Defendant showing de

fence on merits to have leave to appear.

533. (3 V., 1866) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon the defendant paying into Court the sum mentioned in the summons or upon affidavits satisfactory to the Court, which disclose a defence or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application, and on such terms as to security, framing and recording issues, or otherwise, as the Court thinks fit. 534. (4 V., 1866)

Power to set aside de

cree.

After decree, the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to appear to the summons and to defend the suit, if it seem reasonable to the Court so to do, and on such terms as the Court thinks fit.

535. (5 V., 1866) In any proceeding under this Power to order bill to chapter the Court may order the be deposited with officer bill, hundi, or note, on which the suit of Court. is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff give security for the costs thereof.

Recovery of cost of noting non-acceptance of dishonoured bill.

536. (6 V., 1866) The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting (7) the same for non-acceptance or non-payment, or otherwise, by reason of such dishonour, as he has under this chapter for the recovery of the amount of such bill or note.

537. (7 V., 1866)

Procedure in suits under this chapter.

Except as provided by sections 532 to 536, both inclusive, the procedure in suits under this chapter shall be the same as the procedure

in suits instituted under chapter V.

Power to extend this chapter.

Sections

538. (8 V., 1866) 532 to 537 (both inclusive) apply only to

(a) the High Courts of Judicature at Fort William, Madras, and Bombay;

(b) the Court of the Recorder of Rangoon ;

(c) the Courts of Small Causes in Calcutta, Madras, and Bombay ;

tory affidavits discloses defence or facts making it incumbent on the holder to prove consideration, or other facts which the Court deems sufficient to support application and on fitting terms as to security, framing and recording issues, &c., &c. If leave be not obtained, the plaintiff shall be entitled to decree for any sum not exceeding that mentioned in the summons, together with interest at specified rate (if any) to date of decree; and costs to be fixed by a rule of the High Court, unless plaintiff claim more than such fixed sum, when the costs shall be ascertained in the ordinary way. The decree may be enforced forthwith; the defendant shall not be required to pay into Court, or give security for the sum mentioned in the summons unless the Court thinks his defence not prima facie sustainable, or feels reasonable doubt as to its good faith. After decree, the Court may, under special circumstances, set it aside, and, if necessary, stay execution, and give leave for appearance in and defence of suit. The instrument on which the suit is founded may be ordered by Court to be forthwith deposited with its officer, and all proceedings be stayed until plaintiff gives security for the costs. The costs of noting non-acceptance of a dishonoured bill can be recovered under this chapter in the same way as the amount of such bill or note.

(m) A hundi, which contains a direction

on sufficient consideration to the drawee, and is accepted by him, is within the terms of the Act, and such a document is assignable without any regular form of endorsement, if sufficient cause appears in the handwriting of an endorser to indicate an intention to assign it. The East India Bank v. Khojah Vullie Golwani, 1 Ind., Jur., N. S., 247.

A plaint was presented under Act V. of 1866 by the endorsees of a promissory note endorsed as follows:-"Received for the Chartered Mercantile Bank.-J. M. Reid, Agent." The note had not been paid when presented, and the endorsement was struck out. Admission of the plaint

was refused unless evidence was given that the note had been paid, and to explain why the endorsement was struck out. As evidence could not be received, the plaint was not admitted. The Chartered Mercantile Bank v. Seconde, 3 B. L. R., O. C., 146.

(n) Where, in a suit under these provisions,
the defendant is at such a distance as
would make it impossible for him to put
in an appearance within the seven days
allowed by the Act, the Court will stay
execution for a time long enough to allow
him to appear.

Suits can be brought under this Act against
persons resident out of the jurisdiction.
Chundrakant Roy v. N. P. Pogose, 3 B.
L. R., O. C., 83.

Although the provisions of this section only
give the defendant seven days to get
leave to come in and defend an action on
a bill, note, &c., the Court must be satis-
fied before granting a decree that the de-
fendant has had a full opportunity to
obtain leave to defend. Grob v. Palmer,
1 Ind. J., N. S., 395.

In a suit under this chapter, the summons should be returned in the usual way; and after the expiration of the required time, an order of the Court for a decree should be obtained. Schiller v. Marker, 1 Ind. Jur., N. S., 283.

An irregular service of summons on two out of three defendants to an action brought on a joint-promissory note, does not give the third defendant, who has been properly served, ground for objecting to a decree which has been passed against him under Act V. of 1866. Ewing and Co. v. Gosai Dass Ghose, 3 B. L. R., App. 7.

(0) The plaintiff is entitled to claim by his summons and obtain by his decree whatever sum, principal and interest, is, on the legal construction of the instrument, demandable. D'onza v. Rangaian, M. H. C. R., VI., 257.

