1877 KARTICK. v. of it is to be found in the judgment of the Moonsiff. He says: "From the testimony of the plaintiff's witnesses, who are trustNATH PANDAY Worthy persons and proprietors of the mouzah, as well as from KHAKUN that of the Putwari, the writer of the doul, it is fully proved that SINGH. the doul was prepared correctly and faithfully, and that it was Judgment. accepted by all the tenants," and there was evidence which the JACKSON, J. Moonsiff accepted to show that rent had been collected from the ryots afterwards in accordance with the doul. Therefore, we understand the doul was merely a memorandum or record of the zemindar's agents of the rent which had been settled between the zemindar and the ryots, and that the various ryots affixed their signatures to this doul in testimony of their admission of the correctness of the jumma therein recited as having been imposed on them. The doul was not in itself a contract. It was no more a contract than are chittas or measurement papers, or what are called surathalic papers which are constantly signed by ryots, monduls, and other persons in testimony of their concurrence. It appears to us that there is nothing in the law to require a doul fehrist to be either registered or stamped, nor on the other hand is it a document which could be regarded as binding or conclusive evidence of a contract. It is a matter of observation to be made to, and explained by, any ryot who, having put his signature to it, afterwards disputes the facts which it recites; it may fairly be asked-How came you to sign this document if you were not a consenting party to it? It seems to us, therefore, that the Judge was wrong in saying that the document was inadmissible, and that he ought to have taken it into consideration together with the other evidence. The case will be remanded to the lower Appellate Court accordingly. Appeal from order-Party to the suit-Act XXIII of 1861, section 11. The alleged, but not proved, transfer of a decree does not, by his merely applying for execution of the decree, constitute the alleged transferee a party to the suit within the meaning of section 11, Act XXIII of 1861; and therefore such applicant has no right of appeal from an order rejecting the application made by the Court which passed the decree. Huro Loll Dass vs. Soorjawut Ali, 8 W. R., 197, discussed. Abidunissa Khatoon vs. Amirunnissa Khatoon, I. L. R., 2 Cal., 327; L. R. 4 Ind. App., 66, followed. REGULAR LAR APPEAL from an order passed by the Subordinate Judge of Dacca. The judgment appealed from is as follows:-"The decreeholder, Sooba Beebee, has applied for execution of this decree in virtue of a purchase said to have been made by her at an auction sale; but the decision of the High Court, dated the 6th of January 1875, a copy of which has been filed in this case, clearly shows that on an appeal preferred by Sooba Beebee against a decree of this Court passed in the suit in which one Fukurunnissa Begum was plaintiff and the present decree-holder, and the judgment-debtor were defendants, the Honorable Court has finally decided that Sooba Beebee did not purchase this decree, but was a mere furzee. Under such circumstances it is clear that Sooba Beebee is not entitled to take out execution of this decree. The application will, therefore, be disallowed with costs." The applicant appealed, and the question then arose whether an appeal would lie. This depended on whether Sooba Beebee was a party to the suit within the meaning of section 11, Act XXIII of 1861. Baboo Mohiny Mohun Roy, for Appellant. 1878 January 4. 1878 SOOBA BEEBEE v. FUKURUN NISSA BEGUM AND OTHERS. Judgment. WHITE, J. The following judgments were delivered by the High Court': WHITE, J.: The appellant in this case applied under section 208 of the Civil Procedure Code of 1859, for leave to execute a decree which she alleged she had purchased at an auction sale. The Court below, taking into consideration a certain judgment that had been passed by this Court in a suit to which the present appellant was a party, has decided that she is not entitled to take out execution of the decree, and accordingly has refused her application. Now, by the 364th section of the Code, no appeal lies against this order, unless an express provision can be found in the Code which allows of an appeal. The only express provision is contained in section 283 of the Code. This section has been repealed by Act XXIII of 1861, and section 11 of the latter Act has taken its place. Hence, unless the appellant has a right of appeal under section 11 of Act XXIII of 1861, she cannot carry the case further, as far as the present suit is concerned. The only part of section 11 which we need consider is that which directs that "questions arising between the parties to the suit in which the decree was passed, and relating to the execution of the decree, shall be determined by order of the Court executing the decree, and not by separate suit, and the order passed by the Court shall be open to appeal." It is perfectly clear that Sooba Beebee, the appellant, is not technically a party to this suit. She purchased, according to her statement, the decree on the 16th July 1870, and afterwards applied to be made a party, but her application was refused. It is argued, however, upon the authority of a decision in 8 W. R., 197-Huro