141. In this case the contention was based upon the decision of the Privy Coun cil in Eshan Chunder Sing v. Shama Churn Bhutto,ib., VI., 57; and Mr. Justice Kemp pointed out that what their Lordships of the Privy Council approved of in that decision was, that the decision on appeal before them had been come to upon a state of facts which had been alleged or pleaded by the plaintiff; the Privy Council insisted upon this as a rule to be observed that the state of facts and the equities and ground of relief originally alleged and pleaded by the plaintiff should not be departed from. 4 The fact that a document on which the suit was based did not bear a stamp at all. Srinath Saha v. caroda Gobindo Chowdhry, B. L. R., V., App, 10. 5. Joinder of parties, Radhanath Sahai v. Gopi Sahai, ib., XIV., 90. But through all the principle must run that the error does not affect the merit of the case or the jurisdiction of the Court. When both parties have acquiesced in an error which does affect the case, the Appellate Court have been loth to interfere. Thusin Teekuna Dai v. Mc Arthur, ib., I.,279, where both parties acquiesced in the jurisdiction of the Civil Courts in a suit which ought to have been brought in the Revenue Courts, and in Naranbhai Birjbhukandus v. Naroshanker Chundro Shanker Bom.H.C., Rep. IV., 98,F. B. and Srinath Saha v. Saroda Gobindo Chowdhry, B. L. R., V., app. 10, where a Judge had given judgment partly on evidence taken before another Judge and partly before himself, and the irregularity was waived, the judgments were not interfered with. Where a decree makes a party liable who is not liable (e. g.), an agent instead of the corporate body whose agent he is, the error is one affecting the merits within the meaning of secs. 577, 578, Civil Procedure Code. Nobin Chunder Paul v. C. Stephenson, ib., XV., 534. Persons who, without their consent, are made parties to a suit in the appellate stage, are not liable for costs, simply because they encouraged the plaintiff to bring the suit and provided him with the necessary funds. Robert Watson v. Hurgobind Sukul, ib., XXII., 35. (t) Thus, an Appellate Court can allow a plaintiff to withdraw, with permission to bring a fresh appeal, Gregory v. Dooley Chand Kandary Mull. S. W.R., XIV., 17; can separate misjoined appeals. Shoorup Chander Paul v. Mothur Mohun Paul Chowdhry, S. W. R., IV., 109; can examine accounts of a Commissioner, even if no exception have been taken to them by the Court appointing him, Ahmad v. Nanhu Bhai v. Khasagi v. Messrs. Phear and Hobhouse, J. J., in the A singular case occurred in which the Court of the Subordinate Judge, after passing a decree, was abolished, and the case was transferred to the Judge. He issued execution on the decree, but satisfaction was not obtained. By the time a second application was brought, the abolished Court had been re-established. It was held that the Judge had jurisdiction to entertain the second application. Biroja Moni Burmonia v. Woma Moyee Burmonia, ib., VI., 124. Where a decree is simply affirmed by the Appellate Court, it is the decree of the Appellate Court which is to be execu tion. Jay Narain Giru, v. Goluck Chunder Myte, ib., XXII., 102. Where an application is made by judg ment-debtor for execution of an Appellate Court's decree to be stayed, the Court executing the decree cannot enquire as to whether any notice was served upon the applicant before the appeal judgment was passed. Musst. Mukhduman v. Bhugwan Doss. ib., vol. 24, 33. An appellant cannot withdraw from an appeal without leave. Kareem Bee v. Begam Bee., M. H. C., III., 368. Although an application to execute a decree in part is informal, yet if the proceedings taken thereon are in effect in execution of the decree as a whole, they are good and valid. Jugjeebun Goopto v. Goluck Manee Debia, S. W. R., XXII., 354. Where a Judge enters into the merits of a case remanded to his predecessor for a legal judgment, if he admits further evidence on the part of the defendant, he cannot refuse to admit that offered by the plaintfff Boola Singh v. Bibee Reazoonnissz. S, W. R. Act X., R.. VI. 16. CHAPTER XLII. Apices juris non sunt jura. Except when otherwise provided by this Code or any other law, second appeals lie to a High Court from all decrees passed by an Appellate Court subordinate to it, provided, 1. The decision is contrary to some specified law or usage having the force of law. 2. The decision