawlut, the Court, (present Mr. Eeid,) confirmed the order of the judge. 1842. May 10. Tlie ziUah court lia^ing been closed the last day allow- ed by the law for application to enforce an award of arbi- tration, the Sudder Dewan- ny Adawlut held that the applicant, in presenting his ISSUE CHUNDEE PAUL CHOWDHOOEEE, Petitioner. This was an appeal from an order of the judge of Nuddea. The petitioner made application to the judge for enforcement of an award of arbitrators, under Section III., Eegulation VI. of 1813, which was rejected in consequence of the expiration of six months from the date of the award. The award was given on the 28th December, 1 840, and the application was made on the 30th June, 1841, the court having been closed on the 28th and 29th of that month. It was held on appeal by the Sudder Dewaimy Adawlut, that as the court was closed on the day the period fixed for application to the court expired, the petitioner, in presenting his application on the next first court day, was in time. application on the next first court day, was in time. 1842. May 24. A principal sudder ameen gave judgment in a case in ■which he had no jurisdiction. On application to the Sudder Dewanny Adawlut, the Court held that the irregular decree could not be set aside on a mere svunmary application. PIDDINGTON, Petitionee. This was an appeal from an order of the principal sudder ameen of the 24 Pergunnahs. The petitioner was defendant in an action, instituted by Benja- mins Harding and others, in the court of the 24 Pergunnahs, for recovery from the defendant of rupees 84,088, to which the latter pleaded that he was a resident in Calcutta, and as such not subject for a money debt to the jurisdiction of the 24 Pergunnahs, as pro- vided by Section XVU., Eegulation HI. of 1793. The principal sudder ameen, however, gave judgment against him, and from this order the petitioner appealed summarily to the Sudder Dewanny Adawlut. The Court, (present Mr. Eeid,)' held that the decree of the principal sudder ameen, which had been formally passed after investi- gation of the merits of the case, could not be set aside on a summary application. The petition was therefore rejected, with leave to the applicant to prefer a regular appeal.* " The regular appeal was subsequently made and the decision of the lower court set aside, as the defendant was clearly not subject to the jurisdiction of the zUlah court. SUDDEE DEW^VNNY ADAWLUT. 63 KASHEEKAUNTI-I UCCHARGE, Petitioner. This was an appeal from an order of the principal sudder ameen of Mymensing. In the course of the hearing of the case, it was brought to the notice of the Court, (present Mr. Reid,) that the principal sudder ameen had directed a portion of the stamp required for the plaint, in a case in which order of nonsuit had been passed to be refunded. The Court directed the zillah judge to inform the principal sudder ameen that the return of any portion of the stamp in a case of nonsuit was unauthorized. 1842. May 24. The return of any portion of tlie stamp re- quired for the plaint, in a case in which order of nonsxxit has been passed, is unauthorised. SYUD ABDOOL HAFEEZ, Petitionee. The petitioner instituted a suit in forma pauperis in zillah Mymensing against the collector, Kishen Kishore Chuckerbutty and others, to set aside a sale of certain property made in Execution of a decree against his brother Abdool Basid, from whom he alleged he holds the property under a deed of gift. The principal sudder ameen dismissed his claim. He then presented a petition to the Sudder Dewanny Adawlut, through his mooktear, praying to be allowed to appeal from the decision as a pauper ; and that under Act XIX. of 1840, his presence might be dispensed with, he being confined in jail. On inquiry it appeared that the petitioner was undergoing a criminal sentence, having been convicted of an affray and sentenced to imprisonment for seven years. Mr. Reid, by whom the petition was heard, referred the question for the opinion of his colleagues, as to whether a party undergoing a criminEul sentence ■vyas properly entitled to the benefit of the act under which the petitioner prayed that his personal attendance might be dispensed with. The Court held that there was no objection to an extension of the benefits of the act to a party situated as the petitioner was, and orders were passed accordingly adinitting him, through his agent, to appeal as a pauper. 1842. May 30. The petition- er, who was a convict in jail undergoing a criminal sen- tence, was per- mitted to ap- peal in forma, pauperis under the provisions of Act XIX. of 1840, without personally at- tending. BEIJNATH, Petitionee. The petitioner had applied to the judge of East Burdwan for permission to appeal in forma pauperis from a decision passed by the principal sudder ameen, in a suit appealable to the zillah judge ; but his application was rejected under Clause 3, Section XII., Regula- tion XXVIII. of 1814. He appealed from the order of rejection to the Sudder Dewaimy Adawlut. The Court, (present Mr. Reid,) dismissed the appeal, observing that the order of the judge was final. permission to a party to appeal in forma pauperis is final, to appeal to the Sudder Dewanny A.dawlut, 1842. June 13. An order passed by the zillah judge, under ClaiL«e 3, Section XII., Regulation XXVIII. of 1814, refusing and not open 64 SUMMAKT CASES IN THE 1842. June 20, Held by the Sudder Dewan- ny Adawlut, Tinder the cir- cumstances set forth, that a stipend payable under j udgment of court, from the proceeds of land held un- der a lakhiraj tenure , necessa- rily ceases on the resumption of the tenure by the Govern- ment, RAMCHUNDER BABOO, Petitioner. This was an application for a review of an order of the Sudder Dewanny Adawlut, dated 9th October, 1841, made under the follow- ing circumstances : The ancestor of the present Raja of Burdwan had set apart certain lands, the proceeds of which were to be appropriated to the support of the worship of an idol, and the payment of a stipend to the ancestor of the petitioner. The property thus set apart being held as lakhiraj was exempted from the operation of the decennial settlement. The late Raja endeavoured to withdraw the stipend, which led to an action in the civil court on the part of the ancestor of the petitioner, in which he was successful ; and the payment of the stipend out of the proceeds was ordered to be continued to him. The lands were subsequently resumed and assessed by the Govern- ment under the operation of the resumption laws, as held under an in- valid tenure^ The petitioner then applied to the civil court, requesting an order for the payment of his stipend by the Raja of Burdwan in coirformity to the provisions of the decree in his favor. The zillah judge rejected his application, on the ground that as the tenure under which the petitioner claimed had been declared invalid, and the lands had been resumed, and the payment of his stipend was conditional on the continuance of the lakhiraj tenure, the order of the decree necessarily became of no avail. This order, on appeal, was confirmed by the Sudder Dewanny Adawlut, (present Messrs. Rattray and Reid.) The application for the review was rejected, the Court seeing no reason for any alteration or modification of their former orders. 1842. July 5. It is not competent to a zillah judge to impose a fine under the provisions of Section III., Regulation XIII struction 1138. RAMCHUNDER SAHOO, Petitionee. This was an appeal from an order of the judge of Behar, fining the petitioner in the sum of rupees 100 for preferring a litigious appeal in a miscellaneous case. The Court, (present Mr. Raid,) reversed the order of the judge, and directed the refund of the fine, as the rule of Section III., Regula- tion XIII. of 1796, under which it had been levied, was inapplicable to miscellaneous cases. . of 1796, on the appellant in a miscellaneous case. See Con- STJDDER DEWANNT ADAWLUT. 63 CHOWDHREE SAHIB SINGH, Appell.wt, 1842. TELUKDHUREE SINGH, Respondent. This was an appeal from a judgment passed by tlie judge of Shahabad, in a case in which the respondent was plaintiff and the appellant and others defendants. ^^y ^■ The plaintiiF sued for the profits of certain lands, and obtained a The Sudder judgment in his favor, for a portion of his claim, from the principal DewannyAdaw- sudder ameen of the district, which on appeal, was amended by the specM™fpeS" zUlah judge. On special appeal to the Sudder Dewanny Adawlut, set aside as in- the judgments of both the lower courts were set aside as incomplete, complete the and further investigation ordered. The judge then decided the priDcipal sudder case himself, and the appellant applied for permission to the Sudder ameen and zil- Dewanny Adawlut to file a special appeal. ^^"^ ij"'^ V~fi*-? The Court, (present Messrs. Tucker and Reid,) ru^.ed that as both instance and the former judgments were set aside, the last decision of the zillah first appeal,) judge must be considered as a judgment in an original suit, and that ?^^. *!"' i^i^S^ JO JS & ) havmg then consequently the appellant was entitled to his appeal as a matter ot decided the course. case himself Ordered accordbgly. X°oncert,™ principal sud- der ameen, held that the appeal to the Sudder Dewanny Adawlut from his decision, must be considered as an appeal from a judgment in an original suit, and admissible as a matter of course. ADHEEN SINGH and others. Petitioners. This was a summary appeal from an order of the principal sud- der ameen of Shahabad, directing a nonsuit in a case instituted by the petitioners. They had sued for mesne profits of an estate with- out stating the amount or the year or years for which it was recover- able, applying merely for a declaration of their right to recover the profits, but leaving the amount for future adjustment. The Court, (present Mr. Reid,) held that the petitioner had been rightly nonsuited. 1842. July 25. In an action for recovery of mesne profits, held that the plaintiff was rightly nonsuit- ed for omitting to state the amount, and the period for which it was alleged to be recoverable. BALNATH SAHOO, Petitionee. The petitioner (not a pauper) was defendant in a suit in the zillah court of Bhaugulpore. He was unable to induce any of the pleaders to take up his case and represent him in the court ; and applied to the judge to compel one of them to do so. The judge, expressing his incompetency to pass such an order, rejected the application, on which he appealed to the Sudder Dewanny Adawlut. The Court, (present Mr. Reid,) confirmed the judge's order. I 1S42. August 1. A civil court cannot compel a pleader to re- ceive a vatalut- nama from a pai-ty not a pau- per. 66 SUMJIAEY CASES IN THE 1842. Augiist 9. Held by the Sudcler Dewaa- nyAdawlut that a conviction of ** surreptitious- ly obtaining" and " corruptly appropriating" money deposit- ed in court, against a minis- terial officer, is insufficient to authorise the enforcement of the summary process for re- covery, pre- scribed by Clause 3, Sec- tion VII., Re- gulation XVin.oflS17, and Section VI., Regulation III. of 1827. GOVERNMENT PLEADER, Petitioner. The petitioner applied, under the provisions of Clause 3, Section YII., Regulation XYHI. of 1817, and Section VI., Regulation III. of 1827, on the part of Government, for an order from the court for the realization of the sum of rupees 8,400, with interest, from Hur- chunder Lahooree, late a ministerial officer in the provincial court of a,ppeal for the division of Calcutta. Hurchunder Lahooree had been tried for the embezzlement of the sum ahovementioned, and his conviction by the Nizamut Adawlut was in the foUowing terms : " The Court, having duly considered the proceedings held on the trial of Hurchunder Lahooree and others on the above charges, and deeming the prisoner Hurchunder Lahooree guilty of having, by means of a fabricated petition, surreptitiously obtained from the treasury of the late Calcutta provincial court, two promissory notes, viz., No. 5170 for rupees 6,000, and No. 2896 for rupees 2,400, and corrupt- ly appropriated the value of the same to his own use, confirm the sentence of four years' imprisonment passed upon him by the sessions judge, but remit that part of the sentence which subjects him to be imprisoned in irons." The proceedings connected with the case had been before the Court at large, and their opinion was embodied in the order passed by Mr. Reid, who rejected the application, on the ground that the party from whom recovery was now sought had not been convicted of embezzle- ment in the legal acceptation of that term, and that, therefore, the amount could not be summarily recovered from him under the provi- sions cited. The remedy for the Government was a regular suit. 1842. August 15. Held that in consequence of excessive delay in the disposal of a case by ar- bitrators, the civil court was justified, under the circum- stances, in re- fusing execu- tion of the a- ward. SYUD KHYRUT HOSSEIN, Petitionee. This was a summary appeal from an order of the judge of Sarun, rejecting an application for execution of an award of arbitration. The arbitrators appointed had been instructed by the court to submit their award within two months, whereas they made no return what- ever of any kind" for a period of lOJ years, during which period one of the parties had died. Under these circumstances the zillah judge held that the award was of no effect, and referred the petitioner to a regular suit. The Court, (present Mr. Reid,) concurred with the zillah judge, and confirmed his order. SUDDER DEWANNT ADAWLUT. 67 RAJA RUGHONUNDUN SINGH, Petitionee. On the 9th July, 1842, the petitioner presented two petitions, praying for a review of the judgments passed l)y the Court, (present Messrs. Tucker and Reid,) on the 9th April, 1842, in a. suit in which the heirs of Raja Konwur Deokenundun Singh were appellants and Raja Rughonundun Singh was respondent ; and in another suit in which Raja Deendial Singh was appellant, and the same Raja Rughonundun Singh was respondent. The petitions were brought before Mr. Reid, on the 25th July, 1842, who observed that the petitioner had written his petition on stamp paper of 2 rupees value, accompanied merely by copies of his (Mr. Reid's) proceedings of the 9th April, without copies of Mr. Tucker's proceedings, and without the vakeel's statement of the ground on which the review was solicited, as required by the resolutions of the Court. Mr. Re"id then referred the question for the opinion of the Court, as to whether, under such circumstances, the petitions were admissible on paper of 2 rupees instead of the fuU value. It was held that in order to enable the court to receive the petitions on paper bearing a stamp of 2 rupees value, they should have been filed complete in all points, within three months from the date of the judgment ; that is, accompanied by a copy of the judg- ment passed, and bearing, as prescribed by the Court's resolution of the 27th of May, 1836, the endorsement of the grounds on which the review was prayed for. The present petitions having been filed incomplete on the last day of the three months, the Court, (present Mr. Reid,) in conformity with the above opinion, rejected them, leaving the petitioner to apply, if he thought proper, on paper of the full value. 18-12. Au^st 23. To enable the Sudder Dewan- ny Adawlut to receive an ap- plicatioa for a review of judg- ment on paper of tke value prescribed for miscellaneous petitions, it should be filed complete within three months, accompanied by all the necessa- ry papers. GUNGAPERSAUD GHOSE, Petitionee. This was a summary appeal to the Sudder Dewanny Adawlut against the orders of the judge of zillah Midnapore, (passed on the 21st December, 1841,) who, on a petition of objections, presented by one KSshenpersaud, had directed the withdrawal of attachment from certain holahs, (large country boats,) the property of the petition- er's adjudged debtors, Iswarchunder and others. The appeal rested chiefly on two grounds of objections: 1. Non-conformity by the lower court to the Circular Order, No. 83, volume III., dated the 8th May 1840, which involved the question of jurisdiction, and the words on which the petitioner relied were these : — " Upon ascertaining that an application for the sale of property lying in another jurisdiction should be complied with, the application shall be transferred to the judge of the district, in which the property to be brought to sale is situated. The whole of the proceedings consequent thereon, as well as any incidental investiga- tions, shall be conducted by that officer, in the same manner as the 1842. September l3. Held by the Calcutta and Western Courts collectively, that the Circu- lar Order of the 8th May, 1840, applies to move- able as well as immoveable property. 68 SUSISIARY CASES IK THE court issuing the process would have done, had the property been situated within the limits of its own jurisdiction." 2. Non-conformity to Section VI., Regulation IV. of 1793, for the judge in appeal in zillah Midnapore had not cited and examined petitioner's remaining witnesses, a few of whom had been examined by the principal sudder ameen of Hooghly, contrary to the spirit and mtent of the Circular Order above cited. Moreover, the objections to the sale had been disposed of by a court within whose limited juris- diction the property in dispute was not situated, and therefore clearly barred from interference in the matter according to existing rules of civil procedure. The question having been referred by Mr. Eeid to the Court at large, and by them to the Western Court, it was determined that the Circular Order cited was applicable to moveable as well as to immove- able property. Orders were accordingly passed, reversing those of the zillah judge, and directing him to try the objections to the sale de novo.* September 27. The civil court canuot stay the sale of a judg- ment debtor's property, and cause payment of the debt by the attachment of the same, without consent of the creditor. 1842, September 28. An applica- tion to review the order re- jecting the ad- mission of a special appeal, must be pre- ferred within three months from the date of the order of rejection. RAJA DAWUE-00-ZAMAN, Petitionee. This was an appeal from an order of the principal sudder ameen of Beerbhoom, directing the sale of the petitioner's property, consisting of landed estates, in execution of a judgment against him. The object of the petitioner was that his estates should be kept under attachment, and his creditors paid out of the proceeds. To this, however, the creditors did not consent. The principal sudder ameen accordingly rejected his application. The Court, (present Mr. Eeid,) confirmed the order of the principal sudder ameen. J. P. WISE, Petitionee. This was an application for a review of an order, rejecting a petition praying Jpr permission to prefer a special appeal to the Sud- der Dewanny Adawlut. The application was filed upwards of three months after the date of the order, a review of which was sought, and no good cause shovm for the delay. By the Court. — (Present Messrs. Tucker and Reid): — " The petition for review has not been preferred within three mo'nths of the rejection of the application of special appeal, as it ought to have been ; nor has any cause been shown for the delay. The application must be rejected." Ordered accordingly. * Abridged from Sevesirc's Reports. SUDDEE DEWANNY ADAAVLTJT. 69 MODOOSOODUN SANDYAL, Appellant, versics RASMONNEE DASSEA. This was an application to be allowed to appeal to the Queen in Council from a judgment of the Sudder Dewaniiy Adawlut, passed on the 19tli June, 1840. On the decision of the case, the Court ordered criminal proceedings to be instituted against certain parties for forgery, which ended in their acquittal by the Nizamut Adawlut on the 31st July, 1841. The appellant then, on the 29th October, 1841, filed an application for a review of the court's judgment, which was rejected on the 13th January, 1842. The present application for permission to appeal to the Queen in Council, was filed on the 12th April, 1842. The pleader on the part of the appellant, when called upon to explain the delay which had occurred in filing his application, urged that his client had waited the result of the criminal proceedings, and that as his present application had been filed within six months from the date of the order rejecting the petition for review, he considered that he was within time. The Court, (present Mr. Tucker,) held that the order of the Privy Council of the 18th April, 1838, was peremptory, and gave no option to the Court to admit an appeal after the expiration of six calendar months from the day of the date of the judgment, which in tliis case was the 19th June, 1840. Application rejected. 1842. September 29. The Sudder Dewanny Adawlut cannot admit an ap- peal to theju- dicidl commit- tee of the Privy Council after the expiration of six calendar months from the date of the judgment com- plained of. An application for review of judg- ment forms no ground for ex- tension of pe- riod of appeal. MUHAMMUD HOSSEIN, Petitionee. This was an appeal from an order of the principal sudder ameen of Dacca, directing the personal attendance at his court of certain witnesses residing in the district of Midnapore. The Court, (present Mr. Reid,) directed the principal sudder ameen to issue a commission to take the evidence of the wit- nesses m the manner prescribed by Act VH. of 1841. 1842. November 7. recfc a lower court to issue a commission to take nesses, as prescribed by Act VII. of 1841. the The Sudder Dewanny Adawlut on cause being shown win di- evidence of absent wit- B. RANDOLPH, Petitionee. The petitioner had brought an action in the zillah court of Chitta- 1S42. gong, against a party who had proceeded to England, and applied for attachment of the defendant's property within the jurisdiction of the court. He subsequently resisted the application of the property to the satisfaction of a decree obtained by another party against the same defendant, but without effect, the zillah judge stating that as no notice of the claim had been served upon the defendant, the November 7. A case cannot , be tried ea:^ar^e, when it is hnown that the usual notice has uot been, and 70 STJMJIAEY CASES IN THE cannot be serv- case against him could not proceed. The petitioner then appealed fendant*''%^// '° *''^ ^'■'^^^'^ Dewanny Adawlut. Construction The Court, (present Mr. Eeid,) confirmed the judge's order. 1343. 1842. November 21, Land belong- ing to a Maho- medan, which is occupied by tombs, cannot be sold in exe- cution of a de- BABOO RASBEHART, Petitionee. This was an appeal from an order of the judge of Patna, revers- ing the sale of certain property belonging to one Mahomed Alee, a judgment debtor, on the claim of Amani Bebee, on the ground of its being a Mahomedan cemetery. Bi/ the Court. — (Present Mr. Seid) : — " The inquiry as to whether the whole of the land was covered with tombs, has not been sufficiently full. The judge will be directed to make further inquiry, and, with reference to the precedent of Mr Nur Alee, versus Musst. Majida, at page 136, Volume V. of the Reports, to exempt such portion of the land as may be covered with tombs, and sell the remainder." 1842. November 21. The order of the ziUah judge under Section XXVII , Act XXIX. of 1838, imposing a fine on a landhold- er for omitting to give notice of the establish- ment of micit salt works on liis estate, can- not be contest- ed by a regular action. SREENATH MtJLLICK, Petitionee. This was an appeal from an order of the judge of Hooghly. The petitioner, a landholder, had been fined under the provisions of Section XXVII., Act XXIX. of 1838, for neglecting to give notice of the establishment of illicit salt works upon his estate, and had instituted an action for a reversal of the order of fine. The suit was referred to the sudder ameen, who applied to the judge to ascertain whether such an action could be legally heard. The judge stated his opinion that the plaintiff, instead of instituting a regular action, should have appealed summarily from the order of fine, and that he should be nonsuited. From this order the peti- tioner appealed to the Sudder Dewanny Adawlut. The Court, (present Mr. Reid,) was of opinion that the order of fine under the rule cited could not be contested, by a regular suit, and accordingly dismissed the appeal. • 1842. December 6. Mode of pro- ceeding in re- gard to the de- cree of a foreign comi:, when the decree-holder GOUR MUNNEE DASSEA, Petitioneis. This was an appeal fit)m an order of the judge of Hooghly, in a case of execution of a decree of the court of Chandernagore, passed in favor of the petitioner. Application had been made to the Hooghly court, for enforcement of the decree against property of the debtor, within the jurisdiction of that court, but the judge having allowed the claims of parties who made objections to the sale, the petitioner appealed to the Sudder Dewanny Adawlut. SUDDER DEWANNY ADAWLUT. 71 The Court, present, Mr. Reid, after consulting with his colleagues, desires to take set aside the whole of the proceedings of the Hooghly court as °^^\ execution illegal, and informed the judge that under Construction 1133, the ^ within the decrees of the Chandernagore court, a foreign court, could not be jurisdiction of executed by the Company's court, and that if the petitioner wished "'^^ °^^^^ ^""'^ to have her decree enforced in zillah Hooghly, she must institute an action founded thereon in the court of that district, pany's courts. SUPERINTENDENT of SALT CHOWKIES m ZIL- LAH JESSORE, Petitionee. A LANDHOLDER in the district of zillah Jessore, had been convicted, under Section XXVIL, Act XXIX. of 1838, of omitting to give notice of the existence of ilKcit khalarees or salt works on his estate, and sentenced by the zillah judge to pay a fine of rupees 200, for every khalaree. From this order the salt officers appealed, on the ground that the civil court was not competent to reduce the fine below the amount specified in the enactment above cited, viz., rupees 500, for every khalaree. The petition was heard by Mr. Reid, who referred the point on which . the superintendent rested his appeal, to the Court at large. It was decided, after communication with the judges of the Western Court, and in concurrence with their opinion, that on conviction of the offence stated it is not competent to the civil court to reduce the amount, it resting entirely with the Government, which enacts the laws for the protection of its own revenue, to mitigate or limit the fine, the province of the court being limited to an investigation of the actual occurrence of the fact involved in the charge, and, on proof thereof, to an infliction of the specified penalty. 1842. December 6, It is not com- petent to a civil court to reduce the penalty pre- scribed by Sec- tion XXVII., Act XXIX. of 1838, to be levi- ed from land- holders and others, foromit- ting to give no- tice of the esta- blishment on their lands of illicit khalarees or salt works. NADIR BEEBEE, Petitionee. This was an appeal from an order of the judge of Behar, uphold- ing the sale of the petitioner's property in execution of a decree against her under the following circumstances : On the day fixed for the sale, the creditor of the petitioner informed the court, tliat he had received the amount due to him fi-om the petitioner, who also prayed that the sale might be stayed. On this the zillah judge immediately ordered notice to be sent to the collector to stop the sale. The sale, however, had been previously concluded. The judge on being subsequently applied to by the petitioner refused to reverse the sale, on the ground that the application to stay it should ha,ve been made so as to enable him to give timely notice to the collector. 1842. December 27. An order of court to stay the sale of pro- perty founded on a statement that the debt for satisfaction of which the sale had been ordered had been settled, is insufficient 72 SUMMARY CASES m THE cause for the The Sudder Dewanny Adawlut, (present Mr. Reld,) concurred reversal of the with the zillah court, that no sufficient cause had been shown for the nnnllM' f-'^^ reversal of the sale, appear that in- formation of the compromise was not given to the court in time enough to stay the sale. 1842. December 27. Costs of suit are chargeable with interest. JUGGUT CHUNDER MUJMOODAR, Petitionee. This was an appeal from aii order of the judge of Dacca, refusing to allow the petitioner interest on costs in a suit decided in his favor, the costs being made chargeable to the opposite party. The Sudder Dewanny Adawlut, (present Mr. Reid,) under para- graph 4, of the printed Circular No. 171, of the 4th March, 1836, (Volume n. Civil Circulars) reversed the judge's order. 1843. January 10. Security for the discharge of a trust, or for payment of a debt, given directly to the employer, or creditor, is no bai' to the de- mand of secu- rity under Re- gulaMon II. of 1806. Mr. JOHN CALDER, Petitioner. The petitioner had instituted an action, in the zillah court of Midnapore, against one Ram Tunnoo Banerjea and his brother and malzamin, Bhola Nath Banerjea, for recovery of a sum of money alleged to have been embezzled by the former, who had been taken into the service of the plaintiff on the security of the other defen- dant. He then applied to the principal sudder ameen, to whoip the case had been referred, for an order upon the defendant. Ram Tuimoo Banneijea, under Section IV., Regulation II. of 1806, to give security for his appearance. After the usual preliminaries, process was issued for the appearance of the defendant, who was appre- hended, and, when called upon for security by the principal sudder ameen, pleaded that the security he had given to the plaintiff on being taken into his service was sufficient, and that he ought not to be called upon for further security. The principal sudder ameen applied to the judge for instructions as to how to act. The judge replied that the defendant's plea was good, and directed his release. From this order the plaintifF appealed to the Sudder Dewanny Adawlut. jBy the Court. — (Present Mr. Reid) : — " The judge's order is wrong and must be reversed. Security for discharge of a trust, or for pajrment of a debt, given directly to the employer, or creditor, is no bar to the demand of security under Regulation II. of 1806." Order accordingly. 1843. January 16. The impri- sonment of u THE SALT AGENT of CHITTAGONG, Petitionee. The petitioner had obtained a decree against one Bowannee Chum, who, in execution of the same, was arrested on a warrant issued out against him. The petitioner represented to the zillah court that he did not wish to have the prisoner sent to jail, but SUDDER DEWANNY ADAWLUT. 73 would give him a certain specified period to adjust the debt due by him. The additional judge of Chittagong, however, ordered the defendant to jail. He was almost immediately released, in conse- quence of the diet money required by Section II., Regulation VI. of 1830, not having been deposited. Some time after, the debt not having been paid, the salt agent applied to the judge for a warrant of arrest against the defendant, wliich was refused under Section III. of the above Regulation, in consequence of the previous release of the defendant on default of deposit of diet money. From this order the salt agent appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid): — " The previous imprison- ment of the defendant was against the vnll of the decree-holder and altogether irregular. This does not bar the decree-holder's right to take out process of arrest agaiiLSt his debtor. The judge's order must be reversed." debtor by the civil court against the -will of his creditor, aud his subse- quent release in default of de- posit of diet money, is no bar, under Sec- tion III., Re- gulation VI, of 1830, to the issue of process of arrest against the debtor on the motion of the creditor. SHEO SOONDREE DEBEA, Petitioneb. The petitioner had obtained a decree against one Kali Doss Mustofee, and, in satisfaction thereof, had taken out execution against his property. The property had been sold, as alleged by the petitioner, for a very inadequate sum, and she applied for a reversal of the sale on two grounds : first, want of proper notice of sale, and secondly, non-deposit of the tuUubanah of the peon entrust- ed with its service. The principal sudder ameen reversed the sale ; but his order was set aside by the judge on appeal by the purchaser. The petitioner then appealed to the Sudder Dewanny Adawlut. By the Court. — C Present Mr. Reid): — " The record shows that the notice of sale was duly served and that the sale itself was regularly conducted. The peon's tuUubanah had not been deposited, as it ought to have been ; but this is quite insufficient to invalidate the sale. The judge's order is affirmed." 1843. January 17. Failure to de- posit the peon's fees for serving notice of SEtle in execution of a decree, held not to affect the le- gality of the RAMKISHORE SURMA, Petitioner. Execution of a decree, obtained against the petitioner by one Juggomohxm Gungolee, having been taken out by the latter, the petitioner pleaied payment of the amount awarded by the decree, and produced a receipt, which, on inquiry by the judge of Dacca, was rejected. He applied to the judge for a re-hearing of the order of rejection ; but his application was refused, and himself fined rupees 30 for making a frivolous and litigious application. From this order he appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid): — " The Judge's order disallowing the receipt is correct ; but that for levying a fine fi:om the petitioner is beyond the power of the judge. By Construction No. 1138, the imposition of a fine under Section III., Regulation K 1843. March 13. It is not com- petent to a zil- lah judge to im- pose a fine on a party applying for a re-hearing of an order passed in a miscellaneous case. 74 SUMMAEY CASES IN THE Xm. of 1796, on an appellant in a miscellaneous case, is declared to be beyond the competency of a zillah judge. The rule must be considered ^is applicable to applications for a re-hearing in cases of the same nature." Order accordingly. 1843. April 10. It is not ne- cessary to strike off the suit of a pau- per plainlaff on his death. His heir, on proof of pauperism, may be permit- ted to carry on the silit. SYUD MOWLA BUXSH, Petitionee. The petitioner's father, Meer Ahmed Alee, had been permitted to institute a suit in forma pauperis in the zillah court of Tirhoot ; but dying while it was pending, the principal sudder ameen struck it off the file, rejecting the application of the petitioner to carry on the suit instituted by his father, on the ground that he must, de novo, prove the fact of pauperism, and commence a fresh suit. From this order the petitioner appealed to the Sudder Dewanny Adawlut. Bi/ the Court. — (Present Mr. ReidJ: — " There was no necessity for the principal sudder ameen to strike the case oiF the file. The petitioner might have been admitted to proof of his poverty on the plaint filed by his father, and on proof of the fact he might have carried on the suit. The principal sudder ameen will readmit the case on liis file, and proceed as above pointed out," 1813. April 24. Notice given to the civil court of a com- promise, or payment of a debt due under a decree, after the sale of the debtor's pro- perty in exe- cution thereof, is no ground for the summa- i-y revei'sal of the sale. GUNGA PEESHAD DUTT, Petitionee. The petitioner had purchased a fractional portion of an estate, the property of Hurchunder Chowdry, which had been sold in execution of a decree obtained against that person by Jugduraba Chowdrayn. A week after the sale, the decree-holder and debtor applied to the principal sudder ameen of Mymensing, before whom the matter was pending, for a reversal of the sale, on the ground that the debt due under the decree had been paid before the sale took place. The principal sudder ameen accordingly reversed the sale, and the judge on appeal affirmed his order. The petitioner then appealed to the Sudder Dewanny Adawlut. Si/ the Court. — (Present Mr. Reid): — " The sale is reversed merely because the parties say that the money had been paid prior to the sale. As no notice of this was given to the court in time to stay the sale, and as no illegality or informality is discoverable in it, the sale must be upheld." Order accordingly. SUDDEE DEWAMJY ADATVXUT. 75 MUDOA KONWUE, Petitionee. The petitioner appeals from an order of the additional judge of zillah Behar, affirming that of the principal sudder ameen of the same district. One Ahmed Alee Khan had pledged 14 annas of an estate, his property, as security to stay execution of a decree in the case of Kewul Nath Singh versus Jugroop Singh. He afterwards conditionally sold the same property to Sookun Lall, the husband of the petitioner, who, in due time, got a decree for foreclosure and possession. The lands being now about to be sold in satisfaction of the decree for which Ahmed Klian pledged them as security, the petitioner objects, and prefers her claim under the conditional sale to her husband, and the decree obtained thereon. The Court, (present Mr. Eeid,) observing that the property was in the first instance liable for the lien on it under the security-bond, affirmed the orders of the courts below. 1843. April 25. A condition- al sale and de- cree for fore- closure and possession, is no bar to the sale of proper- ty pledged as security to a civil court to stay execution of a decree un- der a bond of prior date. SUPERINTENDENT or SALT CHOWKIES of JESSORE, Petitionee. The petitioner had made application to the judge of Jessore, to levy from the heirs of the late Ram Dyal Bose the fine prescribed by Section XXVII., Act XXIX. of 1838, in cases of zemindars neg- lecting to give information of the establishment of illicit salt khelarees on their estates. The application did not specify the names of the heirs, nor did it state whether the khelarees had been worked dur- ing the Ufetime of Ram Dyal Bose, or after his death, though it was inferrible that the former was the case, as the fine was sought to be levied from the heirs. The judge rejected the application for want of specification of these particulars. The petitioner then appealed to the Sudder Dewanny Adawlut, on the ground that the information required by the judge as to whether the khelarees had been worked before or after the death of Ram Dyal Bose was inunaterial, as in either case his heirs were liable to the penalty. JBi/ the Court. — (Present Mr. ReidJ: — " The petitioner was bound to show the particulars required by the judge. The penalty prescribed is personal, and cannot be levied from the heirs of the party guilty of the neglect punishable by Section XXVII., Act XXIX. of 1838. The judge's order is affirmed." 1843. May 16. The penalty prescribed by SectionXXVII. Act XXIX. of 1838, in cases of land-holders neglecting to give information of the establish- ment of illicit salt khelarees on their estates, is per- sonal, and can- not be levied &om the heirs of the negligent party. KOONKOON SINGH, Petitioner. A regular action had been decided against the petitioner by the principal sudder ameen of Tirhoot, on the 17th January, 1843. The petitioner presented to the principal sudder ameen a petition of appeal on the 17th April following, requesting, in the usual manner, that it might be forwarded with the prescribed certificate to the Sudder 1843. May 29. The legal pe- riod for the ad- mission of ap- 76 SirmiAET CASES IN THE peals is to be calculated ex- clusive of tlie day on whicli the deci'ee or order appealed against was passed. Should the last day al- lowed for the appeal fall on a Sunday, it may be admitted on the following day. Dewanny Adawlut. The principal sudder ameen observing that the time allowed for the appeal, viz. three months, had elapsed on the 16th April, considered himself incompetent to receive the appeal, and directed the petitioner to apply direct to the Sudder Dewanny Adawlut. From this order the petitioner now appealed. Bi/ the Court. — (Present Mr. Reid): — "It is not the usual practice in our courts to count the day of decision wdthin the time allowed for appeaKng. The petitioner was therefore within time on the 17th April. Besides had the time expired on the 16th of April, the appeal would have been admissible on the following day as the 16th fell on Sunday. The principal sudder ameen vvdll be instructed to receive the appeal and forward it in the usual form to this Court."* 1843. June 13. It is incom- petent to an ap- pellate court to confirm on its merits a judg- ment appealed against, without having on re- cord the objec- tions or reasons of appeal of the appellant. NEEL KUMMUL PAL CHOWDEEE, Petitioner. The petitioner had appealed to the judge of Jessore, on the 23rd January, 1843, from a judgment of the principal sudder ameen of that district, dated the 30th December, 1842. The petition of appeal was put in merely to save the time, the petitioner stating that his objections to the principal sudder ameen's decree would be there- after filed. The judge took up the case on the 3rd of March (or within a day or two of the expiration of six weeks, during which notliing had been done by the petitioner to forward his appeal, and on the lapse of whicVi the appeal, unless previously prosecuted, must have been struck off under Act XXIX. of 1841,) and dismissed the appeal ; first, because of the petitioner's neglect to file his objections to the principal sudder ameen's decree ; and, secondly, because in his judgment the decree of the principal sudder ameen was correct. From this order the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid): — " The first reason given by the judge, viz. the petitioner's neglect, is of no avail until the six weeks shall have completely expired. In regard to the second, it is incompetent to a court to confirm a decree on its merits without receiving the appellant's objections to the decree appealed against. The judge will readmit the appeal, giving the petitioner a week wherein to file his objections." July 3. EAM CHUNDEE BOSE, Petitioner. The petitioner and one Eaj Chunder Bose were joint appellants in a case before the judge of Backergunge. Eaj Chunder Bose died. A person named Earn Dolubh Bose, calling himself liis heir, ' One of two appeared and applied for permission to carry on the appeal jointly appellants hav- ^j^j, jj^g petitioner. He subsequently defaulted, and the judge and his heir, . — — — — hl^ng'defaulf- * ^^^ Circular Order No. 45, dat«d 1st March, 1844. SUDDER DEWANNY ADAWLUT. 77 struck off the case under Act XXIX. of 1841. From this order the petitioner appealed to the Sudder Dewanny Adawlut. By the Court.— (Present Mr. Reid) ;— « The default of the heirs of Raj Chunder Bose cannot be visited upon the petitioner. As the petitioner was ready to go on with the appeal, the judge was bound to have heard it on its merits, quoad Ins case. The heirs of the deceased appellant can alone suffer for their own default."* MADHOBEE DASSEA, Petitionee. The petitioner had instituted an action against the Grovemment and other parties, to recover a sum of money (a trifle above rupees 5,000,) in the zUlah court of Jessore, which was referred to the principal sudder ameen for trial. She applied for a subpoena to cause the attendance of the serishtadar of the judge's court, who had formerly been the Government pleader, and had actually drawn up the reply of the Government in the present case. On this a list of interrogatories were sent by the principal sudder ameen to the judge, with a request that the answers of the serishtadar to them might be taken. The judge refused to put the interrogatories on two grounds, — first, that being at the same station with the principal sudder ameen's court, the witness ought not to be examined by commission or interrogatories ; and, secondly, considering the rela- tion in which he had stood to the defendant he ought not to be examined at all. On this the principal sudder ameen rejected the application of the petitioner for having the serishtadar called as a witness. From this order she appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid) : — " The judge is right in saying that the witness ought not to be examined by commission, but not so in saying that he ought not to be examined at all. The principal sudder ameen should summon the witness on the applica- tion of the petitioner j but he (the witness) is at liberty to decline answering any questions which may be put to him, respecting infor- mation given to liim, when Government pleader, in confidence by his client." ed, the zillah judge struck oif the appeal un- der Act XXIX. of 1841. The Sudder Dewan- ny Adawlut held that the judge was bound to hear the appeal on its merits, quoad the ap- pellant who had not defaulted. 1843. July 4. A pleader entrusted with the secrets of a cause by his client, is not bound to" give evidence of any informa- tion given to him in confi- dence, in vir- tue of such trust. CHYTUN CHURN SEIN and othees, Petitionees. One Radhanath Baboo had purchased a large estate, sold for arrears of revenue by the collector of Hooghly ; he deposited part of the purchase-money, but, failing to make good the balance, the deposit was declared by the collector forfeited, though it was subsequently ordered by the Government to be restored to him. On this the * See Decision by full bench of 27th January, 1853, page 130. M. A. Grant, Attorney, &c., of Messrs. Gisborne and Co. and others, petitioners, versus Dwar- kanath Ghose and others. 1843. July 11. A forfeited deposit, order- ed by the Go- vernment to be refunded to the party miUcted, was attached 78 SUMMARY CASES IN THE by order of tke civil court in execution of a decree, but subsequently applied, by the collector, to tbe discbarge of the Govern- ment revenue due on estates the property of the party to whom the refund was to be made. Held by the Sudder Dewanny Adawlut that the collector had no power petitioners, who lield decrees against Eadhanath Baboo, applied for, and obtained from the judge of Hooghly, an order of attachment against the money in the hands of the collector. Subsequently to this the collector carried a considerable portion of it to the credit of the Baboo, on account of revenue due by him on other estates. On protest by the petitioners against this proceeding, the zillah judge ordered the still remaining balance in the collector's hands to he rateably divided amongst the decree-holders. From this order the petitioners appealed to the Sudder Dewanny Adawlut. The Court, (present Mr. Eeid, after consulting with the other judges,) held that the collector had no power whatever to appropriate the money as he had done, after its attachment by the civil court, and directed the judge of Hooghly to call for it, and divide it amongst the decree-holders. thus to set aside the attachment of the court. July 18. If only one or some of the Adawlut, sharers of an estate have been prosecut RAJA EAJNAEAIN ROY, Petitioner. The petitioner had been fined by the judge, under Section XXVIL, Act XXIX. of 1838, for neglecting to give information of illicit salt khelarees in an estate of which he was a joint proprietor. From this order of the judge he appealed to the Sudder Dewanny During the appeal, the question arose as to whether the judge could originate an inquiry or charge against the sharers who hsid not ed by the salt Ijgei, prosecuted by the salt officers, and whether, in that event, the Section ^^ should be divided among the sharers, or whether the party or XXVII., parties prosecuted were liable for the full amount of fine. Act XXIX. of "pjjg Court held that the judge should limit himself, as in fact he lectins to give -had done, to the charge against the party or parties prosecuted by information of the salt officers, and that each party prosecuted, was liable to the illicit salt f^jj penalty prescribed, works on their * ■' ^ estate, the judge should not originate any charge against the other sharers : each sharer prosecuted by the salt officers, is liable on conviction, to the full penalty pre- scribed. 1843. September 11. The sion of property by a guardian is no bar to the admission of a suit informs pauperis on be- half of his ward. MUSST. AFZUL SULTAN, Petitioner. This was an appeal from an order of the additional judge of Behar. The petitioner had applied for permission to institute a suit in forma pauperis, in behalf of her minor son as his guardian. The inquiry by the principal sudder ameen proved that the boy was possessed of no property to enable the mother to pay from it the ex- penses of the suit, and he accordingly admitted her application. This order, however, was reversed by the additional judge, on the SUDDER DEWANNY ADAWLUT. 79 ground that the inability of the mother to pay the expenses out of her own property had not been established. The Sudder Dewanny Adawlut, (present Mr. Reid,) concurred with the principal sudder ameen, that the suit ha^-ing been laid on the part of the minor, the peculiar or personal property of the mother, supposing such to be possessed by her, could be no bar to the admis- sion of the suit, on his behalf, in forma pauperis. SUDHOO LAL and others, Petitioners. This was an appeal from an order of the judge of Patna. One Musst. Jya Beebee, a decree-holder, had taken out execution of her decree against the real property of her judgment-debtor, for the sale of which instructions had been sent to the collector. Shortly before the sale, she petitioned the court saying, that she was willing to give rupees 5,000 for the property, and requested that the collec- tor might be instructed to consider her as a bidder to that amount. The principal sudder ameen of the district, before whom the case was pending, accordingly sent information to the collector of the application made by the decree-holder. But as she did not appear in any way in the collector's office, at the time of sale, that officer put the property up for sale to the highest bidder, and it was knocked down to the petitioners for rupees 1,150. The decree-holder applied -unsuccessfully to the principal sudder ameen for a reversal of the sale; but his order was reversed on appeal to the judge, who was of opinion that the collector should have put up the property at the upset price of rupees 5,000. The Court of Sudder Dewanny Adawlut, (present Mr. Eeid,) held that the case must be decided with reference entirely to the rules of sale, and as they contemplated bidding only at the time of sale, and the property had been sold to the highest bidder then bid- ding, the sale could not be set aside on the ground of any bid made to the civil court. The judge's order was accordingly reversed. 1843. October 30. A bid for pro- perty about to be sold by the collector in exe- cution of a de- cree, made to the civil court, and the informatioQ thereof given to the collector, held to be in- sufficient to set aside the actual sale of the pro- perty by the collector for a lesser amount. RAI RAM BULLUBH, Petitionee. This was an appeal from an order of the judge of Tirhoot, reject- ing the petitioner's claim to l-5th of mouzas Jelalpore and others, attached by one Eamdyal Singh as the property of Amanee Tewaree, his judgment debtor. The property in question belonged to the petitioner, who pledged the same to Amanee Tewaree for rupees 17,000, due to the latter; that is, he executed a regular deed of sale for the same, receiving in return an engagement from Amanee Tewaree, to the effect that if petitioner should, within two years from the date of the engagement, produce a person who would give more than the above sum for the property, he, on the receipt thereof 1843. December 26. A sale, with a sepai-at© condi- tion for the re- linquishment of the property by the purchaser, on the seller producing an- other purchaser at a higher 80 SUMMARY CASES IN THE price, withia a from the new purchaser, would give the latter a deed of sale for the held''t*'' *b"^' f P''°P^'^'y' carrying the excess of the purchase-money beyond the tlie nature of a amount for which petitioner had sold it, to the credit of the petitioner, conditional sale, in Hquidation of another bond; and that, if he failed to produce such thenJe^''of Sec- "*^ purchaser within the time specified, the engagement was to be tion Vli[I.,Re- considered as null and void. The petitioner plesided, that the trans- gulation XVII. action was of the nature of a, conditional sale, and that the property could not be treated as that of Amanee Tewaree, that person never having carried out the process prescribed by Section VIII., Regula- tion XVII. of 1806, and added, which was the fact, that Amanee Tewaree, when examined on oath in this very case, as to his in- solvency, stated that the property in qestion was merely mortgaged to him by the petitioner. The principal sudder ameen considered the transaction in the light of a conditional sale. The judge, however, on appeal, thought that the failure to produce another purchaser, within the specified time, rendered the engagement void ; and deeming the sale to be complete, he reversed the principal sudder ameen's order, and ordered the pro- perty to be sold in execution of the decree of Eamdyal Singh against Amanee Tewaree. The Sudder Dewanny Adawlut, (present Mr. Reid,) concurred in the view taken by the principal sudder ameen, and reversed the order of the judge ; observing however that, whatever rights or interests Amanee Tewaree held in the property might be sold, in satisfaction of the decree against him. BHOLANATH BABOO, Petitionee. 1844. This was an appeal from an order of the principal sudder ameen of East Burdwan, throwing out a suit instituted by petitioner in January 8. forma pauperis against Khettemath Baboo and others. A petition Petitioner pleaded that, on 14th September, 1843, he was ordered filed to correct jq file his reply; that he did so on 18th idem, but that the principal the name of sudder ameen gave it back to his vakeel, telling him to file it when the heir of a the case came up, and, on his filing it, on the 4th December, the defendant to a principal sudder am^en threw out the case on the next day for considered as default. The principal sudder ameen also recorded that petitioner a supplemen- had incorrectly stated the names of the heirs of one of the defen- *^v'h^tvf°'' *° dants, Esan Gungolee, which could not be remedied without a visions of Sec- supplementary plaint — and that one supplementary plaint having tion v., Regu- been already filed, he was precluded, by Section V., Regulation IV. 17?i3° a^J'an °^ 1793, from receiving another. On this ground also he threw out plicable. the case. By the Court. — (Present Mr. Reid) : — " This is not a good rea- son ; the petition required to correct the error cannot be considered as a supplementary plaint to the original plaint, for the contingency of the death of Esan Chunder had not occurred when it was filed." StTDDEE DEWANNY ADAWLUT. 81 The Court considering also that the plaintiff's case ought not to have been struck off on the ground of default, the principal sudder ameen was directed to restore it to his file.* RAM GOPAL GHOSE, Petitioner. This was an appeal preferred by petitioner from the orders of i844. the officiating judge of zillah Hooghly, dated 24th November, 1843, directing the moonsiff of Rajapore to throw out his suit for false im- January 8. prisonment against the darogah of thanna Bydbatee. The Sudder The officiating judge, who quoted Section XXII., Regulation Dewanny XXII. of 1 793, as barring the civil prosecution, was directed to order rected the res- the moonsiff to restore the case to the file and decide it — leaving the toration to the party dissatisfied to prefer a regular appeal. ^}^ °^ ?■ '"oon- for false hn- prisoninent against a police darogah, struck off by the orders of the judge. GOWREE CHURN MOOKERJEE, Appellant, versus OBHOYCHURN MOOKERJEE, Respondent. This was an appeal from the order of the officiating judge of Hooghly, dated 15th September, 1843. Both parties being desirous of administering to the will of their brother, Doorga Churn Mookeijee, the appellant, under a will, the probate of which he had obtained in the Supreme Court, and the respondent under a will exhibited by him in the ziUah court, the officiating judge held, that the appellant's view of Act XX. of 1841, Section X., that no certificate could be granted by the ziEah court, after grant of probate by the Supreme Court, was correct, provided no objection was made to the document on which that probate had been granted ; and as in this case, the respondent strongly objected thereto, declaring it a forgery, the officiating judge directed a summary inquiry into the two wills exhibited. Against this order the appellant preferred an appeal to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid): — " The petitioner having obtained a probate from the Supreme Court, it can only be set aside by the Supreme Court. The officiatmg judge's order must be re- versed ; he vidll cease to interfere, and will leave Obhoychurn to his remedy in the Supreme Court." 1844. January 16. A "wiU, pro- bate of which has been granted by the Supreme Court, can only be set aside by the Supreme Court. * Sec decision by full bench, dated 16th April 1850, page 113, Raja Kishen- chunder Bahadoor, Appellant, (Defendant,) versus Kirpomaye Debea, Respon- dent, (Plaintiff,) Kaleekaunth Lahooree, Respondent, (Defendant.) L 82 SUMMARY CASES IN THE 1844. February 12. Held that the copy, kept for record in the courts iu lieu of the original, of a general power of at- torney to act in more than one court, should be written on plain paper. Mr. R. F. smith, Petitioner. This was an application by the petitioner to have returned to him in original, copy being retained for record, a general power of attor- ney executed in his name by the executors of the late Mr. W. H. Twentyman, authorizing him to conduct in the Mofussil courts suits brought on behalf of the deceased. The question was whether the copy to be retained should be written on plain or stamped paper. By the Court. — (Present Mr. Reid): — " The register will be so good as to report why, under Circular Order, 2nd January, 1835, the prayer of the petitioner (that he receive back his mookteamama without giving stamped paper for the copy for record) cannot be complied with." (The register's reply.) — " The Circular Order cited is acted upon in regard to all deeds and exhibits, filed in suits as evidence ; from the date the Circular was issued, it has never been held as apphcable to powers of attorney. The practice in regard to general powers has always been to retain them in the ofHce ; the party wishing to make further use of them, taking copies of them. This, it is believed, is the practice in every court." It was finally ruled that the copy should be made on plain paper, as the power of attorney had general application, not only as regard- ed cases, but also as regarded courts. 1844. February 13. Certain pro- perty was un- der attach- ment by the sheriff of Cal- cutta without being sold for three years. Held that no fraud could therefore be imputed to the owner, so as to subject Mm to arrest under Section XI., Regulation II. of 1806. "WILLIAMS, Petitioner. The petitioner had been arrested in execution of a decree, and confined in the civil jail of zillah 24 Pergunnahs, from whence he had been released on the 4th March, 1843, on his swearing to being an insolvent, as required by Section XL, Regulation 11. of 1806. The decree-holder subsequently caused 5 beegahs, 10 cottahs of land, situate in Intally, to be attached as his property, the land being at the time under attachment by the sherilF, in satisfaction of a decree of the Supreme Court, in whose hands it had remained so attached since the 11th September, 1840. In consequence of the prolonged attachment, without sale by the sheriff, the judge of the 24 Perguimahs, suspecting collusion and fraud on the part of the petitioner, had refused to release him when arrested a second time by the decree-holder on discovery of the above property. From the judge's order, which was dated the 21st November, 1843, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid): — " This is not sufficient ground for keeping the petitioner in confinement. He must be released. The decree-holder may sue out execution, and apply to have the land sold. If it be in attachment by the slierifF, the judge will of course not sell, but if not, he will .sell and realize for the decree- holder." SUDDEE DEWANNY ADAWLUT. 83 SAHEB PRUHLLAD SEIN, Father and Guardian of FUTTEH BAHADOOR SEIN, CHUTTOOREEAH RUNMURDUN SINGH, &c. On the 23rd May, 1842, Messrs. Lee Warner and Shaw sent back the above case to the principal sudder ameen of zillah Sarun, directing him to try it on its merits. It being necessary to take the evidence of the Raja of Nepaul and the Raja of Bettiah, the principal sudder ameen applied to the Sudder Dewanny Adaw- lut to ascertain how that of the former could be obtained, stating, at the same time, that the latter declined to appear in court as a witness. He was informed by the Court, (present Mr. Reid), that the Raja of Nepaul could not be examined; and, in regard to the Raja of Bettiah that if he had hitherto been excused appearing in court, a commission should be issued, under Act VII. of 1841, to a moon- siiF, to proceed to his residence, and there take his evidence. 1844. February 26. A foreign potentate can- not be called upon to give evidence in the Company's courts. The evidence of a native subject of rank should be taken by a commission under Act VII. of 1841. COLLECTOR OF ZILLAH MYMENSING, Petitioner. Government had applied to, and obtained from the civil court, an order for separate possession by partition, of its share, 7 annas, 5 gundas, 1 cowree, of pergunnah Zymshahee, in zillah Mymensing, the butwarra was, however, directed to be made by an ameen appointed for the purpose by the Court. From this order, which proceeded from the principal sudder ameen, the petitioner appealed to the Sudder Dewanny Adawlut, praying for its reversal; and claiming that the butwarra should be effected by the Revenue Department. By the Court. — (Present Mr. Reid): — " The butwarra can only legally be done by the collector and the Board, who can alone sanction the allotment of the assessment. The order of the principal sudder ameen is therefore reversed; and he is directed to issue the usual order to the collector, under Regulation XIX. of 1814, to make the butwarra." March 11. The butwar- ra of an estate, partly the property of Govern- ment, and partly of pri- vate indivi- duals, must nevertheless be made by the revenue autho- rities. JUGMOHUN MANJEE, Petitioner. This was an appeal from an order of the judge of Mymensing, dated the 30th December, 1843. Jugmohun Manjee, on the 18th November, 1843, applied to the judge of Mymensing for permission to institute a suit in forma pauperis, against Keshub Manjjee and others, to recover the sum of rupees 2,412-14-10, the value of grain forcibly carried off by the defendants in 1242 B. S., producing a roobukaree of the magistrate, dated 31st August, 1836, fining the defendants rupees 20 each for April 22. If lapse of time, not amounting to a period ■which would bar the institution of a suit on a full 84 SUMMAKY CASES IN THE rejecting an application to sue in forma pauperis, it ii insufficient. be the tumultuously carrying off the grain, but referring the petitioner to only "ground for ^ civil action to recover the value of it. The judge rejected the prayer of the petitioner, in consequence of the length of time (upwards of 7 years) since the magistrate referred him to a regular suit. On appeal to the Sudder Dewanny Adawlut, Mr. Reid submitted the following minute for the opinion of his colleagues : "I doubt whether, under the wording* of Act IX. of 1839, the lapse of time, not amounting to a period which would prohibit the institution of the suit on a full stamp, is a sufficient reason for refusing the petition. Delay in suing may, combined with other reasons, form a presumption that a suit has no good grounds; but can it, in this case, alone prevent the pauper suit ?" Messrs. Eattray and Tucker concurred in opinion that, if the lapse of time was the only ground on which the judge refused permission to sue, he was not warranted in doing so. This being the only reason assigned by the judge, his order was cancelled. 18M. July 8. An order pass- ed in the exe- cution of a de- cree, for the sale of a contin- gent interest, was reversedby the Sudder De- wanny Adawlut, who directed " therightsand interest" in existence to he sold. SYUD UBDOOLLA, Petitionee. This was an appeal from the order of the principal sudder ameen of Patna, dated 30th March, 1844. Petitioner, in the execution of his decree against Byjnath Sahoo and Gocul Doss, applied for the sale of talook Dostpore Humeed- pore, which was included by him in the list of their property, and which, it was shown, they had purchased, when it was sold in satisfaction of a decree obtained by Unwur Begum against Ufzuloonissa. Mohummudee Begum, heiress of the latter, objected to the propos- ed sale, in consequence of the prior sale having been reversed by the Sudder Dewanny Adawlut, and denied that Byjnath Sahoo and Gocul Doss retained any right of property in the talook. It appear- ed, however, that the prior sale had only been conditionally reversed, viz. upon the repayment to the purchasers of rupees 1,26,000, the amount of purchase-money. It was, therefore, contended by petitioner that, as the decree in reversal of the sale had not been executed, not- withstanding the lapse of Jiearly 9 years from its being passed, the purchaser's present rights and interest in the property, which they were still in possession of, could be sold. The principal sudder ameen, with reference to the objections of Mohummudee Begum, directed the sale of the rights of Byjnath Sahoo and Gocul Doss in the purchase-money, when refunded. The Sudder Dewanny Adawlut, reversing his order, ruled, that their rights and interest in the property should be sold. * Unless the Court be satisfied by examination, &c.| cause for instituting the suit," "that there is probable SUDDEK DEWANNT ADAAVLUT, 85 SY UD KUBBEER HOSSEIN, Petitionee. This was an appeal from the order of the additional judge of Bebar, dated 24th April, 1844, releasing from confinement, Meer Mehdee Alee, arrested in execution of a decree, which the petitioner had .obtained against him. The judge assigned as his reason for discharging the debtor, that much of his property having been attached would be sold ; and if the proceeds of sale should be insufficient to satisfy the decree, he could be again arrested. It was ruled by the Court, (present Mr. Reid,) that the law (Section XI., Regulation II. of 1806,) required the detention of the debtor till he paid the debt due from him, or until he established his insolvency. The judge was therefore directed to have him again arrested. July 29. The Sudder Dewanny A- dawlut order- ed the arrest of a debtor, dis- charged from confinement by the zillah judge pending the sale of his property. RAJA MUHESWUR BUKSH SINGH, Petitionbk. This was an appeal from the order of the judge of zillah Shaha- bad, dated 23rd May, 1844, confirming that of the principal sudder ameen of 4th December, 1843. Kummur UUee Khan, the petitioner's debtor, having been arrest- ed in execution of a decree, was released by the principal sudder ameen, because the petitioner could not point out any property belonging to him ; and the judge, on appeal, confirmed his order. Thereupon an appeal was preferred by petitioner to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid): — "As the debtor has not sworn to his insolvency, the judge and principal sudder ameen had no authority to release him. The oath of a debtor is a necessary pre- caution; for, if, as stated by petitioner, the defendant has property, which however he (the petitioner) cannot point out, it is not improbable that the fear of the consequences of taking a false oath may compel him to discharge his debt. The judge's order is reversed, and he is directed again to arrest the debtor, and proceed as above pointed out." September 2, It is an in- sufficient rea- son for the dis- charge of a debtor from confinement without taking his oath of in- solvency, that the creditor can- not point out any property belonging to him. Mb. O'DOWDA, Registrae op the Supreme Court, Petitioner, versus PEAREE lall mundul, gunga gobind mun- DUL AND UDIT CHAND MUNDUL. This was an appeal against the order of the acting judge of the 24 Pergunnahs, dated 13th January, 1844, who refused to give the September 7. petitioner possession of the property of Pertab Chunder Haldar (deceased), which he claimed in virtue of letters of administration admLsMon granted to him by the Supreme Coiu-t ; and which the defendants from the Su- 1844. 86 SUM3IARY CASES IN THE preme Court held in pursuance of an award made in their favor by the magistrate confer no title gf the zillah, under the provisions of Act IV. of 1840. from ThT'luah ^^^^^ Court— (Present Messrs. Rattray, Tucker andReid):— courts, in re- " After the appointment of a curator or administrator, the courts cannot covering pro- interfere, unless on the institution of a regular suit. A person legally possession S competent to do all acts being appointed, he can claim no summary the party re- aid from the courts, which the person represented could not claim. presented, at (Jjider these circumstances the order of the iudee is confinned, and the time of his , .. , ... ■ , j i, ■* ■ ° decease "^^ petitioners application rejected. RAM KOOMAE BANERJEEA, Appellant, SALT AGENT op BULLOOAH, Respondent. GOVERNMENT PLEADER on the pakt of COMMIS- SIONER OP the CHITTAGONG DIVISION, Petitionee. 