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Application for Review of Judgment passed by Messrs C. B. Trevor, G. Loch, and H. V. Bayley, in Case No. 473 of 1853, decided on the 30th January 1858.

SHEIKH MUSHEEUTOOLLAH, (APPELLANT,) PETITIONER,

versus

GUNESHLAL SINGH AND OTHERS, (RESPONDENTS,)
OPPOSITE PARTY.

Vakeels of Petitioner-Baboos Kamapersad Roy and Meher-
chunder Chowdree and Moulvee Aftabooddeen Mahomed.
Vakeels of Respondents-Baboo Kishenkishore Ghose
and Moulvee Murhamut Hossein.

Application for review rejected, as the plaint' was wanting in

precision, and

extraneous

claim what he

APPLICATION for a review of the judgment of this Court of the 30th January 1858, (page 103 of the printed Decisions of 1858,) has been made on the following grounds: first, that the Court were misled by a mistake in the translation of the plaint; and secondly, the claim is not put forward in a confused manner, but is as precise the plaintiff as the nature of the claim, and the peculiar circumstances under had introduced which it is advanced, would allow of. The mistranslation refers matter and into that part of the pleadings printed partly in italics in the Court's cluded in his judgment, and which sets forth that, in addition to the sum of rupees knew and 53,565 as per receipt, other sums were advanced, making the total allowed to be debt rupees 76,504, for which a new receipt was drawn out and not due to him. executed by all the parties. Now, no such receipt for rupees 76,504 was ever drawn up and executed, nor does the plaint state this to be the case. It refers to the receipt for rupees 53,565, in connection with the subsequent advances, but to no other. The counsel then read the original plaint and pointed out where the error occurred.

As to the second ground, the counsel urged that the plaint contained a recital of the claim on account of the transaction between the parties and a prayer. The account shewed that the plaintiff's father had entered into arrangements with Doolar Singh of the first part, and Toolsa Singh of the third part, to make advances for the carrying on of their suit for the possession of pergunnah Powakhally, on the understanding that he was to be re-imbursed and to receive

in addition a 4 annas share of the pergunnah. It proceeds to show how an adjustment of accounts took place and a receipt for rupees 53,565 was given by Doolar Singh of the first part, and Toolsa Singh of the third part; how by subsequent advances the debt was increased to rupees 76,504, of which one-fourth equal to rupees 19,013 was due from Toolsa Singh, rupees 14,260 was due in the plaintiff's own share of the costs, and the remainder, rupees 42,780, was due from Doolar Singh, who, on 28th Phalgoon 1247, executed a second deed for this sum, which formed the subject of a separate suit, subsequently compromised; that as Toolsa Singh and his party had paid no part of the sum due by them, it was necessary to bring this action to recover the amount for which they were liable; but as, owing to the disputes among the co-partners, it was impossible to state what was the proper share of each in the estate, and as the bond on which the claim was founded was given by all the partners, who had made themselves jointly and severally liable for the whole sum entered in the bond, it was necessary to bring an action against the whole of the parties to that deed, specifying however that the claim lay only against Toolsa Singh and his party, and that Doolar Singh and his party had been made parties pro formá, and leaving it to the court to determine what sum was really due by Toolsa Singh and his party; that in bringing the action in the present form on the bond for rupees 53,565, plaintiff loses the difference between that sum and rupees 76,504, which is justly due; and that, owing to the impossibility of determining the exact share due by the defendant, he must leave it with the court to determine what that sum is, he being liable to the payment of heavy costs if the sum decreed fall short of the amount claimed; that parties frequently sue for sums larger than is eventually found to be due to them, and that in such cases it is the practice of this Court not to consider the over-claim a ground for nonsuit, but to reduce the claim, charging the plaintiff with costs.

JUDGMENT.

The Court admit that, owing to a mistake in the translation of the pleadings, an error, as pointed out by the counsel for the petitioner, has been made in the judgment. But the effect of correcting this error does not materially improve the petitioner's position. For the case stands simply thus. In 1245, plaintiff made up his accounts and found the sum due by Doolar Singh of the first part and Toolsa Singh of the third part, to amount to rupees 53,565, for which they executed a joint receipt. In 1247 he again made up his accounts, and found that with subsequent advances the sum due to him was rupees 76,504. He calculated that of this sum rupees 19,013, a one-fourth, was due from Toolsa Singh, rupees 14,260