has failed to determine some material issue of law or usage having the force of law. 3. Substantial error or procedure in the procedure as prescribed in the Code or other law which has produced error or defect in the decision of the case upon its merits. Again, if the suit be of the nature cognizable in the Court of Small Causes and the amount or value of the subject-matter be less than Rs. 500, no second appeal lies. The provisions of the last chapter apply as far as possible, to these appeal snd to execu tion of decrees passed in such appeals. (v) In the event of a special (or second) appeal being preferred to the High Court, the lower Appellate Court should transmit to the High Court the trial nathi intact, together with the following papers of its own Court formed into a supplementary nathi, namely: * (1) The recorded note of orders and reasons, if any, which is the subject of the last paragraph. (2) A note of all orders made by the Appellate Court relative to change of parties or bearing upon the course of the hearing of the appeal, and a note of all material facts and occurrences which may have happened during the hearing of the appeal. (3) Depositions (if any) taken by the Appel late Court itself in open Court during the hearing of the appeal, and documents produced before it in pursuance of any such orders. (4) Papers and depositions transmitted to the Appellate Court in consequence of any such orders, and read in open Court durnig the hearing of the appeal. (5) The judgment of the Appellate Court. (6) The formal decree of the Appellate Court.-U. C. O. C. II. C. 19 & 20. In cases, which have been remanded by a lower Appellate Court, and in which there has been a second appeal to the lower Appellate Court, where a special appeal is instituted from the decision of the Tower Appellate Court on the second appeal, the lower Appellate Court, in submitting the record, shall send up the whole record, including the proceedings of both the lower Courts, had prior to remand as well as subsequently to it. N. W. P., C. O., No. 4 of 1874. (w) Before entering upon cases in which a special appeal lies, it seems best to reproduce as shortly as possible the mass of cases in which appeal does not lie, Such appeal has been held not to lie :(1) from a decision under sec. 11, Act VI, 1862 on the question of the standard pole of measurment Rakhal Doss Mookerjee v. Tanu Praramanaich S. W. R., VII., 329. (2). on a refusal to fine recusant witnesses Pran Kristo Deo v. Kally Doss Deo, ib., 460. (3). on a refusal by Appellate Court to allow additional evidence to be put in. Gulam Mukdum v. Musst. Hafiz-un-nissa, ib., 429. (4) On the decision of an appeal a few days before the day fixed for hearing, if the pleader is present. Musst. Hakimun-nissa v, Musst, B. Mukduman, ib., I. 246. (5). from a great irregularity (such as refusing to examine witnesses) if the point was not raised in the lower Appellate Court. Guru Doss Akholi v. Purau Mundle ib., XII., 364. This leads to the important question of the effect which an omission to raise points in a lower Court has upon their subse quent admission in special appeal. A plaintiff cannot be allowed in special appeal to raise an entirely new issue on the ground, that the Court below has not tried the real points in the case. Goohli Khan v. Collector of Gya, S. W. R., XXIV., 480 but where the ground of special appeal goes to the root of a case, e. g., that the plaintiff has no cause of action, it may be taken and entertained at any time, during the vitality of the suit, and before the functions of the Court regarding it have ceased. Any objection on a point of law may be taken at any stage of a case, even for the first time, on special appeal. Byjnath Pershaud Kopilmon Singh, ib., XXIV., 95. This is the latest ruling on the subject; and does not quite coincide with what follows: v, infra, v. Where an objection is not taken in any particular form until the special appeal stage, and relates to a point of law upon which several decisions of the High Court had been passed; the Court did not think it would be justified, in ignoring it although it had not been taken as it ought to have been earlier in the proceedings. This was the ruling given in Ram Taruk Kuratee v, Denonath Mundul, ib., XXIV, 414, and the point referred to above is that all questions as to opening or closing of a public road belong to the criminal and not to the Civil Court and