1S44. The above appellant and respondent were concerned in a case under appeal before the Sudder Dewanny Adawlut, and an order September 20. ^^ {ggygj 1,^ tjjg Court, on the 27th July, 1838, for the attachment The sale of of the property of Illahee Buksh, the surety of appellant ; in execu- a putnee ta- jjon of which, a putnee talook, called Mahomed Reza, was attached by tachment^v " *^^ deputy collector of zillah NoacoUy, and a sezawul was appointed order of the by him for the purpose of making the collections. Before any were civil court, can- made by the officer so deputed, the zemindar applied to the deputy reason be de- collector to have the talook sold, under Regulation VIII. of 1819, for ferred, in the arrears due to himself, and, with the permission of the zillah court, event of its jj-^g gg^jg ^j^g jjg]^ . ^g jj ^^g considered by the judge that there was to sale under nothing to warrant its postponement. Afterwards on appeal by the Regulation respondent, the sale was disallowed by the Sudder Dewanny Adawlut VIII. of 1819, ^pregent Messrs. Reid and Shaw) ruling that under the circumstances to the zemin- of the attachment the talook could not be brought to the hammer, dar. A review of judgment of this order, which was applied for by the local revenue authorities, was subsequently admitted by Mr. Reid, who finally pronounced judgment as follows : " On further consideration, I am of opinion, that the half-yearly sales of putnee talooks under Regulation VIII. of 1819, cannnot be stayed except by payment of the revenue due on them ; and that therefore the order of Mr. Shaw and myself should be reversed, and the sale of the putnee should be upheld ; but as Mr. Shaw is dead, the papers must be sent to another judge, in order that the necessary order may be passed." Mr. Barlow concurred with Mr. Reid. SUDDER DEWANNY ADAWLUT, 87 MAN BEEBEE, and others, Petitioners. This was an appeal from the order of the judge of zillah Shaha- bad, dated 3rd August, 1844, confirming that of the principal sudder ameen of the 9th April preceding. The petitioners had sued Government, Chutturdharee Lall, &c. to have set aside tlie sale of mouza Akraoon KuUan. Subsequently they wished to file a baznama or deed of relinquishment. On 1844. December 10. A plaintiflF cannot be pre- vented from withdrawing petition of Bahadoor Allee Khan, &c. to the effect that the petitioners his suit. had sold their rights in the village to them, the principal sudder ameen allowed those persons to carry on the, case, and refused the petitioners permission to withdraw it. His order was confirmed by the judge. An appeal was consequently preferred to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid) : — " The courts have no power to prevent a plaintiff from filing a baznama ; and in the present ca^e, the allegation of Bahadoor Allee, &c., the truth of which is de- nied by the petitioners, has only been summarily inquired into. The orders of the lower courts are therefore reversed. The baznama pre- sented by the petitioners must be accepted ; and Bahadoor Allee, &c. left to their remedy in the usual course." RATE HUEEE KISHEN, Petitioner. This was an appeal from an order of the judge of zillah Tirhoot, dated 21st September, 1844, rejecting his petition to have a suit of Eaja Putnee Mull against him thrown out, because former suits had been disposed of coimected with the same cause of action. By the Court. — Mr. Reid : — " The petitioner's pleas should be given in his answer to the plaint, not in a miscellaneous petition ; and the judge was quite right in rejecting the application." Ordered accordingly 1845. February 3. Reasons pre- ferred by a defendant for the dismissal of a regular suit, cannot be urged in a miscella- neous petition, but should be contained in the answer to the plaint. RAMNARAIN BHUTTACHARGE, Petitioner. This was an appeal from an order of the judge of West Burd- wan, dated 29th April, 1844, refusing to allow the petitioner to appeal in forma pauperis from a decision passed under Clause 4, Section XXX., Regulation II. of 1819. In a letter addressed to the Court, in explanation, the judge assigned as his reasons for rejecting the petitioner's application, that he was not aware of any precedent showing that such an appeal had ever been allowed, and that the Regulations were silent on the subject. He considered that the framers of Regulation II. of 1819, apparently did not contemplate such an appeal, for they fixed the stamp duty at only one rupee, so as to admit of appeals from all 1845. February 10. Held that an appeal informd l)auperis may be preferred from the deci- sion of a col- lector, under Clause 4, Section XXX., Regulation II. of 1819. 88 STJMMAEY CASES IN THE classes ; and although the Sudder Court had, subsequently, by Con- struction No. 987, increased the value of the stamp, no instructions had been issued regarding pauper appeals. The judge's explanation was submitted for the opinion of his colleagues by Mr. Eeid, together with the following minute, which he had recorded :— " Clause ], Section XII., Regulation XXVIII. of 1814, allows a pauper appeal from every original decision. The decision of the collector is, to all intents and purposes, an original decision ; therefore I conceive the appeal may be heard in forma pauperis!' The Court at large concurred with Mr. Reid, who accordingly passed orders reversing that of the zillah judge. REMARKS. The report of the collector, under Clause 6, Section XXX., Regulation II. of 1819, on a case referred by a court of judicature, is " a summary judgment," ( others. Petitioners. ' This was an appeal from an order of the judge of Tirhoot, dated 6th September, 1843. A dispute regarding the boundary of mouza Kungore, the property of the petitioners, and of mouza Kumtole, the property of Maha- raja Chutter Singh and Lalla Durbaree Lall, had been pending in the foujdaree court. With the concurrence of both parties, and ac- cording to the orders of the foujdaree court, Kanree Rawut, ryot and inhabitant of mouza Kungore, and Baluk Rawut, ryot and inhabitant- of mouza Kumtole, were nominated arbitrators. On the 1st Phagoon, 1244 Fuslee, or 5th March, 1838, they decided the case, and forwarded a copy of their decision to each party, and a third copy was forwarded to the magistrate. On their award being objected to, the magistrate ordered the petitioners to file an application for its execution in the civil court : accordingly the petitioners applied to the civil comt, on which the opposite party filed objections against the award. The judge of the zillah court rejected the petitioner's ap- plication, and ordered the case to be struck off the file, in conse- quence of the depositions of the witnesses not having been taken on oath, and owing to the decision by the arbitrators being passed in the absence of the parties, and the award being contrary to a former decision of the arbitrator, Baluk Rawut, passed in another case. The petitioners, being dissatisfied with the above order, preferred an appeal to the Court of Sudder Dewanny Adawlut, when Mr. J. R. Hutchinson, on the 26th June, 1838, reversed the order of the SUDDER DEWANNT ABAWLUT. 89 lower court, and directed that the award of the arbitrators should be carried into effect, provided there appeared no corruption on their parts. The zillah judge, on the 5th January, 1839, in execution of the above order, restored the case to its former number, and passed an order to the effect that Baluk Eawut, the arbitrator, in a former case of dispute regarding boundaries, had, on the 6th Poos 1236 Fuslee, given an award in which lands now assigned to Kmigore, were shown to belong to mouza Kumtole ; moreover, on calling for Baluk Eawut he did not appear. Accordingly the judge, feeling satisfied of the arbitrator's partiality, again rejected the petitioner's application for the execution of the award. Afterwards, the judge, being doubtful of his construction of the law (Section IX., Regulation XVI. of 1793,) referred to the court to be allowed, if deemed proper, to review his judgment. His letter dated 10th January, 1839, was as follows : " In referring to the rough draft of an order passed by me, on a case brought forward under Regulation VI. of 1813, and which was returned to this court by the orders of the late Mr. Hutchinson, with a precept, dated the 18th July, 1838, I find that I have possibly mis- taken the intent of the order passed in the case, (which directed me to re-hear the suit because evidence to corruption or partiality had not been adduced,) and have, on the evidence alone of two contradic- tory awards by the same arbitrator, Baluk Rawut, ruled that partiality was established, without going into extraneous evidence ; but, to avoid error or misconstruction, I now beg to lay the papers before the Court, and to solicit permission to review this last order of mine of the 5th instant, if the Court should still consider that it is absolutely and indis- pensably necessary to require the testimony of two witnesses to prove such a point as partiality in an arbitrator, when two of the same arbi- trators' awards are on record, the one contradicting the other, and declaring the same lands to belong first to one and then to the other vUlage. My own opinion is that the awards themselves, and the maps or plans, are the best tests of this fact, and that partiality may well be held established, in one of the instances, when these are found to differ. Indeed, I should say they were the best proofs ; for, without absolute proof of corruption, and receipt of money, this partiality could never so well be established, for it must rest a secret in the party's own breast ; and I also consider that the law as to witnesses, in Section IX., Regulation XVI. of 1 793, has reference to corruption alone, the other hardly being so susceptible of proof by the testimony of witnesses. StOl I would waive such opinion in defers ence to the Court, should they put a different construction on the intent of this law, as to the indispensabihty of proof by witnesses of partiality, and therefore, request their orders or sanction to review my decision of the 6th instant." On the 1st November following, the Court at large sanctioned a review of judgment ; but declared the evidence of witnesses to be unnecessary to prove corruption and partiality if they could be otherwise established. At the same time the judge's attention was H 90 SUMMAEY . CASES IN THE directed to the Circular Order, No. 51, dated 24th February, 1816. Accordingly the case was restored to its original number in the zillah court, and without taking the evidence of witnesses regarding bribery and partiality on the part of the arbitrators, the zillah judge, for the same reasons as before, on the 6th September, 1843, suspended the execution of the award of the arbitrators, and ordered the case to be struck off the file. Upon appeal preferred by the petitioners,_ the Sudder Court confirmed the zillah judge's order. 1815. February 19, Held, that the eight days' no- tice required by Section XII., and the pro- ceedings to be recorded under Section X,, Regulation XXVI., 1814, must be repeat- ed if the parties to a suit be al- lowed to file any pleadings sub- sequently to the above pro- visions of the law having been once al- ready attended tot GUNSA RAM DOBEH and others, Petitioners. The collector of zdlah Shahabad instituted a, suit to recover from petitioners (defendants) rupees 6,494-7-4|- wasilat for mouzas Jug- deespore and Luhna Domree, pergunnah Bojepore, a maafee niehal. The principal sudder ameen, Moulvee Syud Munowur Alee Khan, on the 8th December, 1843, passed a decree in favor of Government, in the absence of the petitioners. They consequently, on the 7th March, 1844, preferred a summary appeal to the Sudder Dewanny Adawlut. As it did not appear from the principal sudder ameen's decision, that he had proceeded regularly, he was called upon for an explana- tion. From his explanation, dated the 19th April, 1844, it appeared that due notices having been issued, calling on the defendants to appear, the usual eight days' notice was issued on the 7th August, 1843 ; and on the 28th Aucrust, 1843, the roohukaree required by Section X., Regulation XXVI. of 1814, was recorded. On the 29th August the defendants appeared and filed their answer. On the 3 1 St August, plaintiff was required to file his reply, which he did on the 29th November.* After ten days, i. e., on the 8th December, 1843, the case was brought forward, and, the defendants not being present, no rejoinder nor proofs were demanded from them. The principal sudder ameen did not think the issue of a fresh notice necessary, but decided the case on that date in favor of the plaintiff. By the Court. — Mr. Reid : — " I am of opinion that the no- tice under Section XII. and the roohukaree of the 28th August, 1843, under Section X., Regulation XXVI. of 1814, must be con- sidered as nullified by the permission to the defendants to answer and the plaintiff to respond ; and that on the reply of the collector being filed, a proper period should have been allowed to the defen- dants to file their rejoinder ; and, on the expiration thereof, the eight days' notice should have issued ; and, after the expiration of that term, a fresh roohukaree, written under Section X., Regulation XXVI. of 1814 ; and that that not having been done, the decision of the principal sudder ameen must be considered as defective. I, * Tlie period of six weeks was exceeded on account of the intervention of the Dusserah hoKdays. t See Circvdar Order No. 92 of May 19th 1850. SUDDEE DEWANNY -ADAWLUT. 91 therefore, under Clause 2, Section II., Regulation IX. of 1813, annul the decision of the principal sudder ameen, and enjoin him to restore the case to the file, and proceed to try it in the meuiner above- indicated. li'ALEE SHUNKER BUXEE and others, Petitionees. This was an appeal from an order of the judge of zillah Backer- gunge, dated 14th December, 1844, dismissing their appeal against a decision of the principal sudder ameen in favor of Brij Kishore Sain and others. The appeal had been thrown out in consequence of the lapse of six weeks, after the death of Mr. R. Vaughan, receiver of the Supreme Court, one of the defendants, without any application to have notice served upon his successor. By the Court. — Mr. Reid : — " I do not consider this a sufficient reason for throwing out the case. The receiver's office still continued, and I hold it unnecessary to issue any notice. If the official individual die, it is the duty of the successor to attend and carry on cases in which he is officially concerned." The judge's order was accordingly reversed. 1845, March 18, It is not ne- cessary toissue, to the new officer, fresh notice, in a case to "wliich the receiver of the Supreme Court may be a party, on change of the official incum- bent. BISHEN SOONDUREE DEBEA, Petitionee. This was an appeal from an order of the additional principal sudder ameen of 24 Pergunnahs, dated 2nd April, 1845, throwing out her suit against Cazee Gholam Ghyasooddeen and others, because, after fihncr one supplementary plaint to include Thakoor Dass Roy and others, amongst the defendants, which was allowed, she filed a second one to add the name of Ram Roy to their number. Si/ the Court. — Mr. Reid : — " The Regulations do not lay down nonsuit as a penalty for giving in a supplementary plaint. The court should have merely rejected it, and tried the case as between the parties present, leaving the plaintiff to suffer the consequences of her neglect in not naming all the defendants at the proper time." Order reversed. 1845. April 21. The filing of a second sup- plementary plaint, although unauthorised by law, is no ground of non- suit. A. H. ARRATOON, Petitionee. This was an appeal from an order of the principal sudder ameen of Dacca, dated 30th December, 1844, who refused to issue a warrant of arrest against D. F. M. Beglar, under Section IV., Regulation II. of 1806, considering himself precluded from doing so, by Construction No. 888, as the defendant had proceeded to Calcutta, and was no longer within the jurisdiction of the Dacca court. 1845. April 21. Process of arrest under Section IV., Regulation II. 92 SUMMARY CASES IN THE of 1806, taken out against a person when •within the ju- risdiction of the court issu- ing it, may be served on him beyond it. 1845. April 22. Right of suc- cession cannot be decided in a summary man- ner, except un- der Acts XIX. and XX. of 1841, or when the heirs of de- ceased parties to suits are called upon to appear.. By the Court. — Mr. lieid : — " If the defendant was within the jurisdiction at the time the process was first resorted to, the principal sudder ameen will issue his warrant to the Sheriff to arrest him." Ordered accordingly. BYJNATH BHOSE, Petitionee. This was an appeal from so much of an order of the officiating judge of 24 Pergunnahs, dated 4th July, 1843, as summarily declar- ed the will of one Goopeenath Bose, whose death occurred on the 12th April, 1842, produced by his widow Oomapooma, on the 9th March, 1843, to be proved. Her statement, on the occasion, was, that her deceased husband had, during his. illness, on 17th Phalgoon, 1248, corresponding with 27th February, 1842, executed a will that his widow should adopt a. son, and that she should have possession of his estate as guardian. Pie subsequently died ; she therefore prayed that proof of the above might be taken. The petitioner, who was paternal uncle of the deceased, stated, in opposition to her claim, that the will produced by her was forged ; that his nephew had committed suicide by shooting himself ; that he had made no will ; and that the widow's apphcation to the court, not having been preferred within six months of her husband's decease, Act XIX. of 1841 could not be put in force. The officiating judge considered the wUl to be proved by the evi- dence of the witnesses ; but, declining to pass any order upon it sum- marily, he recognised the widow as representative of her deceased husband without reference to it. As he considered the case to have no connexion with Section XIV., Act XIX. of 1841, the plea of the uncle, founded thereupon, was declared inadmissible. The present petition was an appeal to the Sudder Dewaimy Adaw- lut, objecting to the will having been summarily declared to be proved. On the 30th October, 1843, the case was taken up by Mr. Eeid, who, with reference to the provisions of Regulation V. of 1799, which requires a regular suit to be instituted on occasions of disputed succession, and to the officiating judge's declaration that Act XIX. of 1841, had nothing to do with the case, called upon him to ex- plain under what Regulation the heirship of Oomapooma to the deceased had been tried, and she had been made his representative ; and why the will was summarily pronounced to be proved. In reply, the officiating judge, on December 2nd, 1843, represent- ed his order to be founded on no Regulation, but on the practice prevailing in the ziUah, as ascertained from the officers and pleaders of the court. JBi/ the Court. — Mr. Reid: — "I am of opinion that such prac- tice is highly irregular ; and that the judge should be directed not to interfere with any cases of succession, except summarily under Acts SUDDEE DEWANNY ADAWLTJT. 93 XIX. and XX. of 184], or when a regular suit is instituted under Regulation V. of 1799." The Court at large, concurring with Mr. Reid, with the proviso that the question of heirs to deceased parties to suits might be summarily entertained, the order of the officiating judge, dated 4th July, 1843, was reversed, and the inquiry into the validity of the win was declared to be null and void. A. H. ARRATOON, Petitionee. This was an appeal from an order of the principal sudder ameen of Dacca, dated 25th February, 1845, allowing D. F. M. Beglar to appear by vakeel and file an answer, although he had not given security for his appearance under Regulation II. of 1806. By the Court. — Mr. Seid: — " There is nothing in Regula- tion II. of 1 806 to prevent a party from appearing by vakeel ; but, if a party failing to furnish security when called upon, can file his answer and defend his suit, it would altogether set aside and nullify the whole process. The principal sudder ameen will not, therefore, act upon the answer, until the defendant give security or deliver himself up." Ordered accordingly. 1845. May 5. An answer, filed by the vdkeel of a, de- fendant in a suit, himself absconding; op not furnishing secui'ity under Regulation II. of 1806, is not to be attended to. SUPERINTENDENT op SALT CHOKEES or BULLOOAH, Petitionee. This was an appeal from an order of the judge of Chittagong, dated 16th September, 1843, refiising to issue process under Section XXIX., Act XXIX. of 1838, to realize a fine imposed ex parte upon certain individuals for chur-scraping. 1845. May 12. The civU Certain parties residing in the neighbourhood of the salt churs courts cannot abandoned by the agency, were in the habit (as stated by the execute awtrS superintendent) of scraping the churs, and carrying off the mud which they con- to manufacture salt. The preventive peons stated this on oath sider illegal. to the superintendent, who summoned the parties to defend them- selves ; this they omitted to do, — and he then proceeded, according to law, to try the complaint of his emissaries, and fined the parties for chur-scraping. As the judge considered chur-scraping to have been declared to be no infraction of the salt laws by the Construction of the Court, No. 1211, dated 10th May, 1839, he looked upon the warrant of the superintendent to be in excess of his authority, and as such did not deem it incumbent on him to give it effect. On appeal to the Sudder Dewanny Adawlut, the Court (Messrs. Rattray, Reid and Dick,) ruled that the civil courts cannot carry into execution orders of a salt agent which have been determined to be illegal. Appeal rejected. 1845. 94 StJMMAKT CASES IN THE KUMUL KISHOEE GOH, Petitionee. This was an appeal from an order of the judge of zillah Backer- June 2. gunge, dated 3rd March, 1845, dismissing the petitioner's appeal The issue of against the decision of the principal sudder ameen, in a case in which notice to lieirs he had sued Kala Chand Roy and others for defamation, of defendant or "pjjg judge had dismissed the appeal, because the petitioner had ceased to at- "^"t proved who were the heirs of two of the defendants deceased, tend, and not Notice to them generally to attend had however been issued by him. P^o^-of .^f^"^ By the Court— Mr. Beid:—" The petitioner did aU that was quired from the required from him. I, therefore, reverse the judge's order and direct opposite party, the restoration of the appeal to the file." Ordered accordingly. 1845. BAMUN DASS MOOKERJEE and others, Petitionees, This was an appeal from an order of the principal sudder ameen July 3. of Nuddea, dated 2nd October, 1844. The petitioners were defendants in a case, instituted against them ence of a wiU ^7 Tarinee alias Seamunee Debea, for the recovery of the property be disputed be- of her deceased husband, Chunder Bhoosun Mookerjee, which the tween the heirs defendants alleged he had given by vnll to Mothoomath Mookerjee, ceased, security his Son by adoption, of whom Bamun Dass, the father, was, by the may be de- will, constituted the guardian. Sertfo^n iv"*^"^ '^^'^ plaintiff, whose action was brought to contest the will, had Regulation V applied to the principal sudder ameen to demand security from the of 1799. defendants under Section IV., Regulation V. of 1799, and her appli- cation being compHed with, the present appeal was preferred to the Sudder Dewanny Adawlut. By the Court. — (Present Messrs. Tucker, Beid and Barlow) : — " After full consideration the Court are of opinion that, with reference to Section IV., Regulation V. of 1799, if the existence of the will be disputed by the heirs, the case must be considered as one of an intestate, and dealt with accordingly." The order of the principal sudder ameen, calling for security, was therefore confirmed ; but as the defendants had urged that the value of the property had been over-stated by the plaintiff, the principal sudder ameen was directed to decide upon its value, and then to demand security to that amount. SUDDER BOARD of REVENUE, Petitionee. 1845. The judge of Dinagepore, on a reference from the commissioner 7 TZi of the Bhaugulpore Division, to know whether, in the event of a "^^^ " plaintiff's applying for the execution of two or more decrees against Diet alloy- the person of an individual defendant, it was necessay to deposit tOT ''co°nfined^on the prescribed amount of diet allowance for the defendant's main- account of se- tenance in each case, replied that the deposit prescribed in Section SUDBEE DEWANNT ADAA^T,UT. 95 II., Regulation VI. of 1830, was necessary in each case, whatever veral decrees number of decrees there might be against the debtor ; but that, when olJtained a- confined, he would not be entitled to any more than if there had fne°^creditor '^ been only one decree against him. need not be de- This opinion was brought to the notice of the Sudder Dewanny P°-'''t^'i ™ ^^'^^ Adawlut, in the course of an appeal, preferred from an order of the judge, dated 3rd January, 1844, by which he had directed the Government pleader to pay the tuhihana of two peons, to execute two different decrees against the same person. After a reference to the judge, the Court, (present Messrs. Rattray, Reid and Dick) informed him that tulubana is intended for the remuneration of the peadah for seizing a person, and that if there be two warrants against the same debtor, one tulubana is sufficient. Nor is there any reason why, if a process of arrest is to be issued against a debtor on ten different decrees, more subsistence-money should be deposited than would be necessary if there were but one decree : since the deposits being made monthly, in advance, the debtor could not obtain his release by merely satisfying one decree, but would be detained in jail tUl he had liquidated the whole of the - several sums decreed against him, the creditor not failing always to lodge diet-money in proper time. The judge's order appealed against, was, at the same time, reversed. BOARD OF CUSTOMS, SALT and OPIUM, Petitionees. The following construction of Section CX., Regulation X. of 1819, 1345 arose out of an appeal from an order of the judge of Tipperah, dated — 3rd July, 1843, throwing out certain cases of execution of decrees August 12. against persons convicted of offences against the salt laws. The principle The principle of Section CX., Regulation X. of 1 8 19, was held to be "f Section CX., that imprisonment can only be awarded in commutation of fine, rf^^g^'i^tlmt When therefore a party has suffered the full period of imprisonment, imprisonment adjudged for non-payment of fine, or an order is passed for imprison- "^^^ ™'y .''^ ing him, all proceedings against his property for the realization of the commutation of amount should cease. But if the judge, agreeably to the request of fine, the salt agent, proceeds to attach property, with a view to realization of the fine, he cannot simultaneously pass an order for the confine- ment of the party. In the event, however, of his not being able to realize the fine imposed in fuU, he may confine the party for the entire period of imprisonment in commutation. 96 SUMMARY CASES IN THE 1845. September 22. A party to an action cannot be called upon to point out the witnesses nam- ed by the op- posite side. BI-IOBUN MYE DEBEA CHOWDEYN, Petitionee. This was an appeal from an order of the principal sudder ameen of Mymensing, dated 28th July, 1845, in the case of Eas Beharee Koor versus the petitioner, requiring her to produce the witnesses named by the plaintiff, who were said to be the petitioner's own servants. By the Court — (Present Mr. Reid) : — " The principal sudder ameen has no authority to pass such an order. If the plaintiff find difficulty in getting the subpoenas* served on his witnesses, he must exert greater activity." Order reversed. 1845. September 23. In the event of two or more defendants fil- ing their an- swers to an ac- tion separately, the plaintiff, unless he ob- tain permission to the contrary, must reply to each within six weeks from the date of its pre- sentation ; otherwise he will incur the penalty of de- fault. BUNWAREE LALL, Petitioner. This was an appeal from a decision of the principal sudder ameen of Tirhoot, dated 22nd July, 1845, dismissing, on default, his suit against Ajodya Pershad Nurayun Singh and Haronee Ram to set aside a deed of sale. The " answer" of Haronee Ram had been filed on the I7th February, and that of Ajodya Pershad Nurayun Singh on the 18th March, 1845. The "reply" of the plaintiff to both, was presented on the 21st April. The defendants, after the case had been allowed to go on for some time, claimed and obtained its dismissal on default, in consequence of the answer of Haronee Ram not having been replied to within six weeks after it was filed. An appeal against the order to such effect was thereupon preferred to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid) : — " The petitioner pleads that he waited tiU the answer of Ajodya Pershad Nurayun should be filed. This is not a sufficient excuse. Had he wished to await the filing of that answer, he should have petitioned the Court for more time. Petition rejected. 1845. November 17. If security for costs be de- manded from an appellant by a court of ap- peal in Its dis- cretion under Act III. of 1845, the rea- sons for the same should be recorded. GOUR MOHUN SHAW, Petitioner. This was an appeal from two orders of the judge of Mymensing, dated 16th August and 4th September, 1845, throwing out the petitioner's appeal from the decision of the sudder ameen in default of furnishing security for costs. By the Court. — (Present Mr. Reid) : — " The judge, unless special cause to the contrary existed, should have exercised, under Act III. of 1845, his discretion in dispensing with security for costs, and ought not to have rejected the appeal. No special cause for the demand of security for costs having been recorded, the judge will restore the appeal to the file. ' Order reversed. SUDDER DEWANNY ADAWLUT. 97 MUSST. EM AM IJANDEE, Petitioner. This was an appeal from the decision of the principal suddcr imB, ameen of Tirhoot, dated 29th July, 1845, throwing out her action against Musst. Burkutoonnissa and Government, for Company's rupees ^"^'^"'''^'^ 24. 33,468-5-6-8, because more than six weeks had elapsed between the If Govcm- filing of the answer of Musst. Burkutoonnissa, one of the defendants, ™™* .*"'". ''"" and the petitioner's replication thereto — although six weeks had not au;t, the plain- elapsed since the collector had put in his answer. tiff need not, On appeal to the Sudder Dewanny Adawlut the case was brought ''^9'', *'J''?S the 1 c 11 J r» • I I 1 • 1 1 !■ 11 • • 1 /. 1 ■ ° plaint, take any before Mr. Keid, who laid the tollowing mmute betore his colleagues steps in prose- for their opinion : cution of the " On the 29th July, 1845, Neamut Alee, the principal sudder answer' Vg'o- ameen of Tirhoot, threw out this case, under Act XXIX. of 1841, vernment be because more than six weeks had elapsed between the filing of the S'™n in. answer of Burkutoonnissa (on 7th June, 1844,) and the filing of the juwab-ool-juwab (on 17th June, 1845.) It was not till the 2nd June, 1845, that the petition of plaint (which the commissioner had requested to see in original) was returned by that officer, and, on the 30th June, 1 845, the Government pleader put in a petition by way of answer. The object of the reference to the revenue authorities, under Regulation II. of 1814, is to afford Government an opportunity, after the necessary inquiries, of ordering plaintiff's demand to be satisfied, if they think it just, or leaving him to prosecute his claim according to law, should they doubt or not acknowledge the justice of the demand. Till, therefore, the revenue authorities have given their final reply, as required by Clause 4, Section III., Regulation II. of 1814, the suit cannot, in my opinion, be considered zs formally instituted. Till this was done in the present case, there seems to me to have been no necessity for the plaintiflP to have rephed to Burkutoonnissa's answer. Until the commissioner's refusal to comply with her demand had been received, she could not possibly know that it would be refused. I, therefore, think that she need not have put in the reply so soon as she did, and that, therefore, her suit ought not to have been thrown out on that account. Had she committed default of six weeks after that time, it would properly have been liable to dismissal. I would reverse the decision of the principal sudder ameen, but would first wish to have the opinion of my colleagues." Mr. Tucker remarked: — " Until the reply of the Board of Revenue (now the commissioner) shall have been received, there is no suit before the Court, only a mere petition. Clause 4, Section III., Regulation II. of 1814, expressly says : 'and such communication shall be deemed sufficient authority for the formal institution and trial of the suit.' " In this opinion Messrs. Rattray and Dick also concurred. The decision of the principal sudder ameen was therefore reversed, and the case restored to the file. 98 SUMMARY CASES IN THE 1845. December 9. An action is not liable to nonsuit, from the difference between the value stated, and the proper value of the property sued for affecting the stamp duty on the petition of plaint, unless the value be under-stated in the proportion of 10 per cent. SriAMA SOONDREE DASSEE, Petitioner. This was an appeal from an order of the additional judge of Hooghly, dated 22nd August, 1845, nonsuiting their appeal, in conse- quence of their having estimated their suit at Company's rupees 2,923-3-2, instead of at Company's rupees 3,014-5-4. In the one case the stamped paper required for the petition of plaint being of the value of rupees 100, and in the other of rupees 150, the judge nonsuited the appellant, on account of the stamp revenue being affected by the under-statement of value. On appeal to the Sudder Devyanny Adawlut, the Court (present Mr. Reid,) held that, as the difference between the two sums was only rupees 91-2-12, and did not amount to 10 per cent, on the value sued for, the judge's order should be reversed, as opposed to Clause 4 of the note to article 8, Schedule B. Regulation X. 1829, and the appeal restored to the file. Ordered accordingly. 1845. December 15. The posses- sion of property by the husband, is no bar to the admission of a suit in forma •pauperis on - the part of the wife. LALOONISSA BEGUM and DOWLUT KHATOON, Petitioners. The judge of Dacca, on the 15th September, 1845, refused the petitioners permission to sue in forma pauperis their father Husyn- ooddeen, to recover Company's rupees 32,355-9-5-2, the dower of their mother. The reasons assigned were, that the first had not sued for four years after she came of age, and that the husband of the latter was a man of wealth. On appeal to the Sudder Dewanny Adawlut, the Court (present Mr. Reid,) held both reasons to be insufficient for the rejection of the prayer of the petitioners ; particularly the second, as Dowlut Khatoon could not claim from her husband the means of carrying on the suit. The order of the zillah judge was accordingly reversed. 1845. December 16. It is no ground of non- suit that the value of the property has been over-esti- mated. GUNGA SAUGUR SIRCAR, Petitioner. The petitioner had sued Khetumauth Seel, in the court of the principal sudder ameen of Hooghly, for the possession of a putnee talook, and had laid his claim at Company's rupees 1,676, being rupees 751, the amount of purchase-money, and rupees 925 the sudder jumma for one year. On the defendant objecting to the valua- tion, an ameen was deputed by the principal sudder ameen to ascer- tain the proper amount, who reported it to be rupees 1,700. The objections of the defendant were accordingly overruled, whereupon he appealed to the zillah judge, who considered that the suit ought to have been laid at only rupees 751. The principal sudder ameen, therefore, nonsuited the plaintiff. STJDDER DEWANKY ADAWLUT. 99 From the order of the zillah judge, which was dated the 14th May, 1845, an appeal was preferred to the Sudder Dewanny Adawlut. By the Court. — {Present Mr. Reid) : — " The petitioner sues at rupees 1,676, being rupees 751 the price, and rupees 925 one year's sudder jumma. The defendant says he has too higlily estimated the value. This is no ground of nonsuit. Had the plaintiff laid his suit too low, in the proportion of 10 per cent., he would have been liable to nonsuit. Let the suit go on, and the value be determined. If the plaintiff be cast, he will have to pay costs on the full amount at which he has laid his suit. If he get a decree, the defendant will have to pay costs only in proportion to the ascertained value." Ordered accordingly. MUSST. HUR SOONDREE GOPTEEA, Petitioner. This was an appeal against an order of the principal sudder ig^g. ameen of Beerbhoom, dated 15th August, 1845. Benode Ram Sein, &c., in execution of a decree against Mun •'^""^''y ^7. Mohunee Gopteea, had attached 7 J annas of lot Malta as the Objections to defendant's property, which the petitioner stated to be in her ? ™™°S f.^e possession. The principal sudder ameen, however, directed its of a decree al- sale, considering the petitioner to be equally a debtor under the leging posses- decree with Mun Mohunee Gopteea. This order was reversed ^""i ?'..*''*, , , , . . ^ , , part of the ou- on appeal, because the petitioner was not a party to the decree ; jector, must bo which, therefore, could not be enforced against her. The princi- inquired into pal sudder ameen was also instructed to take evidence as to the : 5?,„ ,?„ ^ . . ... . » , , • , , 1 1 can take place. petitioner being in possession oi the property claimed by her, and to release it, should such prove to be the fact. In reply, it was reported to the Court, that the sale had taken place before the receipt of their orders. The sale was, nevertheless, summarily reversed by the Court, (present Mr. Reid,) on account of the omission to inquire previously into the petitioner's alleged posses- sion of the property sold. The proceeds of sale, which had already been paid to several parties holding decrees against Mun Mohunee Gopteea, were also directed to be recovered for restoration to the purchaser, and an investigation into the fact of petitioner's possession was ordered.* RADHA MOHUN GHOSE CHOWDREE, Petitioner. This was an appeal from the order of the judge of Jessore, igje^ dated 12th August, 1845, altering, on appeal by the defendant, that of the principal sudder ameen of the district, which awarded *^™™3^ i". to the petitioner the sum of Co.'s rupees 3,307-4-3-1, mesne profits Illegal col- and interest thereupon, in execution of a decree obtained by him }s<=t><"js cannot • . rt ii_ nt J be taken into against Prannath Chowdree. account in the — — — ^ adjustment of * See Cii-cular Order, No. 14, of 21st May, 1847, mesne profits, 100 SUMMAKY CASES IN THE The suit had been for the recovery of possession of a haul, and of mesne profits during dispossession. The zillah judge was of opinion that the petitioner was not entitled, under Section V., Regulation XXVII. of 1793, to collect any duties or taxes, but only the rent of the land upon which the haut was held. The amount due on this item amounted, in his estimation, to Co.'s rupees 42-2-2-0, which he awarded to the petitioner. From this order the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. ReidJ : — " I concur with the judge that only rent can be allowed, and that, duties and taxes being pro- hibited, the petitioner, although he should prove that the party in possession collected them, cannot recover them." Petition rejected. 1846. February 28. Promissory notes may be attached under Section v., Re- gulation 11. of 1806, when found in the name of the defendant in the action, or endorsed to him or her. JUDOONATH SANDYAL, Petitionee. This was an appeal from the order of the principal sudder ameen of 24 Pergunnahs, dated 26th September, 1845, refusing to attach Co.'s rupees 7,224-11-5, the interest of Co.'s rupees 1,65,000, in promissory notes, pending the decision of a suit instituted by the petitioner against Kunnuk Munnee Dasseea, Sumboo Mitter, and others. The principal sudder ameen had attached the notes them- selves, but had refused, for special reasons recorded by him, to attach the interest. Kunnuk Munnee Dasseea at the same time appealed against the order for attaching the notes. The case, being of a novel character, was referred by Mr. Eeid for the judgment of his colleagues, when both the orders objected to were considered. The Court (Messrs. Tucker, Reid and Barlow,) held that pro- missory notes were the property of the party in whose hands they were, and in whose name they were endorsed. As, however, they were not always in deposit in the General Treasury, but only presented for the purpose of drawing the interest due on them, or for the recovery of the principal on the expity of the loan, the private transfer to another party could not be barred. The attach- ment of the notes specified in the application of Judoonath Sandyal might take place if presented at the General Treasury in the name of the defendant. But if endorsed to another party, no attachment could be made. Their attachment in such manner was therefore directed. The Court saw no reason to interfere with the order of the princi- pal sudder ameen for the non-attachment of the interest. Ordered accordingly. i"^ m SUDDEE DEWAXST ADAWLUT. BAEOO BEER SmGH, Petitioxer. 101 \y^ This was an appeal from an order of tlie principal sudder ameen of West Burdwan, dated 20th November, 1845, rejecting the petitioper's application to have the sale of his property about to take place in satisfaction of a decree of court, stayed. Execution had been taken out by one Muddoosoodun Bhoo- sun for Co.'s rupees 10,309-10-0-19 ; and a tank, caUed Talo Talab, the property of the petitioner, was sold on the 17th September, 1843, for Co.'s rupees 9,002-2-3-0 to Sonatun Chowdree, who paid Co.'s rupees 900-3-0 as deposit money, at the rate of 10 per cent., but failed to pay up the remainder of the purchase- money. The sale not being completed, the property was re-sold for the sum of rupees 105, in addition to which rupees 56 were recovered from the property of Sonatun Chowdree, in conformity with Rule 2, Circular Order Xo. 219, dated August 12th, 1842. The petitioner, however, claimed to have levied from Sonatun Chowdree the fuU amount of the difference between the sum bid by him at the first sale, and that paid in by and realized from him ; and objected to the ftuther sale of his own property in satisfaction of the decree. On rejection of his application, he appealed to the Sudder Dewanny Adawlut. JBy the Cmirt. — (Present Mr. Reid) : — " It is evident that Sonatun Chowdree was a fraudulent representative of the petitioner, who cannot therefore be relieved from liability. Even however had there been no fraud, the de&ult of the first purchaser, in not paying up the purchase- money, caimot be allowed to relieve the original debtor." Petition rejected. 1846. March 2. The feilure of the first pur- chaser at a sale in execu- tion of a de- cree, to make good the pur- chase-money, does not re- lieve the ori- giaal dehtor from his liabi- lities. RAM RUTTUN RAI, Petitioxek. The petitioner, who had instituted a suit against Bykaunthnath Rai and others, to compel them to keep up accountants in the haut at Bulleeaghutta, whose names should be recorded, and to recover mesne profits and interest, laying his suit at Co.'s rupees 14,862-9-8, had been nonsuited by the principal sudder ameen of 24 Pergunnahs, because he had not estimated the value of the right of having account- ants appointed, with a list of their names. From this order, which was dated the 9th December, 1845, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — Mr. Reid : — " In such a case the plaintifF is entitled to bring his action at the amount in which he considers him- self endamaged. The value of the right in question is iacluded in it, therefore there is not a sufficient cause for nonsuit." Order reversed. 1846. March 16. The value of the principal, includes that of the subordi- nate right. 102 SUilJIiUlY CASES IN THE 1846. March 17. An action brought by a husband a- gainst his wife for refusing to live with him, should be in- stituted In the zillah where her home is, and not where the marriage took place. UBDOOL MUJEED, Petitioner. On 27th July, 1844, MeerUbdool Kurreem Chowdree instituted a suit in zillah Dacca against his wife Budderoonissa, Meer Imdad Ullee, her father, her mother, and her brothers, of whom the petitioner was one, in order to oblige his wife to cohabit with him. On 25th February, 1845, the principal sudder ameen nonsuited the plaintiff, because the defendants lived in zillah Backergunge, and the refusal of the wife to go to her husband occurred in Shaistabad in that district, where, on the plaintiff sending a boat for her to convey her home, she decEned joining him. On appeal to the judge, the order of the prin- cipal sudder ameen was reversed, and the case was directed to be restored to the file, because the marriage of the parties had taken place in Dacca. The petitioner, in consequence, appealed to the Sudder Dewanny Adawlut. Mr. Eeid: — " As the refusal of the wife to return to live with the plaintiff", which, and not the marriage, is the cause of action, took place in zillah Backergunge, and the defendants reside there, the order of the judge is reversed, and that of the principal sudder ameen is upheld." Order accordingly. 1846. March 17. The circular order of a Board impos- ing rules of practice upon its subordi- nates, beyond the require- ments of law, cannot be pleaded in bar of a legal pe- nalty. NDBKISHEN FOTEDAR, Petitionee. This was an appeal from an order of the judge of Jessore, dated 27tri September, 1844, orderincj, under Sections XLI. and XCL, Regula- tion X. of 1819, the confiscation of a boat of 500 maunds of salt covered by a rowannah No. 1273, because, on weighing the salt at Koopkhalee, there was found to be an excess of 18 maunds 14 seers. The petitioner urged that the salt darogah had caused his people to run away, and that the salt was weighed in their absence, which was contrary to the rules of practice issued for the guidance of the salt department by the Board of Customs, Salt, and Opium. The judge, however, imposed the penalty prescribed by law, because, notwithstanding the rules circulated by the Board, the Regulations did not require that the owner of the salt or his people should be served with notice to attend its weighment. On appeal to the Sudder Dewaimy Adawlut, Mr. Reid laid the following minute before his colleagues for their opinion : " Section XLI., Regulation X. of 1819, provides that, if the salt covered by a rowannah exceed the quantity mentioned therein, in the proportion of 2| per cent., it shall be liable to confisca- tion as contraband, and the person in charge hable, on proof of ike fact, to a fine of rupees 10 for each maund in excess. The fact of an excess must be established by measurement. The salt regulations nowhere, to my knowledge, lay down rules for regulating the measurement. This omission is supplied by the SUDDEE DEWANNY ABAWLUT. 103 Circular Order* of the Board of Customs, Salt, and Opium, dated 11th July, 1835, which requires their officers to give a reasonable notice to the owners to attend, and if they do not attend within the prescribed period, the salt officer is to weigh the salt in the most public manner. The Government pleader contends that the Regulations do not require any notice, therefore the Board's order cannot affect the judgment of the courts in such matters, and can merely be pleaded by the owners of confiscated salt when petitioning the Board for a remission of the penalty either before or after it has been confirmed by the court. I am disposed to think the Board's order has all the effect of a rule of practice, carrying out the intentions of the Regula- tion, and supplementary thereto, and must be considered as having the force of law, provided they do not enhance the severity of the law ; and that the courts, in trying the validity of a confiscation, are bound to see that the proceedings of the salt officers are conformable to the Board's orders. On this point I request the opinion of my colleagues." Mr. Tucker : — " I concur entirely in the view which the Govern- ment pleader is represented in the above note to have taken of this question. When cases come before a court of justice, the law, and the law only, should govern the decision. In order to give bye laws the force of law, the law must authorise an authority to prescribe rules for the guidance and for the conduct of its subordinates, which bye laws, when sanctioned by the Government, are declared to have the same force as the law itself. I find no such provision in Regulation * Para. 12. — In such cases it is very common for the chiirrundars, or others in charge of the boat or boats, to abscond, and the owners purposely abstain from making their appearance, as they always calculate upon delay affording them a chance for making away with some of the sm-plus salt if there be any. "Under those circumstances, it is obvious that extreme circumspection is neces- sary. The owners of the salt detained on suspicion or information, should instantly be written to, and a fair time allowed them to come, or to send agents to the spot where the salt is under seizure : in the meanwhile it must be placed imder your private audil, so fixed, however, as not to obliterate the golah or the merchant's audil, and the most constant and vigilant watchfulness on your part is requisite ; for, so great is the amount generally at stake, that the native officers afe rarely to be rehed upon. Should the period prescribed for the attendance of the owner or his agent pass by without their coming, you will then proceed to weigh the salt very carefully, and in as public a manner as possible, calling upon respectable parties from the neighbourhood to bear testimony to the fairness of your proceedings, and especially requiring the nearest zumahdar, and other officer of the police, to attend and attest the weighment, exercising, in short, a sound discretion, so that while, on the one hand, the interests of Government are protected, on the other the parties owning the salt may have no valid plea to urge in the course of the subsequent judicial proceedings, — such as, that the salt had been carelessly, or hastily, or unfairly weighed, or that it was wetted prior to weighment by rain, or by design, &c. A bag also which has contained salt will be put in the scale holding the weights, to counterbalance the bag in which the salt is weighed ; and you wUl have clean mats or a sail laid down under the scales, that the salt falling may not be mixed with dirt. If on weighment you find the surplus does not exceed the rowannah quantity more than 2i per cent., you will release the salt. If the sui-plus exceeds 2^ per cent., you will forward the salt to the nearest public golahs, as directed in the resolution of Government, and commit the case for decision to the autho- rity appointed to decide such suits. The receipt from the golah officer, as well as the declaration of the police and other disinterested persons who attend the weighment, will, of course, form part of the evidence to go before the authority appointed to try the case. 104 SU.MMAEY CASES IN THE X. of 1819, consequently the Board's Circular Orders cannot be con- sidered as binding upon the judge." Messrs. Rattray and Dick concurring with Mr. Tucker, Mr. Eeid passed orders confirming that of the zillah judge. 184G. June 8. Copy of a decision re- corded in Eng- lish, according to Act XII of 1843, must be given on appli- cation. SUPERINTENDENT, MARINE DEPARTMENT, Petitioner. The petitioner appealed against an order of the judge of the 24 Pergunnahs, dated 2 1st May, 1846, refusing to give him copy of a decision recorded in English according to Act XII. of 1843, in a case in which he was appellant versus Grobind ChunderBanerjee, and others, respondents, and directing him to apply for a copy of the decision in the vernacular version. Mr. Jteid : — " As the English decision is a portion of the record, the petitioner is entitled to a copy." Order accordingly. 1846. June 15. It is unne- cessary to re- ply to a defen. dant who con- fesses judg- ment. SHAMA SOONDUREE, Petitionee. This was an appeal against an order of the judge of the 24 Per- gunnahs, dated 27th February, 1846, confirming that of the additional principal sudder ameen, dismissing the petitioner's suits for default, because she had not replied to the answer of Jugganath Pershad Mullick, one of the defendants sued by her. It was established that the answer in question was one in confession of judgment ; and that the additional principal sudder ameen had, ten days after its presenta- tion, directed the plaintifF to file her documents in proof of her claim. Under these circumstances the Court, (present Mr. Reid,) thought that the petitioner was justified in considering it unnecessary to file a " reply." The orders of both the lower courts were therefore reversed, and the case was directed to be restored to the file. 1846. July 14. The order of an officer of Government, filed by a Go- vernment pleader, is suf- ficient autho- rity to him to plead a cause, SALT AGENT OF 24 PERGUNNAHS, Petitioner. This was an appeal from an order of the judge of Jessore, dated 1st May, 1846. The petitioner, in the court of the principal sudder ameen, had obtained a decree in a suit brought by him against Mr. Rainey, for the recovery of the value of a house which he had sold on account of Government to the defendant. On appeal by the latter to the judge, the judge nonsuited the oricrinal plaint, because the Goveramerit pleader had presented no vakalutnama on stamped paper, and because the salt agent had no authoritv to institute- the suit. , SUDDEE DEW.\NNY ADAWLUT. 105 By the Court. — Mr. Reid ;— " There is no necessity for any vakalutnama. The order of the salt agent, wliicli is not requii-ed to be written on stamped paper, is, by • Clause 3, Section XXXVII., Regulation XXVII. of 1814, sufficient to enable the Government pleader to carry on the suit." The order of the judge was accordingly reversed, and he was directed to restore the appeal to the file. and is ailmis- sible on plain paper. GOUR MOHUN DOSS, Petitioner. This was an appeal from an order of the officiating judge of zillah Backergunge, dated 2nd June, 1846, reversing that of the principal sudder araeen, dated 18th April preceding, and refusing to stay the approaching sale of certain property, which formed the security of the surburakar of a share, 8 annas, 12 gundas, 2 cowries, 2 krants, of pergunnah Chunderdeep. The collector was about to sell the property as belonging to Bugwan Doss, the surety of the surburakar ; and the petitioner, claiming it as only bought by him in the name of that person, who was his son, had instituted a suit to prove his title. Mr. Reid: — " I see no reason to interfere ; because I am of opinion that the property is saleable under Act I. of 1845, and that the civil courts cannot interfere summarily to stop such sales." Petition rejected. 18-JG. JiUy li. A civil court cannot, not- withstandinf^ the institution of a suit for it, summarily in - terfere to stay tlie sale by a collector of property pledged as se- cui-ity in the revenue de- partment. . RADHA BEEBEE, Petitionee. An appeal preferred by the petitioner had been thrown out on default, under the provisions of Act XXIX. of 1841, by the principal sudder ameen of Patna, on the lOfh December, 1844 ;„and an appU- cation for its readmission, under Act XVI. of 1845, had been rejected by that officer on the 24th March, 1846. On appeal to the Sudder Dewanny Adawlut, it was determined by a full Court, that an appeal from such an order of the principal sudder ameen lay to the ziUah judge, to whom the petitioner was directed to prefer it. 18«. July 20. An appeal lies to the zil- lah judge from an order of a principal sud- der ameen re- fusing to read- mit an appeal under Act XVI. of 1845. PRAN KISHEN GOOPT, Petitionee. The petitioner's application for the readmission of an appeal under Act XVI. of 1845, had been rejected by the officiating judge of zillah Mymensmg, on the 3rd April, 1846, under the following circumstances : The petitioner had appealed to the zillah judge, from a decision of the principal sudder apaeen, on the 4th March, 1845, and to save o 184G. August 17. The Sudder Dewanny A- dawlut directed a zillah judge 106 SUMMARY CASES IN THE to readmit, under Act XVI. of 1845, an appeal im- properly dis- missed by liis predecessor in office under Act XXIX. of 1811. the penalty of default under Act XXIX. of 1841, he should have * 1 % ,Ftition containing the grounds of appeal on the 15th ^i- ^ J J°U°wing month ; but that day and the next being esta- bhshed hohdays, he could not do so till the 17th April, when he presented the petition, notwithstanding which the zillah judge dismissed the appeal for default, on that day. An application tor review of judgment was also refused by the same officer on the J8th May, 1846. Subsequently the petitioner, on the 3rd JNovember of that year, apphed for the readmission of the appeal under Act XVI. of 1845, but his prayer being refused by the officiating judge on the 3rd April, 1846, he appealed to the Sudder JJewanny Adawlut. Sj/ the Court— Mr. Reid:— "As the 15th and 16th April must be considered as no days in law, the petitioner had a ri Order accordingly. 1846. August 18. The omission to specify by name one of the defendants in a civil suit, who was other- wise adequate- ly described, was held to be an insufficient ground of non- suit. BHUGWUTTEE DASSEA, Petitionee. The principal sudder ameen.of the 24 Pergunnahs had non- smted in appeal the petitioner's suit against Petumber Ghose and others, because she had not distinguished by name the mo- ther of Kylas Chunder Bose and Nubbeen Chunder Bose, minor sons of Bholanath Bose, one of the defendants, which the prin- cipal sudder ameen held to be requisite by Section III., Reffulation IV. of 1793. ^ On appeal^ to the Sudder Dewanny Adawlut, copy of the plaint was called for, from which it appeared that the female defendant in question was described as mother of Kylas Chunder Bose and Nub- been Chunder Bose, minor sons of the late Bholanath Bose. The Court, (present Mr. Eeid,) considered this to be a sufficient description, as there could be no doubt as to who was the person meant. The order of the principal sudder ameen was accordingly reversed, and he was directed to restore the appeal to the file. 1846. HUE CHUNDUR LAHOOREE, Petitionee. MuDDUN MoHDN EoT Cho'WDEEE, a pauper plaintiff, whose suit against the petitioner and others had been referred to the prin- cipal sudder ameen of the 24 Pergunnahs for decision, on applying Th ill h *° ''^ allowed to file a supplemental plaint to include the collector of judge is alone *^^ district among the defendants, and some other land among the competent to property claimed, had been directed by the principal sudder ameen to August 25. .SUDOER DEWiVNNY ADA^VLUT. lor prefer his application to the zillah judge. This he accordingly did, admit a supple - when the judge, by an order dated 18th January, 1846, required the P^?'°i, ^}^^* principal sudder ameen to dispose of the application himself. pauper plaia- On appeal by the petitioner to the Sudder Dewanny Adawlut, the tiff. Court, (present Mr. Reid,) held that as, on the original petition of a pauper plaintiff it was necessary, under Act IX. of 1839, as explained by Circular Order No. 27, dated 11th August, 1843, that the judge should decide as to the existence of sufficient grounds for the institution of a suit, so he was the proper officer to determine whether there was probable cause for instituting the suit against the new defendant and for the new propei-ty. The order of the principal sudder ameen referring the plaintiff to the judge was consequently considered quite proper ; and it was ruled that the latter should have determined, after due observance of Clause 3, Section VI., Regulation XXVI. of 1814, whether the supplemental plaint should be allowed to be filed or not. The case was sent back to the judge to act accordingly.. ALADH MUNEE, Petitionee. This was an appeal from an order of the judge of ziUah Jessore, dated 15th December, 1845, appointing Pearee Munnee Gosain Debea curator, under Act XIX. of 1841, of the property left by Birj Lall Gosain, Mohunnee Mohun Gosain, and Kunnuk Munjooree Debea, the deceased heirs of Hoop Lall Gosain. It was established that the application of Pearee Munnee to be appointed curator had not been preferred to the judge within six months of the' decease of the above individuals, as required by Section XIV. of the Act ; but as the order of the zUlah judge in cases under the Act is declared, by Section XVIIL, to be final, the question arose whether the Sudder Dewanny Adawlut had power to interfere with the order appealed against, even contrary to law as it was. On the subject being referred to a fuU Court, it was unanimously ruled that Section XVIII. is imperative only in such cases as are brought legally before the zillah judge, and not when the application for the appointment of a curator is made more than six months after the death of the proprietor, contrary to the provisions of Section XIV. The order of the zillah judge was accordingly reversed. 1846. September 1. The Sudder Dev.'anny A- dawlut revers- ed the illegal- order of a zil- lah judge in a case, in which his legal order would have been final and not subject to appeal. BHOWANNEE PUESHAD EOT, Petitionee. The petitioner appealed to the Sudder Dewarmy Adawlut against an order of the principal sudder ameen of zillah Rungpore, dated 10th September, 1845, allowing certain decree-holders to share rateably with him in the proceeds of sale of a tenure sold, on the 8th April preceding, in execution of a decree which he had obtained for rent due on account of it by Musst. Chumplsree and Goyind Peria. 1846. September 1. In the case of lands sold to satisfy a de- cree for rent 108 SUMMARY CASES IN THE due on their account, the decree-holder has a prefer- able claim to the proceeds of sale. *May 24, 1843. AprU 27, 18+1. June 1.5, 1844. Feb, 10, 1846. By the Court. — (Present Mr. Reid): — " The sale took place on tlie 8th April, 1845, previous to which certain decree-holders had sued out attachment against the property, on dates as per margin,* who, under ordinary circumstances, would be entitled to share with the petitioner under Circular Order No. 42, dated 26th January^ 1844, although he caused the sale ; but, as the petitioner has established, that the decree under which he brought the property to sale, is founded on four summary awards in his favor for the rent of it, the petitioner has a preferable claim. Any balance remaining, after he has been satisfied, should be distributed among the other decree-holders." The order of the principal sudder ameen was accordingly reversed. 1846. September 3. Held that the private pur- chase of pro- pei-ty, after its advertisement for sale in sa- tisfaction of a decree, but without issue of proclama- tion of attach- ment under Reg^ulation II. of 1806, cannot be summarily set aside, MEHE CHUND MISE, Petitionee. The petitioner was the purchaser of a decree obtained by Roy Ilurree Kishen against Raja Neemdharee Singh, ancestor of Hurruck Narain Singh, in satisfaction of which certain property was advertised for sale ; and an application for the release of a portion of it, preferred by Bhmijun Thakoor and Puhlwan Singh, who claimed it as purchased by them from the defendant on the 22nd August, 1843, the date of mutation of names in the collector's office being 20th January, 1844, had been rejected by the additional principal sudder ameen of Patna, on the l7th June following, in consequence of the transfer having taken place after the plaintiff had sued out execution. On appeal by Bhunjun Thakoor and Puhlwan Singh to the Sudder Dewanny Adawlut, the Court, (present Mr. Reid,) reversing the order of the additional principal sudder ameen, released the property ; because, vnth reference to the c^aMiZ-AAan)' proceedings of the collec- tor, the sale to them could not be summarily set aside. An application preferred by Mehr Chund Misr for review of this order, which was dated 19th August, 1844, was disallowed in the first instance on the 1st October of that year; but was sub- sequently complied with on the 20th January, 1846, because it was shown that the property claimed by Bhunjun Thakoor and Puhlwan Singh had been advertised, by the collector, for sale on the 29th April and 31st December, 1839, and on the 20th Octo- ber, 1840 ; and, therefore, prior to their alleged purchase of it on the 22nd August, 1843. An order for sale had also been issued on the 15th April, 1842 ; but the sale had been postponed on the application of the sons of Raja Neemdharee in connexion with a question of costs due to Government on account of an appeal to the Queen in Council. The final order for sale was dated 30th December, 1843. The petitioner, therefore, argued, that he was entitled to have the property sold in satisfaction of his decree, as he had not been remiss in suing out execution of it. On the other hand, it was contended by Bhunjun Thakoor and Puhlwan Singh Jhat their private purchase was valid in consequence of the SUDDEE DEWANNY ADAWLTJT. 109 non-issue of proclamation of attachment of tlie property under Regulation II. of 1806. The Court, (present Messrs. Tucker, Reid and Barlow,) advert- ing to the distinction between attachment and proclamation of sale in Regulation VII. of 1825, held that the absence of a notice under Regulation II. of 1806, prohibiting alienation and attaching the property, was fatal to the claim of the petitioner, and that the purchase by Bhunjun Thakoor and Puhlwun Singh could not be summarily set aside. The previous order, dated the 19th August, 1844, was therefore confirmed. CHUTTOO RAM TEWAREE, Petitionee. The principal sudder ameen of zillah Shahabad having per- mitted the petitioner to institute a suit in forma pauperis against Jumeeloo, widow of Bunwaree Tewaree, his adoptive father, and Nursing Dutt Tewaree, his own father, to prove his adoption, and to obtain the property left by Bunwaree Tewaree, his order to such effect, which was dated 18th April, 1846, was reversed in appeal by the officiating judge of the district on the 22nd May following, because the petitioner's own father was a man of wealth. A special appeal was then preferred to the Sudder Dewan- ny Adawlut. By the Court. — 3Ir. Reid : — " The petitioner has sued his father. Moreover his father's possession of property is not a sufficient ground for disallowing the pauperism of the petitioner."* 1846. September 7. The posses- sion of pro- perty by the fa- ther is no bar to the admis- sion of a suit in foi'md pau- peris on the part of a son against his fa- ther. MUDAREE KHAN, Petitionee. This was an appeal from an order of the officiating judge of zillah Shahabad, dated 18th June, 1846, refusing to proceed against certain parties for forgery and perjury. Hz/ the Court. — (Present Mr. Reid) : — " I do not see any grounds for interfering. Indeed as parties in suits cannot originate charges of perjury, &c., I doubt whether they can appeal from the judge's order against preferring them."f Petition rejected. 1846. September 15. The order of a zillah judge refusing to pro- ceed against parties for for- gery or perju- ry is final. =^ See also cases of Musst. Afzul Sultan, petitioner, 11th September 1843, page 78, and of Laloonissa and Dowlut Khatoon, petitioners, l&th December, 1845, page 98, of this volume. t See Act I. of 1848. no SU5IMARY CASKS IN THE RAJ KISHEN SUEMA, Petitionee. 1846. The officiating judge of zillah Mymensing, on the 8th August, September 16. 1846, dismissed the petitioner from the office of pleader, because he did not produce a letter containing the instructions of his client to cannot be re- 1'™ ^° make a certain representation to the court, qydred to ex- On appeal to the Sudder Dewanny Adawlut, the Court, (present stouctioM 'of ^^- I^'^i'^') ^eld that the judge had no right to call for private com- his client. munications between a pleader and his client, for the former should be considered fully responsible for any statements he might make. The judge's order of dismissal was accordingly reversed. MUTHOOR MOHUN MITTEE, 1846. October 26. The attach- ment, by order of the civil courts, of a putnee talook does not affect the right of the zemindar to levy his rent by sale. BINDRABUN CHUNDEE UDHIKAEEE. A SUIT had been instituted by Bindrabun Chunder Udhikaree against the petitioner, Muthoor Mohun Mitter, in the zillah court of East Burdwan, for foreclosure of the mortgage of a certain putnee talook, in which a decree had been given in favor of the plaintiff, in the courts of the principal sudder ameen and zillah judge. A special appeal had been admitted by the Sudder Dewanny Adawlut on the application of the petitioner, who now further applied to the Court to have the execution of the decree of the lower courts stayed. On this an order had been passed to require security from the decree-holder ere execution was granted, and on his failure to furnish it to leave the lands in possession of the petitioner on his giving security. Both parties failed to furnish the security, on which the Court ordered attachment of the putnee talook by the collector, with the express understanding, however, that the attachment should not affect the zemindar's claim for the rent of the talook, or his right to enforce it by sale. 1846. October 27. A plaintiff having been nonsuited in an action for debt, and made chargeable with costs, sues again and obtains a de- cree. In the meanwhile the defendant sells HUERISHCHUNDER BOSE, Petitionee. One Birmroop Gosain had instituted an action against Sulee- moollah Chowdree in the ziUah court of Jessore, for the recovery of a debt of rupees 3,200, which, on the 29th July, 1844, was nonsuited by the principal sudder ameen, and the plaintiff made chargeable with costs to the amount of rupees 166-8-0. The defendant on the 2oth February, 1846, sold the decree with his right to the costs, for rupees 150, to the petitioner, who there- upon took out execution. The plaintiff then presented a petition to the effect that he had obtained a decree in another case against the same defendant for rupees 2,179, and prayed that the amount of costs due by himself on the nonsuit might be taken as a set- off in part, against the amount due by the defendant on the same SUDDEE DEWANKY ADAAVLUT. Ill decree. The principal sudder ameen, on the ground that the sale of the decree in the case of nonsuit had been effected before the application for execution of the second decree, rejected the plaintiff's petition. On appeal, the judge was of opinion, that the purchase and sale between the defendant and the petitioner, of the first decree, was an act of collusion, with a view to defraud the plaintiff ; and to compel payment by him of the costs on the nonsuit, notwith- standing his having subsequently obtained a decree against the defendant for a much larger amoimt ; and he accordingly revers- ed the order of the principal sudder ameen. The petitioner then appealed to the Sudder Dewaimy Adawlut. The Court concurred entirely with the judge, and rejected the petition, leaving the petitioner to his remedy against the defen- dant. the decree in the nonsuit, to a third party. Held that the sale, being evi- dently collu- sive, is no bar to tbe amount of costs due on the flLrst decree being consider- ed so far a set- oif against the amount due on the second de- TAENEE DEBEA, Petitionee. The petitioner had instituted an action in the zillah court of Nuddea against certain parties, and had taken out a summons to a witness, which had been shown to him while passing along on an elephant. On failure to attend, the petitioner applied for a process of arrest, which was refused by the principal sudder ameen, under Construction No. 487, on the ground of some dis- crepancies in the evidence of the witnesses who were called to attest the service. The petitioner appealed to the Sudder Dewanny Adawlut. The Court, (present Mr. Eeid,) was of opinion that the evi- dence of the witnesses to the service of the subposna clearly proved it. The subpoena had been shown to the witness, which was quite sufficient to establish a " personal and actual service," the serving officer having no right to touch or apprehend the witness. The order of the principal sudder ameen was according- ly reversed, and he was directed to issue process of arrest against the absent witness. 