said to have been taken by execution of struction No. "Petitioners brought an action against Abdool Hameed for 2 h. 16 defendants in g. 1c. of land and obtained a decree. In execution, disputes arose decree. These regarding the quantity of land of which possession had been given. pleaded Con- to the plaintiffs in that case by an ameen. Defendant in that case 1129 in bar of alleged that possession had been given of 3 k. 16 g. instead of 2 k. the suit, and 16 g. 1 c. The objections were enquired into, and orders passed in repeated the favour of the plaintiff's in that case. The defendant in that case then plea in special appeal, as it brought the present suit for 19 g. of land, of which the plaintiffs had been over in the previous case had obtained possession, in excess of the land the lower covered by the decree. The defendants in this case pleaded that, courts. Held under Construction No. 1129, the present suit is inadmissible, the by the majority of the Court, matter now in dispute having been determined in execution of the that the suit former decree. The lower courts decided in favour of the plaintiff, been barred by and the defendants have now appealed specially, urging the same the Construc- point which they had unsuccessfully urged in the courts below. an admission "We observe that the question regarding the 19 ruled by both would have tion, but for on a certain gundas by defendants embraced in the present claim of plaintiff, was raised and decided by point, on which the authorities in execution of the previous decree. We therefore admit the special appeal, to try whether, with reference to Construction No. 1129, and the precedent of the Court, Maharaja Romakunt Singh versus Musst. Ranee Sreemuttee, reported at page 521 of the Decisions of 1853, the decisions of the lower courts should not be reversed." no decision having been passed, the Case was remanded. JUDGMENT. MESSRS. B. J. COLVIN AND A. SCONCE.-The former suit was for 3 kanees 16 gundas of land according to certain daghs. The decree was for 2 kanees, 16 gundas, 2 cowries according to the boundaries in the plaint, the remainder, 19 gundas 2 cowries, being thought in excess of the land within those boundaries. In execution, the present plaintiff, then judgment debtor, objected that the land given in execution was according to the quantity sued for, and that no more than 2 kanees, 16 gundas, 2 cowries should be given; his objections were referred to the ameen who had given possession, who confirmed his previous proceedings. He then lodged his objections again, when he was called upon for certain documentary evidence, upon failure to give in which, in the prescribed time, his petition was struck off, and the appeal against the order dismissed. He has therefore sued for the above 19 gundas 2 cowries, and has got a decree in both the lower courts, on the ground that the previous decree against him covered no more than 2 kanees, 16 gundas, 2 cowries. The principal sudder ameen has added also that, as that decree was according to daghs, and no final decision had been given on his objections, this suit was not barred by Construction No. 1129. We have now to consider whether it is barred or not. There is no doubt that the investigation in the execution proceedings em braced the point, which special respondents have now brought before this Court, for it decided what land was included in the decree; and if no final decision was given on their objections it was owing to special respondents' own laches. But we notice that in the answer in this case, the petitioners, formerly plaintiffs, while they deny having any more land than what was decreed to them, state that 9 gundas, now sued for by special respondent, are still in their possession. This is tantamount to an admission, by petitioners, that they are not entitled to those 9 gundas which had been given in execution by the ameen to the present special respondent, and therefore, if special respondent can prove those to be with petitioners, he will be entitled to recover possession of that quantity. We therefore remand the case for a decision on this point. MR. D. I. MONEY.-The question regarding the subject matter of this suit was certainly raised, but I think not properly decided, in execution of the previous decree. It is not to be questioned, as a general principle, that orders passed in the execution of a decree carrying into effect the original intentions of the court, should not be open to dispute by a regular suit; and it would necessarily render uncertain the course of legal procedure, if any party to a decree that has been executed, and who may have preferred objections during its execution, should be allowed to commence a fresh litigation upon the same matter and on the point objected to, merely because the point had been determined against him. With this view of the question, I entirely concur in the principle enunciated both in the Construction and the precedent cited by the admitting judges. But there are exceptional cases, and I think the present case one of them. The plaintiff in the present case had not justice fairly done to him, in the progress of the execution of the decree which the opposite party had obtained against him. In execution of that decree, excess of land belonging to him was given to the decreeholder; and when he raised objections to the ameen's proceedings, and prayed that possession might be given agreeably to the measurement papers of the deputy collector, it appears that a fresh order was passed upon the ameen to that effect, on the 30th May 1851, which was not carried out; and upon the parties being present through their pleaders, on the 2nd September 1851, the present plaintiff was directed to put in the measurement chitta, and failing to do so within six weeks after the order was passed, the case was struck off for default. From the proceedings of the lower courts, it would appear that the ameen had colluded with the opposite party: and as there is no doubt of the excess land, which he claims, having been by unfair