can in the latter be only inquired into as ancillary to the question whether damage has been done. In Trilochun Dass v. Gugun Chunder Dey, however on the same page, where the same question was raised for the first time in special appeal, Mr.Justice Markby observed as follows: It "It seems to me that the objection now A plea of jurisdiction may be admitted, 157. This was held also in Bhai Winbahji Tonur v. Keeter Kam, H., C. R., II., 193. These rulings, however, are opposed to the general spirit of the Courts and apparently also to law, as the appeal must be from appellate decrees on grounds which influenced the decision of that Court. So in Nogendro C. Mitter v. K. S. Das, S. W. R., XIX, 133., the Privy Council held that, as the lower Appellate Court did not try a certain issue, the High Court was in error in deciding the case in special appeal upon that issue. The question of limitation is not allowed to be raised in special appeal where it has not been raised below. Shaikh Peer Nuzur v. Lal Mahomed, ib., 584.* A new question of fact cannot be allowed to be raised in the special appeal stage with a view to form a basis for a presumption which it is desired to plead. Hurree Mohun Doss v. Kootessur Gopi, ib., vol. 24, p. 318. Where certain decrees are used as evidence In a suit for possession of land after pur- Where the bona fides of the grantor, was before the Court or might have been if defendant's pleader had examined him, defendant could not appeal especially on the ground of the want of a finding on pottah. Ram Sunker Sein v. Nilkant Biswas, S. W. R., IX., 392. When a judge states, as a fact that an admission was made before him by one of the parties to the suit, the High Court cannot, in special appeal, enquire whether the Judge was right or not in making that statement. ykuntnath Goopto v. Prosunno Moye Debia, ib., V., 196. Where parties allow a suit to be conducted in the lower Courts, as if a certain fact was admitted, they cannot afterwards, in special appeal, question it, and recede from the tacit admission. Mohima Chunder See further p. 352 (17). see p. 352. † see p. 355 see p. 359. (b) the decision having failed to determine some material issue of law and usage having the force of law; (c) a substantial error or defect in the procedure as prescribed by this Code or any other law, which may have produced error or defect in the decision of the case upon the merits. (x) * Second appeal only on grounds mentioned in section 584. 586. (27, Act 23, No second appeal in cer- matter of the original 585. No second appeal shall lie except on the grounds mentioned in section 584. 1861). No second appeal shall lie in any suit of the nature cognizable in Courts of Small Causes, when the amount or value of the subjectsuit does not exceed five hundred 587. The provisions contained in chapter XLI. shall apply as far as may be to appeals under this chapter, and to the execution of decrees passed in such Provisions as to second appeals. appeals. † (2) Orders appealable. CHAPTER XLIIL OF APPEALS FROM ORDERS. 588. An appeal shall lie from the following orders under this Code and from no other such orders :- (b) orders under section 32, striking out or adding the name of any person as plaintiff or defendant, (c) orders under section 44, adding a cause of action, (d) orders under section 47, excluding a cause of action, (36) (e) orders rejecting or returning plaints under section 53, clause (d), or section 54, clause (b) and (d), or section 57, clauses (b) and (c), (119) (f) orders rejecting applications under section 102 (in cases open to appeal) for an order to set aside the dismissal of a suit, (g) orders under section 120 where a party fails to appear in person. (h) orders under section 168 for attachment of property. (2) orders under section 176 where a party refuses to give evidence or produce a document called for by the Court, (11: Act 23, 1861), () orders under section 244 as to questions relating to the execution of decrees, of the same nature with appealable orders made in the course of a suit, (k) orders under section 258 compelling decree-holders to certify, (Continued on page 358.) Roy v. R. K. A. Chowdhry, S. W. R., XXIII., 174. A party praying to set aside an alienation on the ground of illegitimacy cannot in special appeal urge a new ground for the prayer. Sree Pershad v. Raj Gooroo Trumbuck Nath Deo, S. W, R., XIV., 386. (6). from a decision passed on the