1846, November 3. The showing of a subpoena to a witness while passing by on an ele- phant, held to be a personal and actual ser- vice. NEELMUNEE DUTT, Petitionee. The petitioner was sued by his lessor, Mr. Furlong, before the collector of Moorshedabad, for arrears of a farm, under Regulation Vn. of 1799. The collector decreed in favour of Mr. Furlong for part of the claim, and deeming some of the receipts filed by the petitioner to have been forged, made over the proceedings to the magistrate. The petitioner brought a suit in the civil court before the sudder ameen to set aside the collector's summary award, and that officer called on the collector for the proceedings in the summary suit, but he declined sending them as they were before 18i6. November 19. The civil courts cannot Interfere to stay the pro- ceedings in the criminal court, in the prosecu- tion of a case 112 SUMMARY CASES IN THE of forgery at tlie instance of the collector. the magistrate. The sudder ameen then applied for instructions to the zillah .judge, who refused to pass any order, leaving the matter to the discretion of the sudder ameen. • The petitioner then applied to the Sudder Dewanny Adawlut with the object of having the criminal proceedings stayed while the suit in the civil court was under investigation. The Court, (present Messrs. Tucker, Eeid, and Barlow,) held that the civil courts could not interfere to stay the proceedings in the criminal court in the prosecution of a case of forgery at the instance of the collector. 184G. December 14, A demand for secmity before giving possession of the property of an intestate to his proved heir, and in the absence of other claims, is not warranted by the provi- sions of Sec- tion VII., Re- gulation V. of 1799. MUDHOOBUN DOSS, Petitionee. This was an appeal from an order of the judge of zillah Cut- tack. Certain property of an intestate had come under the control of tlie judge 'of Cuttack, who issued the notice prescribed by Section VII., Regulation V. of 1 799. The petitioner appeared and satisfied the judge, that he was entitled, by inheritance, to the property of the deceased. On this the judge ordered it to be made over to him, on his furnishing security to the amount of rupees 5,000. The petitioner now prayed to be relieved from the demands of security under the judge's order. By the Court. — (Present Mr. ReidJ : — " The petitioner proved to the satisfaction of the judge that he was heir to the deceased ; and no other claimant has appeared. In such case the demand for security was not warranted. The petitioner must be permit- ted to receive the property unconditionally." 1847. January 11. An applica- tion to sue in forma pauperis, rejected in con- quence of con- tradictory statements made by the applicant, in regard to a point involved in the deter- mination of the question as to whether there was probable cause for insti- tuting the suit. Section I., Act IX. of 1839. NOWSHERE ALI KHAN, Petitionee. This was an appeal from an order of the officiating judge of Mymensing, rejecting the application of the petitioner to sue, in forma pauperis, Sumboonath Shah and others, for recovery of certain property which he claimed. The petitioner's father died, leaving him a minor, and during his minority he was under the care of a guardian who managed his property. He presented a petition to the civil court, iri the year 1248 B. S., alleging that he was of age in the month of Asar of that year, and requested the order of the court to enter upon the personal management of his property, which his guardian was misusing and injuring by bad management. In his present application to sue in forma pauperis, he stated that he had attained his majority in the month of Aghun, 1248, the object of which apparently was to bring the suit he wished to prefer witlun the period of limitation prescribed by law for the institution of civil actions ; such period having elapsed, if calculated to the month of Asar, but a small portion of it yet remaining if calculated to the month of Aghun. SUDDEE DEWANNT ADAWLUT. 113 The officiating judge rejected the application with refereifce to these repugnant statements of the petitioner, who now appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. , ReidJ : — " The contradictory statements of the petitioner made to the Court on special occasions for the attainment of particular objects, cannot be overlooked. I see no reason to interfere with the order of the officiating judge." Petition rejected. GOVERNMENT, Petitionee. This was an appeal from an order of the principal sudder ameen of zillah Tirhoot. The following extract from a minute laid by the deciding judge, Mr. Reid, before the Court at large, explains the point of practice ruled : " A question has arisen on the appeal of Government against an order of the principal sudder ameen of Tirhoot, requiring the Govern- ment pleader to file petitions on the part of Government to recover the stamp duties incurred in pauper suits on stamped paper ; — whether any stamp is necessary on such occasions ? " As this is an application on the part of Government, not in its capacity of a party to the suit, but in that of the ruling power, who merely claims what it has advanced, (for the allowing paupers to put in petitions, otherwise chargeable with stamp, on plain paper may be considered to be an advance of the value of the stamp,) to give the pauper facility of realizing his claim, I think that under a liberal construction of the law the application may be- received on plain paper. If the Government pleader is forced to petition on stamp, the debt of the pauper is only increased thereby ; for the amount must be charged against him as part of the costs of realizing the amoimt due. When the Government is itself a party to the suit, I think that its applications of every description, with the exception of those for the recovery of stamp duty, should of course be on stamped paper as hitherto." The Court at large concurred with Mr. Reid. 1847. January 30. Applications on tlie part of Government to recover tlie stamp duties incurred in pauper suits, may be made on plain paper. RAM SUHAI SINGH and othees. Petitionees. This was an appeal from an order of the judge of Patna, dated the 24th June, 1846, confirming that of the principal sudder ameen, of the 15th September preceding. It appeared that one Munohur Lai had instituted an action against the petitioners for recovery of a sum of money, and obtained judgment in his favor. In course of execu- tion, the parties entered into an adjustment, the petitioners binding themselves by a bond to pay the debt by specified instalments, and agreeing that, in the event of failure on their part to abide by the terms of the bond, one of which was to furnish security for the fulfil- ment of the engagement, the execution of the decree should be revived. 1847. February 8. Execution of a decreerevived after adjust- ment, it being shown that the terms of the adjustment had not been com- plied with by the debtor. 114 SUSIMAEY CASES IN THE The petitioners failed in carrying out the terms of the agreement, with regard to the execution of the security to be furnished for the fulfilment of the engagement, and also to the payment of the first instalment ; and the decree-holder then applied for revival of execution of the decree according to its original terms. The principal sudder ameen granted the prayer accordingly, and his order was confirmed by the judge. On appeal to the Sudder Dewaimy Adawlut, the Court, (present Mr. Eeid,) saw no reason to interfere with the orders of the lower courts, as the terms of the adjustment had not been conformed to by the petitioners. 1847. February 9. An adjust- ment, between parties after judgment and .execution sued out, held under the circum- stances to su- persede the judgment, and to bar the re- vival of execu- tion, notwith- standing the alleged evasion by one of the parties of the terms of the ad- justment. EANEE SOOEJMONEE DEBEA, Petitionee. This was an appeal from an order of the judge of Rajshahye, dated 4th August, 1846. It appeared, that the late Bhoop Indemarain Roy had brought an action against the petitioner for recovery of a specified fractional por- tion of pergunnahs Lushkerpore, &c., which he claimed on the groimd of adoption by the preceding proprietor, and obtained judgment in liis favor. In course of execution, the parties came to an understanding and executed mutual engagements, by which a ten anna, five gunda, three cowree share of the property was to remain in possession of the petitioner, without the power of alienation, during her lifetime, and the remainder to go to the decree-holder. Accordingly, on intimation of this arrangement being given to the court, the case of execution was, on the 20th September, 1844, struck ofF. After this the decree-holder presented a petition to the ziUah court, alleging that he had not obtained possession of his portion under the engagements, and seeking its interference by a revival of the case of execution. The decree-holder at this stage of the proceedings deceased, and was succeeded by his two widows in behalf of his minor sons. The judge, being of opinion that the engagements had not been carried out, directed the revival of the execution, and ordered the property to be placed in charge of the Court of Wards, and a provision for maintenance to be allowed to the petitioner. From this order the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Reid) : — " The original case between the parties was adjusted and disposed of by the mutual engagements entered into, and the case of execution was struck ofiF the file. The engagements in some respects altered the terms of the decree, and, in fact, superseded it. The case, therefore, cannot be summarily revived and the execution of , the decree proceeded with. The original decree-holder must now stand upon the engagements, and the order of the judge for revival of execution be set aside." Order accordingly. SUDDEE DEWANNY ADAWLtTT. REMARK. 115 In this case the adjustment was a supersession of the decree : in the preceding case of Ram Suhai Singh and others, the revival of execution was made to depend upon the fulfilment or othervidse by the debtor of the terms of the adjustment. Hence the differing orders of the Court. W. G. ROSE, Petitionee. This was an appeal from an order of the judge of 24 Pergun- nahs, refusing to direct payment to the petitioner of a deposit in his court to the credit of Dr. Gr. Evans, from whom the petitioner held a power of attorney, executed in England, authorising him to draw the amount. The ground of the judge's refusal was that the sub- scribing witnesses to the power of attorney bad not attested it, it having been attested by the affidavits of parties who were acquainted with the handwriting of Dr. Evans. The Court, (present Mr. Reid, who consulted the other judges on the point,) was of opinion that, under the circumstances, the power of attorney had been sufficiently attested, and issued orders accordingly. ALEE AHSUN, Petitionee. This was an appeal from an order of the judge of Hooghly, dated the 10th December, 1846. It appeared that one Musst. Parus-oon-nissa had been permitted, on the 13th February, 1846, to institute a suit as a pauper against one Mahomed Khizur, for possession of certain assessed and rent- free lands, &c., estimated at rupees 13,462. On appeal by Maho- med Khizur to the Sudder Dewanny Adawlut, the Court, (present Mr. Tucker,) on the 13th April, 1846, reversed the order of the judge, because he had not fully recorded his opinion as to the vahdity of the grounds of action, nor of pauperism, and remanded the case for reinvestigation. In the course of this second investigation Musst. Parus-oon-nissa died, when the present petitioner applied to the judge to substitute him in her stead, under an alleged will executed by her in his favor. The judge refused to allow petitioner to prosecute the suit as heir of Parus-oon-nissa, but directed him to apply de novo, being of opinion that he could not, in a case of pauperism, be admitted to represent the deceased, under a will, which also, by a petition of one Mahomed Hamid, appeared to have been executed by Musst. Parus-oon-nissa at a time when she was not in a state of conscious- ness. On appeal to the Sudder Dewanny Adawlut, the Court, (present Mr. Reid,) considering the orders of the judge to be correct and proper, rejected the petition. 1847. Febraary 15. A power of attorney exe- cuted in Eng- land, -was under the circum- stances held to have been suf- ficiently attest- ed by the affi- davits of per- sons acquaint- ed with the handwriting of the party executing. 1847. March 1. Held that the alleged heir, by will, of a de- ceased pauper plaintiif, must apply de novo for permission to sue as a pauper. 116 SUMMAKT CASES IN THE 1847. March 10. A claim, pre- ferred only on day of sale, to a rateable sharein assets realized by a sale of pro- perty, rejected under Circular Order No. 42, dated 26tlijan. 1S44. ANUND MYE and others. Petitionees. This was an appeal from an order of the officiating judge of Bactergunge, dated the 10th December, 1846, reversing that of the principal sudder ameeen, of the 12th November preceding. It appeared that Nubkishore Goh, the ancestor of the petitioners, had instituted an action against Earn Doolal Doss and others, for reco- very of a sum of money, and obtained judgment in his favor. In course of execution he died, and was succeeded by the petitioners, who attached certain landed property, alleging the same to belong to the debtors. The property, however, was released from attachment, it appearing to belong to Issan Chunder Sen and others, claimants. Upon this the petitioners brought an action against the debtors and the said claimants, to prove that the property attached by them did reaUy belong to the debtors, and obtained a decree in their favor, which was upheld in appeal. In consequence, execution of the former decree was taken out, and the property being sold was purchased by the decree-holders (the petitioners). On the day of sale, Isser Chunder Roy and Teloke Chunder Roy presented a petition, stating that they also held a decree against the same debtors, and were there- fore entitled to a rateable share in the assets realized by the sale of their property. Tliis application was rejected by the principal sudder ameen, but the judge, on appeal, reversed his order ; thereupon an appeal was preferred to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker) : — " The petitioners attach- ed the property, and, after its release from attachment, sued and obtained an order for its sale in satisfaction of their decree. It does not appear that Isser Chunder Roy took any steps for the attachment or the sale of the property. Their petition on day of sale cannot be considered in that light. The order of the judge must therefore be reversed, and that of the principal sudder ameen upheld." Order accordingly.* 1847. March 16. Held that the civil coixrts cannot give or- ders with re- gard to the estates direct- ed, under Sec- tion XXVI., Regulation V. of 1812, to be held in attach- ment by the re- venue authori- ties under Re- gulation V. of 1827. JOY GOPAX PAL CHOWDREE, Petitionee. This was an appeal from an order of the judge of Nuddea, dated the 23rd November, 1846, affirming that of the collector, of the 9th April preceding. It appeared that the judge, under Section XXVI., Regulation V. of 1812, attached a zemindaree, of which the petitioner and others were sharers. After this the coEector appointed a manager under Regulation V. of 1827, when disputes arose as to how and from whom this manager was to make his collections. The different sharers had purchased and were still purchasing their under-tenants' jotes, and it became a question whether the manager was to make the collections of these jotes from the ryots settled on or cultivating the lands, or from the purchaser of the jote. * See Circular Order, No. 64, of 2ad February, 1849. SUBDEE feEWANNY ADAWLTJT. 117 The collector having passed his orders, the petitioner appealed to the revenue commissioner, by whom he was referred to the judge, who confirmed the collector's orders, and hence the appeal. By the Court. — (Present Mr. Tucker) : — " I reverse the judge's order, who has no summary jurisdiction in such a case. The ma- nagement of the estate is, by Regulation V. of 1827, placed under the entire charge and control of the collector. When the commissioner refused to receive an- appeal froni the collector, the petitioner should have appealed to the Sudder Board." SHUMBOONATH ROY, Petitionee. This was an appeal from an order of the judge of Dacca, dated 1 1th December, 1846, cancelling a sale made by the collector in exe- cution of a decree. The sale had been ordered to take place on the 26th October, 1 846, at the collector's office. On that day, the judgment debtor and decree-holder both appeared before the judge, when the former offer- ed to pay rupees 881-8, in satisfaction of the decree, but this offer was declined by the decree-holder, who agreeing to take rupees 1,889-3-10, the sum was paid. The debtor then presented a petition, praying that the sale might be stopped ; and he requested that it (the original petition) might be sent, with the judge's order on it, to the collector instantly by a peon, as that was the day fixed for the sale. The judge so forwarded it, and, on the following day, sent a copy of the petition with an official proceeding. The sale did not take place on the 26th, but on the 27th October. The collector did not see the petition, or order, transmitted by the peon on the 26th, and concluded the sale, before the receipt of the judge's order, on the 27th. It reached him, however, before the usual deposit had been made by the purchaser. It was made afterwards, and the residue of the pur- chase-money paid in. On an appeal against the sale, the judge reversed it, and from liis order the petitioner (the purchaser of the property) appealed to the Sudder Dewaimy Adawlut. Bi/ the Court. — (Present Mr. Tucker) : — " It does not appear from the judge's roobukaree, that he examined Joomun, the peon, as to the delivery to the collector of the petition, so that he has cancelled the sale on the simple fact that the money was paid into his court on the day before the sale, which is not sufficient. The debtor was ignorant that the sale would be postponed till the 27th. He was under the impression that the sale was actually going on whilst he was bargaining vnth his creditor at the judge's court ; and a debtor procrastinating in this manner must be responsible for failure from mishap. He ought not to have gone to the judge's office on the day of sale. The sale was advertised to take place at the collector's office, and the debtor knew that, unless the money was paid, or the orders of the court to stop the sale received in time, the sale 1847. March 17. An order to stay tlie sale of property, about to be sold by the col- lector in execu- tioaofadecree, was transmit- ted by the civil court, but not received by the collector prior to its sale. Held that the sale could not be set aside. 118 SUMMARY CASES tN THE would take place. I can detect no one single laches or flaw on the part of the purchaser : the lot being knocked down to him before the judge's orders were received, he had a positive right to make the deposit and complete the sale. I, therefore, annul the judge's order, and confirm the sale." Order accordingly. 18i7. April 5. Execution of the decree of a civil court ad- judging land to a party may be taken out notwithstand- ing its resump- tion and as- sessment. BHOOBUN MYE DEBEA, Petitioner. This was an appeal from an order of the judge of zillah Mymen- sing, dated 4th September, 1845, refusing to grant to petitioner execution of a decree obtained by her against Eaja Gobind Chun- der Roy, on the 26th September, 1836. The petitioner, zemindar of pergunnah Alap Singh, sued the above individual, who was the talookdar of perguimah Pookooreea, for possession of 300 kors of land, constituting Bund Deear Chur, in pergunnah Alap Singh, and obtained a decree. On steps being taken for its execution, it was discovered that the land had been resumed imder Regulation II. of 1819, as forming Boorar Chiu-, pertaining to pergumiah Pookooreea, and that the collector was in possession of it. Reference being made by the zillah judge to the special commissioner, the latter authority] after permitting petitioner to apply for a review of judgment, declared that the resumption of the land as Boorar Chur could not affect her rights as proprietor, and there was no bar to the execution of the civil decree, which awarded to her a portion of it under the name of Bund Deear Chur. The judge, nevertheless, would not grant execution of the decree, as it had not been given against the collector, the party in possession. Hence the appeal. By the Court. — (Present Mr. Tucker) : — " The decree of the 26th September, 1836, must be executed. The special commis- sioner's order of 16th January, 1844, is to the same purport. The resumption by Government does not touch the proprietary right, but merely extends to subjecting the lands to the payment of revenue." Order accordingly. 18i7. April 13. Government cannot recover a fine under Section XI., Regulation XXVII. of 1793, from par- GOVERNMENT, Petitioner. This was an appeal from an order of the judge of Jessore, dated 5th March, 1846, requiring an application by the collector, under Section XI., Regulation XXVII. of 1793, for the punishment of persons levying illegal cesses, to be preferred on a full stamp. Regarding this case Mr. Tucker, who heard the appeal, addressed the foUovmig minute to his colleagues for their opinion : " Radha Mohun Chowdree having obtained a decree against Prannath Chowdree, for certain lands with wasilat, an ameen SUBDEE PEWANNY ADAWLUT. 119 was deputed to put him in possession and to ascertain the amount ties making il. wasilat. IfS^l collcc- " When the ameen's accounts came to be examined, it appear- have ' been suc^ ed that the sum of rupees 6,408 had been realized by Prannath cessfully prose- Chowdree, contrary to the provisions of Section XL, Regulation ^^4 by those XXVII, of 1793, and the judge refused to allow the item to be The™pplica- entered in the account wasilat payable to the decree-holder. This tion of Govern- decision of the zillah judge was afHrmed in appeal by the Sudder ™^''* '" ^'^'^'i a, ■n Ajii* case should be Dewanny Adawlut* _ _ . on a stamp of " The judge then gave information to the collector of the dis- 8 annas, as for trict that he might adopt such measures as he deemed proper for ^ miscellaneous ' prosecuting Prannath Chowdree on the part of Government. Accord- ^^ '°"" ingly the collector filed, through the Government pleader, a petition on an eight anna stamped paper, setting forth the circumstances above stated, and requesting that the court would, on reference to the fact, as exhibited in the proceedings held in the execution of the decree, summon the party, and after inquiry fix the amount fine to be paid to Government. " The judge nonsuited the collector, because instead of valuing the suit under Article 8, Schedule B, Regulation X. of 1829, he had engrossed it on a paper of only eight annas' value. " A summary appeal was then presented to this Court, and the judge was called upon to explain the grounds on which he had acted in nonsuiting the plaintiff. " He replied that as the plaintiff averred an illegal collection to the extent of rupees 6,408, he would have to establish that point before he could be entitled to any fine, and therefore the stamp used, should have been of value sufficient to cover that amount. " The opinion of the Court is requested on the following points arising out of this case : " 1st. — Can the Government come in under Section XI., Regu- lation XXVII. of 1793, and move the court to impose a fine on the offender, when no prosecution has been instituted by the persons aggrieved ? " 2ndb/. — If Government can do so, on what valuation is the suit to be instituted ? " My own opinion is, on the first question, that Government cannot so come into court. The law is a highly penal law and must be strictly construed. The Government have no object in suintr for the fine distinct from the protection the law affords to the subject from exaction, and the aggrieved party is left to bring forward his own complaint, and it is not until such complaint so preferred has been proved that Government is entitled to the fine which the Court may think fit to award, over and above the refund vidth damages, to the party aggrieved. On the second question my opinion is, that it being conceded that Government * See the case of Radha Mohun Ghose Chowdree, petitioner, decided 10th February 1846, page 99 of this Volume. 120 SUMMAET CASES IN THE can come into court under the circumstances a miscellaneous petition is sufficient. " In the first place, the proceedings are of a summary nature, the judge being enjoined to dispose of the case in ten days, or as soon as the evidence to prove the charge can be collected. " Secondly, the Government are not concerned in the amount illegally collected, and the fine is in the discretion of the court, so that it is impossible for the Government to know beforehand what amount of fime will be awarded. To require a stamp sufficient to cover the amount alleged to have been exacted, is opposed to the ordinary principal that, in cases not otherwise provided for, a man should lay a suit at the amoimt at which he values his interest in the subject of action. But in these cases Government have no interest in the subject of action, viz., the amount exacted, whilst the fine does not depend on the amount exacted, but on the circumstances in life of the offender." The Court, (Messrs Eattray and Eeid,) having concurred with Mr. Tucker, the zillah judge was directed to restore the case to the file and dispose of it with reference to the opinion expressed, that Go- vernment could not apply for the imposition of the penalty until the aggrieved parties had prosecuted on their own account and proved the exaction of illegal cesses. MUSST. SERMUT-OON-NISSA and others, Petitionees. 1847. This was an appeal from an order of the judge of zillah Backer- Anril26 g^^S^^ dated 12th December, 1846, reversing that of the principal sudder ameen, dated 4th idem, directing the magistrate to stop the A cml court g^gcution of his award, under Act IV. of 1840, pending the decision execution of of an action to contest it, instituted in the civil court, an award un- The petitioners and Kunhaiee Lall Thakoor disputed about the ?84n * d' possession of five kanees of land. The magistrate decided in favor the decision of of the latter under Act IV. of 1840. On appeal, his order was a suit institut- upheld by the session judge. The petitioners then sued in the court ed to reverse ^J ^.j^^ principal sudder ameen for its reversal, and applied for an injunction, which the principal sudder ameem issued to the magis- trate, to stop execution of his award till the suit in the civU court was determined. Dissatisfied with this order, which was dated the 4th December, 1846, Kunhaiee Lall Thakoor ap- pealed to the judge, who, on the 12th idem, reversed it, as contrary to the provisions of Act IV. of 1840. The petitioners then appealed to the Sudder Dewanny Adawlut. Si/ the Court. — (Present Messrs. Tucker and SawMns) : — " Act rV. of 1840 clearly declares that the party put in possession by the magistiate is to be maintained in possession, until the rights of the parties disputing be determined by a competent court. The principal sudder ameen was therefore not authorized to issue an order to suspend possession being given. The order of the judge in re- versal of that of the principal sudder ameen is quite correct." Petition rejected. SUDDEE DEWAimY ADAWLUT. 121 BISHENNATH BISWAS and others, Petitioners. This was an application for a review of an order passed by Mr. Eeid, late judge of the Court, on the 27th May, 1845. The petitioners had been convicted by the judge of 24 Pergunnahs, under the provisions of Section XXVII., Act XXIX. of 1838, of not giving information of illicit salt works upon their estate, and fined to the extent of rupees 12,000, the number of khalarees having been ascertained to have been twenty-four. From this order they appealed to the Sudder Dewanny Adawlut, but the Court, (present Mr. Reid,) rejected the appeal, as no special ground for its admission had been shown, as required by Section XXXn., Act XXIX. of 1838. The petitioners then applied for a review of the order of this Court, on the ground (among other reasons) that the investiga- tion prescribed by Section XCIX., Regulation X. of 1819, had not been made. Mr. Reid called upon the judge to ascertain and report whether the inquiry had been made or not. The return showed that the investigation had been made as far as practicable, and that the only reason why every part of it had not been carried out to the letter, was the absconding of the ryots, which prevented the prescribed attestation of the report of the inquiry. By the Court. — (Mr. Tucker, Sir R. Barlow, and Mr. Hawkiiis) : — " Section XCIX., Regulation X. of. 1819 prescribes a local inquiry in certain cases, and states that, if any tiling shall appear in the course of such to implicate the land-holder, he may be proceeded against. But the omission to hold such inquiry does not vitiate a conviction under Section XXVII., Act XXIX. of 1838, which is altogether independent of the provisions of Section XCIX., EegulationX. of 1819. The petition for review is therefore rejected." 1847. May 11. •A conviction under Section XXVII., Act XXIX, of 1838 is appealable to the Sudder De- wanny Adawlut, only on spe- cial grounds, as prescribed by Section XXXII. of the Act. A conviction under the first- named Section is not vitiated by the omis- sion to hold the local inves- tigation pre- scribed by Sec- tion XCIX., Regulation X. of 1819. MUSST. ZOBEIDA KHANUM, (Plaintiff,) Petitionee^ LOOTF-OON-NISSA BEG-UM and others, (Defendants.) This was a summary appeal from an order of the principal sudder ameen of Backergunge, dated 14th December, 1846, de- claring the suit of the petitioner to be dismissed by reason of default, under the provisions of Act XXIX. of 1841. The suit had been pending in the court of the principal sudder ameen for a period of two years, when the defendants urged that the plaintiff had been guilty of various defaults in the earlier stages of the proceedings, and claimed a dismissal under the Act abovementioned. This they succeeded in obtaining. The particular instances in which the penalty for default was alleged to have been incurred as set forth in the decree of the principal sudder ameen, are as follows : Q 1847. May 11. A mere omis- sion to do a particular act, while the plain- tiff is otherwise engaged in car- rying on his suit, does not incur the pe- nalty of dis- missal under Act XXIX. of 1841. 122 SDMJIAKT CASES EN THE ' First, — That tKe answer of cme of the defendants, Mehr-ooii-msga, was filed on the 5th October, 1844, but the reply on the part of the plaintiff was not filed till the 20th December following. Secondly, — That the answer of another defendant, Sookraye, was filed on the 31st March, 1845, but the reply was not put in till the 28th August following. Thirdly, — That the answer of the third and the principal defendant, Lootf-oon-nissa, was filed on the 1st July, 1845, but the reply was not put in till the 28th August following. The plaintiff then appealed summarily to the Sudder Dewanny Adawlut from the order of the principal sudder ameen. By the Court. — (Present Mr. J. Hawkins, officiating temporary judge) : — " On an examination of the record of the case, (which has been called up firom the court of the principal sudder ameen,) Ifind that the petition of plaint was filed on the 16th August, 1844 ; that the notices issued to the defendants were served upon some of them and not upon others ; that one of those, upon whom notice was served, appeared and filed an answer on the 5th October, 1844; that the plaintiff was sedulously and actively engaged in having the proclama- tion prescribed by law served with regard to the absent defendants ; and that the last return of the nazir announcing the completion of this necessary preliminary part of the proceedings, is dated the 29th November, 1844 ; that five days after, that is, on the 4th December, the principal sudder ameen took up the case and called upon the plaintiff for her reply to the one answer that had been filed. The reply was filed on the 20th of the same month. " The case then proceeded in due course. On the 31st March, 1845, another of the defendants, viz. Sookmye, filed an answer, which was recorded. " On the 2nd April, the principal sudder ameen holds a proceeding, calling upon the plaintiff to file a particular document, viz. a copy of the proceeding of the Sudder Dewanny Adawlut, and gives the plaintiff a month to comply with the order, but says not a word about the defendant's answer, or about the filing of a reply by the plaintiff. " On the 1st May, the plaintiff gives in a petition, stating that she had not been able to procure the copy, and prayuig for further timci Another month was granted. " On the 3rd June, the plaintiff filed another petition, urging that she had done all in her power to procure the copy, but that unavoid- able delay, for which she was not responsible, had occurred ; and praying for further time. Ten days were granted. " Another petition to the same effect was presented by the plaintiff, on the 21st June, which was ordered to be recorded. " The principal sudder ameen then holds a proceeding on the 28th June, desiring the plaintiff, in general terms to file her evidence in ten days. This order was tantamount to saying that the case was to proceed ex parte with regard to the absent defendants. " However, on the 1st July, 1845, the principal defendant, Lootf- oon-nissa, appears and files an answer, ^^hich is recorded, SUDDER DEW^WNT ADA^VLUT. 123 " On the 10th July, 1845, the plaintiff, with reference to the order of the 28th June, files her documentary evidence, together with a list of witnesses residing in Dacca and Backergunge ; and prays that measures might be taken for having the evidence of those residing in the former district, taken by the judge of Dacca. " On the same day the principal sudder ameen holds a proceeding, recording the evidence, and passing necessary orders respecting the examination of the witnesses. This proceeding concludes with desiring the plaintiff to file within ten days any further evidence she might wish to adduce. " On the 23rd July, the defendant, Sookmye, who had filed his answer on the 31st March, files his evidence. " On the same day the principal sudder ameen holds a proceedino-, directing that certain documents be received in evidence from the parties, and that the plaintiff file her further evidence on the following day. " On the 4th August, the defendant, Lootf-oon-nissa, presents a petition, requesting that instructions may be issued for taking the evidence of the witnesses to be examined at Dacca, in the presence of her vakeel. " An order was issued accordingly on the same day. " On the 6th August, the principal sudder ameen calls upon the plaintiff for a reply to the answer of Lootf-oon-nissa, which he ap- pears, up to this time, to have overlooked, notwithstanding that he had held various proceedings in the case since the answer was filed. " On the 12th August, the plaintiff presents a petition, stating that some of her witnesses had arrived at Burrisaul, and praying that they might be examined. " On the 28th August, the plaintiff files her replies to the answers of the defendants, Sookmye and Lootf-oon-nissa. " Such is a narrative of the proceedings down to the date of the last alleged default in a case which has been struck off under the provisions of Act XXLX. of 1841. The principal sudder ameen appears to me to have entirely misapprehended the purport of the Act. It declares that a penalty attaches in the case of a plaintiff neglecting to proceed with his case ; but it does not say that a mere omission or oversight, while the plaintiff is othervidse proceedino- with his case, shall incur the penally of dismissal. To incur the penalty the plaintiff must absolutely neglect his case for a period of six weeks ; but in the present instance there was nothing like neglect- ing to proceed on the part of the plaintiff from first to last. " In regard to the first answer and reply, the plaintiff was inter- mediately engaged in carrying out those measures which are essen- tial as preliminaries to the hearing of a case ; and in regard to the second and third, she was engaged in producing evidence of her claim, in compliance with orders passed by the principal sudder ameen himself. She does not appear to have remained beyond a month at any one time without taking some steps towards the further progress of the suit ; and so far from neglecting to proceed, she has 124 SUiniABT CASES IN THE been diligent in proceeding. The order of the principal sadder ameen is reversed. He will readmit the suit on his file, and decide it upon its merits." 1847. May 18. Under the Circular Order of the 26th Ja- nuary, 1844, a suing out of attachment is essential to a decree -holder being permit- ted to share in the proceeds of sale. It is com- petent to the courts to ex- ercise a discre- tion in award- ing costs of ex- ecution before distribution of assets.* RAM LOLL, Petitioner. This was an appeal from an order of the judge of Sarun, dated 21st May, 1846, amending that of the principal sudder ameen of the district, of the 7th idem, passed on the application of the petitioner. The petitioner had obtained a decree against one Mungla Koon- wur, and, in execution, had caused the sale of her property, which realized a considerable sum of money. While the execution was in progress, a number of other decree-holders also applied for execution and attachment ; some also applied to share in the proceeds, after the sale had been effected. The principal sudder ameen ordered a rateable distribution among those who had applied for execution before the sale, but rejected the appEcations of those who had only applied for a share in the proceeds after the sale. On appeal, this order was amended by the judge, who directed a rateable distribution among all the applicants, on the ground that, under the Circular of the 26th January, 1844, all were entitled to share without reference to the fact of their having sued out attachment or not. From this order the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Messrs. Tucker and Hawkins) : — " The Cir- cular requires an attachment ; and if the judgment creditor fails to take out an attachment of the property, he cannot come in after the sale, merely upon an application to be permitted to share in the assets. The order of the principal sudder ameen is, therefore, confirmed, and so much of the judge's order as reverses that of the principal sudder ameen, in regard to the applications of those who came in after the sale, set aside. We further think the petitioner entitled to all the expenses of execution before distribution is made." Order accordingly. 1847. May 25. In a case in which a prin- cipal sudder ameen ordered the attachment of a share in MUSST. PAEBUTTEA DASSEA and others. Petitioners. This was an appeal from an order of the principal sudder ameen of Mymensing, dated the 7th April, 1847, in a suit in which Beemla Dassee was plaintiff, and the petitioners defendants. The plaintiff sued for recovery of an estate, consisting of landed and personal property, together with a share in certain shops and mercantile establishments. After filing her plaint she prayed for a demand of security from the defendants, or, in case of their default, * See Circular Order, No. 64, of 2nd February, 1849. StTDDER DEWiVNNY ADAWLUT. 125 for attachment of the property under Section V., Eegvilation II. of 1806. After making the prescribed iuquiiy, the principal sudder ameen ordered proclamations to be issued, forbidding the alienation of the real property, and further called upon the defendants to give security to the amount of the value of the personal property and of the share in the shops, &c., adding that, in default of secuiity pro- cess for the attachment of these was to issue. By the Court. — (Messrs. Tiicker and Hawkins) : — " The prin- cipal sudder ameen's order cannot stand in its present form. He has issued proclamations of attachment against the real property, before calling for security as required by the Eegulation under which he acts, and he has ordered attachment in default of security of the shares of the shops, &c., a 12 annas share of which belongs to other parties. This cannot be done, if by attachment is meant the seizure of the shops and mercantile establishments, with their account books, &c., which is what the plaintiff prays for. The proper course for the principal sudder ameen to pursue, in regard both to the real property and the shops, is to call upon the plaintiff for mal zamin as prescribed, and, in default of furnisliing security, to issue notices forbidding alienation. To this extent the order of the prin- cipal sudder ameen is amended ; and he will proceed as above indicated." certain shops and mercantile establisliments under Section v., Regulation II. of 1806, he was instructed to limit him- self to the issue of notices for- bidding the alienation of the share. RANEE BHOOBUN MYE DEBEA, Petitioner. This was an application for a review of an order passed by this Court on the 28th July, 1846, on the petitioner's appeal from an order of the principal sudder ameen of Rajshahye, in a case in which Hurindur Narain Roy was plaintiff, and the petitioner and others, were defendants. The plaintiff instituted the action to recover the estate of Raja Juggut Narain Roy, on the ground of adoption. When the raja died, many years ago, he left his widow and a son. The latter recently died, on which the plaintiff claimed the raja's estate, on the ground that he had been adopted to succeed in the event of the death of the raja's own son ; and with this view instituted the present action, the alleged adoption being denied by the defendants. After filing his petition of plaint, he applied to the Court, praying either that security be called for under Section V., Regulation II. of 1806, or that the contested property be attached under the provisions of Sections IV. and V., Regulation V. of 1799. The principal sudder ameen, on the 8th June, 1846, ordered the latter, and his order was confirmed by Mr. Reid, late a judge of this Court, on the 28th July, 1846. £^ the Court. — (Messrs. Tucker and Haxohins) : — " We are of opinion that the provisions under which the principal sudder ameen has acted, bear no reference to the present suit. This is not the suit of an heir under the circumstances contemplated by the Regulation 1847. May 25. The provi- sions of Sec- tions IV. and v., Regulation V. of 1799, ap- ply only to cases of disput- ed succession among heii's at law, and not to those of parties claiming upon special grounds. 126 SUMM.IEY CASES IN THE cited, which clearly refers to cases of disputed succession among several claimants, claiming as heirs under the right of succession according to the Hindu or Mahomedan laws. In the present case the plaintiff is not an heir at law by reason of blood relationship, but an heir conditionally upon proof of a previous fact, to wit, his adoption, which is denied. by the opposite party. The Regulation does not apply to claimants upon specialties, or upon pleas of this kind ; and the order of the principal sudder ameen, and that of this Court in affirmation of it, must be set aside." « Order accordingly. 1847. June 1. A. having bor- rowed money in one district, dies without leaving any property in the district in which he bor- rowed, and is succeeded by heirs resident in another district . Held that the heirs may be sued either in the locus cori' tractuSj or in that of their domicile. KALEE TARA MTJJMOODAR and another. Petitioners. This was an appeal from an order of the judge of 24 Pergunnahs, dated 3rd February, 1847, confirming that of the principal sudder ameen of the same district, of the 26th November, 1846, nonsuiting the petitioners in an action for debt, preferred by them under the following circumstances : One Muddun Mohun Roy had borrowed a sum of money from the petitioners, within the local jurisdiction of the 24 Pergunnahs. He died, and was succeeded by his brother, Punchanun Roy, (against whom the action was brought,) who resided in the district of Hooghly. It did not appear that the present defendant had succeeded to any property of the borrowers, within the jurisdiction of the 24 Pergun- nahs. Under these circumstances the principal sudder ameen and zillah judge were of opinion that the courts of the 24 Pergunnahs had no jurisdiction in the matter. Mr. Hawkins, (temporary judge,) by whom the case was heard, submitted the question of jurisdiction for the opinion of the Court at large. The Court were of opinion that, under Section VIII., Regulation m. of 1793, the suit might be heard either in the district in which the debt was incurred, or in that in which the defendant resided. The order of the ziUah authorities was accordingly reversed. 1847. June 1. In a case in which the prin- cipals, who had obtained an or- der for posses- sion of proper- ty under Re- gulation V. of 1799, made DWARKA DOSS, Petitionee. The petitioner appealed from an order of the judge of Patna, dated 12th February, 1847, confirming that of the principal sadder ameen, of the 28th March, 1846. The petitioner, together with his brothers, had obtained an order for possession of the estate of one Asoon Beebee, on her death, under the provisions of Regulation V. of 1799, on giving security to stand the result of an action, about to be brought against them by certain other parties who claimed an interest in the property. It appears that the sureties stipulated with their principals, that they should have the possession and management of the property while the litigation was SUDDEK DEWANNY ADAWLtTT. 127 pending. The action was dismissed ; and it was now alleged by the over such pro- petitioner, that the sureties had failed to render a faithful account of V^J tempo the property, which he prayed they might be compelled to do. The principal sudder ameen and zillah judge held that the civil court could not interfere summarily between the principals and their sureties ; and that the proper remedy was a regular action. The Court, (present Mr. Hawkins,) concurred with the zillah autho- in a dispate be rities, and rejected the appeal. *y®^" *^^ P""- ' "' '^^ cipals and sure- ^ ties, in regard , to the proper discharge of the trust. rarily to their sureties, it was held that the civil court could not sum- marily interfere COLLECTOR of PURNEA, Petitioner. This was an appeal from an order of the judge of Purnea, dated 31st July, 1846. BUkis-oon-nissa Begum had brought an action against her farmers for arrears of rent before the collector, under Regulation VIII. of 1831, and obtained a decree. In execution, certain property was sold, which was claimed by one Anund Koonwur, who now instituted an action against the zemindar, the fanners, their sureties, and the nazir of the collector's office, for recovery of the value of the property. Judgment was given in his favor by the principal sudder ameen, but, on appeal by the zemindar, the case was remanded by the judge to the principal sudder ameen for further investigation, with an order to call upon the plaintiff to make the collector himself a defendant in the smt under Section XXXIII., Regulation XIV. of 1793. From this order the collector appeals. Bi/ the Court. — (Present Mr. Hawkins) : — " The Section of the Regulation of 1793, cited by the judge, is inapplicable to the case. It refers to the collector in his fiscal capacity. Under Re- gulation VIII. of 1831 he acts judicially; and though his acts, being of a summary character, may be contested by a regular action, he is not personally amenable for them to the civil courts. So much of the judge's order, as directs that the collector be made a party to the suit, must therefore be set aside." Order accordingly. 1847. June 15, A collector is not personally, amenable to the civil courts, for acts done by him under Re- gulation VIII. of 1831. 1847. June 21. KHEDUN THAKOOR and another, Petitioners. This was an appeal from an order of the judge of Tirhoot, dated 14th December, 1846. The petitioners had sued Dhomun Beebee and others, for certain real property, in the court of the moonsifF of Bhowareh, and obtain- a summai^ ed a decree, which was confirmed in appeal by the principal sudder appeal from a ameen. On the summary appeal, however, of one Waizooddeen Hos- e'd'^^an jeaTbv sein, a third party, ''the judge, setting aside the decree of the prin- the principal 128 SUMMARY CASES IN THE sudder ameen lies to the Sud- der Dewanny Adawlut, and not to the zU- lah judge. cipal sudder ameen, remanded the case for further investigation.- From this order the petitioners now appeal. By the Court. — (Present Mr. Hawkins) : — " The judge had no jurisdiction in this case. A special appeal lies only to this Court ; and with reference to the course which has been pursued by the Court in analogous cases, the summary appeal from a judgment passed in appeal must lie to this Court also. Under the existing law, the ziUah judge cannot interfere with a judgment passed in appeal." Order accordingly. . 1847. June 21. A claim by adoption hav- ing beenadjust- ed between the claimant and the heirs at law of the alleged adoptive father by a partition of the estate of the latter, such adoption not having been legally proved in court, held that on the death of the claimant, the heirs of the adoptive father should be ad- mitted to re- present the adopted party, in a suit insti- tuted against him by another party vnth re- ference to the property thus obtained, in preference to his own mo- ther. RADAH MADHUB EOY, Petitioner. This was an appeal from an order of the judge of Dacca, dated 20th November, 1846, confirming that of the principal sudder ameen of the same district of the 21st February, preceding. Gungapersaud Roy and Sree Kishen Roy (the latter the father of the petitioner) were brothers. On the death of the former, liis widow, Adesseree, adopted (it was alleged) one Kishen Koomar Roy, by her husband's permission. On the death of Adesseree, the adoption was disputed by Mungul Narain Mittre, the daughter's son of Gungapersaud Roy. Their disputes were for a time adjusted by a partition between them of the estate of Gungapersaud, Kishen Koomar Roy receiving 8 J, and Mungul Narain 7g annas of the pro- perty. The deed of partition, which was drawn up on the occasion, recites that Kishen Koomar Roy was the adopted son of Gungaper- saud Roy. Notwithstanding this, disputes continued ; and the matter was accordingly brought before the civil courts in a summary way, the courts giving their opinion that the fact of adoption had not been hitherto established. In the meanwhile one Bindrabun Chunder Surma brought an action against Kishen Koomar Roy and others, on a mortgage bond for the same property. While the suit was pend- ing, Kishen Koomar died, and various parties applied for permission to appear as his representatives : on the one side his own mother who claimed as his heir, on the ground that the adoption had not been proved; on the other the members of Gungapersaud's family, on the ground that the property had been obtained by Kishen Koomar solely on his claim of adoption, and that, in the absence of such claim, he would never have had the smallest portion of it. The principal sudder ameen and zillah judge decided in favor of the mother, after consulting with the pundit of the Dacca division. In the appeal to the Sudder Dewanny Adawlut, the facts of the case, together with the deed of partition, were submitted to the pundit of the Sudder Court, who declared that, under the terms of the deed of partition, and the law of the case, the estate of Kishen Koomar Roy must devolve on the family of Gungapersaud Roy, )iis declared adoptive father, and not on his own. mother. SUDDER BEWANNY ADAAVLtJT. 129 Orders were passed by the Court, (present Mr. Hawkins,) in its summary jurisdiction, in conformity with the bywusta of the Sud- der pundit ; it further appearing to the Court that it was but right that the property obtained by Kishen Koomar Roy under his claim of adoption, should, on his death, revert to the family of his alleged adoptive father, even though the fact of the adoption had not been legally established in court. The orders of the principal sudder ameen and judge of Dacca were accordingly reversed. STUD MEHDEE ALEE, Petitioner. The petitioner appealed against an order of the additional judge 1847. of zillah Behar, dated 10th May, 1847, directing, on the application ■ of a decree-holder against the petitioner, the attachment of his pro- ^ perty and the arrest of his person. The petition to this Court sets The civil forth that to proceed simultaneously against person and property was •"""* l^^™ ^^^ , -i; , , ./ -& r r r .^ power of issu- uregular and illegal. ing process si- By the Court — (Present Mr. Hawkins) : — " Under the provi- multaneously sions of Section VH., Regulation IV. of 1793, and the tenor of the ^S^^f ^^^ precedent in a case between these same parties, at page 60,* part 2, of property of a Reports of Summary Cases, it was competent to the judge to direct debtor in cxe- issue of process simultaneously against both the person and property cree°of com-t^" of the petitioner. His petition must consequently be rejected." BEEBEE TAKEE SHERAB, Petitionee. The petitioner appealed from an order of the principal sudder 1847. ameen of Dacca, dated 12th December, 1846, directing her to pay j . g costs in a suit, when no such order had been inserted in the decree. It appeared from the proceedings of the principal sudder ameen Where costs that, considering the costs justly chargeable to the petitioner, though awarded in the the order for payment of them by her had been omitted, probably by decretal order, mistake, in the decretal order, he directed that execution should be canno" ra'dCT ' made for the costs, as well as for the amount for which a decree had execution for been given against the petitioner. <=°sts without By the Court.— (Present Mr. Hawkins) .— " The course pur- *^f decree*' on sued by the principal sudder ameen is not the correct one. Execu- the application tion cannot be had for that for which the decree does not provide. If ^ the decree- the decree-holder considers himself entitled to the costs, and the non- insertion of the order for payment thereof by the petitioner to have arisen from mistake, he is at liberty to move the court in the proper form to correct the order ; but no execution for the costs can issue until such correction has been made." Order accordingly. * See page 85 of this Volume. 130 SUmiAEY CASES IN THE 1847. July 5. Tlie certifi- cate under Act XX. of 1841, is granted spe- cially for faci- litating the col- lection of debts on succession, and does not refer to appli- cations for suc- cession to pro- pei*ty. SYUD MAHOMED REZA and another, Petitionees. This was an appeal from an order of the judge of zillah Purnea, dated 30th January, 1847. On the death of Fatima Begum, one Tasudduk Alee applied to the zillah judge to be permitted to take possession of her property as her heir, and to represent her in the suits pending in court, in which she had been ensaeed. His application was opposed by the petitioners.. The zillah judge, after sundry inquiries, granted to the applicant, Tasudduk Alee, a certificate under Act XX. of 1841 ; and from this order the petitioners now appealed. By the Court. — (Present Mr. Hawkins) : — " The nature of the application and the order have no connexion with each other ; though it does appear that the applicant, Tasudduk Alee, mentions Act XX. of 1841 in his petition. The certificate under that Act is granted for facilitating the collection of debts on succession, and does not apply to applications for succession to estates of deceased persons. The order of the judge must consequently be set aside as irregular." 1847. July 6. A. obtained a decree against foiir defend- ants. B. ob- tained a decree against three of them. The property of- all four was sold in execution of both decrees. The fourth sued to set aside the sale, on the ground that he was not a party to the suit of B, and other grounds, and obtained a judgment in his favor. Held that this judg- ment did not in any way affect an at- tachment un- der Section v.. Regulation 11. of 1806, taken out by A, while SUNDER SAHEE, Petitionee. This was an appeal from the order of the judge of Sarun, dated the 13th March, 1847, reversing that of the principal sudder araeen of that district, dated 13th June, 1844. The petitioner sued Hurdial Sahoo, Bhenuk Lai, and others, for the balance of an account. While the suit was pending, the plaintiff took out an attachment against the defendant's property under Sec- tion v.. Regulation H. of 1806. Ram Doss Koonwur and others had also obtained a decree against the same defendants, with the. exception of Bhenuk Lai. Execution of both decrees was taken out ;, and the property of the whole o^ the defendants, including Bhenuk Lai's, was sold in a joijit lot in satisfaction of both decrees. Bhenuk Lai then brought an action for the reversal of the sale of his Jth of the property, on the ground that he was not a defendant in the case of Ram Doss KoonvvTir, and that no account of the sum due by him- was made in the case of the present petitioner ; and obtained judg- ment in his favor on the 15th July, 1841. The petitioner then applied for execution on his own decree against the share of Bhenuk Lai for the balance due by him. In course of execution Hur Sahee Singh and others claimed the share of Bhenuk Lai under a deed of sale dated 8th. May, 1843. The principal sudder ameen rejected the claim, and ordered execution against the property. His order was, reversed by the zillah judge. From the order of the judge the petitioner preferred the present appeal. By ike Court. — (Present Mr. Hawkins) : — " Tlie property was originally attached under the provisions of Section V., Regulation H. S0DDEE DEWANNY ADAWLUT. 131 of 1806 ; and the subsequent decree in favor of Bhenuk Lai does not, his suit was under the circumstances, in any way affect the attachment. The pending, judge's order must be set aside, and that of the principal sudder p|rty of the ameen upheld." fourth. SHEEB CHUNDER KUE, Petitioner. This was an appeal from an order of the judge of Dacca, dated 17th April, 1847. An application had been preferred to the judge, under Eegulatlon I. of 1800, to appoint a guardian to Heera Lall, a minor, the alleged adopted son of Kasheenath Roy. The adoption was denied by the heirs of the deceased. The zillah judge investigated the plea of adoption, and, pronouncing against it as invalid, rejected the applica- tion. From this order an appeal was preferred to this Court. By the Court. — (Present Mr. Tucker, Sir M. Barlow and Mr. Haxvkins) : — " The judge was Wrong in investigating summarily into the question of the validity or otherwise of the adoption, which can only be done in a regular suit. We do not, however, think that the Regulation I. of 1800, appKes to a case of this kind, in which succession is claimed upon a special ground, such special ground being denied and contested by the heirs at law. This, how- ever, does not prevent any friend of the minor suing on his behalf to establish his right. The order of the judge was accordingly confirmed, but on grounds altogether different from those on which he had pro- ceeded. 18-17. July 17. A guardian cannot be ap- pointed under Regvdation I . of 1800, to an alleged adopt- ed minor, ■whose adoption is disputed. This however, does not pre- vent an action by his friend to establish the minor's right, HUE GOBIND GHOSE, Petitioner. This was an application for a special appeal, presented by peti- tioner, against an order of the judge of Patna, dated 3rd September, 1845, confirming an order of the additional principal sudder ameen, dated 16th December, 1844, dismissing, for want of jurisdiction, liis suit against Musst. Emam Bandee, for the proprietary right to 2,000 beegahs of deara lands, claimed by him as appertaining to mouza Eaepore Hosseinpore, under the following circumstances : A case to resume mouza Subbulpore, held under a lakJiiraj grant, was instituted under Regulation II. of 1819, against Saadut Alee. The mouza was declared open to assessment on the 3rd April, 1837, and this decision was affirmed by the special commissioner on the 25th September, 1839. Afterwards, a dispute arose between the petitioner and Emam Bandee, the widow of the abovementioned Saadut Alee, regarding a deara of about 2,000 beegahs, which the magistrate, before whom it was brought, at the representation of Emam Bandee that the deara formed part of Subbulpore, which had been resumed by Government and was then in the hands of the superintendent of 1847. July 17. A party con- sidering him- self aggrieved by an order of the resumption courts deiining the boundaries of a resumed mehal, cannot apply to the civil courts for re- dress. 132 SUMMARY CASES IN THK khas mehals for settlement, referred under Clause 4, Section II., Re- gulation IV. of 1828, for adjustment to the said superintendent, who referred it for investigation to a native deputy collector acting under him. This native deputy collector, on the 4tli May, 1841, declared Hur Gobind Ghose to be in possession ; but that the deara, under the Regulations, was clearly the right of the proprietor of Subbul- pore, and ought to be included in the settlement then pending. His decision was upheld by the special deputy collector on the 31st August following. Hur Gobind Ghose, acknowledged to be in possession, and claiming the deara as appertaining to his village of Raepore Hosseinpore, appealed from this order to the special commissioner, who confirmed it on the 25th January, 1843, and ordered the settlement to be made with Emam Bandee. Hur Gobind Ghose, thus dispossessed, and not having been a party to the resumption suit, instituted a suit in the civil court at Patna, for the proprietary right and possession of the deara as appertaining to his mouza Raepore Hosseinpore The suit was thrown out in the lower courts (principal sudder ameen's and judge's) for want of jurisdiction. The petitioner then preferred a special appeal to the Sudder Dewaimy Adawlut, and, in support of his application, produced a decision of Mr. Henry Moore, special commissioner, admitting that such suits were admissible in the ordinary courts. He likewise referred to the orders of Government, dated 8th August, 1839, issued through the Sudder Board of Revenue on the 11th September, 1839, of which paragraph 3 is as follows : " The resumption courts must, of course, carry into execution their o^vn decrees in the mode prescribed by the Regulations. But if land, denied to be included in such decrees, were not in the occupa- tion of the lakhirajdar when the suit against him was instituted, but in the occupation of some other person, who was not a party to the resumption suit, such land cannot be subjected to assessment by the revenue authorities, without the institution of a new resumption suit against the party actually in possession." Mr. Tucker, who heard the application for a special appeal, having laid the above statement of the case before Sir R. Barlow and Mr. Hawkins, observed : " The only question is, can the courts receive an appeal from the orders of the special commissioner, however apparently illegal they may be ? " It is clear Hur Gobind Ghose was in possession of the deara, as part of his mouza Raepore Hosseinpore, a nizamut village. This is admitted ; but after the resumption of Subbulpore, without any previous definition of its boundaries or extent, the deara is de- clared to form a part of it, and Hur Gobind Ghose, the occupant of it, is dispossessed." By the Court. — (Present Mr. Tucker, Sir jR. Barlow, and Mr. HawkinsJ : — " To decide on the question of assessment is peculiarly the province of the resumption courts : to decide on the question of proprietary right is peculiarly the province of the juchcial SUDDBK DEWANNY ADAWLUT. 133 courts. Thus, in the case of a suit to resume a lakhiraj tenure, the resumption courts would pronounce upon the validity or invalidity of the tenure ; but the civil courts might still entertain a suit between parties claiming the proprietary right, and desirous of being admitted to enter into the settlement with Government. Again, in the case of a chur declared by the resumption courts liable to assessment, without specification of the estate to which it was attached, the civD courts might entertain an action between parties contending for the proprietary right, and willing to take the lands at the assessment fixed by Government. " But there are other cases, in which the question of assessment and proprietary right are so mixed up together, as to render it impossible to separate them, in which, for the resumption courts to declare the land Hable to assessment, is essentially to decide the question of proprietary right ; and in which, for the courts to pronounce upon the proprietary right, is essentially to pronounce upon the question of assessment. " Take the case of two estates, originally assessed upon an ascer- tainment of the extent of land comprised in them, with a stream running between them as the boundary line. After a lapse of years, the resumption officers, obtaining intelligence of a considerable accre- tion to one of the estates, proceed to make the usual inquiries. The proprietor on one side of the river claims the lands, under Clause 2, Section IV., Regulation XI. of 1825, as a portion of his estate, separated from it by a change in the course of the river ; the pro- prietor on the other side claims it under Clause 1 of the same Sec- tion, as an increment to his estate. This may be no uncommon case. In order to ascertain this point, reference is made to the extent of lands comprised in each estate at the period of the decennial settle- ment. The proprietor, who claims under Clause 2, Section IV., Regulation XI. of 1825, on the ground that the lands are capable of identification as his, is found to possess fully as much land as he did when his estate was originally settled. The resumption officers then proceed to declare the land liable to assessment, as an increment to the estate of the proprietor on the opposite side of the stream. This is essentially a determination of the proprietary right. " Another class of cases is that of which the present is an instance. " A lakhiraj tenure is resumed ; but disputes occur as to the extent of lands comprised within it, and a specific portion of land is claimed by two parties, one the proprietor of the resumed tenure, the other the proprietor of a neighbouring assessed estate. In such a dispute, for the resumption officers to decide whether the contested lands are or are not liable to assessment, is, in fact, to decide the question of pro- prietary right. "Now the question is, whether in these cases of mixed jurisdiction, there is allowed any resort to the courts of justice to contest the pro- ceedings of the resumption courts. There is no doubt that the decisions of the latter, respecting the assessment of lands, are beyond the control of the judicial authorities. But in the cases supposed, there is a judicial question to be decided as an essential preliminary to 134 SUintAEr CASES IN THE the, question of assessment: can the resumption courts decide this judicial question ? We are of opinion that they can. There is nothing in the Regulations enacted for their guidance, which requires a reference or resort to the courts of justice before they can proceed, in any class of cases, to discharge their own peculiar functions. On the contrary, the general tenor of such Regulations is to invest those courts with full power to take all measures necessary for the attainment of the object they have in view, to wit, the determination of the ques- tion of liability to assessment. We are therefore of opinion, that the principle laid down in the cases of the Sudder Board v. Dilawur Alee, (page 256, vol. VII. Sudder Dewaimy Adawlut Reports,) and ofMohunt MonohurDoss v. Mohunt Jyeram Doss, (page 413, of the Decisions of the Sudder Dewanny Adawlut for 1846,) is correct ; and that such cases are not cognizable by the ordinary courts of justice, which cannot interfere directly or indirectly with the Government revenue. It is urged that, in the present instance, there has been a violation of the orders of Government of the 8th August, 1839, above quoted ; the plaintiff having been disturbed in liis possession, without having had an opportunity given to him to state his objections to the proceedings of the resumption courts. This may be true, but the irregularity of the proceedings of the resumption courts will not invest the courts of justice with a jurisdiction which they do not otherwise possess. The plaintilTs remedy is by application to the resumption courts. The established courts have no power to afford him redress." The application for a special appeal was accordingly rejected. 