or mistaken measurement given to the defendants; and as he took steps during the execution of the decree to get the error rectified, and D In a suit for ; was only upon technical grounds prevented from obtaining redress and as I do not consider that the original intentions of the court. passing the decree were carried out, I think he had a right to raise the question again in a regular suit, and would therefore dismiss the special appeal. Special Appeal from the decision of Mirza Mahomed Siddiq Khan, Principal Sudder Ameen of Sarun, dated 28th August 1856, affirming a decree of Moulvee Muheeooddeen, Additional Moonsiff of Chupra, dated 13th November 1855. BABOO RAJKOOMAR SINGH, (DEFENDANT,) APPELLANT' versus LALLA SHEW SUHYE, (PLAINTIFF,) RESPONDENT. Vakeel of the Opposite Party-None. THIS case was admitted to special appeal on the 4th May 1857, pleader's fees, under the following certificate recorded by Messrs. H. T. Raikes it was held that, as the deed executed did not make a certain time, and A. Sconce. "The petitioner now before the Court was sued for rupees 128, the sum due to the amount of pleader's fees due by him under an agreement, and be payable at for the same amount as interest. The claim so laid has been decidand contained ed in the plaintiff's favor, by both the lower courts; and the point no stipulation presented by the petitioner as the ground of special appeal is, that plaintiff could it was incompetent to the plaintiff to claim interest before the date of the institution of the suit. We admit the special appeal to try that point." for interest, be allowed interest on the debt only from the date of demand, that is, from the date of suit. JUDGMENT. In this case, we find that the engagement entered into by the clients of the pleader, bound them merely to pay the principal sum stipulated to be paid, without any condition as to interest and without any condition as the date of payment. By this deed, therefore, as the sum due was not payable at a certain time, it follows that, under Act XXXII. of 1839, interest upon the debt can be given only from the date of demand, that is from the date of this suit. We accordingly to this extent amend the decision of the lower court, with costs in proportion. Special Appeals from the decision of Mr. E. S. Pearson, Additional Judge of Backergunge, dated 27th July 1857, affirming a decree of Pundit Sreenath Bidyabagish, Principal Sudder Ameen of that district, dated 22nd December 1856. CASE NO. 95 OF 1858. RANEE UNNOPOORNA AND RANEE RAJESSHUREE, (TWO OF THE DEFENDANTS,) APPELLANTS, versus KISHENKANTH ROY, (Plaintiff,) AND RAJMOHUN CASE No. 96 OF 1858. MUSST. BHOOBUNESSHUREE AND OTHERS, (SOME OF versus KISHENKANTH ROY, (PLAINTIFF,) AND RAJMOHUN Vakeel of (Plaintiff) Respondent-Baboo Kishenkishore Ghose. MR. J. S. TORRENS.-" Plaintiff sued on grounds of purchase at an execution sale, to get possession of 53 parcels of land; the zemindars of the villages who at time of suit held the lands in their possession being made parties, Rajesshuree and Unnopoorna Debea present appellants, also Bhoobunesshuree holding part of the lands in Special appeals rejected, as no sufficient reason had been shewn for delay in filing the answers, and the judge order of the lower court on grounds which had upheld the competent to adopt. it was quite putnee. The latter only at first appeared before the principal sudder ameen's court, pleading that she held six parcels of the land in suit only in putnee from the above zemindars. The latter appeared only at a late stage of the proceedings, and applied to be allowed to shew cause why they had not appeared before. The principal sudder ameen held that cause was not shown, and decreed the whole case, including the six parcels held in putnee and 39 other parcels which the zemindars, Rajesshuree and Unnopoorna, alleged to be their nankar. "Both parties appealed; the appeal was admitted, and respondents summoned. In appeal, the judge has affirmed the decision of the lower court, decreeing possession to plaintiff as against the six parcels claimed in putnee as well as the 45 parcels held as nankar. "Rajesshuree and Unnopoorna came up in special appeal, urging that the judge had passed no orders on their objection, that the principal sudder ameen had rejected their application to be allowed to plead without sufficient grounds, and having omitted to do so, whilst at the same time he admitted their appeal to a hearing, he has given a decree to eject them from the 45 parcels, merely on an issue which exclusively referred to the six parcels claimed as putnee by the other defendant. "Objection is also taken in a special appeal preferred by Bhoobunesshuree, that the claim being jointly preferred for all the lands in common, and whilst she has been only found to be in possession of six parcels, under the decree she is held liable for wasilat on all the parcels. I admit the special appeal to try the correctness of the judge's decision in respect to both applications." MR. A. SCONCE." In the case of Ranee Unnopoorna, it would have been better, no doubt, if the judge had distinctly given reasons for his assenting to the order passed by the principal sudder ameen on the 10th November, whereby he declined to allow these petitioners to file an answer. But the only ground stated by the petitioner, as Mr. Norris tells us, for the great delay suffered by them is, that the documents which they should wish to produce were in the hands of different people: substantially, therefore, this excuse is, in the face of it, insufficient. "In the next case, the judge appears to me to have disposed of the plea taken by petitioner in conformity with the evidence before him. I therefore do not think that either party has made out a case for special appeal." JUDGMENT. On the first point, we have not been shown that any sufficient reason was submitted to the first court to allow of the petitioners filing their answer after an interval of more than six months had passed; and on the second point, it is admitted that the principal |