appeal of a co-defendant affirming the decision of the first Court, which was not appealed against by the would be special appelant. Madho Soodhun Roy, v. Shurno Moyee Debeia ib., V., 106. (7). from a decree passed exparte in an original suit. Chidambarro Pellai v. Kaman M. R. I. 189. but it will from a similar decree in regular appeal. S. W. R., X. 450. The plaintiff obtained an ex-parte decree on the 5th July 1873, of which he took out execution on the 9th August. On the 10th of November, the defendant applied for and obtained a re-hearing on the re-hearing, his suit was dismissed by both the Lower Courts on the merits. Held, on a special appeal to the High Court, that, although sec. 588 provides that an order for rehearing shall be final, it is final only in the sense that it is not by itself open to appeal, and that the plaintiff was not precluded by that section from raising the objection that the order for re-hearing was made after the time limited therein, and therefore ought to be set aside as made without jurisdiction. Runglall Misser v. Takhun Misseer, I. L. R., C. II., 114. In the absence of any statement that the case had been decided ex-parte by the deputy Collector for default of the defendant's appearance, the Judge, on appeal by the defendant, dismissed it on the merits. No special appeal will lie, on the ground that the Judge should have dismissed the appeal without going into the merits. Gulam Eshak v. Hyder Mullah, W. R., F. R., 46. One K. brought a suit for contribution against three persons M. A. and F. and obtained an ex parte decree which M. and A. applied to set aside This application having been disallowed M. and A. appealed against the order. While the appeal was pending M, A, and F. filed deeds of compromise in which they and K. gave up their mutual claims but in K.'s deed, instead of writing the names of the three ladies in detail he used the word "appellants." As. F had not appealed, she applied to the munsiff to have the deed corrected. Her claim was granted, and the decree was upheld in appeal. The defendant in special appeal, inter alia denied that there was any cause of action. Held that even if there (as admitted) was an intention to take proceedings in execution of the ex-parte decree, there was a cause of action, and it was a matter of duty to have the error in the document corrected as soon as discovered. Syud Mahomed Abdool Kadir v. Shaikh Furzend Ali S. W. R., vol. 24, p. 362. (8.) from an error in valuation which does not effect jurisdiction of the Court trying (9) from a decision or a lower Court on the ground that it prejudiced his rights by a plaintiff who never appealed from the lower Courts decision. Bykunt Ram Sahoo v. Purno Chunder Doss, ib., 1864, 97. (10). As a rule from a question of costs alone. Achambet Singh v. Kanhy Lall Mahajan ib., VII. 208, or how costs have been awarded Beer Pershaud v. Durga Pershaud, ib., 1864, 215. (11). On the ground of refusal to direct a local investigation Bykant nath Sen, v. P. M. Dossi ib., I. 141, or to make further local inquiry. Purno Pershaud Roy v. C. Chatterjee ib., I., 249. (12). On admission of an insufficiently stamped puttah on payment of full stamp and penalty. Gulab Chunder Sen v. S. K. M. Khansamah ib., Act X., 158.-See further note on page 354. (13) From a question as to whether there was sufficient ground for the dismissal of a Pagoda hereditary servant. Kristnasamy Tatacherry v. G. Rangaiberry, M. R., IV., 63. (14) from irregularity in conducting sale when the sale was confirmed by both lower Courts. Varudha Reddi v. V. S Reddi ib., V., 213. (15) By one defendant against another. Rameshur Ghose v. A. Jowdar, S. W. R., XVII., 373. (16) By a defendant who had been wrongly added in the First Court and struck out in the Lower Appellate Court. Musst. Ognee Chowdhrani v. Sheikh Karamatullah, ib., 219. (17) Where reasons in a judgement are such as can be rightly given and the inference such as can be legally drawn, even if Appellate Court cannot agree with or support all reasons given. Rummizuddin Bhongun v. Sugmala, ib., XV., 303. The High Court cannot interfere in special appeal with an inference which the Lower Court draws from facts against the credibility of witnesses, whether the reason given is right or wrong. Musst. Patsahee Koer v. Sheo Pershad Ram Oopadhya, S. W. R., XXIV., 61. Mere difference of view between lower Appellate Court and that of First Instance, is |