1S47. July 19. A male na- tive of rank, wishing to in- stitute a suit in forma pau- peris, must ap- pear in person for examina- tion under Clauses 1 and 3, Section v., Regrdation XXVIII. of 1814, and can- not be examin- ed through his agent. SYUD MEHDEE ALEE KHAN and others, Petitionpt' This was an appeal from an order of the judge of Tipperah, dated 4th February, 1847. The petitioners applied for permission to sue as paupers and to appear for examination through their agent. The judge, observing that Section I., Act IX. of 1839, which referred only to the exami- nation respecting the merits of the case, did not supersede the pro- visions of Clauses 1 and 3, Section V., Regulation XXVIII. of 1814, refused the apphcation. The petitioners then appealed to the Sudder Dewanny Adawlut. The point involved in the judge's order was submitted by Mr. Hawkins, by whom the case was first heard, to the Court at large, with the following note : " With reference to Clause 1., Section V., Regulation XXVIH. of 1814, Section I., Act IX. of 1839, and Act XIX. of 1840, can a male native of rank be examined in a pauper case through his agent, in instituting an original suit ?" The Sudder Courts of Calcutta and Agra were of opinion, that a male native of rank cannot be examined in a pauper case through his agent in instituting an origmal suit, Act IX. of 1839 and Act SUDDER DEWANNY ADAWLDT. 135 XIX. of 1840 being both specific, the one in regard to the point on which the examination of agents is allowed, the other in its appli- cation to appeals only. The ordeE of the zillah judge was accordingly confirmed. HUECHUNDER LAHOEEE, Petitionee. MuDDllN MOHUN EoT CilOWDHEEE had applied and received 1847. permission to sue the petitioner and others in forma pauperis; but he included in his plaint more defendants than he had men- ^ tioned in his original application for permission to sue as a- A pauper pauper. He was, therefore, nonsuited by the principal sudder ameen S ?}j* ''^°°"' of the 24 Pergimnahs, on the 7th April, 1847. He did not appeal addtothemim- from this ; but applied to the zillah judge for permission to sue as a ^^^ of *s d^- pauper the defendants named by him in hisjirst petition, and also in nall^"sued"1)v his petition of plaint. This the judge^ on the &th idem, allowed, on him, without the strength of the former sanction given to him to sue as a pauper, their beingper- and without further inquiry into his circumstances. rause' a°ainst* Tliis led to the present appeal by the petitioner to the Sudder his right to sue Dewanny Adawlut. as a pauper. By the Court. — (Present Mr. Hawkins) : — " On the plaintiff wishing to include new parties amongst the defendants, in addition to those mentioned in his original application, his examination and the inquiry as to his possession of property should have been gone into again before them, to give them the opportunity of showing cause against the application. They should have been served with notice for the purpose ; but the judge has not issued any. The case must be remanded." Order accordingly. HAMID EUSSOOL, Petitionee. This was an appeal from an order of the judge of Patna, 1847. dated 6th May, 1847, confirming that of the principal sudder ameen ■ of the district, 6th January preceding. ^ The petitioner, in execution of a decree which he had obtained against In the execu- Sirdhanarain, Jyenarain and others, for Company's rupees 2,464, tjooofadecree, had attached their property, and was about to cause its sale, when speciBc. a'ndnot Sirdhanarain deposited Company's napees 585-8 aimas, as his share, those of the do- and applied for the release of his property, upon the ground of that ^!5!il.h''t ™ sum being stated in the mookurruree pottah to be the portion received founded, are by him of the nuzzurana, for the recovery of which the petitioner *" regulate the had brought his suit. _ Sr' ^"^ As his application was granted both by the pnncipal sudder ameen and the judge of the district^ the petitioner, dissatisfied with the order of the latter, appealed to the Sudder Dewanny Adawlut. 136 SUJniARY CASES IN THE By the Court. — (Present Mr. HawMns) : — " The reasons assign- ed by the principal sudder ameen and the judge, with reference to tlie mookurruree pottah, are insufficient, even if correct, which admits of a doubt. But, in the execution of a decree, the deed upon which it is based is not the guide of the court. It must have been duly consi- dered before coming to the decision. The decree itself should alone be looked to. The present decree is against all the defendants jointly. It would therefore be opposed to it to divide their liabilities under it." The order of the zillah authorities was accordingly reversed. KISHEN MOHUN MITTEE, ISSUE CHIHSTDEE MIT- TEE AOT) HUE CHUNDEE MITTEE, Petitionees. 1847. On the 2nd April, 1846, one Anund Mye obtained a decree against the petitioners in the court of the sudder ameen of the July 31. 24 Perguimahs, for the possession of 19 beegahs, 18 cottahs, 10 A suit can- chittacks of lakJiiraj land. An appeal preferred by them was not be dis- dismissed by the judge, both on its merits and with reference to its^merite and ^^ provisions of Act XXIX. of 1841. Dissatisfied with his order, on account of which was dated the 26th January, 1847, the petitioners appealed Act* XXIx"^''f '° ^^^ Sudder Dewanny Adawlut. i84i_' ' ■ By the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins) : — " By reference to the judge's decree, it appears that having disposed of the case for the reasons set forth, he added that the appeal was, moreover, liable to dismissal for default under Act XXIX. of 1841 ; but, under such circumstances, he should have struck it off the file at once, without further investigation, for a case cannot be dismissed after trial and likewise on default. In reversal, therefore, of the judge's order, which must be considered as void and null, the case must be remanded to him, to be disposed of on the ground of default, should such have occurred, otherwise on its merits." Order accordingly. EAM EUTTUN EOT and others, Petitioners. - ._ This was an appeal from an order of the additional principal sudder ameen of Jessore, dated 8th April, 1847, nonsuiting the August 2. petitioners in their suit against Eanee Kutteeanee and others, for A single suit ^^^ recovery of certain lands appertaining to their putnee talook in may be brought lot Musha Khalee, together with mesne profits, laid by them at *Zriri^lrds' Company's rupees 40,478-8-9. under Act IV. T'^^ petitioners had sued to obtain the reversal of two awards of 18-10, in- ■ by the magistrate mider Act IV. of 1840, dated 13th April, 1843, same"^ rounds ^""^ ^^^ April, 1845, respectively, ousting them from the above of action, lands, which had been assigned to the defendants, the zemindars of pergunnah Nuldee. SDDDER DEWANNY .UJAM'LUT. 137 These claimed them as belonging to their talook Beel Eesa- muttee, and objected that the plaintiffs could not in one suit seek the reversal of two awards under Act IV. of 1840. The principal sudder amecn having, for this reason, nonsuited the petitioners, they appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " As the petition- ers claim the disputed lands as belonging to their putnee talook in lot Musha Khalee, and the defendants as appertaining to talook Eesamuttee, there is no irregularity in the institution of only one suit ; nor is it opposed to* any provision in Act IV. of 1840, which refers parties to the civil courts on the question of right. The order appealed against must be reversed, and the case remanded for trial on its merits." Order accordingly. SYUD KIRAMUT ALEE, Petitionee. An application by the petitioner for a review of judgment, 1847. in a suit brought by him to recover Company's rupees 367-1-10, ' balance of rent alleged as due by Sheer Alee and others, had "^^ been returned to him by the principal sudder ameen of Moor- The rejection shedabad, on the 26th May, 1847, on the ground of the rejection d^^,De™ny by the Sudder Court of a petition of special appeal preferred by Adawlut of aa the petitioner against the decision of the principal sudder ameen application for in the case in question. Upon this he appealed to the Sudder peS'ag^insfa IDewanny Adawlut. decision of a Bv the Court. — C Present Mr. Hawkins) : — " The principal lower court, T ,^ . . T I.- a ■ r • 1 jTi ooBS not bar a sudder ameen, in supposing an application tor review ot juitgnient to review of judg- him to be informal, after the rejection of one for special appeal ment by such by the Sudder Court, has acted in contravention of Construction <=<"""'• No. 1057. He is competent to entertain it, and either to admit or disallow the application, as he may see fit. His order is therefore reversed." D. S. COHEN, Petitioner. This was an appeal from an order of the judge of Patiia, 1847. dated 1st May, 1847, reversing one of the additional principal — sudder ameen of the district, dated the 24th March preceding, August 9. and allowing the claim of Syud Abud Alee to four houses in Property the Dinapore cantonments, in the execution of a decree obtained situated in a . . '^ . oi -1 -NT .. a. Ai 'cantonment by petitioner against bheik iNujjutt Aiee. cannot be The petitioner, having sued the above defendant to recover transferred Company's rupees 2,649-6-0, had, on the 10th September, 1845, ^^TS fort^ i. e. pendente lite, issued a notice under Regulation II. of 1806, in within such bar of transfer of property. The case was finally decreed in his cantonment. favor, and the houses referred to were attached by the petitioner s 138 SDIEIIART CASES IN THE in execution of his decree. Their sale being opposed by Abud Alee, on the ground that he had purchased them from the defendant on the 27th February, 1844, his claim, which was dis- allowed by the principal sudder ameen on failure of proof of his possession, was acknowledged on appeal by the zillah judge. Against the latter's order, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " From perusing the papers of the case, in particular copy of the proceedings of the commissariat office of the cantonment, dated 5th October, 1824, an order issued from it, dated 29th December, 1825, in pursuance of orders from the commanding officer of the station, and an extract from the commissariat registry books from the 13th August, 1843, to 9th June, 1847, it appears that the sale or mortgage of houses in can- tonments caimot take place without notice to the commissariat office, and that they are forbidden without such notice. There is nothing to show that it was given in the present case, nor is there any trace of the alleged sale in the registry books. Therefore, as the foundation of the claim is opposed to the enjoined practice of the cantonment, the judge's order, based upon proof to his satisfaction of Abud Alee's possession of the houses, is erroneous. As they are situated within cantonments, their purchase, contrary to the rules obtaining therein, cannot be upheld." Order reversed. 1847. August 14, Security can- not be demand- ed under Re- gulation V. of 1799, in cases of dispute be- tween heirs of a party deceas- ed, unless oc- curring imme- diately upon his death. BHUGWUTTEE DASSEA, Mother aito Guardian op CHUMMUN LALL DHUE, Petitioner. In a suit brought against the petitioner by Dya Mye Dassea, for possession of real and personal property, valued at Company's rupees 94,958-12-5-2, the plaintifPs appHcation to demand security from her, under Section IV., Regulation V. of 1799, had been complied with by the principal sudder ameen of zillah Dinagepore, to the extent of directing her to furnish it to the value of one year's proceeds of the landed property within one month ; otherwise the rule of the above section would be put in force against her. From the order to this effect, which was dated 31st May, 1847, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins) : — " The plaintiff has sued petitioner to establish her right to 5 annas, 6 gundas, 2 cowries, 2 krants of the property claim- ed in succession to her deceased husband, and to 2 annas, 1 3 gundas, _ 1 cowrie, 1 krant of it in succession to Lalla and Ram Lall, the de- ceased sons of her husband's eldest brother. Her application for the requisition of security has been granted, notwithstanding the defend- ant's objections that she is in possession of the estate, and that it is recorded in the names of her sons, and that, consequently. Regulation V. of 1799, is irrelevant. The object of that Regulation is to per- mit, in cases of disputed succession, security being demanded from the SUDDER DEWAKNY ADAWLOT. 139 heir in possession ; but this action was not instituted immediately after the death of the former proprietor, so that the Regulation referred to does not apply. The principal sudder ameen's order, which has been appealed against, must be reversed." Order accordingly. A petition presented by Dya Mye Dassea, dissatisfied with the order of the principal sudder ameen, which limited the requisition of security to the value of only one year's proceeds of the estates, was at the same time rejected. BYKAUNTNATH RAE and others. Petitioners. LUKHEEICANTH Rae and others, plaintiffs, had sued the peti- tioners in the zillah court of the 24 Pergunnahs, to recover posses- sion of 3,800 beegahs of land, situate in mouza Unchla, &c., esti- mating the claim at rupees 5,700, being three years' produce of the land at the rate of 8 annas per beegah, and also to recover mesne profits for the period of dispossession, A decree was given in their favor on the 14th September, 1836, when it was ordered that they should be put in possession of the land claimed, and should receive mesne profits with interest, from 1236, the period of dispossession, until possession, from the petitioners. On appeal to the Sudder Dewanny Adawlut, the decree of the lower court was affirmed. Ultimately, in execution of the decree, the ameen deputed by the judo'e to estimate the mesne profits, reported their amount to be Company's rupees 74,054-6-8, principal and interest, at the rate of 12 annas per beegah, which the judge, on grounds stated in a proceeding dated 25th July, 1844, reduced to Company's rupees 7,518-9, to be paid by the petitioners, being mesne profits on 1,374 beegahs of land at the rate of 6 annas per beegah. On appeal by both parties to the Sudder Dewanny Adawlut, the Court, (present Sir R. Barlow,) on the 28th January, 1847, awarded mesne profits according to the report of the ameen, with interest from 1236, the period of dispossession, to 1247, the period of regaining possession. The petitioners subsequently presented a petition for review of this order. The substance of their application was, that mesne profits had been awarded at the rate of 12 annas per beegah per annum, whereas the plaintiffs themselves in their plaint, only claimed at the rate of 8 annas per beegah .per annum ; and that a plaintiff cannot receive more than he claimed in the plaint. In support of their plea, they filed precedents ; and the (plaintiff's) respondents likewise filed precedents to prove that, in many cases, mesne profits exceeding the rate speci- fied in the plaint had been awarded by the Sudder Court. The application having been referred by Sir R. Barlow, was heard by a full bench, (present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins,) whose judgment was to the following effect : 1847. August 14. Mesne pro- fits cannot be awarded at a higher rate than that spe- cifically claimed by the plaintiff in the court of fii'St instance. 140 SUJIMATiY CASES IN THE " It appears that plaintiffs in their plaint calculated mesne proSts at the rate of 8 annas the beegah ; and although they urge that the petitioners, dissatisfied with the order of the zillah judge, petitioned this Court, agreeing that the mesne profits, which might, on inquiry, be found to be correct, should be awarded to the decree-holder, yet we cannot come to any other conclusion than that plaintiffs should receive at the rate of 8 annas per beegah, which is the rate claimed in their plaint. We therefore direct, in amendment of the order, dated 28th January last, that mesne profits be awarded to the decree- holder at the rate of 8 annas per beegah per annum, upon 3,800 beegahs of land." Order accordingly. 1847. September 4. The share- holders in two differeDt es- tates being the same parties, one of their number liqui- dating the Go- vernment ar- rears due on both, may sue his defaulting co-sharers for the amount in one action. JUGGUT CHUNDER MOOKEKJEA .«d others, Petitionees. The petitioners and Musst. Shama Soondree were co-sharers in two distinct estates, called Brahmun Bhoom and Shamsoonderpore, which, owing to the defau't of the petitioners, were about to be sold for arrears of revenue, when ilusst. Shama Soondree, in order to save them, paid in the amount of balance. She then sued the petitioners in the court of the principal sudder ameen of ziUali Mid- napore for its recovery with interest, laying her suit at Company's rupees 1,549-6-0. That ofiicer having nonsuited her because her claim related to two separate estates and therefore should have formed the subject of two suits, his order, which was dated tlie 9th April, 1847, was reversed, on appeal, by the ziUah judge, on the 18th May following. The petitioners in consequence appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins) : — " The parties are co-sharers in the two estates. The plaintiff has sued for the recovery of the arrears made good bv her, but due by the petitioners. The judge is right in his opinion that the question is not affected by the estates being distinct, and by the receipts for each being separate. His order must be confirmed." Petition rejected. 1847. September 1 1 , The repre- sentative (whether male or female) of a party under Section II., Act CHUNDER SEEKUR BOSE aud otheks, Petitionees. This was an appeal from an order of the judge of the 24 Pero-un-- nahs, dated 30th May, 1847, putting Bama Soondree Dassea in possession of the property left by Hurrischunder Bose, on behalf of her minor son, Muhinder Chunder Chowdree, imder the provisions of Act XIX. of 1841, to the exclusion of the petitioners, who, in consequence, appealed to the Sudder Dewanny Adawlut. The Court, (present Mr. Tucker, Sir R. Barlow, and Mr. Haw- kins,) in hearing the appeal, discovered that, although Bama Soon- SUDDEE DEW.VNNY ADAWLDT. 141 dree Dassea had not applied for possession of the property on lier own account, but on the part of her son, she had been represented by an agent, who had made for her the solemn declaration required by Section III. of the Act in question, in other words, that she, the representative of her son, had been represented by another party, from whom moreover the solemn declaration had been taken after the inves- tigation into the alleged title, and not before it was entered upon, as directed in the Act. The case was therefore remanded that Bama Soondree Dassea might herself make the solemn declaration, after which the inquiry might be proceeded with, and the case disposed of. Order accordingly.* XIX. of 18il, must personal- ly make the solemn declar- ation required by the .'ird Sec- tion of that law. BRIJNATH SEIN, Petitionee. Beijnath Chtindee Banooejea had sued the petitioner and others, for the possession of 4 annas of pergunnahs Raeepore, &c., in the court of the principal sudder ameen of zillah Dacca, who nonsuited the plaintiff on the 1 1th March, 1847, because, after he had filed a supplementary plaint to add to the number of the defendants, it was found that, of those originally sued by him, three had died before the institution of the action, in rectification of which error a second supplementary plaint could not be received. The zillah judge, however, on the 12th June following, reversed his order, on appeal, and directed the case to be tried on its merits, observing that the first so-called supplementary plaint could not be reckoned as such, according to Construction No. 1308, as it was filed to make certain parties defendants, who had become possessors of portion of the property under htigation after the date of the suit, and that, therefore, the error of suing deceased persons might be corrected by a supplementary plaint. He remarked further, that there had been a late decision of the Sudder Dewanny Adawlut opposed to the order in the case of Punchanun Roy, dated 24th March, 1846, reported at page 80f of the Select Summary Reports. The petitioner than appealed to the Sudder Dewarmy Adawlut, praying that the order of the principal sudder ameen might be confirmed. By tlie Court. — {Present Mr. Hawldns) : — " Construction No. 1363 prohibits the courts from admitting supplementary pleadings, except at the request of the parties. It appears that in this case the plaintiflf did not apply to the principal sudder ameen, previous to being nonsuited, to be allowed to include the heirs of the deceased amongst the defendants. No other order than that of nonsuit could pass. The order of the zillah judge, in reversal of that of the princi- pal sudder ameen, must be cancelled." Order accordingly. * See Case of Benode Lall, &c., Page C43, Sudder Dewanny Decisions for 1851. t It was not considered necessary to publish the case in this edition. 1847. September 21 . A civil court cannot, molu siw, order supplemen- tal pleadings to be filed : they arc admissible only on the ap- pUcatiou of the party seeking to rectify his error. 142 SUJIilARY OASES IN THE 1847. September 21. The error of making a de- ceased person a defendant, can be correct- ed on the mo- tion of the plaintiff. BEEPUE, DASS and others, Petitionees. Eajkishue Dey, father of the petitioners, had, on the 25 th June, 1844, sued Isaj-oo-deen and others, in the court of the ad- ditional principal sudder ameen of zillah Hooghly, for the possession of certain property, and, after his death, wliich took place on the 4th August, 1846, was succeeded by the petitioners as p]aintifFs. These, in consequence of learning the decease of Jeetnarain Smgh, one of the defendants, had procured the issue of process for the attendance of his heirs, by a petition, dated 17th April, 1847, when Bykaunt Singh Roy, another of the defendants, represented, on the 26th May following, that Jeetnarain Singh had died before the institution of the suit ; which proving to be the case, the additional principal sudder ameen, on the 28th idem, nonsuited the petitioners, agreeably to the precedent of Punchanun Roy, decided by the Sudder Dewanny Adawlut, on the 24th March, 1846, reported at page 80* of the Summary Reports. From this order the present appeal was preferred. By the Court. — {Present Mr. Hawkins ): — " In the case cited, the plaintiiF took no steps to rectify his error, therefore only an order of nonsuit could be passed ; but in the present case the circumstances are different. The petitioners, who were not the original plaintiffs, applied, while the suit was pending, to have the heirs of Jeetnarain Singh inserted as defendants. They should not have been nonsuited. The order to such effect must be reversed, and the case disposed of on its merits." Order accordingly. 1847- September 27. Attachment of property to secm-e the execution of eventual judg- ment, on other grounds than those set forth in Clause 1, Section v., Re- gulation II. of 1806, is Illegal. BIPEEN BEHAREE GHOSE, Petitionee. The petitioner appealed against an order of the principal sudder meen of zillah East Burdawan, dated 3rd July, 1847, ordering the attachment, through the collector, of certain landed property, for which a suit had been instituted against him and others, by Bissumbur Bidyabhooshun, on whose application the attachment was made under Regulation 11. of 1806. By the Court. — {Present Mr. Hawkins) : — " The attachment has been directed by the principal sudder ameen at the request of the plaintiff, because the defendants have no other property than that which is in dispute ; and notice has been served upon them, requiring mdl zaminee security, in order to obviate attachment. But by Clause 1, Section v., Regtilation II. of 1806, attachment can be ordered only on one of these three grounds, viz., that the defendant . means to dispose of the property by private transfer ; or to cause its pubKc sale by withholding the assessment upon it ; or to remove any personal property from the jurisdiction of the court, whilst the suit against him is depending, for the purpose of avoiding the execution of eventual judgment. None of these grounds are assigned by the principal It was not considered necessary to publish the case in this edition. SUDDEE DEWANNY ADAWLUT. 143 sudder ameen. His order must be reversed, and the property released. If the plaintiff satisfy him of the existence of any of the above grounds, he may act according to the law cited." Order accordingly. D. H. KEARNS, on the part op THOMAS TWEEDIE, Petitionee. The petitioner and others having been sued by Madho Chunder Muimoodar and Bhyrub Chunder Mujmoodar, for the possession of 617 beegahs, 4 cottahs of land, the value of which was stated to be only rupees 3,001, although its yearly produce was estimated at rupees 1,748-1-0-12, his objections, that the property had been undervalued, and that therefore, as well as for other reasons, the plaintiffs should be nonsuited, were overruled by the principal sudder ameen of Jessore, on the ground of the actual value not depending upon the plaintiff's estimate of the produce. Against the order to such effect, which was dated the 7th July, 1847, an appeal was preferred by petitioner to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins) : — " The plaintiff specifies the yearly value of the land to be rupees 1,748-1-0-12, and its selling price to be rupees 3,001. Such being the case, the calculation must be made upon his own showing of the annual produce, according to which rupees 3,001 is too low an estimate. Agreeably to paragraph 4 of the note to article VIII., Schedule B, Regulation X. of 1829, he should have been nonsuited. The order of the principal sudder ameen must be reversed." Order accordingly. 1847. October 2. A plaintiff undervaluing property ac- cording to his own data must be nonsuited. EANEE BHOOBUN MYE DEBEA, Petitioner. In a suit of the value of Company's rupees 24,628-12-6, in- stituted by Gopeekaunt Misr, against the petitioner and others, before the principal sudder ameen of zillah Rajshahye, that officer, on the 26th April, 1847, decided that it being for mesne profits of an estate within zillah Mymensing, although the defendants were inhabitants of zillah Rajshahye, he had no jurisdiction, and dismissed the suit. A summary appeal was then preferred by the plaintiff to the zillah judge, who decided that the principal sudder ameen had juris- diction ; and he accordingly ordered that officer to readmit the case on his file, and try it on its merits. From this order, which was dated the 9th June, 1847, the petitioner appealed to the Sudder Dewanny Adawlut. Mr. Hawkins, after consultation with his colleagues, ruled that Section IV., Act IX. of 1844, referred to cases which the principal sudder ameen might reject for prima fade want of jurisdiction, and that it did not embrace an order of dismissal after argument as to 1847. October 5. An order by a principal sud- der ameen dis- missing a suit after hearing on the ground of wantof juris- diction, is not summarily ap- pealable to the zillah judge, under Section IV., Act IX. of 1841. 144 SUMMARY CASES IN THE jurisdiction. The order of the zillah judge, in reversal of that of the principal sudder ameen, was therefore cancelled. 1S47. November 22, The order of a court reject- ing- an appli- cation for re- view of its own jadgment, is not open to appeal. BULEAM DASS, Petitioner. The principal sudder ameen of Shahabad had, on the 12th June, 1847, refused the petitioner's application for a review of judgment, in a case adjudged against him and others, in which Mullahut Fatrnia was plaintiff, because he liad not assigned satisfactory reasons for Iiis delay in preferring the application, and he had engrossed it on a stamped paper of rupees 100, estimating his interest, as affected by the decree, at Company's rupees 2,250, whereas the original suit had been laid at Company's rupees 98,897-12-9. In consequence he appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " The petitioner's vakeel, in support of his argument that appeals lie against orders rejecting applications for review of judgment, has filed copies of letters from this Court to the judge of Shahabad, dated 7th June, 1839, and 17th July, 1840, in the case of Ajaieeb Singh, petitioner ; but these are only to the effect that an application by the principal sudder ameen to review liis judgment would be considered. The Regulations do not permit such an appeal as the present. The order of the prin- cipal sudder ameen caimot be interfered with." Petition rejected. 1847. December 27. The order of a principal sud- der ameen, re- jecting by an endorsement on the petition of plaint, an ori- ginal suit as not cognizable by him, in a case exceeding rupees 5,000 in value, is appealable to theziilah judge, and not to the Sudder Dewan- ny Adav;lut, MAHARAJA CHUTTURDHAREE SAHEE BUHADUR, Petitionee. The principal sudder ameen of zillah Sarun, on the 9th Sep- tember, 1847, returned, as appertainiiig to another jurisdiction, the petitioner's plaint against Kriteenath Roy and others, in a claim of Company's rupees 9,334-12-0. On appeal to the Sudder De- waimy Adawlut, the Court, (present Mr. Hawkins,) held, that the appeal should have been preferred to the zillah judge, to whom the petitioner was directed to make it within one month from the Court's order. REMARKS. This case and that of Ranee Bhoobun Mye Debea, decided 5th October preceding, have been selected as exhibiting the principle on which appeals of the kind in question are to be dealt with. SUDDEE DEWANNY ADAWLUT. 145 MUSST. WUZEER-OON-NISSA, Petitionee. Meer Kubeer Hossein, husband of the petitioner, having sold to her a decree obtained by him against Meer Akhbar Alee and others, she was, on the 23rd July, 1847, permitted by the additional judge of Behar to give her receipt for the amount due, in lieu of the purchase-money, if she purchased the property to be sold in satisfac- tion of the decree. Afterwards this permission was withdrawn on the objection of Byjnath Sahoo, who held a decree against Meer Kubeer Hossein, and who represented that the sale of this latter's decree to his wife was collusive, with a view to defraud him. Against the order to such effect, which was dated the 22nd Sep- tember following, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hmohins) : — " When the order of the 23rd July was passed, there were no apparent objections. After- wards, upon the application of Byjnath Sahoo, that he held a decree against Meer Kubeer Hossein, who was husband of the petitioner, and that the sale to the latter was fraudulent and collusive, the features of the case became altered. The judge was then com- petent to require payment of the purchase -money in cash. It is clear that Meer Kubeer Hossein sold his decree against Meer Akhbar Alee and others, to his wife, to defraud his judgment cre- ditors. For these reasons, the judge's order of the 22nd September must be upheld." Petition rejected. 1848, January 10. A judge, hav- ing granted permission to a decree-holder, intending to purchase the property of liis judgment debtor, to file his receipt, in- stead of pay- ing the pur- chase-money, is competent to ■withdraw such permission un- der altered circumstances, shown by the application of a party hold- ing a decree against such decree -holder. MUHINDUR NARAIN ROY and others. Petitioners. The judge of zillah Backergunge had, on the petition of Hursoondree and others, issued a precept to the collector of the zillah, under Section XXVI., Regulation V. of 1812, as modified by Regulation V. of 1827, to appoint a manager to a mehal consisting of 10 gundas, 1 cowree of pergunnah Suleemabad, of which, taken as a whole, 10 annas, 13 gundas, 1 cowree, 1 krant belonged to petitioners, and 5 annas, 6 gundas, 2 cowrees, 2 krants to Hursoon- dree and others. From the order to this effect, which was dated the 8th Septem- ber, 1847, the petitioners appealed to the Sudder Dewaimy Adawlut, urging more especially that a division of the lands forming the above two shares had taken place, and that they were distinct and separate. As it appeared, however, that the alleged partition was not a regular one under Regulation XIX. of 1814, their objections were overruled by the Court, (present Mr. Hawkins,) and the judge's order confirmed. 1848. January 10, An estate only privately divid- ed is not exempt from attach- ment under SectionXXVI., Regulation V, of 1812. 146 SUMMARY CASES IN THE 1848. January 11. When not otherwise spe- cified, the era current in any particular dis- ti-ict is to be presumed. GIRDHAREE PERSAUD, Petitioner. In execution of a decree obtained against the petitioner by Byd- nath Dass Mahapatur, the parties had entered into a compromise, by which, on condition of the former paying a certain sum, on the 25th Jeyt, 1253, the decree was to be considered satisfied. The money being deposited in the court of the principal sudder ameen of Midnapore, on the 26th Jeyt, Umlee, he, on the 3rd April, 1847, ordered the decree-holder to receive it, observing, that the era not being mention- ed, and the above date corresponding with the 25th Jeyt B. S., the petitioner had fuIfiEed his bargain. On appeal by the decree-holder, the ziUah judge reversed the above order, on the 14th June following, on the ground that the Umlee style should be presumed, such being the custom of the district. The petitioner then appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " The Umlee era is current in the zillah and where the parties reside, as appears from a report specially called for from the zillah judge and from other documents executed between the same parties. The order of the judge is therefore correct." Petition rejected. 1848. January 17. The personal attendance in court of the principal to execute the engagement on receipt of a certificate un- der Act XX. of 1841, is unne- cessary. BIRM JITE GOOPTEEA, Mother of BHOJINDUR ROY, AND POORNOMUNNEE GOOPTEEA, Mother op GO- PAL CHUNDER ROY and op KEDAENATH ROY, Petitioners. This was an appeal from an order of the judge of Nuddea, dated 26th July, 1847, striking off the file the petitioners' appHcation to obtain, under Act XX. of 1841, a certificate of representative tide of their deceased husband, Kaleepersaud, because they did not attend personally in court to execute the engagement required prior to the grant of the certificate. This order was passed in pursuance of an opinion expressed by the Sudder Dewanny Adawlut. It was held by the Court at large, on further consideration, that the personal attendance of the principal was unnecessary. The applicant, if unable to attend, might execute the deed in question in the usual way adopted in such cases, viz., by an authorized agent, or before a commission issued to attest its execution. The order of the judge was accordingly reversed. 1848. SREEMUTTEE DASSEA, Petitioner. TuRRUP Khetr Pai,a, the property of the petitioner, had been sold on the 1st February, 1847, and purchased by Sumbhoo Chunder Mojoomdar, in execution of a decree obtEiined against January 20. a sale^to^exe- ^^'' ^^ Omeschunder Ghose, surburakar on the part of Raja SUDDER DEWANNY ADAWI.UT. 147 Indur Bhoosun Deb Roy, a minor. Afterwards the prisoner represented to the principal sudder ameen of Jessore, that she had settled with Kara Chunder Mojoomdar, a former surburakar, in satisfaction of the decree, and had his receipt in full endorsed upon it ; notwithstanding which, the present surburakar had caused the sale of her property, without the issue of notice or proclamation as required by law. This statement of the petitioner was contradicted both by the auction purchaser and the decree-holder, the former urging that she should have objected to the sale before it was held, and that she could not be heard after it ; nevertheless the principal sudder ameen, on the 1st June, 1847, reversed the sale, considering both the satisfaction of the decree and the non-issue of proclamation to have been established. On the 29th September following, the zillah judge reversed this order on appeal, because it appeared to him that the sale had been held after due notice was given, and without the decree having been satisfied. The petitioner then appealed to the Sudder Dewarmy Adawlut. By the Court. — (Present Mr. Tucker, Sir R. Barlow and Mr. Hawkins) : — " As the roobukaree of the zillah judge shows that the proclamation was issued, and no irregularity appears in the sale proceedings, and the petitioner did not prefer her objection, before the sale, that she had satisfied the decree, there being no grounds for the summary reversal of the sale, the order of the zUlah judge must be confirmed." Order accordingly. cution of a de- cree, founded on its having been previously satisfied, can- not be heard after such sale, when held after due notice. JYEKISHEN MOOKERJEE and RAJKISHEN MOOKERJEE, Petitionees. The judge of zillah Hooghly, on the 10th September, 1847, rejected the petitioners' appeal against the decision of the collector, dated 2pth April preceding, in their suit against Bhyrub Chunder Bhuttacharj and others, for the assessment of certain lands held by them exempt from revenue, because their petition of appeal had not been presented within three months from that date. On appeal to the Sudder Dewanny Adawlut, the zillah judge was directed to report what was the practice in the zillah for calculating the period of appeal, — whether the petitions were usually preferred within three months from the date of decision, or allowance was made for the time requisite for preparing copy of the order appealed against, after filing the necessary stamped paper. In reply, the judge inform- ed the Court that appeals were preferred within three months from the date of the collector's decision, but that, in some instances, the time between filing the stamps and getting copy of the decree had been deducted. Bi/ the Court. — (Present Mr. Tucker, Sir R. Barlow and Mr. Hawkins) : — " The appeal against the collector's decision should be preferred witliin three months iiom its date, because it is mine- 1848. January 20 , It being un- necessary to file, with an appeal to a zillah judge from a decision of a collector under Section XXX., Regula- tion II. of 1819, copy of the decision appealed against, any de- duction of time for such pur- pose, in calcu- lating the pe- riod of appeal, is illegal. 148 SUMMAET CASES IN THE cessary to file copy of it, or may be allowed afterwards, on good and sufficient cause being shown for delay. The judge reports that occasionally the time between filing stamps and the preparation of copy of the decision, has been allowed ; and in the present case there has been no -laches on the part of the petitioners. Hereafter, however. Clause 7, Section XXX., Regulation II. of 1819, must be attended to, which enjoins the presentation of appeal within three months ; and reasons, such as are now assigned, that a deduction should be made of the time between giving in stamps and getting the copy, which is unnecessary by law, will not be deemed sufficient to admit the appeal." .• In this case, with reference to the above, the order of the zillah judge was reversed, and the appeal of the petitioners restored to the file to be disposed of after trial. EUMNEE DASSEA and others. Petitionees. iSiS. The petitioners, representing themselves to be the heirs of one January 20 Humarain Mundul, who had bought, in the name of his servant, Gopeenath Roy, a decree obtained, on the 25th July, 1838, by The claim- Tirpoora Soondree Debea against Lukheenarain Mundul, sued the tate in right said Gopeenath Roy, and Hurgobind Mookeijee, heir of the above of inheritance Tirpoora Soondree Debea, for its amount, with interest, viz., Com- to 'include"au'^ pany's rupees 2,355-8-5, in the com't of the principal sudder ameen debtors to it in of the 24 Pergunnahs. one smt; nor Their claim was opposed by Pearee Lall Mundul and others, referred to 'a ^^° ^*^*^ *^®y "'^'"^ entitled to the property of Humarain Mundul, regular suit to which had been made over to them by one of his sons, Rajkishen prove his title, Mundul, and denied the petitioners' right to the amount of decree tested by a ' '"'^^ ^'^^'^ ^°'" ' "^g^^g *^** *^^y could not, by claiming only an item party claiming of Humarain's property, establish their right of heirship to him, — on a specialty, moreover, that the present suit, being coiifessedly for only a portion of Humarain Mundul's estate, was instituted contrary to the Circular Order No. 29, dated 11th January, 1889. The principal sudder ameen, for various reasons, but cliiefly with reference to the fact that the plaintiffs' right of heirship to Humarain Mundul was disputed, and had not been judicially established, nonsuited the plaintiffs on the 3rd June, 1847; and the zillah judge having, on the 15th September following, con- firmed his order on appeal, the plaintiffs then appealed to the Sudder Dewanny Adawlut. Bi/ the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins) : — " The plaintiffs have sued to recover the amount of a decree due to Humarain Mundul's estate, whose legal heirs they represent themselves to be. Their action is for the recovery of money ; and, if they be nonsuited in consequence of their title, which is founded on inheritance, not being judicially established, it will become a precedent for compelling heirs to include in one action SUDDER DEWANNY ADAWLUT. 149 all the debtors to a single estate, from which would arise great difficulties in recovering debts due to the estates of deceased par- ties. ""Debts are of different kinds, and separate actions for their recovery may be brought. " Moreover, Kumnee Dassea, one of the plaintiffs, is the widow of Deegumbur Mundul, a son, and therefore an heir of Humarain Mundul ; so that Peearee Mundul and others, who rest their title upon the gift of Rajkishen Mundul, another son of the deceased, should establish their claim by a regular suit. " The objection to the present suit, founded upon Circular Order No. 29, dated 11th January, 1839, is untenable. " That only provides that a party suing for the real property of a deceased person, whose heir he calls himself, shall sue for the whole of it at once ; but each party indebted to the estate may be sued separately, for the entire amount he owes to it, by the undoubted legal heir or heirs. " The orders of the lower court must therefore be reversed ; and the case restored to the principal sudder ameen's file for trial." Order accordingly. JAMES FURLONG, Manager of the BENGAL INDIGO COMPANY, Petitioner. This was an appeal from an order of the principal sudder ameen of zillah Nuddea, dated 22nd January, 1848, disallowing the petitioner's objections to the sale of 8 annas of a putnee talook called Dhee Kishenchunderpore, pergunnah Buldeh. Jyechunder Pall Chowdree had, on the 20th November, 1846, obtained a decree against Messrs. Cockerell and Co., for rent due by them for the talook for the years 1244-5-6 B. S., for the realization of which it was advertised for sale. The petitioner opposed the sale, on the ground that the above firm had sold it to the Bengal Indigo Company on the 30th December, 1845 ; but the principal sudder ameen overruled his objection with reference to Clause 2, Section III., Regulation VIII. of 1819, and to the decree being for balances of rent. Dissatisfied vnth this order, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " The principal sudder ameen, relying upon certain provisions of Regulation VIII. of 1819, has directed the sale of the talook; but he has overlooked Clause 3, Section XVII. of that Regulation, which declares that a zemindar omitting to avail himself of the process within his reach for satisfying balances at the time of their falling due, they become personal debts of the talookdar, and must be recovered as such by a regular suit. In the present case the balances decreed are for antecedent years. The order of the principal sudder ameen must, therefore, be reversed. He will inquire into the validity of the deed of sale produced by petitioner, and pass orders accordingly." 1848. January 31, Balances of rent for ante- cedent years due from a putnee talookj being of the natiu-e of per- sonal debts of the talookdar^ the talook it- self is not pri- marily an- swerable for them. 150 SUBI3IARY CASES IN THE 1848. January 31. In deciding upon claims to property at- tached in exe- cution of de- crees of court, it is competent to the civil courts to deter- mine whether an award under Act IV. of 1840, adduced in proof of possession, be a decision in a bond Jide or a fictitious case. MAHARAJA MUHTAB CHUNDER BAHADUR, Petitioner. This was an appeal from an order of the principal sudder ameen of the 24 Pergunnahs, dated 29th June, 1847, releasing 9 annas 12 gundas of lot Rughoonathpore, attached in execu- tion of a decree obtained by the petitioner against Sham Soon- dree Dassea and others, the sale of which had been opposed by Sirbanee Dassea, on the strength of an award under Act IV. of 1840, which adjudged her possession of the property in question. By the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins): — " By the award under Act IV. of 1840, the possession of Sirbanee Dassea is proved ; but that order caimot prevent the civil courts inquiring whether such possession is bond fidfi or collusive, a matter which they are competent to inquire into in cases of execution of decree." The order of the principal sudder ameen was accordingly re- versed by Mr. Hawkins, with reference to Circular Order, dated 21st May, 1847, as it was apparent from the proceedings that the possession of Sirbanee Dassea was not bond fide, having been obtained coUusively, in concert with the defendant in a civil suit, in order to save his propert3Jif from sale in execution of a decree of court. 1848. February I. Arrangements made by tbe proprietors of an estate after its attachment according to SectionXXVI., Regulation V. of 1812, and Regulation V. of 1827, are not binding upon the revenue authorities. JAMES COELL, Petitionee. Chundeabullee Debea, mother, and Musst. Bhobun Mye Debea, widow of Bhowanee Kishore Acharj, had obtained a decree, on the 26th September, 1844, against Kumla Dassea and others, to fix the assessment of mouza Jateea, &c. in zillah Mymensing. Afterwards, in consequence of disputes between the decree-holders, the petitioner was appointed manager of the estate imder the pro- visions of Section XXVI., Regulation V. of 1812. Subsequently the decree-holders privately fixed the jumma to be paid by Kumla Dassea at rupees 67 annually ; but this arrangement not being ap- proved of by the commissioner of revenue, he, on the 25th February, 1847, directed the petitioners to sue out execution of the decree, in order that by that process the proper settlement might be effected. AppUcation was accordingly made to the principal sudder ameen of the district, but it was not complied vpith by that officer, on the ground that the parties to the suit had fixed the jumma themselves, and that execution could not be taken out in opposition to their mutual arrangement. From this order, which was dated the 28th August, 1847, the petitioner appealed to the Sudder Dewarmy Adawlut. By the Court. — (Present Mr. Hawkins) : — " As the arrange- ment referred to was disaEowed by the commissioner of revenue, and the civil courts, according to the precedent in the case of Jye Gopal Chowdree, decided 16th March, 1847, cannot interfere with orders SUDDER DEWANNY ADAAVLUT. 151 of the revenue authorities, regarding the management of estates attached under Section XVI., Regulation V. of 1812, the principal sudder ameen should have granted execution of the decree as applied for. His order, rejecting the application, must be reversed." Order accordingly. RAMCHUKDER FOTEDAR and othees, Petitionees. This was an appeal from an order of the judge of Backergunge, dated 2nd June, 1847. Ismail Khan and others, themselves the judgment debtors of Muryum Khatoon, had obtained a decree against Nusurooddeen and others, which these agreed to satisfy by instalments ; when Muryum Kha- toon, as the judgment creditor of Ismail Khan and others, was sub- stituted for them in execution of their decree against Nusurooddeen and others, and sold 12 annas of the amount, due on the instalment bond, to Sham Soondur Fotedar, and the remaining 4 annas of it to Naemooddeen. The property of Nusurooddeen and others being subsequently sold for Company's rupees 5,270, Sham Soondur Fotedar claimed 12 annas of the amount, which was awarded him by order of the zillah judge, notwithstanding the objections of the petitioners, who alleged the purchase from Muryum Khatoon of 6 annas of the decree obtain- ed by her against Ismail Khan and others. They therefore appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker, Sir R. Barloio, and Mr. Hawkins) : — " The petitioners and Sham Soondur Fotedar claim to be paid out of the proceeds of sale, in virtue of their several deeds of purchase ; but the validity or otherwise of these conflicting claims carmot be decided summarily. The judge's order must there- fore be reversed. He will hold in deposit the entire amount of proceeds of sale. Any claimant to them must sue regularly." Order accordingly. 1848. February 3. Counter- claims to pro- ceeds of a sale, held in execu- tion of decree, founded on purchase of the rights of the original decree- holders, cannot be determined summarily. OMRAO NAIK, Petitionee. The Judge of the 24 Pergunnahs having, on the 6th and 20th January, 1848, directed execution as of a decree of court to issue against petitioner, and security to be demanded from him on the application of Boodho Naik in fulfilment of an award by arbitrators, adjudging Company's rupees 6,447 to be due from him for wood, he appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins) : — " Section HI., Regulation VI. of 1813, only refers to real property. The award of arbitrators with regard to personal property cannot be summarily executed as a decree of court. The orders of the judge must be reversed." Order accordingly. 1848. February 3. Section III,, Regulation VI. of 1813, is in. applicable to awards of ar- bitrators re- garding per- sonal property. 152 SUMMARY CASES IN THE MUSST. OOMUT-OOL-BURKUT and others, PETITIOISrEKS. 1848. The petitioners, having sued Musst. Wujhoonnissa and others, in the court of the principal sudder ameen of Bhaugulpore, for the pos- February 3. ggssion of talook Gundapore Ruchnee, with mesne profits for the In a stiitfor period of dispossession, estimating their suit at Company's rupees "^■m Ce^sa^ 2,22,808, prayed to have the suit decided without prior adjustment of profits, inquiry mesne profits, and to have their amount ascertained in execution of the into the a- decree, an application which the above authority refused to comply Jatter* mav be ^''^' °° ^^^ ground of the difficulty in adjusting, costs of suit, should postponed till the plaintiffs, after obtaining a decree, be found entitled to a less the decision of amount of mesne profits than they had claimed^ t e siu . From his order, which was dated the 21st September, 1847, the petitioners appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins) : — " In ascertaining mesne profits,, much expense and trouble are necessarily incurred, which would be all thrown away, should the plaintiffs be successful in the lower court, but be cast in that of appeal. If their right to the property be established, possession may be decreed with specification of the time for which mesne profits are to be recovered ; for which there is a precedent in the case of Ramkoomar Chukurbuttee and others, appellants, versus Ram Ram Bhuttachaij and others, respondents, decided by the Sudder Dewanny Adawlut on the 3rd December, 1840. " The order of the principal sudder ameen must therefore be reversed. If he decide in favor of plaintiffs, he will, in adjudging to them possession of the disputed property, insert in his decree the period for which mesne profits, after ascertainment of their amount, are also awarded." Order accordingly. REMARKS. The above decision is not opposed to the precedent of Sheeb Chunder Roy and another, versus Hurmohim Roy and others, p. 305, Vol. VT. Select Reports, in which the decree reversed was altogether a general one, merely declaratory of right, leaving both the quantity of land and the amoxmt of mesne profits to be ascertained in execution of the judgment. With reference to the principal sudder ameen's objection, it may be observed that an application for review of the order in regard to costs is always open to the party charged with costs, should the amount of mesne profits prove, on inquiry, to fall to any great extent short of the amount sued for. The following is the case alluded to by the Court : Ramkoomar Chukurbuttee and others. Appellants, verstis Ram Ram Bhuttacharj and others, Respondents. The respondents sued the appellants in the zillah court of Mymen- sing, for recovery of possession of a half share of talooka Nuwaz SUDDEB DEWANNY ADAAVLtTT. 153 Allee and other lands, and obtained a decree from the principal sudder ameen of the district. The terms of the order in the decree were to the effect that " the plaintiff should recover the property sued for, with mesne profits." Tliis decree was confirmed in appeal by the judge. The appellants then applied for the admission of a special appeal to the Sudder Dewanny Adawlut. Mr. D. C. Smyth. — " The order of the principal sudder ameen, confirmed by the judge, is irregular, and likely to lead to much con- fusion and future litigation. The use of the general terms ' with mesne profits,' without any specification of the period for which such profits are recoverable, is opposed to the practice of the courts, and the omission must be rectified." The case was accordingly remanded. GOPEE KAUNT MISR, Petitionee. The petitioner's suit against Gobind Purshad Surma IQian and others, in the court of the principal sudder ameen of zillah Rajshahye, for Company's rupees 24,628-12-6, being the amount of excess collec- tions from Aghun 1250 to Cheyt 1251 B. S., for a putnee talook in zillah Mymensing, had been dismissed by that officer on the 26th April, 1847, with reference to Construction 73, and because the lands, in connexion with which the action arose, were within the latter district. The petitioner accordingly appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins) : — " The plaintiff quotes Construction 739 in support of his right to sue in Rajshahye, while defendants refer to Section VHI., Re- gulation TTT. of 1793, and to Construction 73, as requiring the suit to be instituted in Mjrmensing. A suit, such as this is, for recovery of an excess of rent, though admissible in the district in which the defendant resides, should properly be preferred in the zillah where the lands are ; — but Construction 739 justifies the course pursued by plaintiff, so that the principal sudder ameen of Rajshahye should not have dismissed his suit, but have taken ste|)s to get it transferred to Mymensing, which he will now do." Order accordingly. Note. — The above decides that the rule of Construction 73 is to be followed in such cases in preference to that of Construction 739. 1848. February 19. Suits for pro- fits on rent of land should be instituted in the zillah where the land is situated, ra- ther than in that where the defendants re- side. 154 SUMMARY CASES IN THE 18i8. February 22. BABOO TEELUKHDHAREE SINGH, Appellant, versus MUNNOO LAL, ox his decea-se LUCHMUN SAHOO AND OTHERS, ReSPOJTOENTS. The property of the above appellant having been directed to be sold in satisfaction of a decree of court, the judge of Patna, on the 4th December, 1847, reported its attachment, through the collector, by the magistrate's orders, for evasion of criminal process on the The pro\'i- sions of Regu- p^^j. ^f appellant, and inquired whether, with reference to Clause 2, 1818, ai-e ap- Section X., Regulation IH. of 1818, its sale could under such circumstances be proceeded with. Bt/ the Court. — (Present Sir R. Barlow): — " The preamble of the above Regulation shows that it refers only to parties confined by orders of the Governor General, and that it does not relate to cases Uke the present. The sale of appellant's property must, therefore, be carried into effect as previously directed." Order accordingly. plicable only to state prison ers. 1848. March 1, Sections XIV. and XV., Re- gulation IX. of 1833, cannot be pleaded in bar of a suit, until the Board of Revenue shall have, un- der Section XIII., pre- scribed rules for filing vil- lage accounts. DOWLUT RAE and others. Petitioners. The claim of Chowdree Nunkoo Eae and others against the petitioners for Company's rupees 149-1-10, principal and interest, for balances of rent for 1252 and 1253 F. S., having been dismiss- ed by the local moonsiff on the 25th November, 1846, but adjudged in their favor by the principal sudder ameen of Tirhoot, on the 29th July, 1847, the petitioners preferred an appHcation for a special appeal to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Haivkins) : — " The principal argument of the petitioners in support of their apphcation is that Sections XIV. and XV., Regulation IX. of 1833, and Construc- tion No. 884, have not been attended to ; but by Section XIU., the Board of Revenue must first direct how and when the village accounts are to be furnished. As the Board has not prescribed any rules on the subject. Sections XIV. and XV., cannot be cited as barring the plaintiffs' suit against the petitioners, whose application must therefore be rejected." Order accordingly. 1848. March 7. The civil courts cannot entertain ac- tions for the recovery of ISSUR CHUNDIJR THAKOOR, Petitioner. The petitioner, representing that the former zemindars of per- guimah Buhra, had granted his ancestor an allowance at the rate of one pie per rupee on the rent of their estate, for the purpose of performing idol worship, sued Lukheekaunt Sein, the present owner of the property, for rupees 126-4-6, being the arrears of it due from 1239 to 1250 B. S., and obtained a decree from the moonsiff of STJDDEE DEWANNY ADAWLUT. 155 cennial settle- ment. Malda, on tlie 17th March, 1846, which decision being reversed in money allow- appeal by the judge of Dinagepore, on the 27th September, 1847, ^^^ar esT 'on the petitioner presented an appHcation for special appeal to the estates previ- Sudder Dewanny Adawlut. ous to the de- By the Court. — (Present Mr. HawMns) : — " Claims like the present are declared not cognizable in any court of judicature by Section XVIL, Eegulation XXIV. of 1793." Application rejected. Note. — A claim similar to the foregoing was disposed of in the same way by the Court, (Mr. Tucker,) on the 30th August, 1847. The following is the case : Ivishen Gobind Bhuttachaij, The Collector of Tipperah. The plaintiff stated that, previous to the English rule, Mahomed Keza Jihan had given his father a money allowance for the performr ance of idol worship by assignment on certain pergunnaliis in Dacca, Backergimge, Mymensing, and other districts, which had been regularly paid to his father while alive, and afterwards to himself. On one occasion when it had been withheld, the collector had issued perwannahs to the zemindars, who thereupon discharged the arrears. The assignment upon pergunnah Mihr, zillah Tipperah, was 20 Sicca rupees annually, and had been duly paid till Bysakh 1240 B. S. Government, bowever, having become the owner of 7 annas, 6 gundas, 2 cowrees, 2 krants of the pergunnah, by purchase at a revenue sale, and having discontinued the payment, the plaintiff brought an action for the arrears in the court of one of the district moonsiffs, and obtained a decree on the 13th June, 1845, which was reversed by the principal sudder ameen of the district on the 21st March, 1846. Consequently, he applied for the admission of a spe- cial appeal to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Tucker) : — " The amount of pensions or allowances formerly recoverable from the proprietors or farmers of lands, was included at the decennial settlement in the revenue of Government ; and, by Section V., Regulation XXIV. of 1793, claims to them were to be preferred to the collector. Their continuance or discontinuance rested with Government under Sections H. and m. of that Regulation. Such claims as were recognized, were acknowledged in sunnuds given according to Sections XI. and XII. j and in Section XVII. it was declared that no claims of the sort were cognizable in any court of judicature. " In the present case, the plaintiff sues Government as the succes- sor by purchase of the former zemindar, but, as shown above, the zemindar has no longer any connexion with the grant ;. andj even if the Government were sued, as being itself responsible, without reference to its ownership of the estate, the claim would not be cognizable ; for by the law the continuance or discontinuance of the grant rests with Government alone, and not with the courts. The petition must therefore be rejected.'' 156 SUMMAET CASES IN THE 1848. March 7. A suit for reversal of a sale of real propertyt made in execution of a decree of court, must be instituted in the district in which the pro- perty is situat- ed. BOODHAI SINGH, Petitionee. The petitioner, having purchased mouza Bishoonpore Jugdees alias Koolhooa, in zillah Sarun, sold by the collector of that district in satisfaction of the debts of Baboo Byjnath Sahoo and Gocool Das, was sued by Meer UbdooUa in zillah Patna, who claimed to have the village brought to sale for the realization of the balance of a decree which he held against the above parties, who, in an instalment bond, executed in Patna, (for which reason the plaintiff brought liis suit in that district,) had pledged the village in question for the discharge of their debt. The petitioner, objecting to the jurisdiction, appealed to the Sudder Dewanny Adawlut against the order of the principal sudder ameen, dated 20th January, 1848, for the trial of the suit in Patna. Bi/ the Court. — (Present Messrs. Tucker and Hawkins) : — " As the property under litigation is in zdlah Sarun, and its sale was held there, the institution and trial of the present suit in zdlah Patna is contrary to law and practice. The plaintiff must be nonsuited." Order accordingly. 1848. March 18. Consent to arbitration once formally given, cannot be withdrawn, on the mere allegation of one of the par- ties of unwil- lingness to abide by the award. KALEEKAUNT BIDYABACHUSPUTTEE, Petitiokee. The petitioner, who had sued Rajnarain Bhuttacharj and others, for the possession of 1 J beegah of lakhiraj land and for the stoppage of a pathway, applied for the admission of a special appeal against a decision of the principal sudder ameen of zillah Nuddea, dated 18th August, ] 847, reversing that in his favor of the moonsiff of Hunrah, dated 10th August preceding. By the Court. — (Present Mr. Hawkins) : — " The principal sudder ameen, before whom this case was pending in appeal, made it over to arbitrators, for decision, with the consent of the parties : but the petitioner, some time after the reference to the arbitrators, objected to the arrangement. However, on the return of the proceedings by the arbitrators, the principal sudder ameen disposed of the case accord- ing to their award. As the petitioner first consented, his subse- quent retraction cannot serve him, nor can his application he granted ; otherwise any one, against whom arbitrators may appear about to de- cide, will petition against their proceeding with the case, which would be opposed to the spirit and tenor of the law on the subject. Besides, the petitioner wishes to have his ikramama, given of his own free will, to abide by the decision of the arbitrators, cancelled, which can- not be allowed." Application for special appeal rejected. STJDDEE DEWANNY ADAWLUT. 157 BHURUT CHUNDER MUJOOMDAJR. and others, Petitionees. The principal sudder ameen of Jessore, having, on the 29th November, 1847, in nonsuiting the plaintiffs, in an action brought by them against certain parties, charged them with the costs of the de- fendants and an opponent in the suit, they appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — •" The petitioners pray to be relieved from costs charged against them in a regular decree ; but a summary appeal for such a purpose is inadmissible : therefore their arguments against the payment of costs cannot be taken into consideration." Petition rejected. 1848. March 22. A summary appeal does not lie against the order of costs in a decree of a regular suit. CHUNDER MADHUB CHUCKERBUTTEE, Petitioner. This was an appeal against an order of the judge of Dacca, dated 20th September, 1847, striking off the file the petitioner's appeal against the decision of the principal sudder ameen of that district, dated 3rd June, 1846, in the case noted below,* because he had not been a party to the case in the court of first instance. The petitioner, how- ever, had presented in it a petition, stating that he was the guardian of the minor, and that the suit was a collusive one to injure the latter's rights. By the Court. — (Present Mr. Hawkins) : — " The papers of the case do not show that petitioner is not guardian of the minor, whicli he appeared and represented himself to be. Inquiry should have been made into his statement, and, if proved, the case should have been disposed of in his presence. For these reasons the zillah judge will restore his appeal to the file, and pass such orders on it as may be proper, with reference to the above remarks." Order accordingly. 1848. March 22. The alleged guardianship of a minor, if dis- puted by ano- ther claimant to the office, should be in- quired into be- fore passing judgment in a case in "which such minor and his guardian may be con- cerned. KAMEEKAUNT CHATTERJEA, Petitionee. Dooegadass Rae and others were putneedars under the petition- er, who caused their putnee talook to be sold for alleged arrears, on account of 1251 Umlee, by the deputy collector of ziUah Midnapore, and bought it himself. By order of the collector, subsequently affirm- ed by the Sudder Board, the sale was reversed. The Petitioner then sued in the civil court to have the sale maintained, and to be put in possession of the talook. The decree of the principal sudder ameen, * Shibnath Chatterjea, plaintiff, versus Omasunker Biswas, himself, and as the guardian of Soorjkoomar Biswas, the minor son of Kishnakaunt Biswas defendant. ' 1848. March 25. Under the general powers vested in a col- lector by Sec- tionXXII., Re- gulation IX. of 1833, it is com- 158 SUJDIAET CASKS IN TITE petent to him dated 11th December, 1846, was in his favor, but was reversed by li ™f r^ut^ce ''^'^ ^'^'^ J^'^S" °^ *''^® ^^*'^ '^P"' fol^o"''"? = ^^ *^" applied to the tenvire by a Sudder Dewanny Adawlut for the admission of a special appeal on deputy collec- the ground that the collector was not competent to reverse a sale made *°,Jati^n^ Vni' ^y ^ '^'^P"*y collector. of 1819? ^y the Court. — (Present Mr. Tucker, Sir R. Barhw and Mr. Hawkbu) : — " According to Clause 3, Section VIII., Regulation Vin.of 1819, as modified by Section XVL, Regulation VII. of 1832, a collector can sell a putnee talook on the application of the zemindar, on proof of balance ; and by Section XXII., Regulation IX. of 1833, the orders of a deputy collector are subject to re\'ision by the collector to whom he is subordinate. In this case the collector did not consider that there were any arrears due, and this was also established to the satisfaction of the judge, so that there are no grounds for granting the application." Petition rejected. OOMAN DUTT aot GOWREE DUTT, Petitionees. 1848. This was an appeal from an order of the judge of Patna, dated 71 , 28 1 St September, 1 847, directing the petitioners to be put in possession of 176 beegahs as defined by the moonsiff of Hilsa, and 19 ^'5^^*'™ °^ other beegahs of a corresponding quality, in execution of their stayed by the decree obtained on the 18th December, 1841, against Ram Suhnee Sudder De- Singh and others. wanny Adaw- j^ appeared that on first execution of the decree, Moulvee lut, in conse- r r , r n quence of the Alee JHurreem, the auction purctiaser ot mouza Muonoona, to lands forming which the lands in dispute appertained, and Munkur Muhton and litieaUon^bcino- "'^srs, ryots, separately complained that the decree did not refer undefined in ° to the lands pointed out by the petitioners as the subject of it. the plaint and Their objections coming before the Sudder Dewanny Adawlut, an ae decree order was passed, on the 22nd November, 1846, that possession should only be given after local investigation, which having been made by the above moonsiff, under the orders of the zillah judge, and the petitioners being unwilling to take the lands adjudged to them, they appealed to the Sudder Dewanny Adawlut. Sy the Court. — (Present Mr. Hawkins) : — "Mouza Mudhoona was sold for arrears of revenue after the decree in favor of petition- ers was passed ; therefore it is doubtful if it can be executed, as the subject of dispute was the right to hold lands under a mookurruree lease granted long after the decennial settlement. Apart from this, the roobukaree of the judge does not indicate what lands the petitioners are to be put in possession of. The plaint and final decree mention only the name of the tillage and 200 beegahs wthout specification of boundaries. When the plaint is so vague and the decree so indefinite, the latter cannot possibly be executed. Although it has been pending execution for six years, it is just where it was^ Under the circumstances of so indistinct a plaint and decree, SUDDEU DEWiVNNY ADAWLUT. 