(p) The Court has, in giving leave to defend, a discretion to order security for costs, not only where it doubts the bona fides of the defence, but also if it considers the matter of defence raised, is unnecessary, though allowable. If the plaintiff has not been heard at first against the defendant's application, the Court will always allow him to come in afterwards and show that the leave ought not to have been granted, or, if granted at all, in more stringent terms. Vonlintzgy v. Narayan ing, 6 B. L. R., pp. 64, J. D., 284.

(q). The mere noting on the bill, even if it disclose the name of the notary in full, is not evidence of the presentation or of the dishonoring of the bill. The Bombay City Bank, Limited, v. Moonjee Hori doss, Bourke's Rep., O. C., 274.

(d) the Court of the Judge of Karáchi; and (e) any other Court having ordinary original civil jurisdiction to which the Local Government may, by

notification in the official Gazette, apply them. In case of such application, the Local Government may direct by whom any of the powers and duties incident to the provisions so applied shall be exercised and performed, and make any rules which it thinks requisite for carrying into operation the provisions so applied.

Within one month after such notification has been published, such provisions shall apply accordingly, and the rules so made shall have the force of law.

The Local Government may from time to time alter or cancel any such notification.

CHAPTER XL.

OF SUITS RELATING TO PUBLIC CHARITIES.

539. In case of any alleged breach of any express or conWhen suit relating to structive trust created for public public charities may be charitable purposes, or whenever the brought. direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General acting ex-officio, or two or more persons having a direct interest in the trust and having obtained the consent in writing of the Advocate-General may institute a suit in the High Court or the District Court within the local limits of whose civil jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree.

(a) appointing new trustees of the charity :

(b) vesting any property in the trustees of the charity: (c) declaring the proportions in which its objects are entitled :

(d) authorising the whole or any part of its property to be let, sold, mortgaged, or exchanged: (e) settling a scheme for its management;

or granting such further or other relief as the nature of the case may require.

The powers conferred by this section on the AdvocateGeneral may (where there is no Advocate-General) be exercised by the Government Advocate, or (where there is no Government Advocate) by such officer as the Local Government may appoint in this behalf.

(Continued on page 318).

CHAPTER XL.

Modus legem dat donationi.

Synopsis not required:

CHAPTER XLI.

Confirmatio omnes supplet defectus, licet id, quod actum est, ab initio non valuit.

The first question which naturally arises from the word appeal is :

From what decrees and what orders does an appeal lie? This chapter treats of the former, and tells us in the fore-front that an appeal lies from every decree and from any part of every decree. This is subject to two provisos only. The decree must be one from a Court, exercising original jurisdiction to a Court, authorised to hear an appeal from such Court, and there must be no express bar in this Code, or any other law in force aginst such appeal lying.

For the Courts which are authorised to hear appeals, the reader must turn to the various Civil Courts Acts.

In Bengal and the North-West (Act VI. of 1871) appeals from the District Judges and Additional Judges lie to the High Court, from Subordinate Judges and Munsifs to the District Judge, unless the amount or value of the subject-matter in dispute exceed Rs. 5t000, in which case the appeal lies to the High Court. The High Court may, from time to time, with the previous sanction of the local Government, order that all appeals from he decrees and orders of any Munsif shall be preferred to the Court of any Subordinate Judge mentioned in the order. District Judge may, from time to time, subject to the orders of the High Court, refer to any Subordinate Judge appeals pending before him from the decision of Munsifs.

In Madras (III. of 1873) regular appeals lie from the District Court to the High Court, and from Subordinate Judges and Munsifs in the same way as in Bengal (vide supra). This proviso is added, that, whenever a Subordinate Judge's Court is established at a place remote from the District Court, appeals from the decrees of the Munsif may, with previous sanction of local Government and under the direction of the High Court, lie from the District Munsifs within the local limits of its jurisdiction to such subordinate Court. No Judge of any grade is to adjudicate in any way upon any suit in which he is personally interested, or try any appeal against a decree passed by him in another capacity.

In Bombay (XIV. of 1869), the District Judge's Court is the Court of appeal from the decree of the Subordinate Courts. Where the amount involved does not exceed Rs. 5,000, an appeal from the District Judge lies to the High Court. To the same tribunal lie appeals from the decrees of First Class Subordinate Judges where the amount of the subject-matter exceeds Rs. 5,600. These latter may when invested by the Governor in Council, hear appeals from such decrees of subordinate Courts as are referred to them by the Judge.

The Government are empowered to appoint also a Joint Judge in certain districts, who has concurrent jurisdiction with the District Judge; and even Assistant Judges, when empowered by the Local Government, may be invested with all the powers of a District Judge and in such case the District Judge's jurisdiction is so far excluded.

In Aden II. of 1864, no appeal lies from the Resident, but to the Resident lie appeals from decisions of the Assistant Resident when the claim is over Rs. 500 or is in respect of land.