was due on his own share of the estate, and rupees 42,780 was due from Doolar Singh. For this last sum plaintiff received a separate bond from Doolar Singh, brought an action against him and his party on that bond, which action he subsequently compromised, taking a kistbundee from the parties. Being unable to realise any thing from Toolsa Singh and his party, he brings them into court and claims from them the whole amount of the bond of 1245, making Doolar Singh and his party defendants pro formá, leaving the court to find out and determine the sum due from Toolsa Singh. It is evident from what has been just stated that the sum of rupees 42,780, for which Doolar Singh gave a separate bond on 28th Phalgoon 1247, Moolky, included his share of the original debt of rupees 53,565, as well as his share of the subsequent advances. In the same manner the sum of rupees 14,260 included the plaintiff's share of the original debt as well as of the subsequent advances. It is evident, therefore, that, when the second adjustment of accounts took place in 1247, the shares of the respective parties were ascertained; and after deducting so much of the debt as was claimable to himself and Doolar Singh, with whom he had made an adjustment, he could under no circumstances claim more than the balance from Toolsa Singh and his party. The sum due from Toolsa Singh might be less than claimed, but it could not be more; and the Court do not perceive that plaintiff would have found any difficulty in estimating or at least approximating the proper sum. Under the receipt or bond of 1245, supposing it to be genuine, the parties were jointly and severally liable, and plaintiff might have sued any or all of them for the whole amount; but having settled with one party for his share of the amount, and having declared himself liable for another portion thereof, his claim should be confined to the balance. Having himself converted the joint and several liability into a several liability by his arrangement with Doolar Singh, it is illegal on his part, after deducting only his own share, to demand the whole of the remainder with interest from Toolsa Singh, he having already received the greater portion of the original sum from Doolar Singh; for it is to be remarked that, though plaintiff states that Doolar Singh and his party have been introduced pro formâ, yet in his prayer the plaintiff does not even ask that their share, fixed at the discretion of the court, be deducted and the balance found to be due from the principal defendants be decreed in his favor, but he demands payment of the whole from the principals. Such a mode of bringing an action appears to us wanting in that precision which is prescribed by Section III. Regulation IV. of 1793. A party is entitled to bring his suit for any sum which he may consider to be fairly due; but he has no right to overlay his action with extraneous matter, and include in his claim what he knows and allows to be not due, and to oblige the

Review

power of alie

courts to adjudicate on points which ought never to have been brought before them. We therefore reject the petition, with costs.

THE 4TH SEPTEMBER 1858.

PRESENT:

H. T. RAIKES, Esq.,

J. H. PATTON, Esq; }Judges.

CASE NO. 182 or 1858.

Application for Review of Judgment passed by Messrs. H. T. Raikes, J. H. Patton, and J. S. Torrens, in case No. 15 of 1857, decided on the 29th April 1858.

RAJA NURSINGH DEB, (RESPONDENT,) PETITIoner,

versus

KOYLASNATH ROY AND OTHERS, (APPELLANTS,)
OPPOSITE PARTY.

Vakeel of Petitioner-Mr. R. T. Allan.
Vakeels of the Opposite Party-Baboos Ramapersad Roy
and Kishenkishore Ghose.

IT has been argued by the learned counsel as a ground of review, declined. The that if the grantee, Joy Singh, be held to have had the power to nation was ab- alienate, he could only sell subject to the conditions of the trust imposed upon himself, of appropriating the rents to the maintenance of his family and dependants; and that, in an action for the restoration of the lands to this purpose, the law of limitation could be no bar to the claim of Joy Singh's heirs.

solute, not restricted.

But independent of the action not being one for such an object, we see no reason to consider that the grant burdened the land, as assumed by this application. The alienation was made by Joy Singh without reservation; and we believe, from the circumstances shewn us at the hearing of the case, that Joy Singh had the power to alienate entirely, and exercised it in favor of the defendants' representative.

This application is therefore rejected, with costs.

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Application for Review of Judgment passed by Messrs. C. B. Trevor,
G. Loch, and H. V. Bayley, in case No. 157 of 1856, decided on
the 30th April 1858.

PRANNATH CHOWDREE AND OTHERS, (RESPONDENTS,)
PETITIONERS,

versus

RANEE SHURNOMOYE, (APPELLANT,) OPPOSITE PARTY.
Vakeels of Petitioners-Mr. A. T. T. Peterson and
Baboo Kishenkishore Ghose.

Vakeel of the Opposite Party-None.

On this case coming up, Baboo Kishenkishore Ghose, pleader for applicant, stated that he had no instructions and no papers, and that he believed the papers were with Mr. Peterson.

The Court observe that this day was fixed, and notice given accordingly for the hearing of this case; and they see no reason for deviating from the ordinary rule, which requires a case to be struck off on default of parties or their pleaders attending to carry them on to a hearing.

We accordingly struck off this case.

After the above words were written, and before the order was signed, Baboo Kishenkishore Ghose moved the Court to allow the case to stand over till the end of the day, as Mr. Peterson might appear in the interval. This was allowed.

Up to this time (four o'clock) no intimation has been received of Mr. Peterson's being likely to appear; and although Mr. Allan has . urged that he believes Mr. Peterson is absent from Calcutta, this has not been shewn to us in such a manner as to justify our deviation from the ordinary rule, that a case should be struck off on default of the parties or their pleaders. Ordered that the case be struck off.

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