139 the petitioners have no resdurce but to apply for a review of the latter ; till they do which, its execution must inevitably be stopped. In the meantime the judge's order, confirming the investigation of the moonsifF, must be set aside." Order accordmgly. BEER NURSING MULLIK and others, Heirs of BUSTUM DOSS MULLIK, Petitioners. Ltikheenaeain Mookerjea, having obtained a decree against Indra Coomaree Bebee and Nurindernath Baboo, her son, as heirs of Mohindernath Baboo, for a sum of money, sued out execution against a putnee talook, lot Ranee Bazar, which he alleged to be the property of Mohindernath Baboo, deceased, the husband of Indra Coomaree, and which he prayed might be sold in realization of the sum due to him under the decree. He was first opposed by one Deep Chunder, who asserted he had purchased the talook by private sale. Deep Chunder's claim was rejected, and then he brought a regular suit to establish his right and to stay the sale. Pending this suit, the putnee was sold under Regulation VIII. of 1819, for arrears of the zemindar's rent, and purchased by one HuUodhur Chowdree for and on accout of his master, Bustum Doss Mullik. A suit was then brought by Lukheenarain Mookerjea against Indra Coomaree, Nurindernath, Deep Chunder, and Hullodhur Chowdree, with a view of proving that the sale was altogether fictitious, and that no transfer of property had thereby ensued. The plaintiff prayed that the sale might be cancelled, and the talook sold in execution of his decree. The principal sudder ameen dismissed the plaint ; but, on appeal, the judge, considering the facts stated to be fully established, directed that the sale be cancelled, and that the talook be considered the pro- perty of Mohindernath Baboo, and be sold in execution of the decree obtained by Lukheenarain Mookerjea. Application for permission to file a special appeal was then made to this Court, on the ground of the illegality of the judge's order cancelling a sale made under Regulation VIII. of 1819, for the recovery of arrears of rent due to the zemindar, — said zemindar not being a party to the suit. By the Court. — (Present Mr. C. Tucker, Sir R. Barloio, and Mr. Hawkins) : — " When the judge decreed that the property was still to be considered that of Mohindernath Baboo, and answerable for his debts, it was unnecessary to decree, at the same time, the reversal of the sale ; more especially if the forms of law required that the zemindar, who caused the sale, should have been made a party to the suit, ere such an order could legally have been passed. As, how- ever, that part of the judge's decree makes no difference in the final disposal of the case, we treat it as so much surplusage, and reject the application for a special appeal." 1848. April 22. Application for a special appeal rejected, notwithstand- ing the illega- lity of the judge's order appealed a- gainst ; such illegality not affecting the final disposal of the case. 160 SUMMARY CASES IN THE 18-18. April 24. Objections by a third par- ty, to his lands being included by an order of court in lands the subject of a suit between two other par- ties, should be preferred in a regular appeal from the final decree, and not summarily as from an inter- locutory order. RAM GOPAL SURMA and others, Petitioners. Maharaja Kishenkishore Manik, Bahadoor had sued Mussamut Chunder Kulla Chowdrain, in the court of the principal sudder ameen of ziUah Tipperah, to have the assessment fixed on certain lands, when the petitioners complained that the ameens, who had been deputed to make the necessary measurement had included in it certain laTthiraj and neej-jote lands belonging to them. The principal sudder ameen accordingly, by an order dated 28 th January, 1848, directed the exclusion of only a portion of the lands claimed. Failing to obtain the release of the whole, the petitioners appealed summarily to the Sudder Dewarmy Adawlut. By the Court. — (Present Mr. Hawkins) : — " If the principal sudder ameen had given the order, which he passed on the 28th Janu- ary, on the decision of the case, the only resource left to the petition- ers would have been a regular appeal. As the lands claimed by them have become, by that order, a portion of the property in dispute, a summary appeal is inadmissible. The present appeal must therefore be rejected. On a final decree being given, the petitioners will be at Hberty to prefer a regular appeal." Order accordingly. 1848. May 27, The general rules for deli- vering posses- sion under or- ders of court apply to cases under Act XIX, of 1841, FATIMA KHANUM, Petitioner. The judge of the 24 Pergimnahs, on the 12th August, 1847, awarded to the petitioner, under Act XIX. of 1841, a certain share in the effects and property left by Boo Ullee, her deceased brother, but as part of them were locked up in a room the key of which was with Mussamut Shurifun, an opposing claimant, he had, on the 16th March, 1848, refused to deliver them into her possession, on the ground that forcible possession could only be given after a decree in a regular suit. Dissatisfied with this order, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — f Present Mr. Tucker, Sir R. Barlow, and Mr. Hawkins): — " Section TV., Act XIX. of 1841, provides for delivering the property of parties deceased into the possession of those entitled to it ; and whatever powers may be exercised, under the general regulations, in cases of delivering possession, may be legally employed to put the applicant in possession in the present instance. The order of the judge appealed against must be reversed." Order accordingly. 1848 SHUFAUTOOLLAH, Petitioner. Maria Babonau had obtained in the civil court of the 24 Per- gunnahs a decree against Louis DaCosta, for rupees 2,500 due on a On her death, Eliza Martin and others, her children They June 6. - ,_ e 1 1 note ot hand, A title, dis- and heirs, applied for leave to take out execution of it, puted on cial grounds, -.v-i ■,' - . . ^ cannot sum- Mahomedanj had been married to hiirij and left him her property by -^P®" opposed by the petitioner, who stated that the deceased, after turning SUDDEB DEWANNY ADAWLUT. 161 will, which had been established in a case decided by the judge on the marily avail 13th January, 1847. Upon this, the principal sudder ameen of the against the district, on the 29th July, 1847, stayed execution of the decree till the of heirship respective rights of the parties should be adjusted in a regular suit, striking the case of execution, at the same time, off the file ; but his order was reversed by the judge, on the 7th March, 1848, who decided in favor of the right of the heirs at law to enforce the judgment, and referred the petitioner to a regular suit. Dissatisfied with this order, he appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " The petitioner urges a special plea in support of his claim. In the decree, dated 13th January, 1847, on which he relies, there was no decision on the particular title advanced by him ; and until he judicially establishes it, it cannot be acknowledged. The judge's order, recognising the right of the heirs to take out execution, is correct, and must be upheld." Order accordingly. KOONJBEHAEEE SINGH and RAMCHURN SINGH AND OTHERS, PETITIONEES. 1 Cliotee Singli, and others, 2 Hurree Singh, and others. 3 Petitioners. 4 Durgonj Singh. 6 Miteqeet Singli. On the death of Musst. Tej Ranee, five parties* presented them- selves to the judge of Bhaugulpore as her legal heirs, with applications under Act XIX. of 1841, each claiming the right of succession to her property : of whom the judge recognized Chotee Singh, Keerpa Singh, Gopal Singh, Jhoomuk Singh, Hurree Singh, and Koonjbeharee Singh as the heirs, and, on the 28th March, 1848, ordered that they should be put in possession, on condition of adjusting their respective shares amicably, otherwise the property would be at- tached and a manager appointed. Afterwards, on the 1 3th April, on their representing that they had been unable to arrange their differences, he directed that possession should be delivered to that party who should furnish security to the amount of rupees 50,000 within 14 days. Thereupon the petitioners appealed to the Sudder Dewanny Adawlut. Bi/ the Court. — (Present Mr. Hawkins) : — " Act XIX. of 1841 requires the courts to pronounce upon the claims of parties seeking to succeed to the property of any one deceased, and to put the party entitled in possession ; and, pending the investigation, a curator may be appointed under Section V. of the Act. But, in this case, the orders of the Judge to the individuals who had in his opinion established their rights, first to adjust their shares, or a manager would be appointed, and then his declaration to put any one of them in possession on giving security, are opposed to the law. He should have inquired which of the several claimants had the best title, and put him in possession. Both the orders of the judge, dated 28th March, and 13th April, must be reversed. He must deliver possession to the party who establishes the best right to it ; and, in the mean time, he may, if he sees fit, appoint some one as manager." 1848. June 5. Conflicting claims to the property of a deceased per- son, under Act XIX. of 1841, must be decided by the courts, and possession given to the party having the best title. 162 SUJIM.UlY CASES IN THE 1818. June 12. It is illegal to issue a procla- mation in bar of alienation of property pendente litej before requir- ing security from the de- fendant. GOBIND PERSHAD KHAN and anothek, Petitioners. In a suit brought by petitioners against Raja Hurrinder Na- rain Rae, for property left by Ranee Bhoobun Mye Debea, deceas- ed, which the defendant had been put in possession of under Act XIX. of 1841, they applied to the principal sudder ameen of ziEah Rajshahye, for its attachment under Regulation II. of 1806, on the ground that he was disposing of it. The principal sudder ameen, however, only issued a proclamation forbidding its alienation. Dis- satisfied with that order, the petitioners appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " If there be reason to suspect alienation of property while a suit is pending in court for it, security within a certain time ought first to be demanded ; and, if not given, a proclamation to bar its transfer should be issued, or, if need be, attachment by means of the collector may be had recourse to. In the present instance, the procedure of the principal sudder ameen at once by proclamation is improper, on which account his order must be reversed. If there be ground to apprehend that the defendant is about to dispose of his property, security should first be required from him as above explained ; and, if not given, the princi- pal sudder ameen may proceed according to Clauses 1 and 2, Section v.. Regulation IT. of 1806." Order reversed. 1848. June 12, Claims to property sold in satisfaction of a decree, if not advanced before the sale, cannot be en- tertained sum- marily, merely because prefer- red -within one month after it. lilOTEE LALL, Petitionee. The village of Purusram Koonwur, in zillah Sarun, the property of Musst. Bad Koonwur, having been sold, and bought by the peti- tioner on the 23rd May, 1846, in satisfaction of a decree obtained against her by Ram Suhae Singh and others, the sale was after- wards reversed by the principal sudder ameen, on the 30th July, 1847, and by the zjBah judge, in appeal, on the 29th February, 1848, in consequence of objections to it having been preferred, within one month from the date of sale, by one Pakhee Singh, on the ground that he was in occupancy of the village in virtue of a deed from the judgment debtor, dated 29th July, 1845. The petitioner then appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " The reason as- signed by the principal sudder ameen for reversing the sale, that it had been objected to vrithin one month, is only applicable when a sale is impugned on the score of irregularity or informality, as laid down in Section V., Regulation VII. of 1825, not when exception is taken to it under Sections III. and IV, of that Regulation ; but it is plain that no objections were offered previous to the sale. Such as are now made, cannot be attended to summarily, but only in a regular suit. The orders of the lower courts must be reversed, and the sale upheld." Order accordingly. SUDDEE CEWANNY ADAWLUT. 163 MOHUNT NARAIN DOSS, Petitionee. The petitioner objected to an order of the judge of Mymensin-r, dated 16th February, 1848, affirming that of the principal sudder ameen of the district, dated 28th August, 1847, awarding to H. Arathoon, husband of Bebee Catharina, possession of 51 poorahs, 6 arrahs, and 8 cottahs of land, as what had been defined by an ameen to be that which had been mapped, and included in a decree obtained by him and others against the petitioner and others. It was alleged that formerly 36 poorahs, 7 arrahs, 6 cottahs had been measured as what was due to the decree-holders, and the land now given them extended beyond the ShausnuUah, which was the south boundary of the land in dispute. By the Court. — (Present Mr. Hawkins) : — " The judge con- siders that the lands, as defined by the ameen, correspond with the boundaries of the land in dispute as laid down in the map embodied in the decree. It is right that the decree-holders should receive possession according to that map. The petitioner objects that it shows the south boundary to be the ShausnuUah ; but there is a difference between the parties where that nullah is. However, this is a question to be determined by the judge ; and his decision on the point being final, does not admit of a special appeal,* nor is the excess of land any reason for altering the map." Petition rejected. 18'i8. June 19. The boun- daries men- tioned in a de- cree, and not the exact quantity by- subsequent measurement, indicate the identity of the lands, of which possession is to be given to a decree- holder. The summa- ry decision of a lower appel- late court, on a question of fact, is not open to a spe- cial appeal. MAHOMED KAZIM and othees. Petitionees. Mahomed Zueeef and others, having obtained a decree against the petitioners, in the court of the principal sudder ameen of Dacca, on the 11th November, 1847, the latter appealed to the judge of the district ; but, failing to file their grounds . of appeal within six weeks afterwards, the case was, on the 24th February, 1848, struck off for default under Act XXIX. of 1841, although they pleaded illness and the death of one of their vakeels in excuse of their conduct. Li consequence, they appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — "Neither iUnessnor the death of any one not a party in the case, can bar the penalty of default under Act XXIX. of 1841, but, if proved, may justify default under Act XVI. of 1845. The latter law, however, does not admit an appeal from an order under the former. It only autho- rises the court, in which default was incurred, to restore a case to the file. The petitioners are allowed one month to present a petition in the zillah court under Act XVI. of 1845 ; and, if dissatisfied with the order passed, they can hereafter appeal to the Sudder Dewanny Adawlut." Petition rejected. * See Resolution of the Sudder Dewanny Adawlut, dated 12th December, 1845. 1848. June 19. The grounds, which Act XVI. of 1845, admits in justi- fication of de- fault, cannot be pleaded in appeal from an order of dis- missal on de- fault under Act XXIX. of 1841. 164 SUMMARY CASES IK THE 1848. July 18. If land be claimed by the parties to a stut as apper- taining to their respective dis- tricts, refer- ence should be made to the Sudder De- wanny Adaw- lut to decide in -which the trial is to be held. RAE IIUREEKISHEN and others Petitioners. The petitioners instituted a suit before the principal sudder ameen of ziUah Patna, for possession of 287 beegahs of land, which they claimed as belonging to Sydabad Deearah, their property within the above district, against Roushun Singh and others, the maliks of mouza Mohunpore, in zillah Tirhoot, for which, including the dis- puted lands, a settlement had been made by the revenue officers with the defendants. These having objected that the suit was not cog- nizable in zillah Patna, because the subject of action and their own home was in zillah Tirhoot, the principal sudder ameen, on the 24th March, 1848, nonsuited the plaintifFs, who accordingly appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. HawMns) : — " As the plaintifFs claimed the land as appertaining to their estate within the district of Patna, it would have been inconsistent their suing for it in zillah Tirhoot. Under the circumstances of doubt as to which of the districts the land was in, the principal sudder ameen should have asked this Court where the trial should be held. He will follow this course now." Order reversed. 1848. July 24. A summary appeal does not lie from an order, disal- lowing objec- tions to the trial of a suit on the ground that another suit had been instituted else- where for the same subject of action. ABHEECHUEN MOOKERJEA, Petitionek. The petitioner, having been sued in the court of the principal sudder ameen of the 24 Pergunnahs, by Colonel Edward Garstin, as executor of Mr. Sutherland, deceased, to recover from him half the amount of a decree in which he and Mr. Sutherland were alleged co- sharers, objected that a separate suit had been brought against him by the plaintiff in the Supreme Court for the same and other matters arising out of theirjoint trading transactions, and that this was there- fore a second suit for the same subject of action. Nevertheless the principal sudder ameen determined to entertain it. Dissatisfied with the order to this effect, dated the 13th April, 1848, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present 3Ir. Hawk ins J : — "The petitioner's objection should be preferred in a regular appeal after decision of the suit, and not summarily when it is stUl pending." Petition rejected. 1848. August 12. Constructions Nos. 607 and 809 regarding BISHEN DYAL SINGH, Petitioner. This was an appeal from an order of the 29th Januarj- passed by the judge of zillah Shahabad, forbidding the petitioner to practise any longer as mookhtar in his and the subordinate courts. By the Court. — (Present Mr. Hawkins) : — " The judge cannot pass such an order. It is true that magistrates possess the power of SUDDEK DEWANNT ADAWLUT. 165 dismissing a mookhtar ; but in their courts he is in appearance for a party, and comes into contact with the court. This is not the case in a civd court, the judge of which has no authority to prevent parties employing whom they like as mookhtar ; but should a mookhtar miscon- duct himself, he can be debarred from going into the record office. The judge's order must therefore be modified. He may interdict the petitioner from the record office, but not in such a way as to prevent his entering the open court." Order accordingly. mookhtars are inapplicable to tlie civil courts. MAHARAJA HETNAEAIN SINGH, Petitioner. The petitioner having sued Tewaree Lall, with others, in the court of the principal sudder ameen of zillah Behar, for Company's rupees 25,333-11-4, principal and interest, applied for a proclamation to be issued under Regulation Tl. of 1806, to prevent the alienation of 4 annas of Gopalgunge, the property of Tewaree Lall. This was ob- jected to by Dona Kooer, KaUeeka Peearee, and Ram Gholam Singh, who set up various claims in assertion of the property in question being theirs. Accordingly the principal sudder ameen, on the 2nd May, 1848, rejected the petitioner's application. He then appealed to the Sudder Dewanny Adawlut. Sy the Court. — (Present Mr. Hawkins) : — " The petitioner has applied for the attachment of Tewaree Lall's property, and shown that its aliSnation is intended. In such case the law requires the courts to demand security from a. defendant, and, if not given, to forbid aliena- tion of his property. In the present instance, the principal sudder ameen, instead of issuing the proclamation of attachment, has unneces- sarily inquired into claims to the property, which should not have been investigated until execution of the decree, if passed in plaintiff's favor : but a proclamation under Regulation II. of 1806, cannot affect the claimants' rights, if established by them. In reversal, therefore, of the principal sudder ameen's order, he will issue the proclamation after fulfilment by the plaintiff of the conditions of Section V., Regulation II. of 1806. Should a sale of the property be applied for in execution of the decree, the claims of the opposing parties must then be inquired into." Order accordingly. 1848. August 21. It is unne- cessary to in- quire into claims to pro- perty before issuing procla- mation in bar of its aliena- tion under Re- gulation II. of 1806. CHOWDREE DOWLUT SINGH, Petitionee. A DECREE obtained by Doolub Buksh and Lall Dee against Khajeh 1848. Mokeera Khan and others, in zillah Bhaugulpore, was about to be carried Sentemb • 4 into execution, when the petitioner, on the 28th September, 1842, obtained two decrees against the decree-holders, which were to be sa- ^j^g j's'"?nad- tisfied from the decree in their favor. Afterwards he petitioned the missible be- principal sudder ameen, on the 20th June, 1845, representing that the t^^een parties above parties projected a compromise, and he obtained an order for a execution^ of 166 SUMMARY CASES IN THE decree, if the decree-holder in it be a judg- ment debtor in another case, to satisfy the claim against bim in -which his decree is judicially as- signed. notification in bar of it. Subsequently, on the 26th July, 1847, he filed a list of property belonging to Khajeh Mokeem Klian and others, from which to satisfy his claim ; but the principal sudder ameen struck his case of execution off the file, as a razeenama had been filed by Doolub Buksh and his co-plaintifF. The petitioner then appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Hawkins) : — " As the decrees obtained by petitioner directed their satisfaction irom the decree in fa- vor of Doolub Buksh and LaU Dee against Khajeh Mokeem Khan and others, any arrangement between these parties resembles an aliena- tion of property after attachment by the court, and their compromise cannot be allowed until the petitioner's claim against Doolub Buksh and his co-plaintiiF be satisfied. In reversal therefore of the principal sudder ameen's order, he wiU restore the petitioner's case to the file, for execution as indicated in the decrees." 1848. September 11. The represen- tative (whether male or female) of a party under Section III., Act XIX. of 1841, must per- sonally make, in open court, the solemn de- claration re- qiiired by the 3rd Section of that law. MUSST. BAMA SOONDREE DASSEA Petitioner. The petitioner, who made her application in behalf of her minor son, applied for a review of judgment as regarded orders of the Sud- der Dewanny Adawlut, dated 1 1th September, 1847,* and 17th April, 1848, requiring her personal appearance in court to make the solemn declaration according to Section HI., Act XIX. of 1841, and prayed that she might be examined by commission instead. The question, whether her personal attendance could be dispensed with, having been referred for the opinion of the Western Court, it was held, by a ma- jority of the judges of that and of the Presidency Court, that it was necessary for her to appear in court before she could obtain the order for possession. Her application was therefore rejected. 1848. November 20. An interlocu- tory order in regard to the investigation of a pending suit is not appeal- able. SHAM LALL JHA and others. Petitionees. This was an appeal from an order of the judge of, Tirhoot, dated the 11th July, 1848, reversing an order of the principal sudder ameen of the district, dated 1 3th March preceding, directing the deputation of a second ameen to inquire into the amount of mesne profits enjoyed by the petitioners, for the recovery of which they had been sued by Balmokoond Dass, plaintiff. By the Court. — (Present Mr. Hawkins) : — " It appears that the petitioners, dissatisfied with the investigation of the first ameen, applied to the principal sudder ameen for the deputation of a second one, which was directed ; but on appeal to the zillah judge, the order * See the case of Chunder Seekur Bose and others, petitioners, page 140, of this edition, but see case at page 643, Sadder Dewanny Decisions, 10th September, 1851. SUDDEE DEWANNT ADAWLUT 167 to sucli effect was reversed. The judge should not have interfered in the suit while pending, as it rested with the principal sudder ameen to make such inquiries as he deemed necessaiy for its determination — afterwards, whichever party objected to the decision could appeal." Order revei'sed. BUNWAEEE LAL, Petitionee, The petitioner's suit against Bebee Noor Jan and others, to uphold the award of arbitrators, and for possession of land with mesne profits, in reversal of the order of the superintendent of survey, having been dismissed by the principal sudder ameen of Sarun, on the 14th March, 1848, the order to that effect, having been appealed against, was altered by the zUIah judge on the 25th May following, who con- sidered that the plaintiff should have been nonsuited, as no action could lie to confirm an arbitration award under Regulation IX. of 1833, and the suit should have been brought only for the possession of the land claimed. The petitioner then appealed to the Sudder Dewanny Adawlut against the order of nonsuit by the judge. By the Court. — (Present Mr. Hawkins): — " As the suit em- braces both a claim of right to the land in dispute and the confirmation of an arbitration award, and the revenue authorities can, by Section VIII., Regulation IX. of 1833, appoint another punchayut, the judge's order nonsfliting plaintiff is quite correct. He can only sue for posses- sion of the land, and to reverse the decision of the superintendent of survey as declared by the judge." Petition rejected. 1848. December 26. A suit cannot be brought to give effect to the awai'd of a punchayut un- der Regulation IX. of 1833, which has been overniled by the revenue authorities. GOSSAIN BHUNJUN GEER, Petitionee. The petitioner, defendant in a case before the principal sudder ameen of Shahabad, having applied to the judge to remove it to his own file, because a document connected with it had been attested by the principal sudder ameen as cazee, the judge, on the 13th July, 1848, refused his request, on the ground that the document was not disputed by either party. By the Court. — (Present, Sir R. Barlow, Bart, Mr. Jackson, and Mr. Hawkins J : — " The petitioner in support of his objection to the trial of the case by the principal sudder ameen, cites as a precedent the decision of this court, dated 28th August, 1847, in the case of Musst. Wuzeerun, petitioner, but the order in it had refer- ence to the special nature of it, and was not intended for a general rule, nor is a principal sudder ameen debarred from trying a suit because a deed filed in it was attested by him as cazee." Petition rejected. 1848. December 30. A principal sudder ameen is not debarred from trying a suit, because a deed filed in it had been at- tested by him as cazee. 168 SUMMARY CASES IN THE 1849. January 3. The authority of the Sudder Dewanny A- dawlut to re- ceive appeals in matters relating to the Tributary Mehals in Cuttack, is restricted to claims to the right of in- heritance or succession. MUSST. KUMLA DE, Mother and Guarbian of SREE RAJA GUDDADHUR NARAIN BUNJ, a Minor. This was an appeal from an order of the Superintendent of Tributary Mehals in Cuttack, dated 22nd September, 1848, directing the attachment of certain lands belonging to the minor's raj, regard- ing which there was a dispute. By the Court. — (Present Mr. Hawkins) : — " By Section XI., Regulation XI. of 1816, the Sudder Dewanny Adawlut can only receive appeals in the cases described in Section II., of the Regula- tion ; as this is not of their nature, the Court cannot interfere." Petition rejected. 1849. March 6. A decree having been given against a defendant, his heir cannot be arrested or im- prisoned in execution of that decree, without previous issue of notice. Clause 8, Sec- tion XV., Re- gulationXXVI. of 1814, and Section VII., Regulation VII. of 1825. BTKATJNTNAUTH MULLICK, Petitioner, Raja MAHTABCHUNDtnR Bahadoor, on the 2nd July, 1844, sued Shama Dassea, the widow, Sowdamoney Dassea, &c., the daughters of Muthoornauth MuUick, and Kishen Soondree Dassea, the widow of Sreenauth Mullick, also Motee Lai Seal, and Jovgo- paul Roy, attorneys on behalf of Bykauntnauth MulKck, Umretnauth MuUick, Debendemath Mullick, and Rajendemauth Mullick, the four minor sons of Sreenauth Mullick, to recover the sum of rupees 1,85,600, with interest due on a bond executed by Muthoornauth Mullick, on the 25th Bysakh 1239 B. S., on the security of Sreenauth Mullick. The principal sudder ameen of East Burdwan, on the 1st July, 1845, decreed the case in favor of plaintiff against Shama Dassea, the widow of Muthoornauth Mullick, and Kishen Soondree Dassea, the mother of Bykauntnauth Mullick, &c., the four minor sons of Sree- nauth Mullick ; the other defendants were released from the claim. Bykauntnauth, the petitioner, having attained his majority, was arrest- ed on account of the decree, by order of the principal sudder ameen, dated 13th January, 1848, issued on the application of the plaintiff, and his objection that the decree could not be executed against him without previous service of notice under Clause 8, Section XV., Regulation XXVI. of 1814, was overruled by the principal sudder ameen on the 17th November following. He then appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Jackson) : — " It appears that the decree was passed against the mother of the petitioner and not against the petitioner, nor against his mother as his guardian. Under these circumstances the principal sudder ameen's order for his arrest and imprisonment in execution of the decree without service of notice upon him according to Clause 8, Section XV., Regulation XXVI. of 1814, and Section YU., Regulation VII. of 1825, was illegal." Order reversed. SUDDER DEWANNT ADAWLDT. 169 SOOBEH PERTHEELALL JHA and two otiiees, Petitionees. This^ was a suit for possession of real and personal property esti- mated at Company's rupees 37,47,734-2-7 pies, instituted in Tirhoot by the petitioners (plaintiffs) against Kajee Heeralall Jha and others, on the 21st July, 1848, in which Kaloo Kliowas, one of the defen- dants, petitioned, that under Section II., Regulation XIV. of 1829, the suit should not be proceeded with, as the plaintiffs, residents of a foreign state, (Nepal,) had not furnished security for the costs of the suit within six weeks from the date of its institution. The plaintiffs pleaded that as no security was required from them by the court, they had not offered any. The additional principal sudder ameen held, that Section H., Regulation XIV. of 1829, did not mean that the se- curity there prescribed, should be filed only on being called for by the court ; and as the plaintiffs had not given security for costs within the period of six weeks from the date of the order for serving notice on the defendants, he struck the case off the file. From his order to this effect, which was passed on the 2nd February, 1849, the petition- ers appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Jackson) : — " There are no suffi- cient grounds for interfetinc; with the order of the zillah court." Petition rejected. 1849. May 16. The security, required by Section II,, Regulation XIV. of 1829, must be fur- nished without being called for by the Court. MUSST. URNOPOORNA DASSEA, widow of GOLUCK- NAUTH BOSE, Petitionee. This was a claim on the part of a Hindu widow to obtain posses- sion of her late husband's estate, under the terms of a will, appointing her executrix, and authorising her to adopt a son : she had not yet adopted a son, but she claimed her rights under the will, what- ever they might be, either as vested by that will in her personally, or as a viidow having power to adopt. The principal sudder ameen of zillah 24 Pergunnahs nonsuited the plaintiff, with reference to the * Beejayah Debea Chowdi-ain, mo- - - ther and guardian of Nubeen Chun- der Chowdree, and the Collector for the Court of Wards, Appellants, (De- fendants,) versus Shama Soondree Debea Chowdrain, mother of Beeroje Chunder Chow- di-ee, deceased, her minor son, Res- pondent, (Plaintiff.) precedent printed at page 762, of the Sudder Decisions for August, 1848, in the case noted in the margin.* From this order, which was dated the 12th April, 1849, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Jackson) : — " The petitioner has a richt to a distinct judgment on her claim ; the precedent cited shows that she can claim nothing on the part of a son who is yet to to be adopted, and so far it appUes, but her own claim under the will to possession as executrix, and to legacies, or inheritance, or any other rights, which the terms of the will may confer upon her, ought X 1849. June 18. A Hindu widow, with authority by will from her husband to adopt a son, may sue for her own personal rights under the wiLl, although she has not yet exercised the power to adopt. 170 STJimvrAEY CASES IN THE to be investigated and determined, and the right, if any, awarded to her ; there is no ground for nonsuit." The case was accordingly returned to the principal sudder ameen, with ojders to try it on its merits.* 1849. July 16. A decree against a Hindu widow cannot be exe- cuted against her son*s family estate unless the decree spe- cially declare the estate to be liable. * Gooroochum Naug, petitioner 22nd April 1843, Maharajah Gobind, Chuuder Roy, petitioner, 25th April, 1832- RAJA HURINDERNARAIN ROY, Petitioner. In execution of a decree obtained by Gopee Kishwur Dutt, against Ranee Bhoobun Mye Debea, a certain estate was advertised for sale on the 3rd July, 1848. The petitioner alleged that the estate was his paternal property, and could not be sold to satisfy a debt contracted by his mother, the judgment debtor. He filed two precedents of the Sudder De- wanny Adawlut noted in the margin,* with reference to which the principal sudder ameen of zillah Mymensing, "on the 28th of August, 1848, declared the land not liable to sale. On appeal the judge, on the 17th March, 1849, reversed the principal sudder ameen's order, because it was mentioned in the kistbundee, or instalment bond, upon which the case was decided, that the money was borrowed by Ranee Bhoobun Mye Debea to pay the revenue due on the estate. He was of opinion that, under these circumstances, the estate could be sold. By the Court. — (Present Mr. Jackson) : — " The decree is against the Ranee herself, not as guardian of the petitioner, then a minor. The Ranee had only a life interest as widow, and the family property is not liable to sale for her personal debts. Whether this was originally a personal debt, has not been judicially determined ; but the decree, as it stands, is against the Ranee personally, and can issue only against her and her heirs ; the petitioner is not her heir, and the family property is not her property : nor can this property be held liable until a decree is given against it. The judge's order is therefore reverse^." 1849. July 25. The owners of an indigo factory were held Uable for debts contract- ed on its ac- count by their local managers, GEORGE ASHBURNER, Petitioner. This was an application for the admission of a special appeal from the decision of the judge of Dacca, dated 9th February, 1849, in a case in which Bulram Potdar and others were plaintiffs, versus Mackintyre and Co. and others, defendants. The plai:itiffs had advanced money to the managing agents of an indigo factory belonging to Messrs. Mackintyre and Co., of Calcutta, * See cose of Bamun Das Mookerjea, &c., page 533, Sudder Dewanny Deci- sions for September, 1850. SUDDER DEAVANNY ADAWLUT. 171 on a bill drawn by them on the owners. On presentation, the bill was dishonored, the plaintiffs therefore sued the agents and the owners for the amount. The judge, in his decree, said : — " It is clearly proved that Messrs. Mackintyre and Co. were the proprietors of the Serajgunge concern ; that Messrs. Martin and Imbert were their managing agents ; that they had drawn on this occasion for the benefit of the concern ; and that the house received the indigo produce for 1843." The advance, it is to be observed, was made for the purpose of carrying on the factory for 1843. The judge accordingly affirmed the decision of the principal sudder ameen, dated 29th April, 1847, in favor of the plaintiffs. From the judge's order Mr. Ashburner, on the part of Messrs. Maf - kmtyre and Co. presented an application of special appeal to the Sud- der Dewanny Adawlut. He urged that they were not liable for the amount of the bill, because the agents had no authority to draw the bill ; that the agents, as drawers, were liable, but not the parties drawn on. He stated that he did not object to a decree being given against the Lidigo concern, but denied that the owners were responsible personally. By the Court. — (Present Mr. Jackson) : — " The facts are not open to question in special appeal. As a general rule, a principal is liable for the acts of his agent, in so far as such acts are comiected with his agency, and are done for the benefit and interest of the principal. In this case the money was advanced to the agents on tlie faith of past transactions upon their bills ; they had been in the habit of draw- ing such bills, and the owners had been in the habit of honoring them : this proves the nature of the agency. It is objected that the acents exceeded their limit in drawing this bill ; but this could not be known to the party advancing the money ; and as it is further es- tablished that the house received the produce of the factory for the year for which the money was borrowed, it appears to me that the debt is justly and equitably due by the owners, and that their refusal to pay is contrary to the established principles of fair commercial transactions. I see no reason to admit a special appeal." Petition rejected. who were prov- ed to have been recognized by the owners as their general agents, forrais- ing money for the factory and drawing bills on the owners in CaicuttEfin the com'se of pre- vious transac- tions. GEORGE LAMB, Petitioner. The petitioner was a decree-holder. The officer employed in executing the decree, reported that he was resisted in his duty. The judge, on inquiring, considered the charge of resistance of process not proved, and, therefore, released the parties accused. From the judge's order, which was dated 25th April, 1849, the petitioner ap- pealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Jackson) : — " This appeal is ■ brought, not by the peada, or officer employed, but by the decree- holder. It IS obvious that he was no party to the case of resistance 1849. October 29. An appeal does not lie against an or- der of acquittal of parties, charged with resistance of process. 172 SUMMAEY CASES IN THE of process, and cannot be heard ; in fact, as a case of resistance of process is of a criminal nature, I consider the principle of Section IV., Act XXXI. of 1841, applicable to it, and that the accused, having been acquitted, this court has no power to interfere." Petition rejected. 1850. February 20. A certificate, xmder Act XX. of 1841, can be granted for the share of an un- divided proper- ty as for tbe separate estate of a deceased person. A certificate should not be granted upon the ground only of posses- sion, but upon proof of the best title * LUBTJNGMOONJUREEE DEBEA, Petitioner. The petitioner was tlie widow of the late Kliitterpaul Singh Roy, after whose death, on the 14th September, 1849, his grand uncle, Huree Singh Roy, and his second cousin, Umbicapersaud Singh I4py, presented an application to the judge of East Burdwan, on the 24th October following, for a certificate under the provisions of Regu- lation XX. of 1841, to enable them to realize a debt of rupees 500 due to the estate of the deceased, alleging that there was a will made by the deceased in their favor, and in virtue of which they were in possession of the property of the deceased. The petitioner opposed the application, on the ground that she was the rightful heir, and stated that her husband had authorised her to adopt a son; that the will produced by them was a forgery ; that her husband and his relatives lived separately ; and that the bulk of the landed property was not held in joint tenancy. The zillah judge passed an order that the certificate applied for should be 'granted to Huree Singh Roy and Umbicapersaud Singh Roy, as they were in possession of the property of the deceased. From this order,, which was dated the 25th January, 1850, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Sir R. Barlow, Bart., and Messrs. Colvin and Dunbar J : — " Two points have been discussed in the argument on this case — " First. — Can a certificate, under Act XX. of 1841, be granted for a share of an undivided estate ? " Secondly. — What is the title or right upon proof of which a certificate is to be granted under that Act ? " On the first point, we are satisfied, after full consideration, that a certificate under the Act can be granted for the share of an undivided property as for the separate estate of a, deceased person. In the former case, the certificate would convey no more than the right to collect the debts due to the estate of the deceased, according to his share in the undivided property ; but there is nothing, either in the terms or spirit of the Act, which should debar such an estate, any more than a separate estate, from the benefit of its provisions. The certificate -holder would stand in relation to debtors to all the sharers of the joint family, in exactly the same position as that in which the deceased stood in his lifetime. " On the second point, we are of opinion that the judge was in error in restricting his investigation and order to the ground of title by possession only. It was his duty to go into all grounds of title, *.SeeActX, of ISol. SDDDER DEWAUNY ADAAVLUT. 173 and to give his award in favor of the party vfho might appear, after such inquiry, to have the best right to the certificate (Section II.) By any other course, there would be both a gratuitous narrowing of the plain terms of the law, and the risk of serious injustice from the doubtful nature of evidence as to mere possession, in a case such as this where the possession is not immediate, of the land or of other tangible property, but by means chiefly of the collection of rents from inferior tenants. " The order of the judge is, therefore, cancelled, and the papers returned, in order that he may decide on the application of Umbica- persaud and Huree Singh and on the claims of all other parties before him, after due inquiry on the point of right, as above laid down." To the above Sir R. Barlow, added the following opinion : " I would, on my own part, add, in concuiTence with my colleagues, the following minute : " The argument of the applicant is, that flie provisions of Act XX. of 1841, do not apply to joint estates. The applicant admits that the estate in dispute is joint, and we hold the law does apply equally to joint as to separate estates, there being no specific limitation restricting it to separate estates. " The applicants must first make good their case : the judge has confined his inquiry and grounds his order on possession only, and, at tlie same time, declares his incompetency to investigate title. Now, Section II., Act. XX. of 1841, prescribes — the applicant in his peti- tion must set forth his title, and by Section V., the Sudder Dewanny Adawlut may direct such further proceedings tor the investigation of the title, as it shall think fit. The case must be remanded as above indicated." Ordered accordingly. SYED JAFUE, ALEE, Petitionee. Kalee Churn Bose purchased a decree obtained by Motee Soondree Dassee, against Meer Kubeer Ilossein, in execution of which certain lands were sold. The petitioner urged that the property should not have been sold for thirty days after hanging up the proclamation. Its sale, however, had taken place witliin tliirty days from that date. The additional judge of zillah Behar rejected the petitioner's petition, on the ground that his objection regarding the irregularity of the sale was inadmissible, under paragraph 5 of the Circular Order, dated the 17th July, 1846. From this order, which was dated the 3rd August, 1849, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Sir B. Barlow, Bart., and Messrs. Colvin atid Dunbar J : — " In this case the objection has beea first taken against the right of the petitioner to appear in Court, that it is not competent to a party, whose claim of right to property has been 1850. March 20. A claimant, fozurdar) whose claim of right to pro- perty advertis- ed for sale has been refused, but without any proof of evident fraudu- lent design, may neverthe- less appeal upon the ground of iiTc- gularilies in the sale ultimately held. 174 SUMMAEY GASES IN THE The thirty days allowed by paragraph 5, of Circular Order No. 135, dated 17th July, 1S46, must be thirty cl^ar days, exclusive of the day of putting up the proclamation in the mofussil and of the day of sale. refused hearing upon application under Clause 5, Section III., Re- gulation VII. of 1825, to appeal on the point of irregularities in the sale ultimately made, under Clause 2, Section V. of the same law. We do not see, however, that there has been any finding on the part of the additional judge of evident fraudulent ' design' under Clause 6, Section III. of the law. And, as there is no restriction under Clause 2, Section V., limiting the right of appeal generally to any particular party, we are of opinion that the appellant in this case is entitled to his hearing. " On the point of the appeal, viz., whether the thirty clear days of proclamation previous to sale, are to be granted from the date of ordering ' the proclamation, or from that of publishing it in the mofussil, we are of opinion that, under Act IV. of 1846, which (Section TIT.) continues in force the rules of Regulation VII. of 1825, the period must be reckoned from the latter date, or that of publication in the mofussil, as prescribed in Clause 2, Section III. of the latter law. " This view is in accordance with a previous order by this Court of I7th May, 1849 (Musst. Shureefooimissa and others, petitioners.)" The order of the additional judge was, therefore, reversed, and he was directed to pass a fresh order on the application made by the petitioner, in conformity with the above exposition of the law. 1850. April 9. A superin- tendent of salt chowkies, and the zillah judge in confirmation of his opinion, having confis- cated salt as contraband, ■without notice to the owner, held on appeal to the Sudder Dewanny A- dawlut, that all the judicial proceedings were illegal and void ah initio^ under the pro- visions of Sec- tion CII., of Regulation X. of 1819, and Sections XXVI. and XXIX., Act XXIX, of 1838. BULDEB SHAW CHOWDIIREE, Petitioner. The petitioner purchased 5,500 maunds of salt, from the Go- vernment Salt Golahs in Hidgelee, and obtained the usual rowanahs to pass it to Patna, on eight boats. He appointed one Birjsoonder Shah as (churrundar) supercargo, on his behalf. The superintendent of salt chowkies of zillah Jessore, finding, on investigation and weighment, an excess, estimated at 614 maunds, 2 seers, over and above the quantity specified in the rowanahs, ordered, on the 19th February, 1850, Birjsoonder Shah to be fined rupees 6,140-8, and directed the confiscation of all _ the salt as contraband together with the eight iioats, and sent a report to the above effect for final order to the judge of the district, who confirmed the same on the 20th February, 1850. Upon this the petitioner appealed to the Sudder Dewanny Adawlut. The petitioner pleaded that he, the real defendant in this case, was the proprietor of the salt confiscated ; that the case was tried without taking an answer from him ; and, contrary to the provisions of Section CXJII., Regulation X. of 1819, no notice had been served upon him. By the Court. — (Present Sir R. Barloro, Bart., and Messrs. Colvin and Dunbar) : — " This petition was presented under Section XXXIL, Act. XXIX. of 1838. " We are of opinion that all the judicial proceedings of the su- perintendent of salt chowkies, and of the judge, as respects the SUDDEK DEWANNY ADAWLUT. 175 petitioner in regard to the salt confiscated, are void ah initio under the provisions of Section CII., Regulation X. of 1819, and of Sections XXVI. and XXIX., Act. XXIX. of 1838, in consequence of no notice having been served upon the petitioner under the law quoted. The petitioner must be put in the position in which he stood before any of the above illegal judicial proceedings were held." OODIT CHUNDER SURMA, Petitionek. This was a petition for the admission of a special appeal from the decision of the principal sudder ameen of zillah Mymensing, dated 26th July, 1849, reversing that of the moonsifF, dated 7th March, 1848, in a case in which the petitioner was plaintiff, versus Anund Chunder Surma, "defendant. The moonsifF, on the case being first instituted, had, on the 20th April, 1846, nonsuited the plaintiff, on the ground that a deed of partition on which his claim was founded, involved a sum (rupees 1,086) beyond his jurisdiction. The judge, however, having, on a summary appeal, directed him, on the 1st September following, to try the case, he decreed for the plaintiff ; upon which the defendant appealed, and tha appeal being transferred to the principal sudder ameen for trial, that officer, without either nonsuiting the plaintiff or dismissing his claim, reversed the moonsiff's decision, as the case was one beyond his competence to try, and charged the plaintiff with all costs. By the Court. — (Present Sir R. Barlow, Bart., and Mr. Colvin): — " The petition is groundedT-^^rsi, on the illegality of the principal sudder ameen's order, which set aside a summary order of the judge, who directed the moonsiff to try the case. We observe that, under Clause 9, Section III., Regulation XXVI. of 1814, the judge could only direct the moonsiff to receive the original suit, and to try and determine such cause on its merits according to the Regulations. As the integrity of the entire deed of partition was in issue before the moonsiff, and the amount of it was above rupees 1,000, the moon- siff could not try the case, and the principal sudder ameen's decision to that effect is quite correct. " The second plea, that the principal sudder ameen has not speci- fically nonsuited or dismissed the case, is not good. The principal sudder ameen in his decision refers to the want of authority on the part of the moonsiff, who, he states, was not competent to try the case, and indeed, indicates the necessity of its being disposed of by com- petent . authority. "Both pleas are invalid, and the appeal rejected." April 13. The summary order of a judge directing a moonsiff to ti-y a case on its merits, is no bar to the reversal, on regular appeal, of the moon- siff's decision, on the ground of want of jurisdiction. An appellate court may reverse the order of a lower court, on the ground of its being beyond tlie jurisdiction of that court, without speci- fically nonsuit- ing the plain- tiff, or dismiss- ing his claim. 176 SUMMARY CASES IN THE 1850. July 13. A zillah judge cannot dispose, on its merits, of an appeal preferred be- yond time, a- gainst the or- der of a princi- pal sudder ameen in a miscellaneous case, -without, in the first place, satisfy- ing himself that the appellant was prevented by unavoidable cii'cumstances from appealing within the pe- riod allowed for appeal. KASSEEPERSAUD SOOKUL, Petitioner. In execution of a decree, dated 5th August, 1848, obtained by the petitioner against Musst. Surubjoya, (widow of Nilmonee Bose,) and Khyroonnissa and others, the principal sudder ameen of zillah Backergunge, on the 7th November, 1849, adjusted and award- ed to the petitioner the sum of rupees 456-11-11-3, as mesne profits, and a subsequent application by the judgment debtors objecting to the amount, presented to him on the 22nd February, 1850, was rejected on the 1st March following. From the principal sudder ameen's order an appeal was -next day made by Mahomed Ahsun, representative of certain of the parties, to the zillah judge, who, notwithstanding that the petitioner urged that the judgment debtor's appeal was preferred after the lapse of nearly four months from the date of the principal sudder ameen's original order, ordered a further investigation regarding the mesne profits. From the judge's order, which was dateJthe 15th March, 1850, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Colvin) : — "It appears that on a petition being filed by Mahomed Ahsun, executor on behalf of certain of the judgment debtors, a notice was served on him and others to pay the amount of decree, and, on the 26th December, 1849, cor- responding with the 12th Poos, 1256 B. S., he acknowledged the receipt of the notice. Authenticated copies of the notice and ac- knowledgment have been filed in this Court. It is clear that he did not appeal against the principal sudder ameen's order of the 7th November, 1849, for more than two months after the date of the re- ceipt. Section IX., Regulation XXV. of 1837, provides that 'peti- tions of appeal from the order of a principal sudder ameen to a ziUah judge shall not be received, unless the same be preferred within the period of thirty days from the date of the order of the said principal sudder ameen, or unless it shall be proved, that the appellant was prevented, by circumstances beyond his control, from presenting his appeal.' In such case the judge should have first called for proof from appellant of his being prevented, by circumstances beyond his control, from presenting his appeal within the prescribed period, and on his default to prove so, the judge should have dismissed his appeal. As this was not done, the judge's order must be set aside, and he must proceed with the appeal preferred by Mahomed Ahsun Chowdree as above indicated. " Ordered accordingly. 1850. July 20. Delay in pay- ing the tuluba- na of witnesses, HUREEMOHUN MOJOOMDAR, Petitioner. The petitioner's suit, against Shama Churn and others, had been struck off the file by order of the principal sudder ameen, of East Burdwan, on the 25th of January, 1850, on account of the tulubana, for serving the subpoenas on the witnesses, not being paid by the petitioner within six weeks from the date on which the hst of their SUDDEE DEWANNY ADAWLUT. 177 names had been given in by him. On appeal, the judge confirmed the principal sadder ameen's order on the 20th March following, upon which this appeal was preferred to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. ColvinJ : — " Delay in paying tulubana, or the fees of a peon for service of a subpoena on witnesses, is not a neglect to proceed, within the intent of Section I., Act XXIX. of 1841, the penalty prescribed by which is only applicable to a party not filing the replication and other pleadings which are indispen- sably required for the preparation of a suit. Neglect to issue sub- poenas may affect a plaintilTs means of proof, but the progress of a cause to a hearing is riot impeded thereby. Default, on the plaintiffs part to produce witnesses, will not prevent a suit being determined on the proof before the court. The orders of the principal sudder araeen and the judge must be reversed." Ordered accordinglyj is not a ueglect to proceed within the in- tent of Section I., Act XXIX. of 1841. It may aifect a plaintiff's means of proof, but the pro- gress of the canse to a iiearing not be- ing impeded thereby ; the limit of six weelts under the Act does not apply to such a delay. PRANNAUTH ROY, Petitionee. Execution of a decree of the Sudder Dewanny Adawlut, in the case of Barbara Rainey, decree-holder, versus the petitioner and others, debtors, having been made over under Section VIII., Act XXV. of 1837, by the judge of Jessore to the principal sudder ameen of that district, he reported execution in part and made a return to that effect ; at the same time he struck the case off his file on the 31st March, 1849. On this an appeal was preferred to the judge, who remanded it for further investigation. From the judge's order, which was dated the 25th August, 1849, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Dick, Sir R. Barlow, Bart., and Mr. Jackson) : — " We have no doubt that the judge had authority to take up the appeal against the order of the principal sudder ameen, under the circumstances of this case. " It is urged for the petitioner that the judge could not, under Sec- tion IV., Act XXV. of 1837, and Section 11., Act VI. of 1843, receive the appeal. Section VIII., of Act XXV. enacts that, by authority of the Sudder Dewaimy Adawlut, a judge may transfer to a principal sudder ameen, ' any civil proceeding, miscellaneous or summary. AH proceedings so transferred shall be disposed of by the principal sudder ameen, according to the rules prescribed in the Regulations for the guidance of the zillah judges, &c. ; provided an appeal from the order of .the principal sudder ameen, in such cases, shall He in the first instance, to the zillah or city j udge and specially to the Sudder Dewanny Adawlut.' The Court's Construction No. 1 138, and the Circular Order, 5th June, 1841, are to the same purport. 1850. July 18. An appeal lies to the zillah judge from the order of a principal sud- der ameen, passed in a case of execution of decree, referred to him by tlie zillah judge, under Section VIII., Act XXV. of 1837.* * See Act XXV. of 1852. 178 SUSDIARY CASES Df THK " Section IV., Act XXV. and Section II., Act VI. above cited, refer to regular suits institiated for an amount exceeding 5,000 rupees. Section VIII., Act XXV. gives additional powers to prin- cipal sudder ameens in a particular class of cases, not contemplated m Section IV., of that law ; the one now before us is of that nature, and was therefore appealable to the judge under the provisions of the law above quoted. Under these circumstances we reject the plea of the petitioner, that there was no jurisdiction with the judge. " The order of the judge caimot, however, be upheld. The case hav- ing been struck off the principal sudder ameen's file, and brought before him in appeal, he should, under the Court's, resolution of the 4th July, 1834, have directed the principal sudder ameen to report the result of his investigation to the Sudder Dewanny Adawlut, (the decree not having been put in execution for twelve months from its date.) " The petition and the papers connected with it must be referred to the judge, who wiU dispose of the case as indicated, and direct the principal sudder ameen to report the result of his proceedings in execution of decree to this Court. The principal sudder ameen, will retain the case on his file, and await the orders of the Court." Note. — The resolution of the Sudder Court, dated 4th July, 1834, has been rescinded by Circular Order, dated 9th* August, 1850, after their order in tliis case. * To the Civil Judges in the Lower Provinces, and the Civil Autlwrities in the Extra Regulation Provinces. I am directed to forward to you for your information and guidance, a copy of the Com't's Resolution of this day's date, regarding execution of the decrees of the Sudder Dewanny Adawlut, Resolution, 1. The Resolution of the 4th July, 1S34, is rescinded. If, on notice being issued under Clause 8, Section XV., Regulation XXVI. of 1S14, and Section VII., Regulation VII. of 1825, objections are made by the party against whom execution of a decree of the Sudder Dewanny Adawlut has issued, such objec- tions shall, in the first instance, be disposed of by the Court issuing the notice, subject to the direction contained in paragi'aph 3 of this Resolution, and to appeal to the Sudder Dewanny Adawlut. 2. The decrees of the Sudder Dewanny Adawlut, passed on regular or special appeals, are henceforth to be sent by this Court for execution to the zillah judge or principal sudder ameen, according to the Court in which the decree appealed against was passed. Appeals from orders of the principal sudder ameens, in all cases of execution of decrees of the Sudder Dewanny Adawlut, " so remitted to them for execution, shall lie to the Sudder Dewanny Adawlut. 3. All cases of execution of decrees of the Sudder Court, in appeal, either from decisions of the zillah judges or of the principal sudder ameens, which have been already referred to the principal sudder ameens, and are stiU pending before them, shall be recalled by the judges and disposed of by them, so that there may be a regidar appeal in execution as to all matters of its own decrees, to the Sudder Dewanny Adawlut. STJDDER DEWjVNNT ADAWLUT. 179 JUGGUT CHUNDER SURMA, Petitionee. This was an appeal from an order of the judge of Mymensing, dated 12tli June, 1849, rejecting, under Section I., Act IX. of 1839, an application to sue as a pauper. By the Court. — (Present Mr. Dick, Sir R. Barlow, Bart, and Mr. Jackson) : — " Section I., Act IX. of 1839, has reference to two points — " First. — Whether there be probable cause for instituting the suit. " Second. — Whether the petitioner be a pauper. " Tliis case is an appeal from the order of the judge, dated the 12th June, 1849, rejecting petitioner's application on the first point, viz., that no probable cause of action has been shown. We are of opinion that an appeal does lie to this Court from an order of a judge, which declares that no probable cause of action exists, and there- fore rejects the application. See Construction No. 1356, on Section I., Act IX. of 1839, and Circular Order 11th August, 1843, paragraphs 1 and 2. The judge in rejecting the application of petitioner has entered at length into the grounds advanced by the applicant to show that he had cause of action. We do not, however, see any thing so clear in the reasoning of the judge, against the existence of any probable cause of action, as to justify the closing of the door of justice on the petitioner. We, therefore, reverse the decision of the judge, and direct that he allow petitioner to establish his pauperism." * Bindoosoonduree Dassea, repre- sentative of Issur Chunder Paul Chow- dree, deceased, (defendant,) appellant, versus Hurnauth Roy, (plaiatiif,) re- spondent. 1850. Jtdy 18. An appeal lies to the Sud- der Dewanny Adawlut from the order of a zillah judge, under Section I., Act IX. of 1839, rejecting an application to sue as a pauper on the ground of ab- sence *' of pro- bable cause for instituting the suit." HURNAUTH ROY CHOWDREE, Petitionee. This was a petition praying for the reversal of the order of the judge of the 24 Pergunnahs, dated the 19th July, 1849, non- suiting petitioner (plaintiff) re- spondent in the case noted in the margin.* The following are the particulars of the case, as set forth in the judge's decree of the above date : — ^ " Plaintiff alleged in his pleadings that he procured from the Paul Chowdrees a mouroosee pottah, dated 22nd Poos, 1241 B., for jungle lands, computed at 1,801 beegahs, lying within certain defined boundaries, at a gradually increasing rent up to 1252 B., when a fixed rate at 7 annas 10 gmidahs per beegah, was to be assessed upon them. Agreeably to this arrangement he was put in possession of the lands, raised bunds around them, cut drains and settled ryots, and expended between rupees 5 and 6,000, in bringing the lands into cultivation. In 1244 B., a Mr. Heatly, a Sunderbun grantee, dispossessed him of 1,100 beegahs of these lands, leaving in his possession only 456 beegahs and 6 cottahs of land liable to the rent agreed upon in the pottah. The defendant, Paul Chowdree, however, sued him for rent in that year in excess of his just demands, and procured a decree against him, and also in subsequent years realized from him sums amounting to rupees 180 in excess of the 1850. July 25. A party holding a lease from a zemin- dar and after- wards lawfully dispossessed of land of which, as assignable under the lease, he had been illegally put in possession by the zemindar, can only sue the zemindar for remission of rent. 180 STJMJIAEY CASES IN THE legal rent claimable from him. Pie, therefore, instituted this suit for refund of rents, amounting to rupees 224-13-10, and rupees 88-1-16 interest thereon, and to release himself from such part of his engage- ments with the zemindars as were rendered nugatory by the acts of INIr. Heatly, in having dispossessed him of 1,100 beegahs of his pottah lands : he also made Mr. Heatly and the Government defendants along with the zemindars in this action. " The zemindars denied the fact of dispossession, and stated that Mr. Heatly had certainly oppressed the plaintiiPs ryots, but had not taken possession of the land. " The Government filed a reply, claiming the lands as within the Sunderbuns, and appertaining to lot No. 2. " The principal sudder ameen observes in his decision that the record contains copies of proceedings of other courts, which fully es- tablish the fact that plaintiff's lease included 1,544 beegahs ; of this, he was dispossessed by Mr. Heatly of 1088, leaving him still in possession of 456 beegahs and 6 cottahs, for the rent of which alone he can be liable to the zemindars. " The principal sudder ameen, therefore, passed a decision to the effect that the defendants could not only receive rents in future for such lands as were in plaintiff's possession, but would not decree the refund of any surplus rent, as that fact was not substantiated to his satisfaction. " Against this judgment the defendant zemindars have appealed, urging the same pleas as were put forward by them in the lower court. " It appears to me that the decision of the principal sudder ameen is altogether erroneous. The plaintiff alleges that he received a mou- roosee pottah from the zemindars, and entered into engagements with them for certain lands situated within certain defined boundaries. He was then, he admits, put into possession, raised bunds round the lands, cut drains, and expended some thousand rupees in settling ryots on the property. Three or four years after this, a third party claims a large portion of the lands, and forcibly ejects plaintiff from that part of the property. Plaintiff then associates the zemindars and the party who has dispossessed him in the same suit, and sues them both to release him from his engagements to the zemindar, and to refund surplus payments of rent made on account of land from which one of the parties has dispossessed him.- I consider such a suit quite imtenable in such a form. " If plaintiff had never been put into possession of that which the zemindar had covenanted to place him in possession of, I could understand his bringing an action to compel him to perform his en- gagements, or to procure an equitable award on the merits of his claim ; but when plaintiff admits that he was for some time in possession, and that a third party has dispossessed him, I do not see what right of action he possesses against the zemindar to force that party -to release him from engagements, of which he has apparently performed his part, and it is absurd to associate a third party in such a suit, who had nothing whatever to do with them. If plaintiff has been iUegally SUDDER DE^yANNY ADAWI.UT. 181 dispossessed of that which he was lawfully placed in possession of, he must sue the party who has ejected him, and the result of that suit might point out whether or not he has remedy against the zemindar for inducting him into property the rights of which did not belong to him, and thereby involving him in expensive htigation ; but plaintiff must act in the matter as he may be adrised. The present action not being, in my opinion, the proper course he should have pursued, I record an order of nonsuit in the original suit, and reverse the principal sudder anieen's decision." By the Court. — (Present Mr. Dick, Sir R. Barlow, Bart., and Mr. Jackson) : — " Had the plaintiff been illegally dispossessed of that which he was lawfully placed in possession of, then the reasonino- of the judge might have been sound, but the very reverse are the facts of this case. " The plaintiff was lawfully dispossessed of that which he had been illegally put into possession of by the zemindar. " To sue for possession under such circumstances, would be worse than useless. The only course left to the plaintiff was to sue for remission. " We therefore reverse the order of nonsuit passed by the judge, and direct that he replace the appeal on his- file, and try it on its merits." GUNPUT LALL, Petitionee. This was an appeal against an order of the judge of Behar, dated igso. 26th March, 1850, reversing that of the principal sudder ameen dated 28th May, 1849. August i. By the Court. — (Present Sir R. Barlow Bart., and Messrs. The execu- Jackson and Colvin) : — " It appears that Iltaf Hossein and Musst. ^"'^ °^ ^ decree Sajun instituted a joint action against Sobhanarain Singh, for a sum of t^t^a ^an(i"«irl money in the principal sudder ameen's court, where they obtained a ried to decision, decree, in execution of which arises the present case. They took out '^^Jf ° '"' ™™'^ execution against a mookurruree tenure of Sobhanarain. Gunput Lall jointly, cannot put in his claim, which the principal sudder ameen gave in his favor, be proceeded Whilst the case was pending before the principal sudder ameen, Musst. ?!j"' ^^ ^^ "^ Sajun abandoned her case ; both, however, appealed to the judge, separately Sajun denying her relinquishment. While the case was before the without the as- judge, Dtaf withdrew his appeal. ^^^^^f ^'^^ " The judge, however, carried on the execution of decree on part of Sajun, and reversed the principal sudder ameen's orders. " The petitioner pleads that this order cannot be upheld, Iltaf having, as it is admitted, withdrawn, the execution could not proceed on the part of Sajun alone. " We are of opinion that the objection is vaUd. The suit was instituted by two .parties, and could only be carried on, in any part of it, by both of them jointly, the withdrawal of one in execution of decree, prevents the other proceeding with the case. Ordered, that 182 SUMMART CASES IN THE the judge's order of the 26th March, 1850, against which this appeal is brought, be reversed." Mr. Dick. — " In this case, the point for consideration is simply this. Two persons obtain a decree conjointly, and conjointly sue out execution, and point out a certain property for sale. The peti- tioner, Gunput Lall, comes forward as a claimant to stop sale. The principal sudder ameen, before whom was the case, passed an order for the property to be released. The two conjoint decree-holders appeal separately. Subsequently, one of them, as admitted by the judge, withdrew. The judge notwithstanding, proceeded to a final decision, and reversed the order of the principal sudder ameen as illegal, being in fact an order cancelling the order of his predecessor, on the very point which was confirmed in appeal by the judge. Could the judge proceed after one of the appellants had withdrawn ? " In reviewing this case, the first fact to be noticed is, that the appeals were separate ; and therefore the withdrawal of one appeal caimot, in my opinion, affect the other. " On the second fact, I would observe, that, as the parties sued conjointly for execution, if no act in that suit could be vaKd by one of the parties, then the withdrawal, being an act of one of the parties, cannot be valid. I cannot admit that the act of one of the parties to carry on the suit, can be binding on the other ; if the act of the other to carry on, be not binding on him. In my opinion, it is more consonant with justice either to hold neither bound to the other, or to consider both bound to each other in so far as their mutual con- joint interests are concerned in that case." The judge's order was reversed, in conformity to the opinion of the majority. 