In the Panjab (XIX. of 1865):

XI. The Deputy Commissioner shall have power to hear appeals, where an appeal is allowed by the Court of Civil Procedure in force in the Panjab, from decisions and orders of the *first three grades of Courts.

XII. The Commissioner shall have power to hear and determine appeals, where an appeal is allowed by the Code of Civil Procedure in force in the Panjáb, from decisions and orders of the Courts of the said †fourth and fifth grades.

In Jhansie (XVIII. of 1861):

*Tahsildar, Assistant Commissioner with ordinary and with special powers. +Assistant Commissioner full powers and Deputy Commissioner, see p. 9.

XIII. The Court of the Deputy Commissioner shall have power to hear appeals from the original decisions in suits and (where an appeal is allowed by the Code of Civil Procedure) from the orders of the Courts of the first, second, and third grades.

XIV. The Court of the Commissioners shall have power to hear and determine appeals from the original decisions in suits and where an appeal is allowed by the Code of Civil Procedure) from the orders of the Courts of the fourth and fifth grades.

XV. The High Court shall have power to hear and determine appeals from original decisions in suits and (where an appeal is allowed by the Code of Civil Procedure) from the orders of the Commissioner, and also applications for a special appeal as provided in the said Code, from the decisions passed in regular appeal by the Deputy Commissioners, and by the Commissioner of the Division.

In Oudh (XXXII. of 1871):—

XVI. (1) Appeals from the decrees and orders in original suits and proceedings of the Courts of the first and second grades shall, when such appeals are allowed by law, ordinarily lie to the Deputy Commissioner. But where the amount or value of the subject-matter of any such suit or proceeding exceeds one thousand rupees, the appeal shall lie to the Commissioner.

(2). Appeals from such decrees and orders of the Court of the Deputy Commissioner, when such appeals are allowed by law, shall lie to the Commissioner.

(3). An appeal from any such decree or order passed by the Commissioner shall, when such appeal is allowed by law, lie to the Judicial Commissioner, whose Court shall be deemed to be the highest Court of Appeal.

XVII. Whenever the state of business in the Court of the Judicial Commissioner is such that he cannot dispose of the same with reasonable despatch, he may cause a list of the appeals pending in his Court to be prepared and sent to the Chief Commis sioner, and such Chief Commissioner, with the sanction of the Governor-General in Council, may, if he think fit, appoint a Commissioner to be an Additional Judicial Commissioner for the disposal of such appeals or any of them.

The rule as to not hearing cases in which one is interested is the same as in Bengal. In the Central Provinces (XIV. 1865)::

XVIII. The Deputy Commissioner shall have power to hear appeals from the original decisions in suits and (where an appeal is allowed by the Code of Civil Procedure) from the orders of the Courts of the first, second, third, and fourth grades, and of the Naib Tahsildars invested as aforesaid.

XIX. The Court of the Commissioner shall have power to hear and determine appeals from the original decisions in suits and (where an appeal is allowed by the Code of Civil Procedure) from the orders of the Courtsg of the fifth and sixth grades. XX. The Court of the Judicial Commissioner shall have power to hear and determine appeals from the original decisions in suits and (where an appeal is allowed by the Code of Civil Procedure) from the orders of the Commissioners, and also applications for a special appeal as provided in the said Code, from the decisions passed in regular appeal by the Deputy Commissioners and by the Commissioners of Divisions.

In Burmah, (XVII. of 1875,) the Deputy Commissioner hears appeals from the Courts of the Assistant and first, second, and third class Extra Assistant Commissioners, the Commissioner from those of the Deputy Commissioners and the Judicial Commis sioner from those of the Commissioner's. Officers in chief executive charge of any district may be invested by Chief Commissioner with a Deputy Commissioner's powers. The rule in Bengal not to try cases in which an officer is personally interested applies here also.

Appeals lie from the Recorder's Court when the value of the suit exceeds three thousand and is less than ten thousand Rupees to the High Court.

Appeals from the Judicial Commissioner when the Civil Appellate jurisdiction of any Commissioner has been transferred to him, and from the Judge of Maulmain, lie to the Special Court, and so do appeals pending in the Court of Judicial Commissioner or Recorder when so directed by the Chief Commissioner,

Appeals under this Code are barred where cases have been (1) compromised (sec. 375), (2) decided by arbitrators and for enforcement of private awards if Court has passed judgment according to their award (sec. 522).

*Tahsildars 1st and 2nd class and Assistant Commissioner 2nd class.

+Deputy Comissioner and Assistant Commissioner 1st class.

Tahsildarsof 1st and 2nd class; Assistant Commissioners of second, and third class. §Deputy Commissioner and Assistant Commissioners of first class.