1878 KALLY PROSAD ROY v. SYUD SARFERAZ ALLI AND ANOTHER.. remaining seven-eighths belonged to them. An order was passed and Plaintiff then brought this suit to have it declared that the rights of the last six defendants in the property were rights to Statement. shares, and that these shares were liable to attachment and sale in execution of the decree of the 20th of February 1874. It was admitted that prima facie they were entitled by inheritance to specific shares, and the main dispute was as to the nature of the commutation allowance. Was it money paid by the widow as gudee nisheen, i.e., as manager of the property, for the last six defendants, or was it paid in consideration of their having released all their right to share in the property? And if it were paid in consideration of their having released their right, to whom was the release made? The plaintiff contended that the widow was merely gudee nihseen; the first two defendants contended for the finding of the Court in the execution case, namely, that the last six defendants were only entitled to pensions. The onus was, of course, on the defendants. The Court of First Instance gave plaintiff a decree, which was reversed by the lower Appellate Court. Plaintiff appealed. Baboo Mohiny Mohun Roy and Baboo Sharoda Prosono Roy, for Appellant. Baboo Srinath Doss and Baboo Hury Mohun Chuckerbutty, for the Respondents. The judgment of the Court (1) was delivered by JACKSON, J. JACKSON, J.:— It appears to me, on a consideration of this case, that the Judge has mistaken the nature of the facts and the legal consequences of what took place. In the first place, I think, the Court of First Instance was right in holding that under the circumstances there was no adverse possession as against these judgment-debtors, but that by receipt of the commuted allowance they maintained (1) JACKSON and KENNEDY, J.J. their right in the property. so far as management and They were not in actual possession, 1878 KALLY v. SYUD SARFERAZ cerned; but they were receiving what they regarded as the PROSAD ROY equivalent of their share, and, certainly, non constat that they might not have revoked that arrangement and resumed their ALLI AND rights as shareholders. I do not say positively that they could ANOTHER. do so, but only that I see no reason at present to suppose that Judgment. they could not. But setting that aside, even if the possession of JACKSON, J. the judgment-debtors is merely that of persons receiving fixed allowances out of the property, it appears that the party who had possession of the corpus of the property joined with them in the mortgage of the property, and between them they were able to pledge the whole. That was a matter clearly raised in the plaint, and the Judge ought to have adverted to it. I think, therefore, that the plaintiff had good reason for contending that the right, title, and interest of all his judgment-debtors in this property ought to have been put up to sale. The judgment of the lower Appellate Court, therefore, must be reversed, and that of the Court of First Instance restored, with costs. 1878 January 11. [CIVIL APPELLATE JURISDICTION.] IN THE MATTER OF MUSSAMUT JAN KOER. PETITIONER. Act X of 1877, Code of Civil Procedure-Ex-parte decree-Application for re-hearing refused-No appeal. An application under section 119, Act VIII of 1859, for the re-hearing of a case decreed ex-parte was rejected. Under that law this order was appeal. able. No appeal was, however, filed until October 1st, 1877, on which date Act X of 1877 came in force: Held, that the appeal is inadmissible, or there is no provision in Act X of 1877 for such an appeal. SPECIAL APPEAL from the order of the District Judge of The facts of this case are set forth in the following judgment of the District Judge: It appears that the ex-parte judgment against appellant was passed on January 31st, 1877, and the order rejecting appellant's prayer for revival of suit was passed on September 22nd, 1877. The appeal against this latter order was filed on October 1st, 1877, after the new Code of Civil Procedure came into force. According to that Code there is no appeal against an order rejecting petition for revival, but there is an appeal against ex-parte judgments. Under section 3 of the new Code, appeals presented on or after October 1st, 1877, are Code, and this appeal is therefore inadmissible. I therefore order that it be struck off. Appellant to pay respondent's costs with interest at 6 per cent. Baboo Bhawani Charan Datta, for Petitioner. subject to the new As the order under appeal to the District Judge was not passed under the new Code of Civil Procedure (Act X of 1877), the right of appeal is not affected by section 588. The effect of section 3 has been wrongly interpreted by the Judge. If the appeal was under the new Code, it was admissible, because under the definition of "decree" (section 2) the order under appeal was a decree. The judgment of the High Court (1) was delivered by AINSLIE, J.: 1878 IN THE MATTER OF Petitioner. The appeal having been tendered on the 1st October 1877, it JAN KOER, came under the new Code of Civil Procedure. There is no provision in that Code for such an appeal as the petitioner wishes to prefer. The application must be rejected. (1) AINSLIE and McDONELL, J.J. Judgment. AINSLIE, J. 404 1878 [CIVIL APPELLATE JURISDICTION.] POROMSHOOK CHUNDER AND ANOTHER January 11. DEFENDANTS; PLAINTIFF. Declaratory Suit-Confirmation of Title-Objection first raised in Special Appeal. Under the law in force before the Specific Relief Act (Act I of 1877) was passed, a suit by a plaintiff in possession for a mere declaration of title would not lie. (1) Thus, where A, the occupier of land alleged to be lakheraj, was sued for rent in the Small Cause Court, and a decree was given against her: Held, that a subsequent suit by A, for a declaration of her right to hold the land as lakheraj, would not lie. Padayalingam Pillay vs Shanmugham Pillay and others, 2 Mad. 333, approved. The High Court is bound, in special appeal, to consider an objection which raises the question whether a plaintiff is entitled to maintain the suit, and to obtain the decree which he asks for; even though such objec tion has not been taken in the memorandum. SECIAL APPEAL from a decree of the Additional Subordinate Judge of East Burdwan, reversing that of the Moonsiff of Cutwa. Baboo Srinath Dass and Baboo Hem Chunder Banerjea, for The facts of the case are sufficiently set forth in the judgment of Mr. Justice JACKSON. The following judgments were delivered by the Court: (2) JACKSON, J. JACKSON, J. :— It appears to me that the objection taken during the argument of this special appeal, although it was not taken in the memoran(1) NOTE.-Section 42 of this Act enlarges the powers of the Courts to make declaratory decrees, and Illustration (g), which is to the following effect, seems to be in point A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property. (2) JACKSON and KENNEDY, J.J. |