1850. August 1, Held that, under the cir- cumstances of the particular case, land claimed as rent-free, should fii'st have been de- clared liable to assessment by a decision un- der Regulation II. of 1819, before a civil suit for its as- sessment could be heard. GOVIND MONEE DASSEA, Petitionee. In an action brought by EadhabuUub Gossain against the petitioner and other defendants, for assessment on 72 beegahs, 18 biswas and 1 pawo of land, situated in mouza Buheergachee, the principal sudder ameen of zillah Nuddea, on the 3rd December, 1849, nonsuited the plaintiff's claim, on the ground that it should be first determined whether the land in question was mal or rent-free. On appeal, the judge reversed the principal sudder ameen's order on the 28th January, 1850, upon which the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. Dick, Sir R. Barlow, Bart., and Mr. Colvin) : — " The plaintiff claims to assess the land under the permission of this Court, but it appears that the decision of this Court in which the plaintiff's ancestor was allowed to sue for assessment, clearly sets forth that when the ap- pellant, viz., the plaintiff in this case, sues for assessment under the provisions of Regulation II. of 1819, it will be determined whether the land in question is mal or rent-free, with reference to which the petitioner should have sued for resumption of the rent-free STJDDEE DEWJiJfNY ADAWLUT. 183 land under Section XXX., Regulation U. of 1819. The principal sudder ameen's order, nonsuiting the plaintiff in his claim for assess- ment, which was laid at the amount of only one year's produce, is, therefore, very proper. As it appears by the roobukaree of the special deputy collector, that the claim of Government was struck off the file without triad, the order to such effect cannot bar a decision as to the tenure being rent-free or not. There has been no investiga- tion and decision on that point. Under such circumstances the judge's order, reversing that of the principal sudder ameen, is set aside." Order accordingly. August 1. BRIJLALL OOPADHYA, Petitionee. The petitioner appealed against the order of the principal sudder ameen of Patna, dated 8th September, 1849, and against the sale of certain property in execution of decree on the grounds, — First,— That by Clause 2, Section III., Regulation VIL of 1825, Distinct pro- still in force, proclamation must be made on the spot by beat of tonhment oa drum, which was omitted. the spot, and of Secotid. — That the property was sold without attachment. proclamation of Third,— Thut the sale was fixed for 4th June, 1849, but did not Haf'to^he" vaU." take place till the 13th Idem. dity of a sale By the Court. — (Present Mr. Dick, Sir R. Barlow, Bart., and i^der Re^a- Mr. ColvinJ : — " We are of opinion that a separate process of attach- jg25_ ajjj ^^ ment must be issued on the spot, where the property is situated. The sales in execu- words of the law are : ' that no sale shall, in any instance, take place *'•"' °^ judicial without a previous proclamation' — Clause 3, Section III., Regulation Act IV. of 1846. VII. of 1825, and again, 'that such proclamation shall be made in The processes the usual mode by beat of drum, on the spot where the •property is "^^ be issued attached, and a written notification to the same effect, shall also be o, successively affixed in some conspicuous place, icithin the village or town, in which tut both are the attachment may take place.^ These expressions clearly show indispensable, that the attachment must be made on the spot, where the property is situate, and that the process of attachment must be a distinct and separate process from that of proclamation of sale. The only point left discretionary is the time of issue. The processes may be issued simultaneously or successively. Both, however, are indispensable. " AU the above rules of Regulation VII. of 1825, are in force, and made applicable to all sales in execution of judicial decrees by Sec- tion III., Act IV. of 1846 ; and the preamble to Circular Order, 17th July, 1846, issued under the authority conveyed in Section XI. of the Act. The words of the preamble are : ' Act IV. of 1846, Section III., provides that the rules now in force for the attachment and sale of such real property as the courts of civil judicature are now authorized to sell in satisfaction of decrees without application to the revenue authorities, shall apply to attachments and sales made under the authority of this Act.' Those rules are to be found in Regula- 184 SUMMARY CASES IN THE tion VII. of 1825 ; they are to be strictly attended to, and especial care taken that the preliminary process therein prescribed, for bring- ing any property to sale, be duly observed. " We, therefore, reverse the order of the principal sudder ameen, and annul the sale." 1850. August 8. An order passed by a zillati judge under Clause 3, Section XII. Regulation XXVIII. of 1814, refusing permission to a party to appeal in forma pau- peris, is final and not open to appeal to tlie Sudder Dewan- ny Adawlut. PUDDAEATTEE DEBEA, Petitionee. The petitioner's suit in formd pauperis against Kalacliand Roy and others, having been dismissed in the court of the principal sudder ameen, of zillah 24 Pergunnahs, on the 2nd January, 1850, she applied to the judge to admit a regular appeal against the decision of the principal sudder ameen, in forma pauperis, and the judge, having rejected her application on the 19th March, 1850, she appealed to the Sudder Dewanny Adawlut. The serish- tadar of the Court, having been called upon for a report as to whether a miscellaneous appeal from the order of an appellate court, rejecting an appeal informd pauperis, under the authority vested by Clause 3, Section XII., Regulation XXVIII. of 1814, had ever been preferred to the Court or not, and if so, what order had been passed, reported that appeals of the kind, when preferred to the Sudder Dewanny Adawlut, had always been rejected, and orders passed that the order of the lower appellate court, rejecting such appeals, was final, and not appealable to the Court as in certain cases cited by him.* By the Court. — (Present Mr. Dick, Sir R. Barlow, Bart, and Mr. Colvin) : — " Whereas appeals of this nature cannot be tried according to the former practice of this Court ; ordered, therefore, that the petitioner's petition be struck off." 1850. August 15. A single judge of the Sudder Dewanny A- dawlut, in exe- cution of a de- cree of the Pri- vy Council, can issue orders for giving effect to the decree, either upon » reference by the zillah judge, to whom it may have been remitted for TARAPERSHAUD ROY CHOWDREE, Petitionee. A DECREE of the Privy Council, dated 18th July, 1849, reversing that of the Sudder Dewanny Adawlut, dated the 15th April, 1841, in which Doorgapersaud Roy was appellant versus petitioner, respon- dent, had been remitted by the Sudder Court to the judge of 24 Pergunnahs, for execution, by whom a reference was made to the Court for instructions as to how he should proceed in the case. Ac- cordingly Mr. Jackson, at the time in charge of the miscellaneous department, issued the necessary orders, with which the petitioner, being dissatisfied, applied for their review by the whole Coui't, under Section HI., Regulation II. of 1825. * Kulunder Alec Khan, Petitioner, page 105, vol. 4, of the Sudder Reports. Brijnath, Petitioner, page 32, part 2, of the Summary Reports. Musst. Jeonmonee Dassea, Petitioner, whose petition was rejected on the 2ad January, 184'J, SCDDER DEWANNY ADAWLUT. 185 By the Court. — Mr. Dick : — " Tliis is a petition for review by the whole Court of an order passed by a single judge of the Court, in a case of execution of a decree of the Privy Council, under the spirit of Section HI., Regulation II. of 1825 ; on the plea that in passing such order, the said judge exceeded the powers vest- ed in him, according to the practice of the Court, " To substantiate the plea, it was argued : " First. — That the order of the Privy Council to carry into execution their decree, was addressed to the whole Court, and that therefore any doubts as to the meaning of that decree, should have been decided by the whole Court. " Secondly/. — That, under construction No. 1066, the judge, on the reference from the zillah judge, should have declined to give any opinion, and directed the zillah judge to decide for himself, leaving either party dissatisfied to appeal. " Thirdly. — That the said judge should at any rate have confined himself to the reference, and not have issued orders, contrary to what the zillah judge had recorded as his opinion. " On the first point I would observe that the single judge who passed the order in question constituted the whole court, under Regulation IX. of 1831, and was fully competent to pass orders in the case. " On the second point it was discretionary with the judge, even under construction No. 1066, either to give the opinion asked, or to direct the ziUah judge to decide for himself. " With respect to the third point, as no order had been actually pass- ed by the zillah judge, the sudder judge was not contravening the practice laid down in the construction No. 1066, by at once passing orders on the whole case as directions to the lower court, a reference having been made to him for opinion on a portion of the case, for it must be kept in view that the zillah court is acting only ministerially throughout the proceedings. " The petition for review should therefore be rejected. A prelimi- nary objection was taken by th^ adverse party, viz. that the order, a review of which was prayed, was appealable under the Act of Par- hament, and consequently the regulation. Section III., Regulation II. of 1 825, on which the petition rested, did not apply. To.render a review admissible, the case must be one, from which no further appeal is open. As however, the Court were of opinion, that on the points urged for the petitioner, they could not interfere, it became unneces- sary to enter upon this latter question." Sir R. Barlow, Bart. — " The petitioner prays to have the benefit of the opinion of all the judges of this Court, against an order passed by Mr. Jackson, under the provisions of Regulation II. of 1825. It does not appear to me that this application can be admitted. A judgment of the Privy Council instructs the Sudder Dewanny Adawlut to carry out its decree. It was sent down to the zillah court for exe- cution, when the judge, in order to obtain from this Court a clear exposition of the meaning and intent of the said decree, made a re- ference on certain points. The case was laid before Mr. Jackson, the judge then presiding over the miscellaneous department. ' Mr. execution, or upon appeal by either party dissatisfied witli the ordei-s of the zillah judge, or other- wise at his dis- cretion ; and in any case, such judge of the Sudder De- wanny Adaw- lut is compe- tent to give general direc- tions as to the mode of execut- ing the decree, and is not res- tricted to the particular points brought before him. 186 SUMMARY CASES IN THE Jackson, in the exercise of the powers vested in him as a judge of the Court, passed such orders as he thought proper on the reference. The apphcation now before us objects: — " First. — That the construction of the Privy Council order, should have been given by the whole Court. " Second. — The judge's reference should have been sent back to to him. He should have disposed of the case and the parties in the cause left to their appeal against the judge's order ; neither party had sought the interference of the Sudder Court. The objection to the order passed by Mr. Jackson, rests on the time and manner that order was passed. " Third. — Under the construction No. 1066, judges of zillahs are ordered to carry out execution, and the parties are left to their appeal, but further Mr. Jackson has gone beyond the point referred to them tinthout appeal by the parties, " Under the practice of the Court, a single judge of this Court in his own person constitutes a competent court, and exercises all the powers of the Sudder Dewamiy Adawlut vested by law in a single judge. The duties of the Court are, with the view to despatch of business and convenience of parties before it, divided amongst the several judges. " In cases of execution of decree, there is no doubt that objections raised by claimants to property, &c., are to be disposed of by the zillah judge, under construction No. 1066, but the peculiarity of the case now before us, is, that a doubt having arisen in the mind of the judge of the 24 Pergunnahs as to the meaning of the Privy Council order, he referred to the Sudder Court for a declaration of their views on the subject. This Court having been called on to carry out execution, it was, of course, necessary for them to point out to the lower court what, under their reading of the Privy Council order, was its intent. The construction quoted does not apply in such case. On the third objection, it may be observed that, though Mr. Jackson went beyond the point referred by thf judge, he did not reverse any order passed by him in the absence of parties. The judge merely expressed an opinion in the case, and awaited the reply of the Court to the instructions he sought. This plea therefore is not good. I would reject the petition." Mr. Jaclison. — " I agree in the view of the case taken by Sir B. Barlow ; I do not think that the order passed by me in the case was beyond my competency ; if it can be shown that there was any error in that order, that it was legally erroneous, or erroneous because not consistent with the terms of the decision of the Privy Council, the order is open to review in the usual course ; no applica- tion for review has been made. " I am further of opinion that it is the duty of this Court to see to the proper execution of the decrees of 4he Privy Council, and to explain the meaning of them to the judges whenever such a reference may appear advisable." Messrs. Colvin and Dunbar. — " This is an application to the whole Court, under the proviso contained in Section III., Regula- SUDDER DEWANNY ADAWLUT. 187 tion II. of 1823, which allows of an interference on the part of the Court with the order of a single judge, when a majority of the judges of the Court may be of opinion, that the single judge has, on the face of that order, 'exceeded the powers vested in liim by the Eegulations.' " On the two points, which have been urged in support of this application, our opinion is as follows : — " First. — A single judge of this Court is, in our judgment, com- petent to exercise all the powers of a Court of Sudder Dewanny Adawlut, except where any special limitation is imposed by the Regulations. Mr. Jackson was at the time of his passing his order, the judge duly placed in charge of the miscellaneous "department, including the execution of the decrees of this Court and of the Privy Council, and his court was clearly a court fully empowered to pass an order on the application before it, which related to a decree, the execution of which had been remitted by its terms to the court of Sudder Dewaimy Adawlut. There was no necessity for bringing the application before any other judge. * " Secondly. — It is contended that, in conformity with construction No. 1066, the order of Mr. Jackson must be held to have been beyond his jurisdiction, inasmuch as he ought not to have passed any order on the reference made to him by the district judge, but ought to have directed the judge to pass orders according to his own opinion. ' leaving any party (in the terms of the construction,) dissatisfied with his proceedings or orders to appeal therefrom in the usual form.' At all events, it is argued, Mr. Jackson ought to have given his opinion only on the point on which the judge requested it, and was not warranted in going further, and issuing directions on his own part, which set aside an opinion on a material point, which had been recorded by the judge, and respecting which, the judge had applied for no instructions. Upon these arguments it is to be observed that the construction to which reference is made, describes only what has been the usual practice in the execution of decrees of the Privy Council. The existence, however, of a general permissive prac- tice of sending decrees of the Privy Council for execution in the first instance to the district judges, reserving only a control in appeal to this Court, can in no way place any legal limitation on the power of this Court to give its own directions, at its discretion, in all matters relating to the execution either of its own decrees or of those of the Privy Council, remitted to it by that Court for execution. The res- ponsibility of the execution of these decrees is strictly in this Court alone. It may employ the district judges, or other officers, as subordinate delegated agents trusting ordinarily to its means of supervision in appeal. But the whole matter of such execution is of its own charge and duty, and must be regulated, whenever it may see fit, according to the orders which it may issue. " We are, upon these grounds, entirely satisfied that there has been no excess of jurisdiction in the order to which the application before us relates, and would reject the application accordingly." SUMMAKY CASES IN THE CHARLES DEVERINNE, Petitioner. September 17. The order of a lower court, rejecting an ap- plication by a defendant to file an answer to a paper, given in as a supplemental plaint, is of an interlocutory nature, not appealable to the Sudder Dewanny A- dawlut by Cir- cular Order, No. 65, of the 2nd Februai7, 1849. This was an appeal against the order of the judge of Moor- shedabad, dated 6th September, 1850, rejecting petitioner's applica- tion to be allowed to file an answer to a supplemental plaint, filed by the plaintifF in a suit in which petitioner and others were defendants. By the Court. — Mr. Dick : — " The petitioner prays for an ord» to the judge to allow the defendant, Deverinne Petitioner, to file an answer, on a day fixed, to the supplement filed by the plaintifF, Deans Campbell, making Sutherland a defendant in the suit. The prayer is founded on the law, Section V., Regulation IV. of 1793. The defendant is to be allowed to deliver, an answer to the supplemental complaint on a day to be fixed for the puipose. " In the course of discussion two points have been raised : "First. — Whether the petition, which is an appeal from an inter- locutory order of the judge, can be heard, wdth reference to Circular Order, No. 65? 2nd February, 1849. It was urged by the petition- er's pleader, that the Circular Order in question had not been acted up to, in cases of appeal on points of law, in which the judges had found it necessary to adhere to the former practice, and cited cases. The Circular Order is in force, and I should hold myself bound to uphold it in every instance in which it sanctions any act. If, however, I find a Circular Order defective, I do not consider I am restricted by it so as to refuse a hearing to a case, which the law has made appeal- able, though the Circular Order has not. The appeal before us is from an interlocutory order, which, from its very nature, is appealable ; and therefore its omission in the list must have been an oversight, upon the principle laid down in Section III. of the Circular Order. For, should it eventually be decided on regular appeal, that the petition of plaintifF, making Sutherland a defendant, is a supplemental plaint, and no answer has been allowed to defendant, the whole of the subsequent proceedings will be vitiated, and must be annulled. Moreover, the Circular Order clearly restricts the law — for Section II., Act. VI. of 1843 declares all interlocutory orders passed by principal sudder ameens in suits above rupees 5,000 value, appealable. This suit was before the principal sudder ameen, and might have been so now. Under these circumstances, though willing to defer to the Circular Order so long as it is in force, in all that it sanctions, I do not think we are bound to regard it when it would restrain us from doing what justice manifestly requires, and the law allows. " Second. — Whether the petition in question of the plaintifF is to be considered in the light of a supplemental complaint, or merely a petition to correct an evident error from mistake, or inadvertence. To settle this question, it might be sufficient to observe, that the document itself purports to be a supplemental complaint. Without this admission, however, I hold it should be considered a supplemental plaint : — First, because it indubitably supplies an omission material to the suit ; Second, because such a petition, supplying a defect of parties, has always been held to be a supplemental complaint; and Third, . StIDDER DEWANNY ADAWLCT. 189 because, according to the decision of the full Court of five judges, passed on the 16th April, 1850, (see Sudder Dewanny Decisions for April, 1850, page 114,) the petition in question, cannot be con- sidered as a mere petition to correct an evident error : and, if so, it must come under the category of supplemental plaints : and then the law requires, that a day be fixed by the Court for the defendant to answer. — See also Circular Order, No. 21, 3rd June, 1847. " I will only further observe, on account of the consequences that may ensue, that the petition of plaintiff, making Sutherland a defendant, purports to be a second supplement. If it be, then it is inadmissible, for only one supplemental plaint can be admitted. Therefore, Sutherland will not be a party legally before the Court in the suit, and, in consequence, no decree passed in the suit, can be executed against him, or affect liim. — See Construction No. 744." Sir R. Barlow, Bart, and Mr. Jackson. — "The petitioner appeals against the orders of the judge of Moorshedabad, dated 2nd and 6th of September, 1850. He objects that a party (Sutherland) was made and admitted by the principal sudder ameen a defendant in the case by a second supplementary petition filed by the plaintiff, and that Deverinne has had no opportunity of giving in a supple- mental answer. " And secondly, that the plaintiff, on reporting the death of Hudson, also a defendant, applied to have the name of the deceased struck off the list, upon which petition the judge ordered that it should be brought up with the papers of the case. " We do not think that either of these objections can be admitted at the present stage of the proceedings in the case. We do not take upon ourselves to say whether the objections are, or are not valid objections, or how they may affect the merits of the case, when it is brought up for final decision. They will of course be considered at the final hearing ; but with reference to the Court's Circular, No. 65, of the 2nd February, 1849, and to the principle therein laid down, we hold that we cannot summarily interfere in the case before us. If the plaintiff has withdrawn the name of a defendant, and has failed to issue notice on the heirs of a deceased defendant, he must abide by the consequences. Whether the plaint bringing in Sutherland as defendant is, as urged by the petitioner, a supplemental plaint, and what may be the effect of striking off Hudson's name, it is unnecessary now to determine ; these questions are involved in the merits of the case, and their decision should be left to the judges, before whom the entire record will be placed, and the case be finally disposed of." Mr. J. R. Coilvin. — " I am of opinion that the Circular Order of 2nd February, 1849, must be taken to be an authoritative decla- ration of the practice in regard to interlocutory appeals, and that we must be guided by that order, notwithstanding any occasional devia- tions from it which may have been admitted at later dates. " Understanding that this is the intention and effect of the opinion of Sir Robert Barlow and Mr. Jackson, I subscribe to that opinion." 190 SUMMARY CASES IN THE Mr. Dunbar. — " I would not interfere. The orders are con- nected with the merits of the case, and the final decision in it. If their effect be to vitiate the proceedings, the plaintiff will be the sufferer, not the defendant, the party who has brought this summary appeal. Were we to interfere in such cases, I can see no limit to the Court's interference in the proceedings of the lower courts. There is nothing absolutely to stop the case from going on ; and it is quite possible that this Court, on a regular appeal against the eventual decision in the suit, might agree with the judge." The order of the zOlah judge was accordingly not interfered with. GOORDYAL SINGH, Petitioner. 1850. The petitioner, on the 3rd August, 1850, personally filed a petition for the admission of a special appeal from the decision of September 17. the acting judge of East Burdwan, dated the 29th April, 1850, A vakeel, who reversing that of the principal sudder ameen of the 26th July, 1849. accepts a »«^«- On the 4th September following, Nubeenchunder Paul, a pleader, out endorsing' ^^^ ^ vakalutnamah, without any condition, but, on the 6th idem, on it any con- declined pleading in the case, on the ground that he had received ditions, cannot neither any paper nor his fees, as had been agreed upon, when the rause The question was referred to the whole court, whether a vakeel, comes on for having unconditionally accepted a vakalutnamah is at Kberty to with- heanng. draw on any such grounds. The following remarks were recorded. Mr. A. Dick, Sir R. Barlow, Bart, and Mr. J. R. Colvin. — " In this case, a pleader, Nubeenchunder Paul, having accepted a vakalut- namah without any conditions written on it, he cannot be allowed to decline pleading, on the excuse that he has not received his fees as promised." Mr. Jackson. — " I think the pleader may refuse to plead, or the client may refuse to pay, and that this Court cannot interfere between the parties." Mr. Dunbar. — " Were the Court not to interfere, vakeels might hold back from mere caprice or refuse to plead, just as a case comes on, in order to extort better terms. I concur with Mr. Dick, Sir R. Barlow and Mr. Colvin." The petition was brought to a hearing before Mr. Welby Jackson and Mr. J. R. Colvin, on the 23rd September, and the application rejected. SUDDEE DEWANNT ADAWLUT. 191 HURREE SINGH ROY and others, Petitioners. The parties in this case were the petitioners on the one side, and LubungTOOonjurree Dibbea, opponent, on the other. The opponent was the widow of the late Khitterpaul Singh Roy, after whose death, on the 14th September, 1849, liis grand uncle, Hurree Singh Roy, and his second cousin, Umbicapersaud Singh Roy, presented an application to the judge of East Burdwan, on the 24th October following, for a certificate under the provisions of Act XX. of 1841, to enable them to realize a debt of rupees 500, due to the estate of the deceased, alleging that there was a will made by the deceased in their favor, and in virtue of which they were in possession of the property of the deceased. The opponent opposed the application on the ground that she was the rightful heir, and stated that her husband had authorized her to adopt a son ; that the will produced by them was a forgery; that her husband and his relatives lived separately ; and that the bulk of the landed property was not held in joint tenancy. The zillah judge passed an order that the certificate applied for, should be granted to Hurree Singh Roy and Umbicapersaud Singh Roy, as they were in possession of the property of the deceased. On appeal to the Sudder Dewanny Adawlut by Lubungmoonjurree Dibbea, the Court (Sir R. Barlow, Bart, and Messrs. Colvin and Dun- bar), on the 20th February, 1850, recorded the following judgment : " Two points have been discussed in the argument on this case — " First. — Can a certificate, vmder Act XX. of 1841, be granted for a share of an undivided estate ? " Second. — What is the title or right, upon proof of which a certificate is to be granted under that Act ? " On the first point, we are satisfied, after full consideration, that a certificate under the Act can be granted for the share of an un- divided property as for the separate estate of a deceased person. In the former case, the certificate would convey no more than the right to collect the debts due to the estate of the deceased, according to his share in the undivided property; but there is nothing either in the terms or spirit of the Act, which should debar such an estate, any more than a separate estate, from the benefit of its provisions. The certificate-holder would stand in relation to debtors to all the sharers of the joint family, in exactly the same position as that in which the deceased stood in his lifetime. " On the second point we are of opinion that the judge was in error in restricting his investigation and order to the ground of title by posses- sion only. It was his duty to go into all grounds of title, and to give his award in favor of the party who might appear, after such inquiry, to have the best right to the certificate (Section II.). By any other course, there would be both a gratuitous narrowing of the plain terms of the law, and the risk of serious injustice from the doubtful nature of evidence as to mere possession in a case such as this where the possession is not immediate of the land or of other tangible property, but by means chiefly of the collection of rents from inferior tenants. 1850. September Is. A certificate, under Act XX. of 1841, can be granted for the share of an un- divided proper- ty, as for the separate estate of a deceased person A certificate should not be granted upon the ground only of possession; but upon proof of the best title to succession to the estate of the deceased. The presumptions of the case being in favor of a family being joint, and, though living in Bengal, of their being guided by the Mithila law, a certificate which had been given by the zil- lah judge to the widow in regard to all the pro- perty of a de- ceased person, under Act XX, of 1841, was cancelled by the Sudder Dewan- ny Adawlut,and two certificates were granted, — one to the appli- cant's collateral relatives of the deceased, in re- gard to his joint estate, and the other to his wi- dow for his se- parate estate.* * See Act X, of 1851. 192 SUMMARY CASES IN THE " The order of the judge, is, therefore, cancelled, and the papers returned, in order that he may decide on the application of Umbica- persaud and Hurree Singh, and on the claims of all other parties before him, after due inquiry on the point of right, as above laid down." The zillah judge accordingly retried the case, and having, on the 19th April, 1850, decided in favor of Lubungmoonjurree Dibbea's right to the certificate, an appeal was preferred to the Sudder Dewan- ny Adawlut, by Hurree Singh and others. By the Court— ( Sir R. Barlow, Bart, and Messrs. Colvinand Jackson) : — " The question for us to decide is, which of the parties before us has a preferential title to a certificate, under Act XX. of 1841. " The applicants come in on a will of the deceased, Khitterpaul Roy, and on their right as members of a joint family, observing the ceremonies prescribed by the Mithila SJiasters. " The opponent, the widow of the deceased Khitterpaul, claims the certificate by right of succession to her husband, stating his estate to be separate and the family to be living under the Bengal law. By consent of the parties, the application has been considered upon the general right of succession, and not on the ground of the will simply. " The point to be determined is, whether the family of the deceased was a joint family living under the Mithila law ? " In proof of the fact that they were a joint family, applicants have shown that on the occasion of a separation of four annas belonging to Deybee Singh, a formal division (which is admitted) took place. " They have also proved, by the evidence of four witnesses, Ambika Churn, Anund Chunder Pattuck, Neel Money Roy and Beharee LaU, that Ramkaunth Chobey, a western brahmin, is the family poorohit. " The opponents do not allege that any formal separation has taken place between the sharers who remained after the above separation, nor have they given any distinct proof of the fact of any other than that first separation. " Their ovm witnesses (two of them brothers .of the opponent) admit the fact of certain Mithila ceremonies having been performed at the marriage of the deceased with the opponent, his widow. " No attempt is made by them to show that a Bengal brahmin is the family poorohit; one witness, Sreenath Bhuttacharjee, speaks to the marriage of the deceased with opponent having been performed according to Bengal ceremonies; but his cross-examination proves that he is an incompetent and ignorant witness on such a point. " Upon these general grounds, we are of opinion that the presumptions are in favor of the family being joint and living under the Mithila law. We, therefore, direct that the certificate given by the judge be can- celled, and that a fresh certificate be granted to the applicants in regard to the joint estate of the deceased, Khitterpaul Roy, and a certificate also granted to the opponent, the widow of Khitter- paul, for his separate estate. " Costs charged to the parties respectively." SUDDER DKWANXT ADAWLUT. 193 MOHUN ROY AND OTHERS, Petitioners. The petitioners appealed against an order of the additional judge of Tirhoot, dated 16th August, 1849, striking off their case in appeal on default, under Act XXIX. of 1841, for not having issued to the respondents the ishtihar, or proclamation, which they had been directed to issue by an order of the 2 1 st May preceding. By the Court. — (Present Sir R. Barlow, Bart., and Messrs. Jackson and ColvinJ : — " It appears from the papers before us, that the respondent filed a vakalutnama on 14th February, 1849, giving his pleader power to appear and to conduct the case throughout the appeal. Where a power of this nature was given without notice being served on the respondent, there was no necessity for the issue of notice as directed by the order of 21st May, 1849. The addi- tional judge's order of the 16th August, 1849, is reversed. The case will be replaced on the file, and will be proceeded with in due course." September 18. Neglect by an appellaut to issue notice to a respondent, who has voluu - tarily appeared and given a complete power to his pleader to appear on his behalf through- out the appeal, does not render him liable to the penalty of default under Act XXIX. of 1S41» PRANKISHEN DOSS ai^d others, Petitionees. This was an appeal against an order of the principal sudder ameen of Dacca, dated 22nd May, 1850, rejecting the petitioners' application for attachment under Section V., Regulation II. of 1 806, of the property of the defendants in a suit in which he was plaintiff, on the ground that the property, of which the attachment was sought, was claimed by another. The appeal was first heard by Mr. Dick, who referred it to a full bench with the following note: — " I refer this case for decision by a full bench of the Court. The decision of Mr. Hawkins in the case of Maharajah Het Narain Singh, petitioner. Summary Reports, Volume II., pages 145, 146,* appears to me contrary to law, and objectionable. " First. — The law. Clause 1, Section V., Regulation II. of 1806, enjoins in the event of security not being given, the attachment of any lands, effects, or other property belonging to, or possessed by, the defendant, to the amount or value of the cause of action in the suit pending. — ' Before, therefore, a judge can legally issue order of attachment, he must necessarQy satisfy himself that the property does belong to defendant, or is in his possession.' " Second. — It is true that any evidence adduced to satisfy the judge in such instance will not be conclusive, still it will be such as to prevent wanton and mischievous applications for the attachment of property belonging to others. " Third. — It is often contended, that merely the right and title of defendant in the property is attached, which cannot injure the rights and titles of others. This is a very superficial view of the question. When a process is issued by a court of justice, the pub- lic naturally infer that it has been issued advisably after proof adduced. 1850. September 26. Itis unneces- sary to inquire into claims to property before issuing pro- clamation under Regulation IJ, of 1806, in bar of the alienation of the right and title of a de- fendant in such property. * See Page 165 of this Edition. A 2 194 SUMMARY CASES IX THE The saleable value of the property will consequently be deteriorated, and a serious injury may thus be inflicted on an innocent party totally unconcerned in the suit, either from wantoimess or malevolence through the instrumentality of the court, and a law eminently cou- ducive to the ends of justice be abused for oppression." By the Court. — (Present Sir R. Barlow, Bart, and Messrs. Jackson and Calvin): — " We are of opinion that the law, as laid down in the precedent adverted to at page 145, of the Summary Eeports of the Sudder Dewanny Adawlut, is correct. The attachment can only be of such right and title (see Clauses 1 and 3, Section V., Regulation II. of 1806,) as may belong to the defendant in the suit ; to admit inquiry into actual claims to property, so attached, would protract a suit indefinitely, and no substantial right of a claimant can be affected by attachment under Section V. " We reverse the principal sudder ameen's order. He will first in- quire whether there be any proof of intention of alienation of property for the purpose of avoiding execution of an eventual judgment against him, and then dispose of the case by issuing a proclamation in the usual terms if necessary." Ordered accordingly. 1850. September 30, The confisca- tion of salt as contraband upon a judicial suit or informa- tion according to Section XCVI. et seq Regulation X. 1819, is ille- gal without an information or charge, and is- sue of notice thereupon, a- gainst the owner of the salt. The penalty exigible upon such sijit or information a- gainst a chu- rundar or su- percargo, in charge of a des- patch of salt, is, by Section XLI. of the Regulation, a personal one by fine. GOVERNMENT, Petitionee. This was an appeal from an order of the judge of Jessore, dated 17th June, 1850, absolving from the penalty of fine the (churundar) supercargo, in charge of salt, the property of Buldeb Shaw Chowdhree, on whose appeal* the order of the above judge, dated 20th February, 1850, confiscating salt as contraband without notice to him as owner, had been reversed by the Sudder Dewanny Adawlut on the 9th April following. The order appealed from also directed the giving up the confiscated salt. The petitioner urged that the appeal on that occasion having been preferred only bv Buldeb Shaw, and in regard to his personal inter- est in the salt, the original order of the judge fining Brij Soonder Shaw, the supercargo, should have been upheld ; but the judge interpreting the Sudder Court's orders of 9th April as cancelling in toto his order of 20th February, had released Brij soonder Shaw from custody without realization of the fine. The petitioner further urged that the charge or information against Buldeb Shaw, as owner of the salt, had been withdrawn, and that the salt ought to have been adjudged confiscated on the charge only against the super- cargo. By the Court. — (Present Sir R. Barlow, Bart., and Messrs. Colvin and Dunbar) : — " We are of opinion that taking Section C. with Section XLI., Regulation X. of 1819, the. * See the reported case of Buldeb Shaw, petitioner, dated 9th April, 1850. SUDDER DEWANNY ADAWLUT. 193 penalty of confiscation of salt, under a judicial suit or infor- mation, according to Section XCVI. and the Sections follow- ing of the law, cannot be enforced unless there be an infor- mation or charge, and regular issue of notice, &c., thereupon, against the party upon whom that penalty will fall, namely, the owner of the salt. The proceeding against the gomashta, or other person in charge of the salt, can only be as regards the penalty exigible from him, which, by Section XLI., is a personal one by fine. As the ground of the present application is that there is no necessity for including the owner as a party in proceedings for enforcing the penalty of confiscation of the salt seized in this case, and as there is, therefore, no information or charge now preferred ao-ainst the owner, we see no cause for interfering with the order of the judge of 17th June, 1850, releasing the salt from attachment, under present circumstances. " It was not, however, the intention of our order of the 9th April last, to interfere with the first order of the judge, imposing a fine on the gomashta who was in charge of the dispatch of salt. The judge has been in error in recalKng his order in regard to that fine, as in execution of the aforesaid directions of this Court. The fine win remain exigible from the gomashta, as at the date of the issue of the first order of the judge." EUNGMALA CIIOWDRAESf, Petitioner. This is a case in which the principal sudder ameen of zillah 1850 Tipperah had, on the 2nd November, 1849, in execution of a decree of the Sudder Dewanny Adawlut, ordered payment of interest on October l. wasilat from the date of the decree of the zillah court, establishing Ruled on a petitioner's right to an estate, which decision was subsequently con- lieariiig by all firmed by the decree of the sudder court. The judge reversed this the Courf^ that order of the principal sudder ameen, and directed that the petitioner the ordinary should receive interest on wasilat only from the date at which the actual l^^ regarding amoimt of wasilat had been finally ascertained and declared in interest on execution of the decrees of the zillah or of the sudder court, mesne profits Against this order of the judge, which was dated the 13th December, ^ch^'^intCTest^* 1849, the petitioner appealed to the Sudder Dewanny Adawlut, may be given claiming interest or wasilat at least from the date of the decision Z™™ ""^ ''"'^ "/ establishing her right in the estate, if not from an earKer date. f^'' clear dale The case was considered at a sitting of all the judges of the of demand, and Court ; and opinions and judgments were then recorded as follows : ^^^^ ^^^ P^Y- By the Court. — (Present Mr. Dick, Sir R. Barlow, Bart., and OTdered°bv a^ Messrs. Colvin and Dunbar J : — " The following dates for allowing decree as of interest on mesne profits were discussed : — course, and " First. — From the close of each year after date of dispossession ^signed'^^""^ or of adverse possession. Where, for « Second.— T>a.te of suit, that is, demand. interestTn™'°' " Third. — Date of decree. mesne profits " Fourth. — Date of ascertainment of amount of the mesne profits may be award- in execution of decree. 196 SUMMARY CASES IN THE ed from an " The prevalent opinion of the pleaders who were invited to state earlier or from their views on the question, as one of much general interest, than that ^of appeared to be, that the date of suit, that is, demand, should be suit, those rea- fixed upon, as a general rule of practice, for granting interest upon sons should be icasUat. When, however, interest from date of dispossession has decree When been claimed, on good reason shown, it might be granted, on grounds however, a de- to be recorded, as a special exception to the above declared general cree is silent julg. award "of such " It ™ay he noted that since a separate and subsequent suit may- interest, the now be instituted for mesne profits, after obtaining a decree for claim for it will possession, interest should be given from date of the first suit for the date of as- possession as a general rule of practice, if claimed in the subsequent certainment of suit for mesne profits. mesne profits « 'pjjg Court concur generally in the above opinion. Interest on mesne profits may be awarded, as of course, from date of suit, in a decree. When, however, interest is awarded from an earlier or from a later date than that of suit, special reasons should be assigned in the decree. " In applying the above principles to the case before us, we can adjudge interest on the mesne profits only from the date of ascertain- ment of amount of mesne profits due. We cannot award it from the date of decree, or from any anterior period, because no mention of such interest is to be found in the decree itself. " The petition is therefore rejected." Mr. Jackson. — " It appears to me that the law having left it entirely to the judge presiding in a court to decide from what date mesne proceeds, or interest on mesne proceeds, shall be granted, with reference to the circumstances of each case, this Court has no power to fix any general rule on the subject. I find that the Western Court declared their opinions, that, as a general rule, the date on which the amount of mesne proceeds was fixed, is the date from which interest should be awarded on these proceeds ; and this ap- parently on the reasonsfcle principle that the demand did not become a debt till the amount was ascertained, and that consequently interest could not be demanded from an earlier date. I think that this principle was correct ; but it is also evident that if the fixing the amount of mesne proceeds be delayed by the wilful act of th& defendant, by his withholding accounts, or the like, then he should not be allowed to profit by his opposition, and interest should then be allowed from the date of the decree. I see no reason why he should pay interest from an earlier date. It is to be held in mind that a party holding an estate, cannot be considered to hold it wrongfully until it is declared by a competent court, that another party has a better title ; when the court does declare this, restitution must take place. The land must be given up, and the proceeds of the land j but interest on the proceeds is not due till the declaration of right. Of course special circumstances may occur, demanding a special provision ; but, supposing the defendant to have held under a bona fide title, and to have given in his accounts on demand under the decrees, interest is not fairly chargeable on mesne proceds, till the amount is declared, and becomes a debt." SUDDER DEWANNY ADAWI-UT. 197 GUNPUT SINGH, Appellant, Petitioner, KOKILCHUND and others, Respondents. This wjis a case referred to the full bench by Mr. Dick. Petitioner sued on a kistbuudee in the zillah, and cited Jhoteelall Bhooya as a witness. The witness stated that he had purchased two houses from the defendants' ancestor, and therefore objected to giving his evidence. The principal sudder ameen declared that his purchase did not make him an interested party in this case, and ordered his evidence to be taken notwithstanding his objection. In summary appeal, the judge reversed this order. By the Court. — (Present Mr. C. Tucker, Sir JR. Barlow, Bart, and Mr. TV. B. Jackson) : — " We are of opinion that, mider Circular Order 2nd February, 1849, there was no summary appeal to the judge pending the suit, and that he was not competent to interfere with the order of the principal sudder ameen. We, therefore, reverse the judge's order, and affirm that of the principal sudder ameen. " We see no reason to doubt the soundness of the precedeill of Shamlall and others, decided by Mr. Hawkins, judge, on the 20th November, 1848, referred to in Mr. Dick's proceedings." 1S51. January 1 1 , An appellate court is not cotnpetent, un- der Circular Order February 2, 1849, to take up by way of a summary com- plaint an appeal against an in- terlocutory or- der of a courfc- of first instance declaring the admissibility of a witness, A summary appeal pending a suit, is not open on sucb a point. HYDER ALEE and others, Appellants, Petitioners, PIETHIMA SOONDREE and MAHANUND ROY, Respondents. This was a case referred to the full bench by Mr. Dunbar, with regard to the right of the purchasers of a decree obtained by one Mahomed Wajid, to revive execution of the decree. The point was, whether a petition put in by Mahomed Wajid, in execution of another decree obtained by a different party, in which Mahomed Wajid claimed execution also on account of his own decree, was a sufficient procedure to bar limitation against the petitioners' purchases from his heir. The Court. — (Present Mr. C. Tucker, Sir. E. Barlow, Barf., and Mr. TV. B. Jackson,) — ^passed the following order : " The Court consider the application of the 12th November, 1824, to be a sufficient application for execution of the decree, and that the judge is in error in considering it otherwise. It remains then to be considered whether, admitting that to be a sufficient application, a lapse of twelve years has taken place on the part of the decree- holder. We are of opinion that the twelve years must be counted from the date of the death of Mahomed Wajid, since his application bad remained unnoticed by the court up to that time, and on his 1851. Januai-y 11, A. and B. obtain distinct decrees against C. B. takes out execution of his decree. Jn the proceed- ings in that case, A. applies that the benefit of the execu- tion may be extended also to his decree. Held that this was a sufl5cient application for the execution of A.'s decree. 198 SUMMARY CASES IN THE death, it became the duty of his heirs to appear by a fresh petition ; but we have not information as to that date. We. therefore^ remand the case to be disposed of on this principle by the judge. " In calculating the lapse, since the death of Mahomed Wajid, the judge will take into consideration any plea of minority or of any other description, which may be advanced in explanation of the lapse," 1851. February 22, It is illegal la a principal sud- der ameen to revive execu- tion of a decree of the judge's court, which had heen refer- red to him for executionby the judge, but had been struck by him off his file, without a re- newed refer- ence of the case to him by the judge. This being a point of juris- diction, it is the duty of the courts to be strict and exact in their pro- ceedings re- garding it. Where the defect of juris- diction does * not depend upon a particu- lar state of facts, which it rests with one of the parties before a court to allege and prove, but is obvious in the act of the court itself, the pro- ceedings, made KISHENNATH BHUTTACHAEGE, Petitionee Appellant, versus RAMNAEAIN MOOKERJEA, Respondent. This case was made over to a full bench by an order of Mr. Tucker, dated 26th December, 1850. The petitioner was debtor under a decree to Ramnarain Mookerjea and others, passed by the judge of Hooghly and referred for execution by that officer under Act V. of 1 836, to the principal sudder ameen. After a partial execution, the principal sudder ameen struck the case oflP his file on 12th May, 1846. On application from the decreedar, he took up the case again on the 19th of the same month, and on the 29th June, 1847, proceeded to pass his orders on several points in dispute between the parties. The decreedar appealed to the judge from the order of tliat date, the petitioner not then objecting. On a remand by the judge, the case was again taken up and final orders passed by the principal sudder ameen on 5th March, 1849. An appeal was preferred from this latter order to the judge by the petitioner, who, amongst other matters, pleaded want of jurisdiction in the principal sudder ameen to interfere in the case, after having struck it off his file, without an express and renewed reference by the judge. ' On 9th July, 1850, the judge passed orders confirming the orders of the principal sudder ameen, but without noticing the plea urged by the petitioner of want of jurisdiction in the principal sudder ameen. This led to the present application to this Court, in the form of a special appeal from the order of the judge, above noted. The Court. — (Present Messrs. Tucker and Colvin): — "We are of opinion that the principal sudder ameen acted illegally in reviving execution in this case after having stitick the case off his file, without receiving a renewed reference from the judge. As he had jurisdiction in this matter originally, only through and by the authority conveyed to him by the judge, and not through any inherent right attached to his office of principal sudder ameen, so when he had executed the order of the judge, and had struck the case off his own file, the case was no longer pending before him, anJ to revive execution required the orders of the judge just as much as the original authority given to execute. In support of this opinion we can appeal to the invari- SUDDER DEWANNY ADAWLTJT. 199 able practice of this Court, whose decrees are sent to the zillah judges for execution, but when once struck off the file, execution cannot be revived without application to this Court, and fresh orders being issued to the judge. The Circular Order of the Yth December, 1838, though having reference mainly to the correct preparation of the monthly and annual statements submitted to this Court by the subor- dinate courts, declares the same doctrine: — see Headings 10 and 13. " It has been contended that, though the order of the principal sudder ameen of the 12th May, 1846, is expressly to strike the case off his file, yet looking to its whole context and intention, it is justly to be regarded as an order of postponement only. We cannot, however, admit any lax interpretation of an order of which the terms are in themselves, precise. It is the duty of this Court to enforce exactness and regularity on the part of the courts subordinate to it. Where postponement only is intended, the order should be plainly to that effect, and where, as appears to us to have been the case in this instance, there has been a clear defect of jurisdiction and authority in a lower court, we consider it to be our duty to maintain and enforce the law, although the defect of jurisdiction may have been overlooked, or, from any cause, may not have been pleaded by a party in some stage of the proceedings in that court. Where the defect of jurisdiction does not depend upon a particular state of facts, which it rests with one of the parties before a court to allege and prove, but is obvious in the act of the court itself when it proceeds to take cognizance of a case, the responsibility of such defect must rest on the court irrespectively of any error or neglect of the parties, and its illegal proceedings caimot be upheld by the superior court. " Under these circumstances we cancel the orders of the lower courts, dated respectively the 5th March, 1849, and 9th July, 1850 ; and if the decreedar be desirous to revive execution of the decree in question, he must proceed by petition in the first instance to the judge of zillah Hooghly." Mr. Dick. — " When a case for execution is referred by the judge, imder Act V. of 1836, it is so referred to be finally disposed of by the principal sudder ameen. " The order of the principal sudder ameen in this case, striking it out off his file runs thus : ' the case is struck out for the present, and if the decree-holder should apply again, a suitable order will be passed on his application.' This, though a very irregular order, I do not consider a final one ; and a final order only, and in instances of default, or complete execution, was required to be followed up by the return of the record of the case to the judge who referred it, as finally dispos- ed of under or in the spirit of Circular Orders, 4th December, 1835. The defect, therefore, I hold to be merely formal, and in no way to affect substantive justice. " I Would therefore overrule the plea taken by the debtor, and pro- ceed to the merits of the case. 'Such procedure would, in my opinion, be in accordance with our first rule of practice in admission of special appeals, of 24th December, 1847. — 'A plea founded on a mere illegal by such defect, cannot be upheld by the Sudder De- wauny Adaw- lut, although no objection to the assumption of jurisdiction may have been made before the court of first instance, or at several stages of the proceed- ings before the lower appellate court. 200 SUMILVRY CASES IX THE informality or departure from practice in the lower courts, such informality not affecting the decretal order, is not a sufficient ground for the admission of a special appeal.' " I am fiirther of opinion that no objection, which could have been taken in the court of first instance and been then cured if taken, should be heard and admitted in appeal. — (See Moore's Indian Appeals, Vol. ni. page 242.) rr v i-i- , " I think my reasoning in this case is fully borne out-by the deci- sion of a full bench of the 4th April, 1848. — (See Sudder Decisions of 1848, pp. 276-277.) In that case an appeal had been admitted by a judge from a decision of a moonsifF, after lapse of the period prescribed by law, without assigning any reasons, as indispensable under Section X., Kegulation IV. of 1793. -It was consequently at the least as illegal, I think, as the order of the principal sudder ameen which I have designated as irregular. " With regard to the expediency of making our lower courts as careful and regular and legal in their proceedings as possible, I think we can do so without countenancing the admission of pleas in appeal, which should have been preferred in the court of first instance, and which do not affect substantial justice, and especially when the party preferring them has positively estopped himself, by subsequent formal acts in court." JOYKISHEN MOOKEEJEA, Petitionee, Appellant. February 22. Case remand- ed, the lower appellate court not hav- ing passed an order on the different ap- plications before it, the disposal of which was necessary to a decision, on the merits of the particular ap- plication on which it gave directions. EADHAGOBIND SINGH and others, Respondents. The petitioner held a decree against Radhagobind Singh, who held a decree against Thakoor Das. Radhagobind Singh applied to the principal sudder ameen, stating that he had sold his decree against Thakoor Das to Rajiblochun liae, by a transfer on the back of the decree, and asking that the name of Rajiblochun Rae, might be substituted for his own as the party entitled to the benefit of that- decree. The petitioner, Joykishen Mookerjea, filed a petition of objection, setting forth that the professed transfer by Radhagobind Singh, of his decree to Rajiblochun Rae was fraudulent and collu- sive, and praying for an attachment of Radhagobind's interest in that decree upon the decree which he, the petitioner, held against Radha- gobind. . The principal sudder ameen called for proofs from Joy- kishen Mookerjea of his right to take out an attachment. These proofs were filed ; but the principal sudder ameen passed no order upon them, either granting or refusing the attachment. He however re- jected the application of Radhagobind Singh for the substitution of. the name of Rajiblochun Rae as holder of the decree against Thakoor Das, believing the transaction not to be bona fide, and also to be illegal, in consequence of the transfer on the back of the decree not bearing the proper stamp. The judge, upon the appeal of Eajib- SUDDER DEWANNY ADAWI.TJT. 201 lochun Rae, reversed the order of the principal sudder ameen, and allowed the transfer in favor of that person of Eadhagobind's decree, thinking a stamp not required, and the acknowledgment of Eadhagobind to be a sufficient authority for the transfer under Con- struction No. 1341. He took no notice of the omission of the principal sudder araeen to pass an order in regard to the petitioner's application for an attachment upon Radhagobind's decree against Thakoor Das. By the Court. — (Present Messrs. C. Tucker, A Dick and J. R, Colvin) : — " As the petitioner was obviously entitled to a distinct order in respect to that application, and his right of objecting to any order given upon the application made at the same time by Radhago- bind Singh would be materially affected by the order passed in respect to his own application, we reverse the orders of the courts below, and direct the principal sudder ameen to decide all the matters that were before him, viz., both whether the petitioner is entitled to attach any decree held by Radhagobind, and also, by a fresh order, whether Radhagobind's original petition for a transfer of his decree to Rajib- lochun Rae is or is not fit to be compUed with." DOOLAH BUKSH, Appellant, THAKOOR DUTT, HiMSELr and as Guaedian op MITTEN SINGH AND HIMMUT SINGH, Minobs, Respondents. This Is an application for review of an order, passed by a former judge, Mr. J. F. M. Reid, on the 1st April, 1841, upwards of nine years after the order was passed ; Mr. Reid having remained in the Court till March, 1847. No reason whatever is assigned for the delay. The Court, (present Messrs. C. Tucker, A. Dick and J. R. 1851. February 22, The Coin-t will not admit a review of an Colvin,) held that they could not, under the above circumstances, by a former allow of a re-opening of the matter of the appUcation at the present J'^'^g^ "f ^^^ • J 1 o jrr r Court upwards period. j,f nine years Petition rejected. previously, such judge having remained in the Court several years subsequently to the date of the order, without any application being made to him, and no reason being assigned for the delay. GOVERNMENT, Petitioner, Appellant, 1851. MEHR BEBEE and others, Respondents. This case was admitted to a review on the 6th January, 1851, under the following certificate recorded by Mr. W. B. Jackson : " The judge reversed the order of the principal sudder ameen in summary admitting a claim, under a dain muhur, to property lotted for sale in investigations B 2 Febiniary 22. 202 STJMMAEY CASES IN THE upon execution of a decree, the Court will not uphold objec- tions to the sale of particular property, when the apparent presumptions are in favor of the property having belong- ed to the party against ■whom the decree was execution of decree, and declared the claim bad, and the property liable to sale under the decree, assigning as grounds that the habee- nama and the oral evidence in support of the claim, were not in his opinion deserving of confidence ; he also alludes to a decision of the special commissioner, showing that the judgment debtor was in pos- session, not the claimant. "Mr, Dunbar reverses this order in special appeal, on the grotmd that the judge has not given in detail his reasons for doubting the validity of the document and evidence, nor has he met the arguments of the principal sudder ameen. It appears to me that the grounds of the judge's order are sufficiently recorded in his proceedings ; but even were they wanting, this is no sufficient reason for reversing the order, and declaring the property not liable to sale : it would be sufficient ground for remanding the case that the defect might be supplied. " The order of tliis court appears to me defective, and I admit the review. The case will now go before a full court." By the Court. — (Present Messrs. Tucker, Dick and Colvin) : — " We concur generally in the observations recorded above by Mr. Jackson, that there were no sufficient grounds for interfering with the orders of the judge in this case, nor do we deem it necessary or proper to remand the case. When it is considered that the investigation made in these cases is only of a summary nature subject to reversal in a regular suit, we consider the circum- stances stated by the judge (viz., that the very person who now states that he had long previously made over the lands in satisfaction of dower to his wife, did, when the case regarding the resumption and consequent assessment of them was pending before the special com- missioner, attend and conduct the suit, calling himseK the proprietor, and stating himself to be in possession of the lands,) as good and sufficient grounds for reversing the order of the principal sudder ameen, and declaring the lands hable to sale. We accordingly revoke the orders of this Court, dated 27th March, 1850, and reject the petition of special appeal against the judge's order of 8th Sep- tember, 1849." 1851. March 27, - A decree- holder having come to a set- tlement with two out of five EAMRUTTEN ROY, HURNATH ROY, and RADHA- CHURN ROY, Petitionees, versus PERTABCHUNDER SINGH and ISHWUECHUNDER SINGH, Defendants. This case was refen-ed to the fuU bench with the following note by Sir R. Barlow, Bart :^- " Ranee Kateeanee, on the 22nd June, 1848, obtained a decree against Ramruttun Roy and his two brothers, and also against Gooroodass Roy and his brother's widow, Ramrungonee. The decree was a joint decree against all five defendants. Execution was taken out, in the course of which the decveedar came to a settlement SDBDEE DEWANNT ADAWXUT. 203 with Gooroodass and Ramrungonee, and applied for execution against judgment deb. . petitioner and his brothers. Petitioners plead that, with reference ^t^ers'^oWected to precedents which they produce, the debtors and the judgment t^at the decrea creditors, having come to an adjustment out of court, the original decree could no longer of June, 1848, cannot be carried out. It is to be observed that against 'th^m • petitioners were not parties to an adjustment with the decreedar, so Objection over- that, as regards them at all events, the court's decree is in full opera- ruled, tion. The case was not settled in court, and, on motion by the parties, struck off the file, and fresh engagements entered into subsequent to its having been taken out of cour^ as in the precedent of Omatara Dassee : nor is this case similar to that of Ranee Soorjmonee Debea, petitioner, at page 90,* volume II. of Summary Reports, which was in supercession of the decree. The execution of decree in favor of Ranee Kateeanee was in progress. No formal adjustment had been entered into between the parties in court, nor was the case ever removed off the file." By the Court. — Mr. Tucker and Sir R. Barlow, Bart. : — " We see no reason to interfere with the lower court's order. The petitioners, by the terms of the decree, were responsible for the full amount decreed, and any sum taken by the decreedar from the co-defendants of the petitioners was only so much deducted from their responsibility. The principal sudder ameen's order is confirm- ed, and the appeal dismissed with costs, to the extent of one-fourth of the original fee." Mr. Dick. — " A decree given against several persons conjointly, cannot, in my opinion, be executed at pleasure against one only of those several persons for the whole amount of such decree. It must be executed against them all equally. If either of those persons, or any number of them, cannot be apprehended, and has no property, then and then only can such conjoint (ijrruxlee) decree be executed against any one, or any particular number of those persons. There is no hardship in this, because it must be presumed, without hesita- tion, that the decreedar had only a conjoint claim against those persons. " If the decree had been against those several persons, severally and conjointly, then it might have been executed against any one of them, arbitrarily for the whole amount : and he who was thus obUged to satisfy the whole claim, would have his remedy against his co-debtors, according to their respective interests in the claim decreed and satis- fied ; also the person or persons against whom the decree was carried into execution, exclusively of others, would be at liberty to cause the apprehension of the persons, or to point out and have attached any property of those co-debtors, and sold in satisfaction of the decree in question. In this case the objection of the petitioner is altogether untenable. There is no imputation of partiality or dishonest dealing. I therefore concur fuUy in rejecting it, with costs." * See page 114 of this Edition, 204 SDMMAEY CASES IN THE PUTTEH JAN BEBEE, Widow of AKBAE MAHOMED, Deceased, Petitionee, NOOEUNNISSA CHOWDRINE and others. Defendants. 