Loll Dass vs. Soorjawut Ali, that, although she has not been made a party to the suit she is yet within the meaning of the 11th section of Act XXIII of 1861, because she has by her purchase become the assignee of the decree, and, as such, is entitled to be made a party. We think that the decision in 8 W. R., 197, must be limited to cases in which there is no dispute as to the assignment of the decree having taken place, or as to the representative character of the parties who claim 1 WHITE and MITTER, J.J. 1878 w SOOBA BEEBEE v. NISSA BEGUM Judgment. WHITE, J. to execute the decree. If that decision had any more extensive application, it must now be considered as controlled by a recent decision in the Privy Council in the case of Abidunissa Khatoon vs. Amirunnissa Khatoon, I. L. R., 2 Cal., 327; L. R., 4 Ind., App. 66. FUKURUNTheir Lordships, in dealing with that case which, in principle is sub- AND OTHERS. stantially the same as the present, and in considering the judgment of the late Chief Justice of this Court,' expressed their concurrence with the view which he had taken, viz., that the 11th section of Act XXIII of 1861 was not intended to apply to cases where a serious contest arose with respect to the rights of persons to an equitable interest in a decree. Their Lordships further said, that it is clear section 208, Act VIII of 1859 does not apply to a case of that character, and the party would not be entitled, upon an application under that section, to be made a party to the suit; and, therefore, could not be considered as coming within the meaning of section 11, Act XXIII of 1861. That there is a serious contest in this case as to the party who is entitled to be considered as the real transferee of this decree, there cannot, we think, be a shadow of doubt; for it appears upon the proceedings that the purchase was originally made by a mookhtar, benamee for somebody else. Who that "somebody else" is, whether the present applicant or not, appears to have been the subject of litigation, and is not yet finally determined. The certificate of sale was issued in the name of Fukurunnissa, one of the defendants. She has tried to establish her title, and has failed. Her case came before this Court in 1875, in a suit to which the present applicant was a party; and this Court, whilst negativing Fukurunnissa's claim, pronounced a very strong opinion that the present appellant had no title to be considered a bona fide transferee of the decree, but that a third person was really the bonâ fide purchaser of the decree. It is not necessary here to determine who is the real bona fide transferee. It is sufficient to say that it is a question which admits of very considerable doubt. It appears to us, therefore, that the appellant has neither become a party to the suit, nor has such a title to be made a party as that she can be treated as coming within the provisions of section 11, Act XXIII of 1861. That being so, by force of section 364 of 1 1 Reported in 20 W. R., 305. 1878 the Code of 1859, she has no right of appeal; and her case, so far as the proceedings in this suit are concerned, must rest where it is left by the lower Court. The appeal, therefore, will be dismissed FUKURUN- with costs. SOOBA BEEBEE v. NISSA BEGUM AND OTHERS. Judgment. MITTER, J. MITTER, J. : I am also of the opinion that in this case Sooba Beebee has no right of appeal. She applied under section 208, Act VIII of 1859, as transferee, to execute a decree which was obtained by a third party, and which, she alleged she had purchased in execution of a decree against that third party. For reasons stated in the judgment of the lower Court, her application to execute the decree as a transferee under section 208 of the Procedure Code of 1859 has been refused. The question before us is whether this order is open to appeal under section 11 of Act XXIII of 1861. As it has been pointed out by my learned brother, section 364 of the Code distinctly prohibits appeal, unless there is an express provision in that Code. The contention of the appellant is that such express provision is to be found in the section mentioned above, viz., section 11 of Act XXIII of 1861. The Privy Council, in the case already quoted, have distinctly decided against that contention. They, after referring to the fact that the case before them was not a case in which the Court executing the decree should have entertained an application under section 208, observe that "they are further fortified in this view by the consideration that, under section 364 of this Act, no appeal would lie from any judgment or decision given in a proceeding under section 208." They have, therefore, distinctly held in that case that no appeal lies from any judgment or decision given in a proceeding under section 208 of Act VIII of 1859. One of the reasons given by their Lordships for coming to this conclusion is that an applicant who applies to be put upon the record, on the ground that he has acquired a title to the decree by transfer, is in no sense a party to the suit unless his application is actually granted. Referring to the position of the applicant in that case, they say: "He was not on the record when judgment was given, nor when the decree was made. He subsequently applied for execution of the decree, but it appears to their Lordships impossible to say |