ameen who, having drawn an issue embodying the legal title, asserted severally by the parties, to the deceased's property, will dispose of the same as required by law. Order of remand on IN the matter of the petition of Kollybur Dutt and others, filed in this Court on the 6th January 1858, praying for the admission application of of a special appeal from the decision of Mr. E. Lautour, Judge special appeal, of the 24-Pergunnahs, dated 30th October 1857, affirming that of Baboo Judoonath Mookopadhya, moonsift of Lubshaw, dated 14th January 1857, in the case of Kollybur Dutt and others, plaintiffs, versus Modhoosoodun Pattuck and others, defendants. Vakeel of Petitioner-Baboo Bhoobunmohun Roy. Vakeel of the Opposite Party-Baboo Poorunchunder Roy. that the judge, missed the appeal on who had dis failure to put in certain proof, might dispose of the case on the evidence on It is hereby certified that the said application is granted on the the record. following grounds. Petitioner, who was plaintiff in the lower court and whose suit. was dismissed by the moonsiff on the evidence adduced before him, appealed to the judge, who, adverting to the insufficient excuses made by the petitioner for not producing a chitta in the first court and not depositing fees for a local enquiry, rejected the appeal; and petitioner now pleads that the judge has never considered such evidence as he had tendered in the lower court and regarding the sufficiency of which his appeal was preferred. As this plea appears to be borne out by the judge's remarks, we remand the case, that the judge may take up and decide the case on the evidence placed on record. P Application for review of judgment rejected, being based upon what should have been submitted for decision at the first hearing. J. H. PATTON, Esq., CASE NO. 40 OF 1858. Petition for Review of Judgment passed by Messrs. H. T. Raikes, B. J. Colvin, and J. H. Patton, on No. 214 of 1856, decided on the 25th November 1857. RAMCHUNDER POTEDAR, (RESPONDENT,) PETITIONER, versus OMESHCHUNDER ROY, (PLAINTIFF,) OPPOSITE PARTY. THIS application is preferred on two grounds, first, that the issue on which the Court dismissed the claim was one never raised by the judge and never looked to by the parties as matter for proof; secondly, that the decree was passed against three persons, one of whom only appealed and he alone should have derived any benefit from the Court's order of dismissal. Neither of these points were adverted to by the pleaders when the appeal was before the Court; and we cannot admit reviews of judgment upon matter which should have been submitted for decision as part of the appeal before the Court. We may however observe that the judge's decision gave the matter referred to as one in issue between the parties, and remarked upon the point in his reasoning on the case; it was therefore incumbent on the pleader of respondent to draw the Court's attention to any such objection as he now pleads, when he must have known that the Court made it the material issue in the appeal and one on which their judgment was ultimately based. The other objection is one which could not, as the case stood, affect the order of this Court. THE 22ND MAY 1858. PRESENT: H. T. RAIKES, Esq., B. J. COLVIN, Esq., -Judges. CASE NO. 38 OF 1858. Petition for Review of Judgment passed by Messrs. H. T. Raikes, B. J. Colvin, and J. H. Patton, in case No. 72 of 1856, decided on the 25th November 1857. ROY JESMUNT LAL, (APPELLANT,) PETITIONER, versus MUSST. RADHA KOOUR, (RESPONDENT,) OPPOSITE PARTY. Vakeel of Opposite Party-Baboo Meherchunder Chowdry. REJECTED with costs. The point, though recorded in the grounds of appeal, was never taken up by the pleader when the appeal was tried. A plea not urged at the time of hearing must be regarded as abandoned by the pleader, and cannot be made the ground of, an application for review of judgment. THE 22ND MAY 1858. A plea not urged at the first hearing regarded as abandoned, and inadmis sible as ground of review. Petition for Review of Judgment passed by Messrs. C. B. Trevor, SHIBKAMINEE DASSEE, (RESPONDENT,) PETITIONER, versus JUGGURNATHPERSAUD MULLICK AND OTHERS, Vakeels of Petitioner-Baboos Shumbhoonath Pundit and Vakeel of the Opposite Party-None. Ir is unnecessary to say more on this