1^51. This case was referred to the full bench with the following note March 27. ^Y ^" ^- Barlow, Bart. :— " It appears that petitioner, on the 26th AprU, 1849, applied by f th^ '^'^1 " petition to the judge for permission to sue in formd pauperis. Her bility of the proof and witnesses were all before the court by the 27th July idem, law of limita- when Noorunnissa, her opponent, on the 6th September, and on the siTmrnlray^de!' '^* ''^®^' ^'^"^ ^^"^ '""'^alutnama and objections. On the 28th of cidedin the January, 1850, she was called on for her proofs. On the 6th July preliminary these were put in ; and, on the 29th idem, the judge rejected the held^imder" Act petitioner's application on the following grounds : — ' That petitioner, IX. of 1839, as after the lapse of eleven years and two months from the date of to the probable dispossession, had come into court ; that inquiry into the pleas pre- (jon. ' ferred had been made in due course ; that from the date of disposses- sion, i.e., Phagoon 1244, to the present date, more than twelve years have elapsed.' The precedent in the case of Lopes in volume VII., page 45, Sudder Dewanny Selected Reports of 11th September, 1841, rules that a miscellaneous petition in forma pauperis preferred in court, does not bar the operation of the law of limitation. " Petitioner pleads that she made her application ten months before the lapse of twelve years, and that she is entitled to be heard as she put in her proofs and documents within that period ; that the judge called upon the opposite party upon her petition for proof, though the petitioner had established her case, and the judge had applied the limitation law, which would not have applied* to it, but for the delay occasioned by the course which the judge himself had adopted ; and urges that the case, cited by the judge, does not bear on the point at issue. " It may be necessary, at some future stage of the proceedings, to determine whether these pleas are good. The law of limitation may, I do not say that it will, bar the suit ; but it appears to me that that question is one which can only be decided judicially after the provisions of the Circular Order, 11th August, 1843, paragraphs 1 and 2, have been carried out. It must first be determined by the court in which the pauper's petition is presented, whether there be any 'probable cause for institution of the suit.' No inquiry of this nature has, in the case before me, been held, and I am not prepared to say that it was within the competence of the judge to dispose of the petitioner's application, as he did, by rejection of his application in forma pauperis, and by application of the law of limitation, and the precedent quoted to the petitioner's case without the preliminary inquiry above noted. I beg to submit this note for the opinion of the Court at large." By the Court. — Mr. Tucker and Sir H. Barlow, Bart. : — " With reference to the decisions of this Court, 26th September, SUDDEK DEWANNY ADAWLUT. 205 1850, on the petition of Sahib Beer Dirgopal Sein, and that of Sheikh Tukee Mahomed Chowdree on the 18th February of the same yeai', we are of opinion that the question of the applicability of the law of limitation cannot be summarily decided in the preliminary investigation held under Act IX. of 1839, as to the 'probable cause of action:' such order can only be passed after the institution of a regular action under Regulation IV. of 1793. Cause of action, and its legality or otherwise, we hold to be distinct questions altoge- ther. We, therefore, reverse the judge's order. He will, without reference to limitation, make the necessary inquiries, and reject or admit the petitioner's application as he may deem right and proper." Mr. Tucker : — " In concurring with Sir R. Barlow in this case, I must not pass over in silence the correspondence which passed between this and the Western Court in 1846, on this subject, in which I was personally engaged. " This Court contended that a judge could, and should entertain the question of limitation in considering the question that there is probable cause for instituting the suit ; but the Western Court were unanimous in repudiating our construction, and held that the judge had no right whatever to entertain any question in bar of the suit. As the courts could not come to a concurrent opinion, no authori- tative rule was promulgated, and each court was at liberty to pursue its ovpn course. " When the above correspondence took place. Sir R. Barlow and Mr. Jackson had not a seat at the English sittings, and therefore were not cognizant of the said correspondence. Mr. Colvin has since joined the Court. These three gentlemen, who participated in disposing of the cases referred to in the above note, have by those decisions shown that they concur in opinion with the Western Court, which alon^ would afford me fair ground for reconsidering the ques- tion ; but I do not consider the cases at all similar. The question referred to the Western Court contemplated an infringement of the statute of limitation, palpable on the petition of the complainant, before he made his application to be allowed to sue as a pauper ; and the opinion of this Court (Messrs. Rattray, Reid, Dick and myseK) was that the judge should take notice of the same. In the present case, ten months of the period of limitation remained when the application to sue in forma pauperis was filed, and the proceed- incrs were ready in three months. But the judge admitting the petitioner's opponent to come in and object, protracted the proceed- ings till the twelve years had elapsed, when he stops further inquiiy, and, without another word, throws out the petition for lapse of time. If this be allowed, it may at any time be in the power of the oppo- nent to protract the preliminary inquiries, till lapse of time may be urged against the reception of the suit. This seems to me a monstrous doctrine, and, therefore, I have concurred with Sir R. Barlow in reversing the judge's order." Mr. Dick. — " The object of the law. Act IX. of 1839, I take to be to prevent persons being brought into court, and harassed uselessly by plaintiffs suing them as paupers. 206 SUMMABT CASES IN THE " It enjoins that the judge satisfy himself by examination of the petitioner on oath, that he has ' probabie cause' of action before admitting him to sue as a pauper. " If, from such examination, the judge be satisfied, that, in conse- quence of lapse of time, the law of hmitation will prevent his cause of action, however probable it may be in itself, fiom being heard, and that -the suit will inevitably be dismissed, I think the judge only fulfils the intentions of the law, by refusing to grant permission to sue as a pauper ; otherwise he would be allowing the petitioner to force the parties sued into court, and harassing them with defending a suit, perhaps at a ruinous expense, with a certainty of the suit being dismissed after all such mischief. " The judge, however, should be most careful to ascertain from the pauper petitioner whether he intends to sue under the general law of limitation of twelve years, or the special law, Regulation 11. of 1805. " In this instance now before us, the judge does not appear to have adverted to the special law, and rejected the petition with reference solely to the general law of twelve years. " I would, therefore, remand the case to be decided with adver- tence to both laws of limitation, special as well as general. " It is true that any order, passed on such a petition to sue as a pauper, has been held to be a mere miscellaneous order ; and no miscellaneous order is binding in a regular suit ; but, on the other hand, it is to be borne in mind, that it does not prevent the party from suing in the common course of law. It merely prevents him from uselessly, and perhaps maliciously, harassing other parties, with comparative impunity to himself. The view I have here taken is, in every important point, the very same as that intimated by this Court to the deputy commissioner of Hazareebagh in their letter of the 11th September, 1846." Nos. 1061 and 62 of 1850. GOLUCKCHUNDER DASS, Petitioner, 1851. March 27. A judgment debtor is entit- led to execute the decree pass- ed in his favor upon any pro- versus MUDOOSOODUN DASS, Defendant. These cases were admitted to summary appeal on the 12th February, 1851, by Sir R. Barlow, Bart., under the following certificate : " This is an appeal against an order of the judge of Rungpore. The principal sudder ameen of that district ordered attachment, in satisfaction of a decree of his own court in favor of petitioner, of two decrees passed before the moonsiff and before the sudder ameen, i(» 208 SUMMAEY CASES IN THE ■included in the valuation of the suit. , The present proprietor, if suing to set aside the pottah permanently for the future, would be re- quired to put a value on the pottahdaree interest. sum of rupees 6,374, being the amount of rents of the said ijara mehal due to him on account of the period antecedent to the sale, alleging that the said rents were collected and misappropriated by the petitioner, and also to set aside the decision of the session judge and the ijara pottah. The petitioner (defendant) pleaded that the plaint was defective, because the amount of the pottahdaree interest was not the sum at which the valuation of the suit was computed. The principal sudder ameen held that, under the provisions of Section VIII., Regulation X. of 1829, it was not necessary for plaintiff to put a value on the pottahdaree interest, because in this case the plaintifFs claim is not for possession of the ijara mehal, but merely for the rents of it misappropriated. From the principal sudder ameen's order, which was dated the 11th February, 1851, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. J. JR. Colvin) : — " This was a suit merely for past rents of the ijara mehal and the amount of such rents was included in the valuation of the suit. In such a case, though the question of the validity or otherwise of the pottah would arise between the parties in the course of investigation, yet the amount in excess of the past rents is not necessary to be included in the valuation of the suit. " The present proprietor of the mehal, if suing to set aside the ijara pottah for the future, would be required to put a value on the pottahdaree interest ; but this does not apply to this suit, which was merely instituted for past rents." The order of the principal sudder ameen was accordingly affirmed. March 31. Where the plaint refers to the setting a- side of the sale of a share of a suddermehal,it is enough to sue on the usual valuation of three times the jumma, though the price bid at the sale, which is sought to be set aside, may have been in excess of that amount. INDER SAHOO and HUNOOMAN SAHOO, Petitioners. In execution of a decree, dated the 26th January, 1838, obtained by Sumbhoo Dutt against Gujraj Dass and Koonjbeharee Lall, the 4 anna share of Mouza Narainpore was sold and purchased by one Junoon Misser for the sum of rupees 51, on the 5th June, 1848. The petitioners alleging that the above 4 annas share was under two distinct deeds of sale, each for a 2 annas share, purchased by them from the debtors and others on two different dates, viz., one in the month of February, 1834, and the other on the 17th January, 1840, sued the above decree-holder and others for reversal of the sale, and laid their claim at rupees 19-15-8-8, being three times the amount of sudder jumma of the said 4 annas share. The moonsiff, on the 27th January, 1849, considered the plaint good, and, for the reasons stated in his decision, decreed the case in plaintiff's favor. On appeal, the principal sudder ameen nonsuited the suit, because the plaintiffs had not laid their claim at the amount of the price bid at the sale. SUDDEll DEWANNY ^U>AWLXJT. 209 From the principal sudder ameen's order, which was dated the 18th December, 1850, the petitioners appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. J. R. Colvin) : — " It appears that the above 4 aimas share, sold in execution of a decree, is a sudder mehal ; and in a suit for setting aside the sale of the said share and for possession of the same, it is enough to sue on the usual valuation of three times the jumma, not on the price bid at the auction sale. On this ground, the order of the principal sudder ameen must be reversed." Ordered accordingly. LUCKEE DEBEA CHOWDEAIN, Petitioner. In execution of a decree by the petitioner against Ramchurn Singh i85i, and Gocool Singh, the petitioner applied to the principal sudder ., ameen of zillah Mymensing for execution against Hurnath Singh, on the ground that the said Gocool Singh had changed his name to Process of Hurnath Singh to evade execution ; but his prayer was rejected, as decree 'can only no names could be inserted in the process for execution but those issue in the inserted in the decree. "uTmenf dtbt From the principal sudder ameen's order, which was dated the ors recorded in ■ 24th December, 1850, the petitioner appealed to the Sudder Devvan- the decree. A ny Adawlut. T^CileM By the Court. — (Present Mr. J. R. Colvin) : — " The name of jq j^get G«cooI Singh was in the decree, and notice can issue in his name change of name' only. To take out a notice against Hurnath Singh, not mentioned ^ll^ged to ^ . . o ' naiVG 06611 in the decree, was obviously improper. assumed by " The other party should have been left to plead that he is not any of them. Gocool Singh but Hurnath Singh. P™f f ''"'"J'^ „ -r-r 1 1 1 111- • <■ ■ 1 oe taken out " Under the above ground, there bemg no reason to mterrere with against the the principal sudder ameen's order, the petition must be rejected." party by his Ordered accordingly. rthe"d:S^e*! and he should be left to plead that he is not that party, but another person with a different name. 1851. TAEUKNATH EOY, Petitionek. The petitioner's late father, Nubocoomar Eoy, left three minor sons, viz., the petitioner, Dwarkanath Eoy, and Kettemath Eoy. The latter died. Afterwards the petitioner and Dwarkanath Eoy having March 31. attained their majority, took the whole property left by their father. There cannot and the sum of Eupees 185, 2 annas, and 16 gundas being due be, under Act annually, under a settlement made by Government with petitioner's ?^.* °^ .^^^h ancestor, in lieu of sayer, the petitioner presented an application to cates in pro- the judge of zillah 24 Pergunnahs, on the 26th December, 1850, portional c 2 SUDDEK DEWANNY ADAWLTJT. 209 From the principal sudder ameen's order, which was dated the 18th December, 1850, the petitioners appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr. J. R. Colvin) : — " It appears that the above 4 annas share, sold in execution of a decree, is a sudder mehal ; and in a suit for setting aside the sale of the said share and for possession of the same, it is enough to sue on the usual valuation of three times the jumma, not on the price bid at the auction sale. On this ground, the order of the principal sudder ameen must be reversed." Ordered accordingly. LUCKEE DEBEA CHOWDEAIN, Petitioner. In execution of a decree by the petitioner against Ramchurn Singh I85i. and Gocool Singh, the petitioner applied to the principal sudder ,. ameen of zillah Mymensing for execution against Hurnath Singh, on the ground that the said Gocool Singh had changed his name to Process of Hurnath Singh to evade execution ; but his prayer was rejected, as decree can only no names could be inserted in the process for execution but those issue in the inserted m the decree. "uTmentdebt- From the principal sudder ameen's order, which was dated the ors recorded in ■ 24th December, 1850, the petitioner appealed to the Sudder Dewan- the decree. A ny Adawlut. notVeTn^ert^d By the Court. — (Present Mr. J. R. Colvin) : — " The name of to meet a Gocool Singh was in the decree, and notice can issue in his name change of name only. To take out a notice against Hurnath Singh, not mentioned »Ueged to in the decree, was obviously improper. assumed by " The other party should have been left to plead that he is not any of them. Gocool Singh but Hurnath Singh. _ Trteken^o^t'^ " Under the above ground, there being no reason to interfere with against the the principal sudder ameen's order, the petition must be reiected." party by his ^ I ', J. 1 ' name, as stated Ordered accordmgly. i„ ^j^g ^g^ee, and he should -be left to plead that he is not that party, but another person with a different name. TARUKNATH ROY, Petitioner. The petitioner's late father, Nubocoomar Roy, left three minor jgjj^ sons, viz., the petitioner, Dwarkanath Roy, and Kettemath Roy. The latter died. Afterwards the petitioner and Dwarkanath Roy having March 31. attained their majority, took the whole property left by their father. There cannot and the sum of Rupees 185, 2 annas, and 16 gundas being due be, under Act annually, under a settlement made by Government with petitioner's ^^iac^^certifi- ancestor, in Ueu of sayer, the petitioner presented an application .to catos in pro- the judge of zillah 24 Pergunnahs, on the 26th December, 1850, portional C 2 210 SUMMARY CASES IN THE sliares to dif- ferent parties upon one com- mon ground of right. for a certificate under Act XX. of 1841, to enable liim to recover a moiety of the said sum on account of his own share. The petitioner's brother, Dwarkanath Eoy, also applied for a certifi- cate under the said Act to enable him to recover the remaining moiety. The judge held that, under the provisions of Act XX. of 1841, two distinct certificates cannot be granted to two different heirs for the same estate. • , From the judge's order, which was dated the 4th March, 1851, the petitioner appealed to the Sudder Dewanny Adawlut. By the Court. — (Present Mr, J. H. Colvin) : — " There cannot be, under Act XX. of 1841, distinct certificates in proportional shares to different parties upon one common ground of right." Petition rejected. 1851. April 17. The owner of a cargo of salt having been ad- mitted to be a necessary de- fendant, and made defen- dant accord- ingly, with a view to a judi- cial order of confiscation of the salt under the provisions of Sections CXVI. and the following of Regulation X. of 1819, upon a charge or in- formation laid against such owner, it is a fatal defect that the salt has not been kept as it was originally seized, so that it could be weighed in the presence of the owner and any witnesses he might desire to bring. An in- BALDEO SHAH, Petitionek, Appellant, versus G-OVEENMENT, Respondent. Sir B. Barlow, Bart : — " It is necessary to refer to this Court's proceedings of the 9th* April, 1850 and 30th September (idem), for the purpose of clearly understanding the merits of the case before us. * Copy of Order of 9« r^® ^ ^ as contemplated by paragraph 4 of the Circular Order No. 122 of adjustment in 23rd January, 1846, of ' amicable settlement by mutual consent of Article X., parties.' The application for receipt of the petition" on a rupees 2 Schedule B., gt^nip, and for a refund of the rupees 2 excess, cannot therefore be 0^829.°°^ ■ sanctioned. cannot be re- " The petition, however, being thus dealt with, as one under Article ceived on a 2 x. Schedule B., of the stamp law, the petitioner will receive back riipBGS SbaHQp) iii*'i (* 1 1 !•' Ill or an ordinary nail the amount oi stamp duty on irer appeal petition, as the plead- misceUaneous ings have been completed, and the case has been included in the list spp cation. jj£ causes ready for hearing, both according to the list prepared by the register and to that put up in the Court room." September 14. Mjjg, J_ JJ_ PQTTER, PETITIONER. In calculating the period of This was an appeal from an order of the sessions judge of 24 '^air'theTme Perg'mnahs, dated the 18th September, 1852, who had rejected the during which petitioner's appeal against the order of the deputy magistrate of the stamped paper above district, in a case in which a claim for maintenance was prefer- [owCTcoi^, to ^^^' ^^^^ Regulation Vn. of 1819, because the petition of appeal the purpose' of was presented after the prescribed period. procuring a By the Court. — (Present Mr. J. R. Colvin) : — " In calculating sfon is not de^' *^® period of Nizamut appeals the time during which stamped paper ducted. remains in the lower court for the purpose of procuring a copy of its A Nizamut decision, is not deducted. The terms of Act XXXI. of 1841, are presentedwith- restrictive and imperative. A Nizamut appeal can be presented out copy of the without copy of the decision of the lower court." decision of the Appeal rejected, lower court. '^'^ •■ SUDDEK DEWANNY ADAWLUT. 287 JEEB LALL MAHTOON and others, Petitionees, versus HUEGOBIND GHOSE, Opposite Paety. Messrs. Jackson andMytton : — " Tms is a petition for review of an order passed by a judge in a case of special appeal. We are of opinion that, under the terms of the law, which requires that appK- cations for review shall be filed before the authority which passed the order which it is proposed to review, this petition cannot be heard in the Sudder Dewanny Adawlut, but should be filed before the judge of the zillah court where the original order was passed, that is, in the zillah court of Behar. Application rejected." Sir R. Barlow, Bart. : — " The petitioners apply for review of a rejection of application for special appeal by the judge of Behar, on the 26th December, 1840. The original order for rejection of the application was passed on the 6th May, 1840. This petition, on wliich an order is sought, is filed on 19th August, 1852, after the lapse of twelve years from date of the first order of rejection. The prayer of the petitioner cannot therefore be received or recognized in any court. " But the law. Section TV., Regulation XXVI. of 1814, requires that an application for review be presented to the court in which the decree may have been passed. " It is urged that as by Act III. of 1843, the Sudder Court alone take cognizance of special appeals, the petitioner will be left without remedy if the court do not interfere. From Section IX. of that law, it appears to me that the Sudder Court even cannot grant relief, ' the existing laws of the presidencies shall continue in force, so far as they are not inconsistent with the provisions of this Act,' " The finality of a judge's order disallowing application for review of an order rejecting special appeal is clearly laid down, and of course affects all such rejections previous to Act III. of 1843. No appli- cation for review to this Court will, under any circumstances of this case, lie." 1852. September 21. Rtiled that application for review of an order passed by a zillah judge, in a case of special appeal previous to Act III. of 1843, should be pre- ferred in the zillah and not in the Sudder Court, not- withstanding that Act. OMESHCHUNDER ROY and BHUGWAN CHUNDER ROY, Plaintiffs, Pbtitionebs, versus BEEMOLA SOONDREE DEBEA, Defendant, Respondent, Mr, Fagan states that Mr. Waller stated the case erroneously on trial. The case went against him in consequence. The error was as regards the authority of the mookhtar to receive money. He said he had received the money in virtue of a general power ; but the fact is 1852. October 1. The pleader, that the defendant received the money and the mookhtar gave a 1? ^? applica- ,_, . 1 ■ • 1 11 • ° tion for review receipt, ihis was the original allegation, of judgment, 288 SUMMARY CASES IN THE cannot be al- By the Court. — (Present Messrs. W. B. Jackson. J. E Col- tam^the S "^^ ""^^- '^- ^- ^^"^J-—" The pleader in a review cannot be as stated by allowed to vary from the facts as stated by the pleader on the the pleader on original trial of the case : the present plea is based on such errone- e oriKinal j,„g pleading. Further, the present plea, that the receipt of the mookhtar is sufficient proof of actual payment to the principal, is quite untenable." Application for review rejected. trial of the case. 1852. October 5. Held that it was unneces- sai-y to decide the general point iirged in the application for review of judgment. BIEJRAJKISHOREE DASSEA, PLAKTiFr, Petitionee, versus DOORGACHURN BUKHSHEE and others, Defendants, Respondents. Mr. Colebrooke contends that the point in the amended certificate was whether sets-ofF can be admitted in the courts of justice on claims on a bond ; but they have not decided that point, but declared that the sums in question may be credited in the case, without giving an opinion on the general point regarding sets-ofF. By the Court. — (Present Messrs. W. B. Jackson, J. R. Colvin and A. J. M. Milk) : — " It appears to us that the Court found it un- necessary to decide the general point as regards sets-ofF, but, under the circumstances of the case, declared that the sums might be justly cre- dited to this account, as it was not established that they were pay- ments on. any other account. We would therefore reject the apphca- tion for review." October 5. An issue not pressed before the Court, and upon which no decision was given, cannot be taken up as a ground of review. TARNEECHURN PURKASHEE, Defendant, with others. Petitioner, 7Jersus ELIAS MARCUS, Platntiff, Respondent. Baboo Ramapersaud Boy. — PlaintifF sued for damages for cutting indigo from 472 beegahs, from Cheyt 1847 to Jeyt 1248, on alluvial land called chur Dhonajil : suit brought in May, 1843, Jeyt 1250. The principal sudder ameen, on the 22nd December, 1845, first awarded damages, rupees 1,000, for 70 beegahs. On appeal by the defendant the case was remanded on the 12th July, 1847. On the 21st September, 1848, damages to the amount of rupees 6,641, were awarded by the principal sudder ameen. In appeal, this order was affirmed on the 12th June, 1850, and the map of Hurrochunder was held not liable to question. In the other suit to reverse the magistrate's award of 2nd June, 1842; the suit was instituted on the 2nd March, 1843, against the plaintifi' in this action, on the 20th July, 1847, it was decreed in SUDDEE DEWANNY ADA-\VLUT. 289 favor of plaintiff, the present defendant, and on the 5th August, 1848, it was affirmed by the judge. The present suit is for damages on account of cutting indigo. Now the other suit for reversal of the magistrate's award, is dated previous to the date of institution of the present suit ; and the land from which the indigo is said to have been cut is a portion of the identical land sued for by the defendant in the other case, and for which defendant got a decree. As the land is declared to belong to defendant, the claim for damages for cutting the indigo will not hold. The second ground for review is that on 22nd December, 1 845, the principal sudder ameen awarded rupees 1,000 for damages of 70 beegahs. Plaintiff made no appeal, but defendant appealed ; and in consequence the case was remanded, and the result of the remand was an award for damages for 472 beegahs, and above rupees 6,000. Read the order of Sudder Dewanny Adawlut for remand, dated 12th July, 1847, (present Mr. Dick,) who considered the investiga- tion not satisfactory ; and ordered further local investigation and measurement, and directed the principal sudder ameen to decide the case on hearing evidence as to how much indigo was destroyed. The pleader argues that the principal sudder ameen had no power to award more than before. Mr. Dick's order refers only to the 70 beegahs, and not to more : indeed, he was not competent to take up more. Mr. L. Clarke, on the same side — Contends that the first issue was before the Court in the former trial. By the Court. — (Present Sir R. Barlow, Bart., Messrs. TV. B. Jackson, and J. H. Colvin) : — " The Court observe that, although the issue whether the land in question was the same as, or included in, the land decreed to the defendant in the case for possession, was raised in the defence, it was not subsequently supported, when the case came on in appeal by fihng the decree in question, although that decree had been passed before the case was decided in this Court. The result of this was that the issue was not pressed for decision before this Court, and no decision was given on it. We are of opinion, therefore, that this issue cannot be taken up as a ground of review. " On the second point the Court think that, when the case was remanded by Mr. Dick, it was intended to open up the whole case, and that the Court was fuUy competent to open up the whole case as laid by the plaintiff originally, although the matter actually in appeal related only to the portion of the original claim decreed in the court of first instance." Application for review rejected. N 2 29a SUMMAET CASES IN THE JUDDONUNDUN BURRAL and others, Plaintiffs, Petitioners, October C, Application for review in two cases dis- posed of by one judgment, may be receiv- ed on a single petition ; as fraud had not been charged in the plaint, nor want of necessity for the alienation of the property stated in the pleadings. The application for review was re- jected. Agent to the NUWAB NAZIM and another, Depen- dants, Appellants. In this case three appeals were preferred, one by the agent, No. 150, one by Kalee Komar, No. 152, both defendants. These have been taken up and decided by the Court in one appeal. The third appeal. No. 151, in which the agent was appellant, was decided separately. The review is on a petition against all three decisions, and is on rupees 2 stamp only. This application is not against the decision of the lower court, but against the decisions passed in appeal by this Court. The Court determine that as the two Cases, Nos. 150 and 152, appeals against the principal sudder ameen's decisions, were taken up together and were disposed of by one judgment, the application for review of the Court's judgment may be received on a single petition. Mr. Ritchie, on the part of the applicants, states he appears in the Cases No. 150 and 152 only. 3fr. Ritchie. — The chief point in this case is whether the aliena- tion of the two talooks, Sreerampoor and Ispinjurpoor alias Daroo- shah, by the applicant's elder brother, Bejyegobiod, and mother, Anund Moye, is valid. There are peculiarities which show that the then minors are not responsible. The alienation of the 3 annas of Kirtee's estate did not take place till after a decree had been passed, disallowing Nudyarchand's adoption. True, there was an appeal to the Sudder Dewanny Adawlut, but no very great expense would be incurred here ; at all events, so large and valuable a property need not have been sold. I MTgs,-— first, that there was no necessity for incurring the obli- gation which gave rise to the decree, Gungadhur, versus Bejyego- bind and Anund Moye in the Moorshedabad court ; and secondly, that that decree does not show any necessity for incurring those obli- gations as against the infants now before the Court as applicants for review, they not having been parties to that suit, and their interest in that suit having been opposed to Bejyegobind and Anund Moye. By the Court. — (Present Sir JR. Barlow, Bart,, Messrs. W. B. Jackson, and R. H. Mytton) : — " We see no reason to inter- fere with the judgment passed on the 27th April, 1852. The appU- cants did not charge fraud in their plaint, nor have they shown that there was no necessity for the alienation of the property in the plead- ings. It is not stated that moneys were in hand, which would ena- ble Bejyegobind to meet the demands of the decree passed in 1243. Three annas of the whole estate of Bjirtee had been alienated in 1237 to Gungadhur : and it was in execution of the decree passed SUDDER DEWANNY ADAWXUT. 291 in 1243 in his favor, that the compromise was effected, by whicli the two villages, Sreerampoor and Ispinjurpoor, alias Darooshah, were substituted in lieu of the whole estate in satisfaction of that decree. We reject the application." TAENEEKANTH LAHOREE and SHAMAKANTH LAHOREE, Defendants, Petitionees, BHAGURUTTEE DEBEA, Plaintiff, and others, Respondents. Mr. Ritchie, — For review of the Court's decision of 7th June last, states that his groimd chiefly refers to the point of limitation. The property was attached by collector on the 9th July, 1830 ; pend- ing the attachment, proceedings were taken imder Regulation XV. of 1824. Defendants were then successful before the magistrate. In 1842, 7th November, the attachment was taken off. Submits that the attachment would bar the claim of a party, who has not taken proceedings on the attachment being removed, to obtain the pro- ceeds during attachment. These were awarded to defendants : con- tends that the subsequent temporary possession obtained by the plaintiff was a wrongful possession, and cannot save the lapse of time. By the Court. — (Present Messrs. W. B. Jackson, J. R. Calvin, and A. J.M.Mills): — "The Court find- that there is nothing shown to establish the fact that the possession of the plaintiff up to 1251, or 1844, was such as not to save the lapse of time in the in- stitution of the present suit ; there is therefore no sufficient ground shown for a review of the judgment already delivered." 1852. October 7. Application for review of judgment, based on a point relating to tlie law of limitation, re- jected. MOHAMUDDEE BEGUM, Plaintiff, Petitioner, MUSST. SHURFO and others, Defendants, Appellants. By the Court. — (Present Messrs. Calvin, Mills and Mytton) : — " The main point urged by the pleader is, that there was no attach- ment on the property which was sold in execution, and reference is made, as showing the necessity for such an attachment, to the deci- sion by a full bench in the case of Brijlall Opadya, decided 1st August, 1850. 1852. October 16. Application for review of judgment re- 292 SUMMABY CASES IN THE jected, as the point urged in support of it had not been previously taken. " The Court, however, are unahle to take up this point in review, as it was not one of those taken in the argument for the respondent, the detailed objections raised in which are stated at page 57 of the report of the case. " The other points refer only to what was fully set forth in the course of the former record and judgment, and do not require recapitulation, " The application for review is rejected." Mb. peter MACARTHUR, Defendant, Petitionee, 1852. November 25. It is not ne- cessary, since the enactment of Act XXIX. of 1841, to caU upon a person neglecting to appoint a fresh vakeel after notice under Clause 1, Sec- tion XVIII., Regulation XXVII. of 1814, to caU upon the party under Clause 2 to show cause for the omis- Mr. DAVID B. NECOL, Plainth-f, Respondent. Sir R. Barlow, Barf. : — " The judge has disposed of the case under Acts XXIX. of 1841 and XVI. of 1845. He issued notice under Section XVIH. of Regulation XXVII. of 1814. Clause 1 of that Section requires notice for appointment of a vakeel to be affixed by the judge in his own cutcherry, and in those of the register, sudder ameen and collector of the district. It is not pleaded by the petitioner that such notice was not issued. " Clause 2 enacts that if a party does not attend or appoint another vakeel vrithin the limited period, (six weeks,) he shall be required to show cause for the omission. " Clause 4, however, applies the principles of the above rules to cases in which decision of suits may be materially delayed, &c. " As it is not shown that there was any default of issue of notice, the petitioner must be held to have been in default, and the judge's order of dismissal must be upheld." Messrs. R. H. Mytton, and W. B. Jackson : — " The judge appears to have proceeded under Clause 4, Section XVlil., Regula- tion XXVII. of 1814, which makes applicable to such a case as the present, the rules contained in Clauses 1 and 2, which require only a publication in the cutcherry of a notice calling upon the party to appoint a new vakeel. Clause 2, indeed, requires the Court to call upon a party not attending or appointing a vakeel to show cause for the omission. But since the enactment of the Act XXIX. of 1841, this last step appears to have been held to be unnecessary, — vide case of Mr. James Tosh versus C. T. Tayler, (page 420 of Decisions of Sudder Dewanny Adawlut for 1848,) case of Durmul Chowdree versus Gunput Singh, (page 98 of Decisions of Sudder Dewanny Adawlut for 1848.) " These precedents are in our opinion upheld by the terms of the law ; we agree with Sir R. Barlow in dismissing the appeal." SUDDEE DEWAiraT ADAWLUT. 293 MAHARAJA DHEEEAJ MAHTABCHUNDEE BAHA- DOOE, Objector, Petitioner, EOOKOONEE DASSEA, Deceeedar. This case was referred to a full bench by Mr. A. J. M. Mills, on the 28th August last, under the following order : " This is an appeal against a siunmary order in execution of a decree, awarding costs to four defendants separately. It is contend- ed that the costs of one defendant should be sufficient, as the answer and defence of all parties were practically one. The pleader has produced a precedent of this Court, dated the 18th of July, 1849, from which it appears that the Sudder Dewanny Adawlut passed summarily an order modifying the costs of the decree. It is referred to a full bench to determine whether this Court can summarily interfere with any portion of a regular decree awarding specific costs." By the Court. — (Present Sir R. Barlow, Bart., and Messrs. Jackson and Mytton) : — " We are of opinion that the Court cannot summarily interfere with the lower court's order on the subject of costs passed in a regular decision. Petition rejected." 1852. November 25. Held that the Court could not summarily interfere with a lower court's order on the subject of costs passed in a re- gular decision. MUSST. OOMATUL FATEMAH BEGUM and others, Plaintiffs, Petitioners, JANEE KHANUM and another. Defendants. This case was referred by Mr. A. J. M. Mills, on the 15th August last, to a sitting of all the judges to decide the following point with reference to the order of this Court, dated 15th May, 1852, (present Mr. Mytton) ruling "that only one summary appeal from an order of nonsuit is admissible, provided that the first appel- late court reject the petition, which order is grounded on the order of a full bench, dated 22nd April, 1852. It is not competent to the Sudder Dewanny Adawlut, with reference to Clause 3, Section III., Eegulation XXVI. of 1814, and Clause 10 of the same Section, to receive a summary appeal from an order of the lower court dismissing a summary appeal against a nonsuit by the court of first instance, when such dismissal is not founded upon the groundlessness or litigi- ous character of the appeal, but on a consideration of the point of law or practice arising from the pleadings, and the order of the court of first instance." Mr. J. G. Waller, for petitioners. — Both the lower courts non- suited the plaintiffs, on the ground of absence of jurisdiction, the defendants being residents in another district. The petitioners apply December 23. There is no special appeal from an order rejecting a peti- tion of sum- mary appeal under Clause X., Section III. Regulation XXVI. of 1814. 294 SDMMART CASES IN THE SUDDER DEWAJSTNT ADAWLDT. for special appeal summarily against the judge's summary order rejecting their appeal. Cases of this nature have already been decided by the court, and it is only reasonable to admit a summary appeal at an early stage in order to prevent all the delay and expense incurred in going on with a case to trial and decision. Baboo Kishen Kishore Ghose. — The point was never argued before, though cases have been decided without argument. A regu- lar appeal, if preferred to the judge, would have enabled the peti- tioner to come up to the Sudder Court, specially ; but he has chosen to make a summary application to the judge ; and by Clause 10, Section HI., Regulation XXVI. of 1814, and rejection of petition, all orders summarily passed in appeal by the judge are final ; the petitioners must be bound by its provisions. A special appeal will only be admitted when the law distinctly allows it. Judgment of the Court at large. — (Present Sir R. Barlow, Bart, and Messrs. Jackson, Dunbar, Mills andMytton) : — " The Court are of opinion, that the petitioner's prayer is inadmissible. The concluding passage of Clause 10, Section IH. is clear, and, as the law stands, the petition must be rejected." INDEX TO THE PRINCIPAL MATTERS IN THE REPORTS OF SUMMARY CASES. ACTION, AMOUNT OF 1 . An action is not liable to nonsuit, from the difference between the value stated and the proper value of the property sued for affecting the stamp duty on the petition of plaint, unless the value be understated in the proportion of 10 per cent., ... ... 98 2. It is no ground of nonsuit that the value of the property has been over-estimated, ... ... ... ib. 3. The value of the principal, includes that of the subordinate right, lOl 4. A plaintiff undervaluing property according to his own data, must be nonsuited, ... ... ... 143 5. In a suit for past rents, by a proprietor whose connection with the land has ceased, only the amount of such past i-ents need be included in the valuation of the suit, the present proprietor if suing to set aside the pottah permanently for the future, would be required to put a value on the pottahdaree interest, ... ... ... 207 ACTION, CAUSE OF 1. Six different actions having been instituted, for as many villages, to set aside a single deed of conveyance of the whole, and having been decided together by the courts of original jurisdiction and first appeal, the Sudder Uewanny Adawlut, under the circumstances, allowed the cases to be consolidated, and admitted one special appeal from the six decres, ... ... ... ... 8 2. The institution of an inquiry into a plea of fictitious purchase made, after judgment passed, by a party to the suit, constitutes a new cause of action, under Section IV., Regulation V. of 1798, and cannot be looked upon as carrying out the original intentions of the court passing the decree, ... ... ... ..,25 o 2 296 INDEX. 3. The Siuliler Dewaiiny Adawlut directed the restoration, to the file of a moonsiff, of a suit for false imprisonment against a police darogah, struck off by the orders of the judge, ... ... ... 81 4. A plaintiff cannot be prevented from withdrawing his suit, ... 87 5. A single suit may be brought to reverse several awards under Act IV. of 1840, involving the same grounds of action, ... .;. 136 ACTION, PARTIES TO 1. In an action for the recovery of property attached by an ameen, appointed by the collector under instructions from the civil court, the plaintiff, in making the collector a party to the suit, would be liable to a nonsuitundertheprovisionsof Section XXXVIII. Regulation XI. of 1822, 6 2. Property claimed under separate deeds must be separately sued for. But any number of decree-holders attaching the same property may be sued in the same plaint by a party laying claim to it, ... 56 3. The omission to specify by name one of the defendants in a civil suit, who was otherwise adequately described, was held to be an insuffi- cient ground of nonsuit, ... ... ... 106 4. A collector is not personally amenable to the civil courts, for acts done by him under Regulation VIII. of 1831, ... ... 127 5. The shareholders in two different estates being the same parties, one of their number, liquidating the Government arrears due on both, may sue his defaulting co-sharers for the amount in one action, ... 140 6. The claimant of an estate in right of inheritance is not required to include all debtors to it in one suit ; nor should he be referred to a regu- lar suit to prove his title if it be contested by a party claiming on a spe- cialty, 7. A party holding a lease from a zemindar, and afterwards lawfully dispossessed of land of which, as assignable under the lease, he had been illegally put in possession by the zemindar, can only sue the zemin- dar for remissioa-,of rent. ... ... •■• '7° S. Any name may be used, even of a deceased person, in suing under the usual name and title of a partnership. But a suit must disclose the names of the actual partners at the time of the transaction which forms the subject of the suit, so that it may precisely be known against whom execution can issue, ... ACTION, PLEAS TO 148 229 46 1. A.Q order of a zillah court dismissing the suit of the petitioner, who sued to recover property which had escheated to the Government on default of succession, because the petitioner did not appeal from a sum- mary order rejecting his claim, overruled as against the practice of the courts, ••• ••• „ , . •". . , ,, ■•■ 2. The order of a court, directmg a refund of a portion ot the allow- ance granted by a lower court to an ameen for conducting a local investi- gation, cannot be contested by a regular suit against the party charged with the cost of the investigation, „ , "'j , . ■ , ^l" 3. In a suit for recovery of various portions of land from which the plaintiff alleged that he had been dispossessed at different times, but did not specify particulars, the Sadder Dewanny Adawlut held that he was rightly nonsuited, .. ,V . , /. "" 4. Reasons preferred by a defendant for the dismissal ot a regu- lar suit, cannot be urged in a miscellaneous petition, but should be con- tained in the answer to the plaint, ... •■■ °' INDEX. 297 5. The civil courts cannot entertain actions for the recovery of money allowances, granted as charges upon estates previous to the decennial, settlement, ... ... ... ... 154 6. A suit cannot be brought to give effect to the award of a pun- chayet under Regulation IX. of 1833, which has been overruled by the revenue authorities, ... ... ... 16/ ADMINISTRATION TO ESTATES. 1. Held that the Sudder Dewanny Adawlut have the power of sum- marily interfering to the extent of directing the appointment of a co- guardian and manager, to act conjointly with the guardian and manager of a minor's estate under Regulation V. of 1799, when such guardian and manager may be disqualified for the proper management of the estate, ... 30' 2. If the existence of a will be disputed between the heirs of a party deceased, security may be demanded under Section IV. Regulation V. of 1799, ... ... ... ... 9i 3. A demand for security before giving possession of the property of an intestate, to his proved heir, and in the absence of other claims, is not warranted by the provisions of Sections VII. Regulation V. of 1799, ... 11 2 4. The provisions of Section IV. and V. Regulation V. of 1799, apply only to cases of disputed succession among heirs at law, and not to those of parties claiming upon special grounds, ... ... 125 5. Security cannot be demanded under Regulation V. of 1799, incases of dispute between heirs of a party deceased unless occurring immediate- ly upon his death, ... ... ... 138 6. A certificate under Act XX. of 1841, can be granted for the share of an undivided property as for the separate estate of a deceased person. A certificate should not be granted upon the ground only of possession ; but upon proof of the best title. ... ... ... 172 7. A certificate under Act XX. of 1841, can be granted for the share of an undivided property as for the separate estate of a deceased person. A certificate should not be granted upon the ground onlyof f)ossession; but upon proof of the best title to succession to the estate of the deceased. The presumptions of the case being in favor of a family being joint, and though living in Bengal, of their being guided by the Mithila law, a certificate which had been given by the zillah judge to the widow in England to all the property of a deceased person under Act XX. of 1841, was cancelled by the Sudder Dewanny Adawlut, and two certificates were granted, one to the applicants, collateral relatives of the deceased in regard to his joint estate, and the other to his widow for a separate estate, 191 8. There cannot be, under Act XX. of 1841, distinct certificates in proportional shares to different parties iipon one common ground of right, 210 9. A judge is bound by the positive terms of Act XX. of 1841, to decide as to the right of the several claimants to obtain a certificate under that law. He cannot decline to grant any certificate because regular suits to try the question of right are pending in the courts. ... 249 APPEAL. 1 . The Sudder Dewanny Adawlut directed the restoration to the file of the zillah judge, of an appeal preferred jointly by two appellants, but struck off on the ajjplication of one of them, ... ... 43 2. The lower court having given a decree for a sum less than the amount claimed, the defendant is at liberty to appeal, estimating his appeal at the amount awarded, instead of at that originally claimed, ... 46 298 INDEX. 3. In an action for damages the defendant may appeal from the decree of the lower court at the amount of the sum awarded as damages, instead of at the amount of the damages laid by the plaintiiF, ... 62 4. In an appeal from the order of a zillah judge for release, on claim preferred, of property attached by the petitioner in execution of a decree, the Sadder Dewanny Adawlut rejected the application, the objections to the release not having been made in the zillah court, ... ... 55 5. It is not competent to a zillah judge to impose a fine under the provisions of Section III., Regulation XIII. of 1796, on the appellant in miscellaneous cases, — «ee Construction 1138, ... ... 64 6. The Sudder Dewanny Adawlut having on special appeal set aside as incomplete the decisions of the principal sudder ameen and zillah judge, (the courts of first instance and first appeal,) and the judge having then decided the cause himself without further reference to the principal sudder ameen, held that the appeal to the Sudder Dewanny Adawlut from his decision must be considered as an appeal from a judg- ment in an original suit and admissible as a matter of course, ... 65 7. The legal period for the admission of appeals is to be calculated exclusive of the day on which the decree or order appealed against was passed. Should the last day allowed for the appeal fall on a Sunday, it may be admitted on the following day, ... ... 75 8. It is incompetent to an appellate court to confirm on its merits n judgment appealed against, without having on record the objections or reasons of appeal of the appellant, ... ... 76 9. One of two appellants having demised, and his heir, after appear- ing, having defaulted, the zillah judge struck off the appeal under Act XXIX. of 1841. The Sudder Dewanny Adawlut held the judge was bound to hear the appeal on its merits, quoad the appellant who had not defaulted, ... ... ... ••• »*• 10. An appeal lies to the zillah judge from an order of a principal sudder ameen refusing to re-admit an appeal under Act XVI. of 1845, ... 105 1 1. The Sudder Dewanny Adawlut directed a zillah judge to re-admit, under Act XVI. o£.l845, an appeal improperly dismissed by his predeces- sor in office under Act XXIX. of 1841, ... ... ib. 12. The Sudder Dewanny Adawlut reversed the illegal order of a zillah judge, in a case in which his legal order would have been final and not subject to appeal, ... ••• ■.. 107 13. The order of a zillah judge refusing to proceed against parties for forgery or perjury, is final, ... ... ... 109 14. The order of a court rejecting an application for review of its own judgment, is not open to appeal, ... ... _ ... 144 15. It being unnecessary to file, with an appeal to a zillah judge from a decision of a collector under Section XXX. Regulation II. of 1819, copy of the decision appealed against, any deduction of time for such purpose, in calculating the period of appeal, is illegal, ... 147 16. The alleged guardianship of a minor, if disputed by another claimant to the office, should be inquired into before passing judgment in a case in which such minor and his guardian may be concerned, ... 157 1 7. The authority of the Sudder Dewanny Adawlut to receive appeals in matters relating to the Tributary Mehals in Cuttack, is restricted to claims to the right of inheritance or succession, ... ... 168 18. An appeal does not lie against an order of aquittal of parties, charged with resistance of process, ... ... ... l/l 19. A claimant, {ozurdar) whose claim of right to property advertised for sale has been refused, but without any proof of evident fraudulent design, may nevertheless appeal upon the ground of irregularities in the sale ultimately hold. The thirty days allowed by paragraph 5 of Circular INDEX. 299 Order No. 135, dated 7th July, 1846, must be thirty clear days, exclusive of the day of putting up the proclamation in the mofussil and of the day of sale, ... . . ... .. 173 20. An appeal lies to the zillah judge from the order of a principal sudder ameen, passed in a case of execution of decree, referred to him by the zillah judge, under Section VIII., Act XXV. of 1837, ... 177 21. There are precedents that, when a judge has acted in direct opposition to a plain distinct rule laid down in the Act, the Sudder Dewanny Adawlut will receive an appeal from his order, and correct the error. The point did not properly arise upon the present case, but the court saw no doubt as to the correctness of the precedents, ... 262 22. An appeal having been instituted by two parties, and one of them stating that he withdraws his appeal, the appeal must fall, though the withdrawal be made by a different pleader from the one who filed the joint appeal. The party withdrawing was in this case present in court, and stated that he had appointed the new pleader, ... ... 267 23. Where a plaintiff sues several defendants jointly, and on the plaintiff entering a compromise for two-thirds of his claim as regards some of the defendants, the judge decides, that the plaintiff cannot be allowed to alter the terms of his plaint, and carry on the suit for the remainder of his claim against the other defendants, this is a decision of the nature or merits of the controversy which is open only to regular appeal, ... ... ... ... 271 24. In calculating the period of Nizamut appeals, the time during which stamped paper remains in the lower court, for the purpose of pro- curing a copy of the decision is not deducted. A Nizamut appeal can be presented without copy of the decision of the lower court, ... 286 APPEALS TO THE PRIVY COUNCIL. 1. No appeal lies from an interlocutory order of the Sudder Dewanny Adawlut to the Queen in Council, .. ... ... 31 2. The Sudder Dewanny Adawlut cannot admit an appeal to the Judicial Committee of the Privy Couiicil, after the expiration of six months from the date of the judgment complained of. An application for review of judgment forms no ground for extension of period of appeal, ... ... ... ... 69 3. A party appealing to the Queen in Council, was required to file security to the amount of rupees 1 0,000, he offered property alleged to be worth rupees 6,000 only : he then gave in rupees 10,000 Company's paper, which was received : after the expiry of the six months, he wished to withdraw rupees 6,000 of the Company's paper, permission withheld, 253 ARBITRATION. 1. Held that in consequence of excessive delay in the disposal of a case by arbitrators, the civil court was justified, under the circumstances, in refusing execution of the award, ... ... 66 2. It is not necessary to have corruption or partiality on the part of arbitrators proved by evidence, when it may be proved by the records of the case, as in the instance of contradictory awards by the same arbitra- tors, ... ... ... ... 88 3. Section, III. Regulation VI. of 1813, is inapplicable to awards of arbitrators regarding personal property, ... ... 151 4. Consent to arbitration once formally given, cannot be withdrawn on the mere allegation of one of the parties of unwillingness to abide by the award, ... .•• ... •■. 156 300 INDEX. ARREST IN EXECUTION. 1 . A mere arrest, without commitment to jail, is no bar, under Section III., Regulation VI. of 1830, to the subsequent arrest and imprisonment of a judgment debtor, . ... ... ... 68 2. The imprisonment of a debtor by the civil court, against the will of his creditor, and his subsequent release in default of deposit of diet money, is no bar, under Section III., Regulation VI. of 1830, to the issue of process of arrest against the debtor on the motion of the creditor, ... 72 3. The Sudder Dewanny Adawlut ordered the arrest of a debtor, discharged from confinement by the zillah judge, pending the sale of his property, ... ... ... ... 85 4. A decree having been given against a defendant, his heirs cannot be arrested or imprisoned in execution of that decree, without previous issue of notice. Clause 8, Section XV., Regulation XXVI. of 1814, and Section VII., Regulation VII. of 1825, ... ... 168 ARREST ON MESNE PROCESS. Process of arrest under Section IV., Regulation II. of 1806, taken out against a person when within the jiu-isdiction of the court issuing it, may be served on him beyond it, ... ... ... 91 ATTACHMENT. Act XIX. of 1841, gives no power to keep property disputed under it, under attachment, after the close of an investigation according to the Act, on the ground that no claimant has established his right to the property, ... ... ••• ••• 262 ATTACHMENT ON MESNE PROCESS. 1 . There is no legal bar to the attachment, under Regulation II. ] 806, of the profits of a jaghire to meet the eventual judgment in an ac- tion for debt, ... ••• ••• ••• ' 2. An attachment made (under the provisions of Clause 1, Section V. Regulation II., of 1806) previous to the expiration of the period fixed by the court for furnishing security, held to be illegal, ... ... ib. 3. A reasonable time must also be allowed for procuring the requisite security under the provisions of Clause 1, Section V., Regulation II. of 1806, before the property of the defendant can be legally attached, ... 2 4. Proof of intention to alienate and of a refusal or neglect to give security, is requisite, before a zillah court can attach the property of a defendant, under Section V., Regulation II. of 1806, Construction 190,... 50 5. Held that Section XXI., Act XII. of 1841, does not authorise a collector in refusing to attach tlie surplus proceeds of a sale for arrears of revenue in deposit in his office, iu obedience to the orders of the civil court passed under Section V., Regulation II. of 1 806, ... 6. Promissory notes may be attached under Section V. Regulation II. of 1806, when found iu the name of the defendant in the action, or en- dorsed to him or her,... ." — — 7. In a case in which a prmcipal sudder araeen ordered the attach- ment of a share in certain shops and mercantile establishments, under Section V., Regulation II. of 1806, he was instructed to limit himself to the issue of notices forbidding the alienation of the share, ... 121 8. A. obtained a decree against four defendants.* B. obtained a decree against three of them, The property of all four was sold in execution 60 100 INDEX. 301 of both decrees. The fourth sued to set aside the sale, on the ground that he was not a party to the suit of B. and other grounds, and obtain- ed a judgment in his favor. Held that this judgment did not in any way affect an attachment under Section V., Regulation II. of 1806, taken out by A. while his suit was pending, against the property of the fourth, 130 9. Attachment of property to secure the execution of eventual judg- ment, on other grounds than those set forth in Clause 1 , Section V., Re- gulation II. of 1806, is illegal, ... ... ... 142 10. It is illegal to issue a proclamation in bar of alienation of pvo- ■party pendente lite, before requiring security from the defendant. ... 162 11. It is unnecessary to inquire into claims to property before issuing proclamation in bar of its alienation under Regulation II. of 1806,... 165 12. It is unnecessary to inquire into claims to property before issu- ing proclamation under Regulation II. of 1806, in bar of the alienation of the right and title of a defendant in such property, ... ... 193 13. The sale of right and interest in property attached under Regu- lation II. of 1806, as that of the defendants in a suit, cannot be stayed on the application of a party, alleging its purchase by him from others. The rights and interests of the defendant only being sold, any right possessed by the applicant, cannot be affected thereby ; the case is differ- ent from an allegation that the defendants had transferred their whole rights to a claimant, ... .. ... ... 230 ATTACHMENT IN EXECUTION. 1. The profits of the term of service of a brahmin officiating at an idol temple, cannot be attached in satisfaction of a decree for a private debt, ... ... ... ... 45 2. A forfeited deposit ordered by the Government to be refunded to the party mulcted, was attached by order of the civil court in execution of a decree, but subsequently applied by the collector to the discharge of the Government revenue due on estates the property of the party to whom the refund was to be made. Held by the Sudder Dewanny Adawlut that the collector had no power thus to set aside the attachment of the court, 77 CAZEE. Held by the court-on a summary apphcation that it is not compe- tent to a zemindar to collect fees appertaining to the office of cazee : the question of right, however, was still left open to a regular suit, should the zemindar think proper to try it, ... ... ... 37 COLLECTION OF DEBTS. 1. The certificate under Act XX. of 1841, is granted specially for facilitating the collection of debts on succession, and does not refer to applications for succession to property, ... ... 130 2. The personal attendance in court of the principal to execute the engagement on receipt of a certificate under Act XX. of 1841, is unne- cessary, ... ... ... ... 146 COMPROMISE. The Sudder Dewanny Adawlut refused to carry into execution a razeenajnah or deed of adjustment, and compromise between the parties, no final decree having been passed, and the value of the stamp for the petition of appeal having been returned, ,,, ... 34 302 I X D E X. COPIES. 1 . Copy of a decision recor Jed in English, according to Act XII. of 1843, must be given on application, ... ... ... 104 2. A party who has filed in the Sudder Dewanny Adawlut a copy of the decision of a Court of first instance upon one application for special appeal, need not file a copy of the same decision upon preferring another application for special appeal from a decision of a lower appellate court, passed on a remand of the case, upon the first application, ,,, 249 COSTS. 1. The Sudder Dewanny Adawlut cannot levy costs in an appeal to the Privy Council, which the decree of the Privy Council does not pro- vide for, ... ... ... ... 33 2. Costs of suit are chargeable with interest, ... ... 72 3. Held that the court would not summarily interfere with a lower court's order, on the subject of costs passed in a regular decision, ... 293 CURATORS. 1 . Ueld with reference to the provisions of Section III., Act. XIX. of 184 1 , (regarding the appointment of curators for the protection of property against wrongful possession in cases of successions) that the complainant must appear in person to make the solemn declaration thereby required, — see Construction 1319, -. ... ... 59 2. The representative (whether male or female) of a party under Sec- tion II., Act XIX. of 1841, must personally make the solemn declaration required by the 3rd Section of that law, 3. The general rules for delivering possession under orders of court apply to cases under Act XIX. of 1841, ... ... 160 4. Conflicting claims to the property of a deceased person, under Act XIX. of 1841, must be decided by the courts, and possession given to the party having the best title, ... ... ... Ifil 5. The representative (whether male or female) of a party under Sec- tion II., Act XIX. of 1841, must personally make, in open court, the solemn declaration required by the 3rd section of that law, ... 1C6 6. The first application to a court under Sections I. and II., Act XIX. of 1841, may be made by a duly-constituted vakeel, the solemn declaration, required by Section III. of the Act, must be made in open court by the applicant in person, except in the case of Hindu and Maho- medan ladies of rank, from whom it may be received by a commission issued as in other cases (see Circular Order, No. 25, of 10th September, 1851, notifying the rescission of Construction No. 1319,) ... 237 DECREES OF FOREIGN COURTS. Mode of proceeding in regard to the decree of a foreign court, when the decree-holder desires to take out execution against property within the jurisdiction of one of the Company's courts, ... 70 DEFAULT. I. In the event of two or more defendants filing their answers to an action separately, the plaintiff, unless he obtain permission to the contrary, must reply to each within six weeks from the date of its presentation ; otherwise he will incur the penalty of default, ... ... 96 INDEX. '^ 303 2. If Government be a co-defendant in a suit, the plaintiff need not, after filing the plaint, take any steps in prosecution of the case, till the answer of Government be given in, ... ... 97 3. It is unnecessary to reply to a defendant who confesses judgment, 104 4. A mere omission to do «. particular act, while the plaintiff is otherwise engaged in carrying on his suit, does not incur the penalty of dismissal under Act XXIX. of 1841, ... .„ 121 5. A suit cannot be dismissed both on its merits and on account of default under Act XXIX. of 1841, ... . - . — ^36 6. The grounds which Act XVI. of 1845, admits in justification of default, cannot be pleaded in appeal from an order of dismissal on de- fault, under Act XXIX. of 1 84 1 . ... ... ... 163 7. Neglect by an appellant to issue notice to a respondent, who has voluntarily appeared and given a complete power to his pleader to appear on. his behalf, throughout the appeal, does not render him liable to the penalty of default under Act XXIX. of 1841, ... ... 193 8. The zillah courts must follow the practice of the sudder courts in not striking an application, made by a party in person, off the file, whe- ther in summary or in regular cases, until the applicant has been sum- moned three different times, at intervals of one week, and has not appeared upon such summons, ... .. ... 217 9. Appellant in an Assam case, had neglected to appear for six weeks after the admission of his appeal, his case struck off under Act XXIX. of 1841, ... ... ... ... 255 DIET MONEY. 1. Held that a zillah judge was not authorized in reducing the sub- sistence allowance of a prisoner confined in the zillah jail, merely on the application of the creditor, and without sufficient cause being shown, ... 37 2. Diet allowance for a debtor, confined on account of several decrees obtained against him by one creditor, need not be deposited in each case, 94 DISPOSSESSION. A single suit may bai brought to reverse several awards under Act IV. of 1840, involving the same grounds of action, ... ... 136 EMBEZZLEMENT. Held by the Sudder Dewanny Adawlut that a conviction of surrepti- tiously obtaining and " cOrruptly appropriating" money deposited in court against a ministerial officer, is sufficient to authorize the enforce- ment of the summary process for recovery, prescribed by Clause 3, Sec- tion VII., Regulation XVIII. of 1817, and Section VI., Regulation III. of 1827, ... ... ... ... 66 ERRORS. Mode of proceeding to amend an evident error in the decree of a former judge of the Sudder Dewanny Adawlut, without the admission of a formal review, ... ... „. 49 EVIDENCE. There is no legal bar to the managing agent of one of the parties to a civil suit being summoned and examined as a witness on the motion of the opposite party, ... ... ... 1 1 P 2 804 ** I X D E X. EXECUTION OF DECREES. 1. Held that a zillah judge was not warranted in refusing payment of money to a party, in consequence of objections urged to such payment in the form of a letter addressed to him by an attorney of the Supreme Court, ... ... ... ... 10 2. Property pledged to satisfy an eventual judgment of a Mofussil coiut was subsequently mortgaged to another party, sold by the sheriff of Calcutta, in execution of a judgment of the Supreme Court, and posses- sion thereof given under judgment of a zillah court : held that the lien of the decree-holder, to satisfy whose claim the property was originally given in pledge, is not thereby affected, ... ... 10 3. A decree for damages against A., who alleged himself to be the guardian of B. and C, held by the Sudder Dewanny Adawlut to be per- sonal and not to confer on A., any exemption from. liability, nor subject the estate of B. and C. to be sold in execution thereof, ... 15 4. The order of the zillah judge releasing surety (who has given security for a defendant under Clause 1, Section V., Regulation II. of 1806,) from liability on the dismissal of a suit in the court of original jurisdiction, does not prevent the execution against the same surety of a decree passed by an appellate court in reversal of the zillah court's judgment, ... ... ... ... 36 6. The removal of an embankment having been ordered by a decree of court, held that the decree was sufficient authority to prevent the erec- tion on another spot of another embankment having the same effect, ... 38 6. Rule regarding the order in which a decree is to be executed against the heirs of the nazir of a civil court, who had given in a false report of a surety's property, ... ... ... 40 7. A farmer cannot be ousted during the period of his engagement, by a party who has obtained a decree against his lessor merely on the ground of such decree, — see Construction 540. ... ... 43 8. A. is confined in execution of a decree at the instance of B., who is, under a decree of court, a debtor of C. Held that on B.'s neglecting to deposit the subsistence money for A., C. may deposit it and detain A. in custody to enforce payment, ,,, ..• ... 46 9. The institution of a regular suit to set aside a sale of property sold in execution of a decree of coiurt, is no sufficient reason for withholding possession of the property from the piu-chaser, .. ... 51 10. The petitioners (Hindus) having obtained a decree declaratory of their right to claim the performance of certain ceremonies by the mem- bers of their familv, and damages for omission to perform them, the Sudder Dewanny Adawlut held that it could be enforced only in regard to the damages and costs of suit, and that each subsequent refusal to perform the rites constituted a separate ground of action, ■•• 54 1 1. The civil court cannot stay the sale of a judgment debtor's pro- perty, and cause payment of the debt by the attachment of the same, without consent of the creditor, ... '" • ^ ■• ^" 12. Land belonging to a Mahomedan, which is occupied by tombs, cannot be sold in execution of a decree, •■• ••• ' " ] 3. An order, passed in the execution of a decree, for the sale of a contingent interest, was reversed by the Sudder Dewanny Adawlut, who directe'd the rights and interests in existence to be sold, ••• 84 14. The civil courts cannot be expected to execute awards which they consider illegal, ... ... •■• •" 15. Tlie failure of the first purchaser at a sale in execution of a decree to make good the purchase-money, does not relieve the original debtor from his liabilities, ... .-• •■• 68 INDEX. ' 305 IG. A plaintiff, having been nonsuited in an action for debt and made chargeable with costs, sues again and obtains a decree. In the meanwhile the defendant sells the decree in the nonsuit, to a third party. Held that the sale, being evidently collusive, is no bar to the amount of costs due on the first decree being considered so far a set-off against the amount due on the second decree, ... ... ... 110 17. Execution of the decree of a civil court adjudging land to a party, may be taken out notwithstanding its resumption and assessment, ... 118 18. The civil courts have the power of issuing process simultaneously against the person and property of a debtor in execution of a decree of court. ... ... ... ... 129 19. Where costs have not been awarded in the decretal order, the civil court cannot order execution for costs without first correcting the decree on the application of the decree-holder, ... ... ib. 20. In the execution of a decree, its terms, when specific, and not those of the documents on which it is founded, are to regulate the course of execution, ... ... ... ... 135 21. Property situated in a cantonment cannot be transferred contrary to the rules in force within such cantonment, ... ... 137 22. When not otherwise specified, the era current in any particular district is to be presumed. ... ... ... 14() 23. The provisions of Regulation III. of 1818, are applicable only to state prisoners, ... ... ... 154 24. Execution of a zillah decree stayed by the Sudder Dewanny Adawlut, in consequence of the lands forming the subject of litigation, being undefined in the plaint and equally so in the decree, ... 163 25. The boundaries mentioned in a decree, and not the exact quan- tity by subsequent measurement, indicate the identity of the lands of which possession is to be given to a decree-holder, ... ... 163 26. A compromise is inadmissible between parties in a case of execu- tion of decree, if the decree-holder in it be a judgment debtor in another case, to satisfy the claim against lum in «hich his decree is judicially assigned, ... ... ... ... 165 27. A decree against a Hindu widow cannot be executed against her son's family estate unless the decree specially declare the estate to be liable, ... ... ... ... 170 28. The execution of a decree in a suit instituted and carried to decision by two or more parties conjointly, cannot be proceeded with by any of these parties separately without the assent of the others. ... 181 29. A. and B. obtained distinct decrees against C. B. takes out execu- tion of liis decree. In the proceedings in that case, A. applies that the benefit of the execution may be extended also to his decree. Held that this was a sufficient apjilication for the execution of A.'s decree, ... 197 30. On the death of a decree-holder, execution should be allowed to his legal heirs in their application, and not to parties claiming on the ground that the real interest in the decree was in another person (whose heirs they are), though the name of such person did not appear in the case. A claim of that kind is not for inquiry in the miscellaneous de- partment in execution, ... ... ... 229 31. A lower court is bound in execution of decree, to determine whe- ther an objection taken, that the decree is incapable of execution, and must be treated as a nullity by reason of indefiniteness in its statement of boundaries, is or is not supported by the terms of decree, it should not set aside the point as not within its competency at that stage, ... 235 32. Thei'e is no power in the courts to award in the course of execu- tion of a decree, interest on a debt which has been awarded by tlic decree against one party to be paid by another. A debtor compelled to pay interest on the decree against him may perhaps, under special cir- 306 INDEX. cumstanees, have a claim against a party, who has delayed the satisfaction of the decree by putting forward a vexatious and unfounded claim to property attached in execution. This, however, must be a matter for a new regular action and cannot be dealt with as a part of the proceedings in execution of the decree. This decision annuls construction No. 1010 (see Circular Order No. 38 of 4tb December, 1851,) ... ... 241 33. The right and interest of a plaintiff in property, the subject of a pending suit, may be sold in execution of a decree against such plaintiff, 250 34. Execution without security is not to be admitted, whether as to costs or to any part of the decree while an appeal is pending as to such matter, ... ... ... ... 255 OF STAYING EXECUTION. 1. Held by the Sudder Dewanny Adawlut, that it is not competent to the lower courts to stay the execution of a summary decree under Re- gulation VII. of 1799, pending the institution of a regular suit to set aside such decree, ... ... ... ... 22 2. Held that the mere institution of an action for real property, is no bar to the sale of the rights and interests of the defendant in such pro- perty, in execution of a money decree given against him, ... 41 3. The institution of a suit between co-debtors, arising out of a judgment given against them jointly, in favor of a creditor, is no bar to the execution of the decree obtained by the latter, ... ... 56 4. The institution of a regular action by a claimant, after summary rejection of his claim to property advertised for sale in execution of a decree, does not necessarily bar the immediate sale of the rights and interests of the judgment debtor, ... ... ... 67 5. Execution of a decree revived after adjustment, it being shown ^ that the terms of the adjustment had not been complied with by the debtor, ... ... ... ... 113 6. An adjustment between parties after judgment and execution sued out, held under the circumstances to supersede the judgment, and to bar tlie revival of execution notwithstanding the alleged evasion by one of the parties of the terms of the adjustment, ... ... 114 7. It is competent to the court to take cognizance of a petition, praying for an order to stay execution of the decree of a lower court, upon production of a duly authenticated copy of a petition of appeal filed in the lower court under Section I., Act IV. of 1850. It is not ne- cessary for such a purpose to require copy of the full vernacular decree of the lower court ; urgent miscellaneous petitions can be presented to the judge in charge of the summary department, on days other than those fixed by the Court's Resolution of 2"7th December, 1850, for bringing such peti- tions before a full bench ; it is competent to an appellate court to take security from an appellant for staying execution of a decree under Section II., Regulation XUI. of 1808, though execution may not have been applied for in the court below, ... ••• ••• "-'* 8. Held that an appellant may be legally allowed to tender his own property as security to stay the execution of a decree, pending an appeal, and that the principle of the Construction No. 1024, was erroneous, (see CircularOrderNo. 36, of 27th November, 1851,) ... ... 239 EXECUTION AGAINST SEVERAI, PARTIES JOINTLY. 1. The joint surety of a farmer against whom, with his joint sureties, a decree had been given for arrears of rent, cannot be absolved from liability on payment of half the amount, the principal and each of the sureties being severally liable for the full amount of the decree, until it has been completely satisfied, •,. ■•• •■• INDEX. 307 2. A debtor declared by a decree jointly responsible with others, can- not claim exemption from further liability on depositing what lie consi- ders to be his share of the debt, ... ... ... 50 OF OBJECTIONS TO EXECUTION. 1. Objections to a coming sale in satisfaction of a decree, alleging possession on the part of the objector, must be inquired into before the sale can take place, ... ... ... 99 2. In deciding upon claims to property attached in execution of de- crees of court, it is competent to the civil courts to determine whether an award under Act IV. of 1840, adduced in proof of possession, be a deci- sion in a bond fide or fictitious case, ... ... ... 150 3. A decree-holder having come to a settlement with two out of five judgment debtors, the three others objected that the decree could no longer be executed against them : objections overruled, ... 202 DISTRIBUTION OF ASSETS. 1 . In the case of lands sold to satisfy a decree for rent due on their account, the decree-holder has a preferable claim to the proceeds of sale, 107 2. A claim preferred only on day of sale to a rateable share in assets realised by a sale of property, rejected under Circular Order No. 42, dated 26th January, 1844, ... ... ... 116 3. Under the Circular Order of the 26th January, 1844, a suing out of attachment is essential to a decree-holder being permitted to share in the proceeds of sale. It is competent to the courts to exercise a discre- tion in awarding costs of execution before distribution of assets, ... 124 EXECUTION OF DECREES OF PRIVY COUNCIL. A single judge of the Sudder Dewanny Adawlut, in execution of a decree of the Privy Council, can issue orders for giving effect to the decree, either upon a reference by the zillah judge, to whom it may have been remitted for execution, or upon appeal by either party dissatisfied with the orders of the zillah judge, or otherwise at his discretion ; and in any case, such judge of the Sudder Dewanny Adawlut, is competent to give general directions as to the mode of executing the decree, and is not restricted to the particular points brought before him, ... 185 EXECUTORS. Section XXVI., Regulation V. of 1812, declaratory of the compe- tency of the zillah judge to interfere in cases of disputes between pro- prietors of joint undivided estates, for the due discharge of the public revenue, held by the Sudder Dewanny Adawlut to be decidedly inappli- cable to the removal of executors and guardians in possession of property under the provisions of Regulation V. of 1799, ... ... 7 EX PARTE. A case cannot be tried ex parte when it is known that the usual notice has not been, and cannot be, sei-ved on the defendant, — (see Con- struction No. 1343,) „. ... ... ... 69 308 INDEX. FINES. 1. Held that a judge is not authorised by Clause 3, Section XII. Regulation XXVI. of 1814, to fine a defendant one-fourth of the value of the stamp required for the petition of plaiat, for failing to produce certain documents, the recovery of which by the plaintiff formed the sub- ject of action, ... ... .,. ___ 5j 2. Government cannot recover a fine under Section XL, Regulation XXVII. of 1793, from parties making illegal collections, until th'ey have been successfully prosecuted by those aggrieved. The application of Government in such a case should be on a stamp of 8 annas, as for a miscellaneous petition, ... .,. .,, 118 FOREIGN TERRITORIES. Held by a majority of the Court, that the terms "foreign terri- tories," as used in Regulation XIV. of 1829, must be held to include all territories beyond the jurisdiction of the Company's Courts, with the territories subject to the Presidency of Fort William, and that, therefore, security is demandable from a party to a suit in the Company's Courts, becoming an inhabitant of England penrfenie Zz7e, ... 279 GUARDIANS. 1. Section XXVI., Regulation V. of 1812, declaratory of the com- petency of the zillah judge to interfere in cases of disputes between pro- prietors of joint undivided estates, for the due discharge of the public revenue, held by the Sudder Dewanny Adawlut to be decidedly inappli- cable to the removal of executors and guardians in possession of property under the provisions of Regulation V. of 1799, ... ... 7 2. The Sudder Dewanny Adawlut will not interfere summarily to put a guardian in possession of the papers and accounts of property to which the right of his ward is contested, ... ... ... 13 3. A guardian cannot be appointed under Regulation I. of 1800, to an alleged adopted minor, whose adoption is disputed. This however does not prevent an action by his friend to establish the minor's right,... 131 HAUTS. The summai'y prohibition by the zillah judge to establish a haut, because it interfered with a neighbouring haut, overruled by the Sudder Dewanny Adawlut, ... ... ... ... 32 INSOLVENT COURT. A zillah court cannot sell, in execution of its own judgment, pro- perty in the possession of an assignee appointed by the Insolvent Court in Calcutta, ... •• ■•• ••• " INSOLVENT. 1. A debtor confined in the jail of 24 Pergunnahs, in execution of a decree of the Court of Requests, is entitled to the benefit of the rules of Section XI., Regulation II. of 1806, in favor of insolvents, -.. 13 2. A person not in confinement for the satisfaction of a decree of a civil court, cannot obtain the benefit of the rule regarding insolvents in Section XL, Regulation II, of 1806, ... ... '» INDEX. 309 3. A debtor confined in consequence of inability to give security imder Section IV., Regulation II. of 1806, may, after decree passed and before execution taken out, be admitted to the benefit of the insolvent rules, ... ... ••• ... 23 4. Certain property was under attachment by the sheriif of Calcutta, without being sold for three years. Held that no fraud could therefore be imputed to the owner, so as to subject him to arrest under Section XI., Kegulationll. of 1806, ... ... ... 82 5. It is an insufficient reason for the discharge of a debtor from con- finement without taking his oath of insolvency that the creditor cannot point out any property belonging to him, ... ... 85 INTEREST. The highest legal rate of interest awarded, under the circumstances, from the date of the decree to the date of payment, notwithstanding that the bond on which the decree was founded^ specified a lower rate of interest, ... ... ... ... 8 JOINT UNDIVIDED ESTATES. 1. An estate having been ordered for attachment by the civil court, under Section XXVI., Regulation V. of 1812, and attached by the collec- tor under Regulation V. of 1827, it is incompetent to the court to inter- fere with its internal management, ... ... ... 54 2. Held that the civil courts cannot give orders, with regard to the estates directed under Section XXVI., Regulation V. of 1812, to be held in attachment b}' the revenue authorities under Regulation V. of 1827, .. 116 3. An estate only privately divided is not exempt from attachment under Section XXVI., Regulation V. of 1812, ... ... 145 4. Arrangements made by the proprietors of an estate after its at- tachment according to Section XXVI., Regulation V. of 181J, and Re- gulation V. of 1827, are not binding upon the Revenue Authorities, ... 150 JUDGMENT-DEBTOR. A j\idgment-debtor is entitled to execute the decree passed in his favor upon any property belonging to his debtor which he may prefer to select, ... ... ... ... 207 JURISDICTION. 1. A claim to property advertised for sale, in execution of a decree, must be investigated by the proper judicial authority of the district in which the property is situated, ... ... ... 57 2. A principal sudder ameen gave judgment in a case in which he had no jurisdiction. On application to the Sudder Dewanny Adawlut, the Court held that the irregular decree could not be set aside on a mere summary application,... ... ... ... 62 3. Held by the Calcutta and Western Courts collectively, that the Circular Order of the 8th May, 1840, (pointing out the authority by which claims to property, advertised for sale in execution of a decree passed by the Court of a district other than that in which the property is situated, are to be investigated,) applies to movable as well as immov- able property, ... ... ... .,, 67 310 INDEX. 4. An action brought by a husband against his wife ifor refusing to live with liim, should be instituted in the zillah where her home is, and not where the marriage took place, ... ... ... 102 5. A civil court cannot, notwithstanding the institution of a suit for it, summarily interfere to stay the sale by a collector of property pledged as security in the Revenue Department, ... ... 105 6. The civil courts cannot interfere to stay the proceedings in the cri- minal court, in the prosecution of a case of forgery at the instance of the collector, ... ... ... ... Ill 7. A civil court cannot stay execution of an award under Act IV. of 1840, pending the decision of a suit instituted to reverse it, ... 120 8. A. having borrowed money in one district, dies without leaving any property in the district in which he borrowed, and is succeeded by heirs ^ resident in another district. Held that the heirs may be sued either in the Zooms contractus, or that of their domicile, ... ... 126 9. Suits for profits or rent of land should be instituted in the zillah where the land is situated, rather than in that where the defendants reside, ... ... ... ... 163 10. A suit for reversal of a sale of real property, made in execution of a decree of court, must be instituted in the district in which the pro- perty is situated, ... ... ... ... 156 11. If land be claimed by the parties to a suit as appertaining to their respective districts, reference should be made to the Sudder Dewanny Adawlut to decide in which the trial is to be held, ... 164 12. A principal sudder ameen is not debarred from trying a suit, be- cause a deed filed in it had been attested by him as cazee, ... 167 13. The summary order of a judge directing a moonsifi" to try a case on its merits, is no bar to the reversal, on regular appeal, of the moon- siff's decision on the ground of want of jurisdiction. An appellate court may reverse the order of a lower court, on the ground of its being be- yond the jurisdiction of that court, without specifically nonsuiting the plaintiff, or dismissing his claim, ... ... ... 176 14. It is illegal in a principal sudder ameen to revive execution of a decree of the judge's court, which had been referred to him for execution by the judge, but had been struck off his file, without a renewed refer- ence of the case to him by the judge. This being a point of jurisdiction, it is the duty of the courts to be strict and exact in their proceedings regarding it. Where the defect of jurisdiction does not depend upon a particular state of facts, which it rests with one of the parties before a court to allege and prove, but is obvious in the act of the court itself, the proceedings made illegal by such defect cannot be upheld by the Sudder Dewanny Adawlut, although no objection to the assumption of jurisdiction may have been made before the court of first instance, or at several stages of the proceedings before the lower appellate court, ... 198 LAW OF LIMITATION, The question of the applicability of the law of limitation cannot be summarily decided in the preliminary investigation held under Act IX. of 1839, to the probable cause of action, ... ... 204 LIABILITY. 1. A guardian having borrowed money to save his ward's estate from sale for arrears of revenue, held that such estate is liable to be attached and sold in execution of a decree obtained against the guardian for pay- ment of the debt, ... .. , ... ... 14 INDEX, 311 2. Held on the opinion of the law officer of the Sudder Dewanny Adawlut, that an heir of a deceased Mahomedan is not liable to pay the debts of his father save^ro tanto assets to which he may have avowedly succeeded, ... ... ... ••• 2/ 3. In a case of summary claim against the son for the payment of the debts of his deceased mother, against whom a decree had been given, the decree-holder was, under the circumstances, referred to a regular suit to try the question of liability, ... .-• ••• 61 4. The owners of an indigo factory were held liable for debts con- tracted on its account by their local managers, who were proved to have been recognized by the owners as their general agents, for raising money for the factory, and drawing bills on the owners in Calcutta, in the course of the previous transactions, ... ... ■•■ 1/0 6. A son succeeding to the inheritance of his father, the judgment creditors of the latter are entitled to a preference over those of the for- mer, in execution against the property inherited from the father, tlie parties being Mahomedans, ... ... ••• 228 LIMITATION OF TIME. 1 . The orders of the zillah court, rejecting the summary application of the petitioners to execute their decree, sixteen years after date thereof, aiSrmed on appeal by the Sudder Dewanny Adawlut, ... ... 18 2. An application for permission to sue in formd pauperis to set aside a summary decree for rent passed prior to the enactment of Regula- tion VIII. of 1831, rejected, in consequence of the application not having been preferred within one year from the date of the promulgation of that Regulation, ... ... ... ... 52 3. The zillah court having been closed the last day allowed by the law for application to enforce an award of arbitration, the Sudder De- wanny Adawlut held that the applicant, in presenting his application on the next first court-day, was in time, ..-. ... 62 4. A zillah judge cannot dispose, on its merits, of an appeal preferred beyond time against the order of a principal sudder ameen in a miscel- laneous case, without, in the first place, satisfying himself, that the appellant was prevented by unavoidable circumstances from appealing within the period allowed for appeal, ... ... 1/6 5. Execution of a decree appealed against may be taken out within twelve years from the date of the decision in the appellate court. Twelve years should not be calculated from the date of the original decision, ... 228 6. Previous judicial rulings of the Court, that the twelve years'^ law of limitation applies to applications for the execution of a decree as well as to regular suits preferred for trial of a claim, upheld, on the principle that long standing judicial precedents, created by orders judicially passed, ought not to be interfered with, excepting upon clear proof that they are contrary to some express law, or to some certain and fundamental prin- ciple of law, ... ... ... ... 244 7. A plea that a case was being prosecuted in another district, con- nected with that under consideration, held not to bar the application of the law of limitation in execution of decree where the last order passed in the case before the Court was passed twelve years previous to the petitioner's present application, ... ... ... 2ff3 MAJORITY. The age of 21 was held as the period of the petitioner (a Christian) attaining his majority, with reference to the provisions of a will, under which he claimed the personal management of property bequeathed to him, ... ••• ... ... 59 Q 2 312 I ^f D E X. MESNE PROFITS. 1 . In an action for recovery of mesne profits, held that the plaintiif was rightly nonsuited for omitting to state the amount, and the period for which it was alleged to be recoverable, ... ... 65 2. Ilegal collections cannot be taken into account in the adjustment of mesne profits, ... ... ... ... 99 3. Mesne profits cannot be awarded at a higher rate than that specifically claimed by the plaintiff in the court of first instance, ... 139 4. In a suit for real property with mesne profits, inquiry into the amount of the latter may be postponed till the decision of the suit, ... 152 6. Ruled on a hearing by all the judges of the court, that the ordi- nary rule regarding the award of interest on mesne profits should be that such interest may be given /rom the date of suit, as being the clear date of demand, and that this payment may be ordered by a decree as of course, and without reasons assigned. Where, for special reasons, interest in mesne profits may be awarded from an earlier or from a later date than that of suit, these reasons should be set forth in the decree. When, however, a decree is silent regarding any award of such interest, claim for it will run only from the date of ascertainnient of mesne profits in execution, ... ... ... ... 195 MISCELLANEOUS APPLICATIONS. 1 . A son born after decree made cannot summarily get possession of property adjudged to his brothers and cousins, who were parties thereto, notwithstanding the opinion of the pundit, that such after-born son had equality of right of brothers in the ancestral estate of his maternal uncle. But this was held by the Sudder Dewanny Adawlut not to narrow his remedy by legal recourse to the institution of a regular suit, ... 3 2. An objection made to the representation, by the legal heirs, of a plaintiff who died pendente lite, on the ground of a special legal disability, overruled, and the objector referred to a regular action, ... 9 3. Held that on applications by three distinct parties to represent a deceased decree-holder, (one as the legal heir, and the others on special pleas,) the zillah court should have recognised the legal heir, leaving the other claimants to resort to regular actions for the establishment of their respective claims, .-• ... ... ... 12 4. Held by the Sudder Dewanny Adawlut that the Regulations in force do not provide any summary remedy against losses sustained in appeal cases from the insufiiciency of security, pronounced by the nazir of a civil court to be good and sufficient for the performance of final judgment; but that the injured party can only have his remedy by the institution of a regular suit under the provisions of Regulation IV. of 1793, ... ... ... . ... 19 5. In the case of a joint decree, without specification of the sums payable to each of the plaintiffs, payment of the portions of the other decree-holders by one of them who has realised the whole amount, cannot be summarily enforced, ... ... ... 39 6. One of the heirs of a judgment creditor having realised the amount of the decree, held that another heir cannot summarily recover his por- tion of the debt from the party to whom payment has been made, the remedy is by regular action, ... ... ... 44 7. Execution of a decree against a Hindu widow personal to herself, cannot be summarily had after her death, against the estate of her hus- band in possession of the son adopted by her with her husband's per- mission. Tlie decree-holder may try the question of the liability of the property by a regular suit, ,,, ... ... 45 INDEX. 313 8. A claim against a guardian appointed under Regulation I. of 1 800, by his recent ward, cannot be summarily enforced, see Construction No. 720, 61 9. Letters of administration from the Supreme Court confer no title to summary aid from the zillah courts in recovering property not in possession of the party represented, at the time of his decease, ... 85 10. Right of succession cannot be decided in a summary manner,, except under Acts XIX. and XX. of 1841, or when the heirs of deceased parties to suits are called upon to appear, ... ... 92 11. Held that the private purchase of property, after its advertise- ment for sale in satisfaction of a decree, but without issue of proclama- tion of attachment under Regulation II. of 1806, cannot be summarily set aside, ... ... ... ... 108 12. In a case in which the principals, who had obtained an order for possession of property under Regulation V. of 1799. made over such property temporarily to their sureties, it was held that the civil court could not summarily interfere in a dispute between principals and sure- ties, in regard to the proper discharge of the trust, ... ... 127 13. Counter claims to proceeds of a sale, held in execution of decree founded on purchase of the rights of the decree-holders, cannot be de- termined summarily, ... ... ... ... ISI 14. A title disputed on special grounds, cannot summarily avail against the general right of heirship, ... ... ... 160 15. Application to the Sudder Dewanny Adawlut, that an appellant, defendant, might be called on to furnish security to perform the condi- tions of a decree of a lower court, which had been annulled by this court, (the case being removed for investigation) rejected, ... 2J8 16. Urgent miscellaneous petitions can be presented to the judge in charge of the summary department, on days other than those fixed by the court's resolution of 27th December, 1850, for bringing such petitions before a full bench, ... ... ... ... 224 MOCHULKA. A magistrate should distinctly set forth in his order, what precise act coming within the scope of the prohibition of the law he considers to have been committed by a party against whom forfeiture, of a Mochulka taken under Act V. of 1848, is adjudged by him. The Mo- chulka should be strictly according to the form prescribed by that Act, and the forfeiture, engaged for to Government and not to the magis- trate. ... ... ... ... 270 MOOKHTARS. Constructions No. 607 and 800, regarding mookhtars, are inapplicable in the civil courts, ... ... ■■• ••• 1G4 MORTGAGE AND CONDITIONAL SALE. 1. The production of the original deed of mortgage, prior to the issue of notice of foreclosure under Section VIII., Regulation XVII. of 1806, is not necessary, ... ... ••• -•• 32 2. It is not competent to a zillah judge to pass an order summarily for foreclosure of a mortgage, notwithstanding the vendor and vendee might certify to him an agreement, to the effect that the conditional sale should be made absolute without the necessity of further proceedings in the event of a violation of the agreement by the vendor, ... 47 314 INDEX. 3. The time of notice of foreclosure of a mortgage, prescribed by Section VIII., Regulation XVII. of 1806, having expired on a Sunday, the Sudder Dewanny Adawlut held that a tender of the debt, on the day following, as a deposit in court, should have been allowed, ... 50 4. A sale, with the separate condition for the relinquishment of tbe property by the purchaser, on the seller producing another purchaser at a higher price within a specific time, held to be of the nature of a condi- tional sale, and subject to the rules of Section VIII., Regulation XVII. of 1806, ... ... ... ... 79 NOTICE. 1. Held that the eight days' notice required by Section XII., and the proceedings to be recorded under Section X., Regulation XXVI. of 1814, must be repeated, if the parties to a suit be allowed to file any pleadings subsequently to the above provisions of the law having been once already attended to, ... ... ... 90 2. It is not necessary to issue, to the new officer, fresh notice in a case to which the receiver of the Supreme Court may be a party, on change of the official incumbent, ... ... ... 91 3. The issue of notice to heirs of defendant or respondent, deceased, to attend, and not proof of their heirship, is required from the opposite party, ... ... ... ... 94 PARTITION. The butwarra of an estate, partly the property of Government and partly of private individuals, must, nevertheless, be ma(^ by the Revenue Authorities, ... ,.. ... ... 83 PAUPER. 1. Held that a zillah court is bound before admitting a party to sue in forma pauperis, to hear the objections which may be urged by the opposite party, ... ... ... ... 2 2. The petitioner who was a convict in jail undergoing a criminal sentence was permitted to appeal in fotmd pauperis, under the provi- sions of Act XIX. of 1840, without personally attending, ... 63 3. An order passed by the zillah judge under Clause 3, Section XII., Regulation XXVIII. of 1814, refusing permission to a party to appeal in formd pauperis, is final and not open to appeal to the Sudder De- wanny Adawlut, ... ... ... ... ib. 4. It is not necessary to strike off the suit of a pauper plaintiff on his death. His heir, on proof of pauperism, may be permitted to carry on the suit, ... ... ... ... 74 6. The possession of property by a guardian is no bar to the admis- sion of a suit in formd pauperis on behalf of his ward, ... 78 6. If lapse of time, not amounting to a period which would bar the institution of a suit on a full stamp, be the only ground for rejecting an appUcation to sue in formd pauperis, it is insufficient, ... 83 7. Held that an appeal in formd pauperis may be preferred from the decision of a collector under Clause 4, Section XXX., Regulation II. of 1819, ... ... ... ... 87 8. The possession of property by the husband is no bar to the admis- sion of a suit in formd pauperis on the part of the wife, ... 98 9. The zillah judge is alone competent to admit a supplemental plaint to be filed by a pauper plaintiff, ... ••• •>• 106 INDEX. 315 10. The possession of property by the father is no bar to the admis- sion of a suit in forma pauperis on the part of a son against his father,... 109 11. An application to sue in forma pauperis rejected, in consequence of contradictory statements made by the applicant, in regard to a point involved in the determination of the question as to whether there was probable cause for instituting the suit, Section I., Act IX. of 1839, ... 112 12. Applications on the part of Government to recover the stamp duties incurred in pauper suits, may be made on plain paper, ... 113 13. Held that the alleged heir, by will, of a deceased pauper plaintiif, must apply de nouo for permission to sue as a pauper, ... 115 14. A male native of rank, wishing to institute a suit in formd, pauperis, must appear in person fof examination under Clauses 1 and 3, Section V., Regulation XXVIII. of 1814, and cannot be examined by his agent, ... ... ... ... 134 15. A pauper plaintiff cannot be allowed to add to the number of the defendants originally sued by him, without their being permitted to show cause against his right to sue as a pauper, ... ... 135 16. An appeal lies to the Sudder Dewanny Adawlut, from the order of a zillah judge, under Section I., Act XI. of 1839, rejected an applica- tion to sue as pauper, on the ground of absence of probable cause for instituting the suit, ... ... ... 1/9 17. An order passed by a zillah judge, under Clause 3, Section XII., itegulation XXVIII. of 1814, refusing permission to a party to appeal in forma pauperis is final, and not open to appeal to the Sudder Dewanny Adawlut, ... ... ... 184 18. In considering, in the preliminary inquiry required by Act IX. of 1839, whether there are probable grounds for receiving a suit, sought to be instituted in formd pauperis, the courts ought, on their own part, to r«fer to documents which are at their command in the official records, and ought not to require the applicant in forma pauperis to file copies of such documents on stamped paper, ... ... 218 19. No appeal lies from the order of a judge, admitting a party to sue in formd pauperis, under Section I., Act V. of 1848, though in fur- therance of the intent of the Act, the court receives appeals against the orders of judges rejecting an application to sue in formd pauperis, — see case of Juggut Chunder Surma, decided 18th July, 1850, ... 268 PENSION. Held that a pension granted by Government is not liable to be attached in satisfaction of a decree of court, and is payable only to the party to whom the Government may have assigned it, ... 17 PLEADER. 1. The vakeel of a judgment creditor having applied on behalf of his client, praying that certain property belonging to his debtor might be publicly sold to him at a specified sum if more was not bid for it, it was held by the Sudder Dewanny Adawlut that the client was bound by such an application, notwithstanding his subsequent declaration that he had not authorised his vakeel to make it, ... ... 58 2. A civil court cannot compel a pleader to receive a vakalutnama from a party not a pauper, ... ... ... 65 3. A pleader entrusted with the secrets of a cause of his client, is not bound to give evidence of any information given to him in confidence, in virtue of such trust, ... ... ... 77 316 INDEX. 4. A pleader cannot be required to exhibit the instructions of his client, ." ■" ... ... 110 6. A. vakeel who accepts a vakalutnama, without endorsing on it any conditions, cannot decline to plead when the cause comes on for hearing, 190 6. Under Clause 2, Section XVIII., Regulation XXVII. of 1814, if on the death of a pleader of the court, appearance be not made through another pleader, within the prescribed period, and if the party can show no good and sufficient cause for the delay, it is imperative on the coui't to strike the case off the file, ... ... ... 218 7. Application by a pleader, appearing as on behalf of an appellant, who had already employed other pleaders in the cause to withdraw her appeal, rejected, — no communication having been made by the new mookhtar who appointed the pleader last appearing, to the pleaders first appointed, and those pleaders stating that their instructions were to go on with the appeal. There was reason to doubt the genuineness of the withdrawal put forward in the second application, ... ... 230 8. It is not necessary, since the enactment of Act XXIV. of 1841, to call upon a person neglecting to appoint a fresh vakeel after notice under Clause 1, Section XVIII., Regulation XXVII. of 1814, to call upon the party under Clause 2, to show cause for the omission, ... 292 PLEADINGS. 1 . A petition filed to correct an error as to the name of the heir of a defendant to a suit, cannot be considered as a supplementary plaint, to which the provisions of Section V., Regulation IV. of 1793, are appli- cable, ... .■• ... ... 80 2. The filing of a second supplementary plaint, although unautho- rised by law, is no ground of nonsuit, ... ... 91 3. An answer, filed by the vakeel of a defendant in a suit, himself absconding, or not furnishing security under Regulation II. of 1806, is npt to be attended to, ... ... ... 93 4. A civil court cannot, motu sno, order supplemental pleadings to be filed : they are admissible only on the application of the party seeking to rectify his error. ... ... ... 141 5. The error of making a deceased person a defendant, can be cor- rected, on the motion of the plaintiff, ... ... 142 6. In a suit for specific lands, held that a neglect to 'give the full boundaries so as to show what are the specific lands in dispute, cannot be remedied by a supplemental plaint, after the issues are drawn ; the rule confined to the peculiar circumstances of the case, ... 258 7. A court which has, according to Clause 3, Section VI., Regulation XXVI. of 1814, admitted a supplemental pleading to be filed in a suit, is not competent afterwards by its own order, to reject such supplement for the record, ... ... ... ... 277 POWER. A power of attorney executed in England, was under the circumstances held to have been sufRciently attested by the affidavits of persons acquainted with the handwriting of the party executing, ... 115 PRACTICE. A plaintiff is at liberty, at any time before deeds of adjustment, withdrawal of claim or the like, which may have been filed in a court by a petition, have been brought before the court for its order and decree INDEX. 317 in the case, to recall on his own responsibility, any application which may have been made by the petition for the passing of a decision by the court in pursuance of such deeds, and to move the court for an investigation of the merits of the suit. It is a distinct question, whether the plaintiff can obtain any benefit from a decree, should one be given in his favor under such circumstances. Another suit may be brought against him by the adverse party to stay the execution of such a deeree, as well even, under different circumstances, as to enforce damages against him, on the ground of his liability under the agreements into which he may have entered, ... ... ... ... 219 PRE-EMPTION. 1. The right of pre-emption (decreed on condition of payment in one month of the purchase-money) lost by failure of payment within the time prescribed, ... ... ... ' ... 36 2. A party having claimed the right of pre-emption in certain lands and obtained a decree, is not at liberty to withdraw from liis claim in consequence of the resumption of the lands by Government, and the conclusion of a settlement with other parties,... ... ... 43 PROCESS. 1. The raja of Burdwan, having failed to attend to a notice of court, on the ground that the usual mode of service by letter was not followed, tlie Sudder Dewanny. Adawlut held that he was bound to attend to it, stating at the same time his objections to the mode of service, ... 36 2. Process of execution of decree can only issue in the names of the judgment-debtors recorded in the decree. A new name cannot be insert- ed to meet a change of name alleged to have been assumed by any of them. Process should be taken out against the party by his name as stated in the decree, and he should be left to plead that he is not that party, but another person with a diflFerent name, ... ... 209 • PUTNEE. 1 . The sale of a putnee talook, under attachment by order of the civil court, cannot, for that reason, be deferred, in the event of its be- coming liable to sale under Regulation VIII. of 1819, for arrears due to the zemindar, ... ... ... ... 86 2. The attachment, by order of the civil courts, of a putnee talook, does not affect the right of the zemindar to levy his rent by sale, ... 110 3. Balances of rents for antecedent years due from a putnee talook, being of the nature of personal debts of the talookdar, the talook itself is not primarily answerable for them, ... ... ... 149 4. Under the general powers vested in a collector by Section XXII., Regulation IX. of 1 833, it is competent to him to reverse a sale of a put- nee tenure, by a deputy collector, under Regulation VIII. of 1819, ... 157 REMANDS. Case remanded, the lower appellate court not having passed an order in the different applications before it, the disposal of which was necessary to a decision, on the merits of the particular application on which it gave directions, ... .,, ,., 200 318 INDEX, RENTS. 1. Application for permission to deposit in court rents which the pro- prietor of the land refuses to receive, rejected, ... ... 23 2. Sections XIV. and XV., Regulation IX. of 1833, cannot be plead- ed in bar of a suit until the Board of Revenue shall have, under Section XIII., prescribed rules for filing village accounts, ... ... 154 3. When a summary suit has been brought before the collector against a party for arrears of rent, such party cannot sue separately to contest the same claim before one of the ordinary courts. ' These courts should nonsuit a suit so brought after a claim in the same matter has been laid in the collector's court. The decision of the collector will, of course, be ultimately subject to a regular suit, ... ... 251 4. A suit to recover rent from one party and to obtain possession of land from another, held to be multifarious ; orde* of nonsuit upheld, ... 254 KENT-FREE LANDS. 1. Held by the Sudder Dewanny Adawlut, under the circumstances set forth, that a stipend payable under judgment of court, from the proceeds of land under lakhiraj tenure, necessarily ceases on the resump- tion of the tenure by the Government, ... ... 64 2. A party considering himself aggrieved by an order of the resump- tion courts, defining the boundaries of a resumed mehal, cannot apply to the civil courts for redress, ... ... • ... 131 3. Held that under the circumstances of the particular case, land claimed as reut-free, should first have been declared liable to assessment by a decision under Regulation II. of 1809, before a civil suit for its as- sessment could be heard, ... ... ... 1S2 REPRESENTATION. • A claim by adoption having been adjusted between the claimant and the heirs at law of the alleged adopting father, by a partition of the estate of the latter, such adoption not having been legally proved in court, held that on the death of the claimant, the heirs of the adopting father should be admitted to represent the adopted party, in a suit in- stituted against him by another party, with reference to the property thus obtamed, in preference to his own mother, ... ... 128 RESISTANCE OF PROCESS. Held that under the words of Section I., Act "VI. of 1843, which enact that " in the trial and decision of all original suits, the principal sudder araeens shall be guided by the rules established for the conduct of business in courts of zillah and city judges," it is competent to a prin- cipal sudder ameen to impose punishment for the resistance of his judi- cial process, in hke manner as zillah and city judges are rendered com- petent to impose such punishment by Section XXII. and the following of Regulation IV. of 1793, and by Regulation IX. of 1799. This, with reference mainly to the extended sense in which the words " trying and deciding suits" are seen from the detailed provisions in that law to have been used in the preamble of Regulation IV. of 1793, ... 243 INDEX. 319 REVIEW. 1. Held that an npplication for a review of judgment is not cogniz- able by the court after the lapse of twelve years from the date of the final decision passed in the case, ... ... ... 23 2. Application for review of judgment on grounds already de- cided upon by former judges of the Sudder Dewanny Adawlut, re- jected, •.. ... ... ... 39 3. An appeal to the Sudder Dewanny Adawlut from the judgment of a lower court which has been struck off on default, is no bar to such court applying for sanction to review its own judgment, ... 42 4. The order of a zillah judge refusing to allow a principal sudder ameen to review his judgment, is final, ... ... 47 5. A zillah judge having rejected an application for a rehearing of his own judgment in an appeal from the sudder ameen, held that the Sudder Dewanny Adawlut had no jurisdiction in the case, ... ... 54 6. A summary appeal does not lie to the Sudder Dewanny Adawlut from the order of a zillah judge, rejecting an application for a review of his own judgment, ... ... ... ... 55 7. An application for review of a summary order rejected, without inquiry into its merits, because, first, a copy of the order complained of had not been filed with the petition of review, and secondly, because no reason was given for the delay in making the application, ... 60 8. To enable the Sudder Dewanny Adawlut to receive an application for a review of judgment on paper of the value prescribed for miscella- neous petitions, it should be filed complete within three months, accom- panied by all the necessary papers, ... ... ... 67 9. An application to review the order rejecting the admission of a special appeal, must be preferred within three months from the date of the order of rejection, ... ... ... ... 68 10. It is not competent to a zillah judge to impose a fine on a party applying for a rehearing of an order passed in a. miscellaneous case, ... "3 11. The court will not admit a review of an order passed by a former judge of the court, upwards of nine years previously, such judge having jemained in the court several years subsequently to the date of the order, without any application being made to him, and no reason being assigned for the delay, . ... ... ... 201 12. Application for a review of the order passed in the case here noted (see report of summary cases of l7th April, 1851, reports, 173^to 278) rejected, the former precedent mainly ruled on the case Nubkishen Fotedar, of 17th March, 1846, (summary report, vol. 2, p. 78,) having been on a point distinct from that which was determined by the order sought to be reviewed. That precedent laid down that a notice to the owner of salt is not necessary for the regularity of the weighment made by the executive salt officers on their first seizure of a cargo of salt, but the question, on which the order of l7th April, 1851, turned was, whe- ther, when an owner of salt has been admitted to be a necessary party in the judicial proceeding with a view to confiscation of a cargo of salt, notice to him is not necessary, so that he may have an opportunity of be- ing present personally or by agent at the weighment, which is to be the subject of evidence on the trial of the judicial information, ... 231 13. Ruled that application for review of an order passed by a zillah judge, in a case of special appeal previous to Act III, of 1843, should be prefeiTcd in the zillah and not in the Sudder Court, notwithstanding that Act, ... ... ... ... 287 E 2 320 INDEX. 14. The pleader in an application for review of judgment cannot be allowed to vary from the facts as stated by the pleader on the original trial of the case, ... ... ... ... 287 15. Held that it was unnecessary to decide the general point urged in the application for review of judgment, ... ... 288 16. An issue not pressed before the Court, and upon which no deci- sion was given, cannot be taken up as a ground of review, ... ib, 17- Application for review in two cases disposed of by one judgment, may be received on a single petition ; as fraud had not been charged in the plaint, nor want of necessity for the alienation of the property stated in the pleadings. The application for review was rejected, ... 290 18. Application for review of judgment, based on a point relating to the law of limitation, rejected, ... ... ... 291 19. Application for review of judgment rejected, as the point urged in support of it had not been previously taken, ... ... 96. SALES IN EXECUTION. 1 . The offer of a decree-holder to take property sold in the execution of his decree, for more money than that concluded with the first pur- chaser, rejected by the Sudder Dewanny Adawlut, the sale being other- wise unexceptionable, , ... ... ... 14 2. The orders of the zillah judge who refused to admit, without deposit, the bid of a decree-holder for property un'der sale iu execution of his own decree, reversed by the Sudder Dewanny Adawlut, ... 16 3. A compromise between a decree-holder and his debtor, of which timely intimation was not given to the court executing the decree, held to be no sufficient ground for reversal of the sale of the debtor's pro- perty, made in execution of such decree, ... ... 39 4. The petitioner purchased a lot sold in execution of a decree of court, and obtained a deed of sale from the zillah judge. The successor of the judge reversed the sale on the application of the late proprietor, presented some months after the sale had taken place. The court held that he was not warranted in so doing, and reversed his order, ... 42 5. The order of a zillah judge, declaring that a sale in execution of a decree, which adjudged repayment of a loan previously advanced to protect the same property from public sale for arrears of revenue, had the same effect as such public sale, and cauceljed all leases granted by the late proprietor, overruled, ... ... ... 48 6. An order of court to stay the sale of property, founded on a state- ment that the debt, for satisfaction of which the sale had been ordered, had been settled, is insufficient cause for the reversal of the sale, if it shall appear that information of the compromise was not given to the court in time enough to stay the sale,... ... ... 71 7. Failure to deposit the peon's fees for serving notice of sale in exe- cution of a decree, held not to affect the legality of the sale, ... 73 8. Notice given to the civil court of a compromise, or payment of a debt due under a decree, if after the sale of the debtor's property in execution thereof, is no ground for the summary reversal of the sale, ... 74 9. A conditional sale and decree for foreclosure and possession is no bar to the sale of property pledged as security to a civil court to stay exe- cution of a decree under a bond of prior date, ... ... 75 10. A bid for property about to be sold by the collector in execution of a decree, made to the civil court and information thereof given to the collector, held to be insufficient to set aside the actual sale of the pro- perty by the collector for a lesser amount, ... ... 79 INDEX. 321 11. An order to stay the sale of property about to be sold by the collector in execution of a decree, was transmitted by the civil court, but not received by the collector prior to its sale : held that the sale could not be set aside, ... ... ... ... 117 12. Objections to a sale in execution of a decree, founded on its having been previously satisfied, cannot be heard after such sale, when held after due notice, ... ... ... 1-46 13. Claims to property sold in satisfaction of a decree, if not advanced before the sale, cannot be entertained summarily, merely because prefer- red within one month after it, ... ... ... 162 14. Distinct processes of attachment on the spot, and of proclama- tion of sale are essential to the validity of a sale under Regulation VII. of 1825, and to sales in execution of judicial decrees under Act IV. of 1846. The processes may be issued simultaneously or successively, but both are indispensable, ... ... ... 183 15. The petitioner, decree-holder, was called upon, contrary to the rules prescribed in the Circular Order, 18th January, 1839, to pay cash for his purchase at public auction, on a sale in satisfaction of his decree by the zillah judge, who refused to accept petitioner's receipt to the extent of the sum awarded to him, in lieu of purchase-money. This order was reversed and the judge was directed to conform to the Court's Circular, on the subject of execution of decrees, ... ... 221 16. In summary investigations upon execution of a decree, the court will not uphold objections to the sale of particular property, when the apparent presumptions are in favor of the property having belonged to the party against whom the decree was passed, ... ... 201 17. When the plaint refers to the setting aside of the sale of a share of a sudder mehal, it is enough to sue on the usual valuation of three times the jumma, though the price bid at the sale may have been in excess of that amount, ... ... i.. ... 208 18. The zillah judge repeatedly postponed, on insufficient ground, the sale of a debtor's property. The decree-holder appealed against his orders, and the court reversing them, issued an injunction for immediate sale, subsequent to the receipt of which the judge again similarly postpon- ed sale. An estate being brought under the Court of "Wards after decree passed against the proprietor, is notwithstanding liable in satisfaction of such decree on application for sale by the party taking out execution, ... 223 19. Where one of several creditors, claimants to sale proceeds of pro- perty, sold in execution of a decree, purchases the property, and his receipt to the amount of the debt due to him has been accepted as in liquidation of the purchase-money, the Sudder Court cannot, on any summary proceedings regarding the execution of the decree, compel him to take back his receipt, and to pay in the purchase-money, with a view to a re-opening of the claims of the several creditors. It is now a set- tled doctrine that the court cannot, by summary process, compel the paynient of money actually paid out to a party by the order of a lower court, and the cases are quite analogous. A party thinking himself aggrieved by the acceptance of such a receipt, must seek his remedy by regular suit, ... ... ... ... 242 20. A sale of right and interest in a property is legal, not of a right of suit itself, ... ... ... ... 253 21 . A sale in execution of a decree having been completed by delivery of possession to the purchaser, a judge is not competent to reverse the sale, and to oust the purchaser by a summary order, on the ground that a third party has established his right to the thing sold. The third party must sue regularly, .,, ... ... ... 264 322 INDEX.. SALT. 1. Two despatches of salt, belonging to different merchants and co- vered by separate rowannahs, having been weighed together and declared liable to confiscation by the salt officers and zillah judge, under the pro- visions of Sections XLI. and CXIII. Regulation X. of 1819, held by the Court of Sudder Dewanny Adawlut that the quantity belonging to each merchant ought to have been separately weighed, and the order for confiscation accordingly reversed. The court further held that the salt darogah, having examined the despatches of salt, endorsed the rowannah, and allowed them to pass his station, acted irregularly in subsequently stopping them, ... ... ... ... 5 2. Held that an appeal from a judge's order under Section XXVII., Act XXIX. of 1838, inflicting a fine on a landholder for permitting the manufacture of contraband salt on his estate, can be admitted only on special grounds, ... ... ... ... 49 3. A zemindar does not relieve himself from liability to fine under Section XXVII., Act XXIX. of 1838, for the erection of illicit khilarees on his estate by giving his estate in farm, ... ... 63 4. The order of a zillah judge, under Section XXVII., Act XXIX. of 1838, imposing a fine on a landholder for omitting to give notice of the establishment of illicit salt works on his estate, cannot be contested by a regular action, ... ... ... ... 70 5. It is not competent to a civil court to reduce the penalty prescrib- ed by Section XXVII., Act XXIX. of 1838, to be levied from land- holders and others for omitting to give notice of the establishment on their lands of illicit khilarees, or salt works, ... ... 7' 6. The penalty prescribed by Section XXVII. Act XXIX. of 7838. in case of landholders neglecting to give information of the establish- ment of illicit salt khilarees on their estates, is personal, and cannot be levied from the heirs of the negligent party, ... ... 75 7. If only one or some of the sharers of an estate have been prose- cuted by the salt officers under Section XXVII., Act XXIX., of 1838, for neglecting to give information of illicit salt works on their estates, the judge should not originate any charge against, the other sharers : each sharer prosecuted by the salt officers is liable, on conviction, to the full penalty prescribed, :.. ... ... 78 8. The principle of Section CX., Regulation X. of 1819, is that im- prisonment can only be awarded in commutation of fine, ... ,95 9. The Circular Order of a Board imposing rules of practice upon its subordinates, beyond the requirements of law, cannot be pleaded in bar of a legal penalty, ... .. ... 103 10. A conviction, under Section, XXVII. Act XXIX. of 1838, is ap- pealable to the Sudder Dewanny Adawlut only on special grounds, as prescribed by Section XXXII. of the Act. A conviction under the first- named Section is not vitiated by the omission to hold the local investiga- tion prescribed by Section XCIX., Regulation X. of 1819, ... 121 11. A judge, having granted permission to a decree-holder, intending to purchase the property of his judgment-debtor, to file his receipt, instead of paying the purchase-money, is competent to withdraw such permission under altered circumstances shown by the application of a party holding a decree against such decree-holder, ... ... 145 12. A superintendent of salt chowkies and the zillah judge, in confir- mation of his opinion, having confiscated salt as contraband, without notice to the owner, held in appeal to the Sudder Dewanny Adawlut that all the judicial proceedings were illegal and void, ab initio, under the provisions of INDEX. 323 Section CII., Regulation X. of 1819, and Sections XXVI. and XXIX., Act XXIX. of 1838, ...» ... ... 174 13. The confiscation of salt as contraband upon a judicial suit or information, according to Section XCVI. et seq. Regulation X. of 1819, is illegal without an information or charge, and issue of notice thereupon, against the owner of the salt. The penalty exigible upon each suit or information against a churundar or supercargo, in charge of a despatch of salt, is, by Section XLI. of the Regulation, a personal one by fine,... 194 14. The owner of a cargo of salt having been admitted to be a neees- saiy defendant, and made defendant accordingly, with a view to a judici- al order of confiscation of the salt under the provisions of Sections CXVI., and the following of Regulation X. of 1819, upon charge or information laid against such owner, it is a fatal defect that the salt has not been kept as it was originally seized, so that it could be weighed in the presence of the owner and any witnesses he might desire to bring. An intermediate sale of the salt under an executive order of the salt de- partment and without notice to the owner so as to admit of his atten- dance personally or by a duly appointed agent, deprives him of the means, to which he is entitled, of checking and testing the statements of the salt officers as to the quantity of salt in the cargo, as it was when placed under attachment, ... ... ,,, 21 1 SECURITY FOR APPEALS. 1. Under the provisions of Section XI. Regulation XIII. of 1808, the Sudder Dewanny Adawlut will direct a greater amount of security, equal to one year's produce of the adjudged property, to be entered into by the respondent, during an appeal to the King in Council, thau what the zillah court had accepted as good and sufficient to answer the judg- ment, ... ... ... ... 20 2. The security required by Section II., Regulation XIV. of 1829, must be furnished without being called for by the court, ... 169 3. It is competent to an appellate court to take security from an appellant for staying execution of a decree under Section II., Regula- tion XIII. of 1808, though execution "may not have been applied for in the court below, ... ... ... ... 224 SECURITY FOR JUDGMENT. Security for the discharge of a trust, or for payment of a debt, given directly to the employer or ci'editor, is no bar to the demand of security under Regulation II. of 1806, ... ... ... 72 SECURITY FOR COSTS. If security for costs be demanded from an appellant by a court of appeal in its discretion under Act III. of 1815, the reasons for the same should be recorded, ... . . ... ... 96 SPECIAL APPEAL. 1. The rejection by the Sudder Dewanny Adawlut of an application for a special appeal against a decision of a lower court, dues not bar a review of judgment by such coiu't, ... ... ,,. 137 324 1 K D E X. 2. Application for a special appeal rejected, notwithstanding the ille- gality of the judge's order appealed against, such illegality not affecting the final disposal of the case, ... ... ... 159 3. It is irregular to file a petition of special appeal against a party named, and others who are only mentioned - by the general term " Oghyra," nor can the names of the others be allowed to be inserted by a petition given in after the expiry of the period for the admission of an appeal. But the special appeal case should be prepared as against the one party named as a respondent, and it will be for the bench which tries the special appeal, to decide whether any decree can pass in the appeal with only that respondent before it. The order passed with reference to the spirit and intent of Section X., Regulation VI. of 1 793, which governs the Circular Order, No. 211, of 1st July, 1842, ... 215 •4. Orders passed by judges of districts under Section V., Act VI. of 1 843, on appeals from the orders of moonsiffs and sudder ameens in execution of their own decrees, are not open to a special appeal, on any ground to the Sudder Dewanny Adawlut, ... ... 236 5. A summary order of a judge, reversing an order of nonsuit by a principal sudder ameen is liable to special appeal in the Court of Sudder Dewanny Adawlut, ... ... ... 254 6. There is no special appeal from an order rejecting a petition of summary appeal under Clause 10, Section III., Regulation XXVI. of 1814, ... ... ... ... 293 STAMPS. 1. The return of any portion of the stamps required for the plaint, in which order of nonsuit has been passed, is unauthorised, ... 63 2. Held that a copy, kept for record in the courts in lieu of the original, of a general power of attorney to act in more than one comt, should be written on plain paper, ... ... ... 82 3. The order of an officer of Government, filed by a Government pleader, is sufficient autherity to him to plead a cause, and is admissible on plain paper, ... ... ... ... 104 4. On withdrawal of copies of decrees, filed with applications for admission to special appeal from the record in the court, copy on stamped paper of eight annas value per sheet must be substituted for the docu- ments so withdrawn, ... , ... ... 239 5. A deed of gift unstamped, filed in execution of decree, not admit- ted, and the claim founded on it, rejected, ... ... 260 6. A petition which, though only in its terms withdrawing an appeal, refers as the reason of withdrawal to a separate paper of settlement or adjustment between the parties attached to the petition must be on a stamp of four rupees value, according to the rule as to applications of adjustment in Article X. Scliedule B., Regulation X. of 1829. It cannot be received on a two rupees stamp, or an ordinary miscellaneous application, ... ... ... ... 286 SUMMARY. See Miscellaneous Applications. SUMMARY APPEAL. 1. Held that a summary appeal will lie from an interlocutory order passed in the course of a regular suit regarding the valuation of pro- perty sued for, ,,. ,.. ... ... 41 INDEX. 325 2. The Sudder Dewanny Adawlut will admit a summary appeal from an order of nonsuit, ... ... ... ... 56 3. A summary appeal from a judgment passed in appeal by the princi- pal sudder ajmeen, lies to the Sudder Dewanny Adawlut, and not to the zillah judge, ... ••. ... ... 127 4. ^n order by a principal sudder ameen, dismissing a suit after hear- ing on the ground of want of jurisdiction, is not summarily appealable to the zillah judge, under Section IV., Act, IX. of 1844, ... ... 143 6. The order of a principal sudder ameen, rejecting, by an endorse- ment on the petition of plaint, an original suit, as not cognizable by him in a case exceeding rupees 5,000, in value, is appealable to the zillah judge and not to the Sudder Dewanny Adawlut, ... ... 144 6. A summary appeal does not lie against the order of costs in a de- , cree of a regular suit, .. ,.. ... 1.57 7. Objections by a third party, to his lands being included by an order of court in land, the subject of a suit between two other parties, should be preferred in a regular appeal from the final decree, and not summarily as from an interlocutory decree, ... ... 160 8. The summary decision of a lower appellate court on the question of fact is not open to a special appeal,... ... ... 163 9. A summary appeal does not lie from an order, disallowing objec- tions to the trial of a suit on the ground that another suit had been insti- tuted elsewhere for the same subject of action, ... ... 164 10. An interlocutory order in regard to the investigation of a pending suit is not appealable, ... ... ... 166 11. An appellate court is not competent, under Circular Order Feb- ruary 2nd, 1849, to take up by way of a summary complaint an appeal against an interlocutory order of a court of first instance declaring the admissibility of a witness. A summary appeal pending a suit is not open on such a point, ... ... ... 197 12. Clause 2, Section III., Regulation XXV. of 1814, only allows of a summary appeal in the Sudder Dewanny Adawlut where the appeal before a lower appellate court has been dismissed " on the grounds of delay, informality or other default," where the appeal has been received and investigated, but the investigation has terminated in an order of nonsuit, ... ... ... ... 234 13. A summary appeal lies under the Circular Order February 2nd, 1849, against an order to stay alienation of fro'perty, pendente lit^ accord- ing to Regulation II. of 1806, ... ... ... 251 14. A joint suit is laid as in the name of A. and B.; B. subsequently denies having authorized the suit, and claims the entire interest in the property in dispute as vested in herself, on which ground the principal sudder ameen nonsuited the case ; held, that this order was not open to summary appeal wider Clause 2, Section III., Regulation XXVI. of 1814, as the principal sudder ameen's order was not on the ground of delay, informality or other default, but of defect of original right to bring a joint suit. A summary appeal also cannot lie against an award of costs. See case Bhurut Chunder Moojoomdar and others, decided 22nd March, 1848, Summary Reports, part II. page 136, ... ... 265 16. When a decree has been given jointly against several defendants, , one of them can appeal summarily from an order of the court, passed in execution of the decree and declaring all of them liable to wasilat, ... 266 16. A summary appeal lies under Clause 2>, Section III., Regulation XXVI. of 1814, against an order of nonsuit for defect of boundaries, 268, 270 17. An order nonsuiting a plaintiff for not having sued the right party, is open to summary appeal, though the order may have been 326 INDEX. passed after completion of the pleadings and taking evidence, there having been no decision by the first court regarding the subject-matter of suit, but an alleged dismissal of the suit, " without investigation of the mei-its upon insufficient ground," ... ... ... 273 IS. A summary suit lies as above against an order of nousuit, on the ground of defect of parties, ... ... ... 271 1 9. It is not a ground for refusing a summary appeal under Clause 2, Section III., Regulation XXVI. of 1814, that one of the grounds of non- suit was that the plaintiff had filed a specification of boundaries in excess of those which he had obtained permission to set forth in a supplement ; the order of nonsuit was essentially grounded on defect of boundaries, not legally remedied, ... ... ... ... 274 20. A summary appeal will lie against an order of nonsuit on the ground of under-valuation of suit. ... ... ... 275 21. Where a lower court dismisses one part of an integral claim, and refuses, in reference to such order of dismissal, to inquire, in that suit, regarding the remainder of the claim, a summary appeal will not lie against the latter part of the decision, as the dismissal of the first part of the claim can only be appealable regularly. There cannot be two modes of appeal, one regular and one summary, from portions of the same decretal order, ... ... ... 275 22. Summary appeal withdrawn, asit has been settled by the preced- ing decisions that a summary appeal from an order of nousuit may lie, though the order was issued after completion of the Section X. and other proceedings, ... ... ••• ... 276 SUPREME COURT. A will, probate of which has been granted by the Supreme Court, can only be set aside by the Supreme Court, ... ... 81 SURETY. Sureties of a treasurer of a zillah court held to be responsible for defalcations and embezzlements made during the period they have guaranteed the faithful and honest administration of his office by the treasurer, notwithstanding an acquittance from all liability granted by the zillah court, ... ... ••• ... 28 TULUBANA. Delay in paying the .tulubana of witnesses, is not a neglect to pro- ceed within the intent of Section I., Act XXIX of 1841. It may affect a plaintiff's means of proof, the progress of the cause to a hearing not being impeded thereby, the limit of six weeks under the Act, does not apply to such a delay, ... ... ... 177 WIDOW UNDER THE HINDU LAW. 1. A question having arisen as to whether a minor Hindu widow should reside in the house of her husband's family, or in that of her own father, the Sudder Dewanny Adawlut ruled, under the circumstances, that she should remain under the protection of her father, ... 13 INDEX. 327 2. A Hindu widow, with authority by will from her husband to adopt a son, may sue for her own personal rights under the will, although she has not yet exercised the power to adopt, .•. 169 WITNESSES. 1 . A plea of disgrace attaching to personal attendance in court, urged by a party summoned to give evidence, held by the Sudder De- wanny Adawlut to be inadmissible, ... ... ... 61 2. The Sudder Dewanny Adawlut, on cause being shown, will direct a lower court to issue a commission to take the evidence of> absent wit- nesses, as prescribed by Act VII. of 1841, ... ... 69 3. A foreign potentate cannot be called upon to give evidence in the Company's courts. The evidence of a native subject of rank should be taken by a commission under Act VII. of 1841, ... ... 83 4. A party to an action cannot be called upon to point out the wit- nesses named by the opposite side, ... ... ... 96 5. The showing of a subpoena to a witness while passing by on an elephant, held to be a personal and actual service, ... ..• Ill F. CARBERY, BENGAL MILITARY ORPHAN PRESS, 23, LALL BAZAR,