petition than to remark The Court declares that that the Court, in reversing the decision of the lower court, did so its order in the interest of appeal case with reference to the alleged rights of the appellant before us, before it, only affected the Juggunathpershad: the order of the Court does not affect the interests of other parties or open the case as regards them. This before it, and order is forwarded for the information and guidance of the left the deci- principal sudder ameen of the 24-Pergunnahs. appellant sion of the lower court as Held that as the plaint CASE NO. 382 oF 1856. Special Appeal from the decision of Mr. G. G. Mackintosh, Officiating Judge of Hooghly, dated 29th November 1854, affirming a decree of Roy Doorgapersaud Ghose, Sudder Ameen of that district, dated 5th July 1853. SHAMACHURN CHUCKERBUTTEE, (PLAINTIFF,) APPELLANT, versus RAMNARAIN CHUCKERBUTTEE AND OTHERS, (DEFENDANTS,) RESPONDENTS. Vakeel of Appellant-Baboo Kishensukha Mookerjee. THIS case was admitted to special appeal on the 9th July 1856, alluded to two under the following certificate recorded by Messrs. H. T. Raikes roads, for the and C. B. Trevor. closing of one of which plain- "Ramnarain Chuckerbuttee and others sued petitioner for tiffs sue and possession of an orchard and other land of which he had been for the closing of the other of ejected, and for compensation for the value of fish and fruits taken which they from a tank on the premises. They added that they would sue state that they for the closing of a road made over the same land in a separate would sue in a-separate suit, suit. the lower court, the decision of "The sudder ameen gave a decree in favor of the plaintiffs, not awarding to only for what they asked, but also for closing of the road for which plaintiff's the right to close they did not ask. quite correct one road, is "Petitioner appealed to the judge, amongst other grounds and in red. alleging, that the sudder ameen had awarded to plaintiff's the ance with the closing of a road for which plaintiffs stated that they would sue accord prayer of the plaint, and no ground for separately. "The judge, without noticing this point, affirmed the decision of special appeal the sudder ameen in its entirety. on this head "Under the above circumstances, we admit the special appeal, to try whether the decisions of the lower courts should not be amended by striking out of them as much as refers to the closing of the road for which plaintiff's are about to sue separately. "Previously to the matter being heard, it is necessary that the special appellant's plea of pauperism be enquired into." JUDGMENT. On reverting to the record we find that the plaint alludes to two roads, for the closing of one of which plaintiffs sued, and for the closing of the other of which they state that they would sue in a separate suit. Under these circumstances the decisions of the lower courts, awarding to plaintiffs the right to close one road, are quite correct, and in accordance with the prayer of the plaint; and no ground for special appeal on this head exists. We dismiss the special appeal therefore, with costs. exists. Spe. cial appeal dismissed, with costs. THE 25TH MAY 1858. H. T. RAIKES, Esq., B. J. COLVIN, ESQ., Judges. CASE NO. 26 OF 1858. Application for Review of Judgment passed by Messrs. H. T. Raikes, B. J. Colvin, and J. H. Patton, on case No. 49 of 1856, decided on 17th November 1857. BUDREE SINGH, (RESPONDENT,) PETITIONER, versus MAHARAJ SINGH AND OTHERS, (APPELLANTS,) OPPOSITE PARTY. Vakeels of Petitioner-The Advocate General and Baboo Vakeels of the Opposite Party-Baboo Kissensukha Mookerjee and Moulvee Syed Murhammut Hossein. ed in support In this case, it is contended that the finding of this Court on the Plea advancoriginal trial of the appeal, that the rights and interest of plaintiff of application in the talook Russoolpore Butowlee were sold, is erroneous, and that for review of in reality his rights and interest in only the village of that name jected, because judgment rewithin the talook were sold; and reference is made to a roobukaree it had not been of the deputy collector of Monghyr of the 12th November 1838, below or urged in support of this allegation. But we cannot admit this plea in at the first put in issue hearing. |