An ikrarnamah of the same date, executed by the lessors in favor of Kesho Ram. A ryotnamah written in May 1835, by Nutthoo, in favor of Sabut Ali. A kismutnamah dated 1200 Hijree. Ishtehar of sale, in 1841, showing that, on the sale of Sabut Ali's property, the Judge, on objection made by Kulloo and others, directed that his right and interest only should be put up to sale. In the above there is little or nothing which helps the case of the plaintiffs. The effect indeed, of most of the documents is to favor the other side. The order alluded to as having been passed by the Judge on the occasion of sale was clearly an order of course. Among the documentary evidence tendered by the defendants, the most material papers are as underneath. The kismutnamah, as above, of 1200 Hijree. Urzee of Murdan Ali and Saadut Ali, dated 28th March 1841. (It was however transmitted by dâk, and is open to the objections to its reception which the plaintiffs have made). A document in which Kesho Ram is spoken of by the plaintiffs as their ryot. Supurdnamah of 16th October 1839, showing that certain persons are specifically named as the ryots of Sabut Ali on the occasion of sale of a portion of his property. Record of the dismissed suit by Kulloo and others. Document showing that property belonging to Saadut Ali, plaintiff, was sold, and that Sabut Ali, defendant, put in no objection. Deposition on 10th August 1835, of Murdan Ali and Saadut Ali, before the tehseeldar, wherein Saadut Ali stated distinctly that part of the serai was divided and part not divided, and that he had no claim on the share of Hyder Ali (father of Sabut Ali). The admission contained in this last given document, of which the genuineness is free from question, would of itself be fatal to a claim which brings within its scope a partition of the entire serai. In regard to the plot of 1200 yards, sold by Sabut Ali to the defendants Hur Gopal and others, the plaintiffs have altogether failed to show joint possession thereof, or interest therein; on the contrary, there is good reason to hold that, in conformity to a division agreed on, that plot of ground fell, among many others, to the share of Sabut Ali, and that he remained in exclusive possession of it; the plaintiffs, therefore, can no more set up a right of property in this portion of Sabut Ali's share than in the buildings and other ground which went to make up the rest of his share, and which, as the record of the case shows, have passed away from him at different times as his recognized property, without opposition offered by the plaintiffs. The appeal is dismissed. Present: The 20th May, 1851. CASE No. 254 or 1850. A. W. BEGBIE, Judges, S. S. BROWN, Offg. Judge. Special appeal from the decision of PUDARUT DASS AND OTHERS, (Defendants), Appellants, versus FUTTEH ALI AND OTHERS, (Plaintiffs), Respondents. THE particulars of this case are as follows. Mussumat Huneefa and Mussumat Huleema obtained a decree for certain landed property against Ashruf Ali in 1825. The rights of Ashruf Ali, consisting of this landed property, were sold by public auction, in 1832, in satisfaction of another claim, and were purchased by the ancestors of the present defendants. Mussumat Huneefa and Mussumat Huleema sued out execution of their decree, and their case was struck off in 1841, by reason that the auction purchasers were in possession, and were not made defendants in the case of execution of decree. Futteh Ali and others, heirs of the decreeholders, now sue the auction purchasers. Their claim has been recognized by both the lower Courts. It has been ruled by the lower Courts that an objection raised by the auction purchasers, that the suit is barred, is not valid, because the legal period is calculable from 1841, the year in which the application to execute the decree held by Mussumat Huneefa and Mussumat Huleema was finally disposed of, and, consequently, the present suit, brought on the 5th September 1848, is within the time allowed by law. A special appeal was granted to determine, whether the suit of the plaintiffs is not barred by the statute of limitation. The Court are of opinion that the judgment of the Courts below cannot be maintained. The defendants have held uninterrupted possession since 1832, under a title, the honesty of which is beyond question, since it was acquired by auction purchase. The time occupied in suing out execution of the decree of the plaintiffs, in the Miscellaneous Department, cannot be counted against the twelve years within which an action must be instituted; and this doctrine has been laid down in various precedents of this Court. The suit is therefore barred by lapse of time. The decisions of both the lower Courts are annulled, and the claim of the plaintiff's is dismissed. CASE NO. 255 of 1851. LS. S. BROWN, Offg. Judge. Special appeal from the decision of MR. JOHN NICHTERLEIN, (Plaintiff), Appellant, versus SOOKH RAM AND OTHERS, (Defendants), Respondents. In this case the plaintiff, having obtained a decree for money against Toolsee and others, proceeded to execute it, and attached the property of his debtors. Sookh Ram then brought a suit against Toolsee and others on the strength of a deed by which the attached property was shown to have been previously assigned to him, and got a decree in his favor by confession of judgment on the part of Toolsee and others. In execution of his decree, Sookh Ram brought to sale the property in dispute, and purchased it himself. The plaintiff then applied to bring to sale the property of the other debtors under his decree. Sookh Ram came forward as objector: Sookh Ram then sold his decree to Salik Ram. It was put in execution by Salik Ram, and Salik Ram brought to sale the property of the other debtors. The plaintiff then sued to set aside the decree had by Sookh Ram, and made over, as above, to Salik Sam: the Court of first instance gave a decision in his favor, but, in appeal, he was nonsuited by the Judge, who referred him to Construction No. 1299. The plaintiff sued again, and, in conformity to the suggestion thrown out by the Judge, based his claim on Construction No. 1299. The Moonsiff has dismissed his suit, on the ground that Contruction No. 1299 rendered it imperative on the plaintiff to satisfy his demand out of other property yet in the possession of his debtors. This decision of the Moonsiff has been upheld in appeal by the Principal Sudder Ameen. A special appeal was granted to try if the lower Courts have not misunderstood the purport of Construction No. 1299. The Court find the view taken by the lower Courts of this Construction to be erroneous. The Construction does not prohibit the institution of a suit to set aside a fraudulent alienation so long as a party cast under a decree may have other property not alienated, but simply points out the remedy open to a suitor when it may so happen that a defendant, with a view to evade the execution of any decree that may be eventually passed against him, transfers away his whole property by confession of judgment on a fictitious claim upon him. In the present instance, there would not appear to have been any incorrectness in the course pursued by the plaintiff when he was nonsuited by the Judge. His renewed suit has been professedly founded, with reference to the Judge's order in the nonsuited case, on Construction No. 1299, but it is brought in reality to try this issue, viz. whether the property originally attached and ordered for sale, in satisfaction of the plaintiffs' decree, has or has not been collusively assigned over to Sookh Ram. That is the issue which the lower Courts have now to try, and on the finding thereon had, will the result of the present action depend. The judgments of both the lower Courts are set aside, and the suit is sent back for retrial to the Moonsiff's file, with reference to the foregoing remarks. Present: The 21st May, 1851. CASE No. 37 OF 1850. Regular appeal from the decision of Mr. J. Campier, Principal Sudder Ameen of Mirzapore, dated 8th February 1850. SAWUL SINGH, (Defendant), Appellant, versus MUHUNT PURSRAM GIR, (Plaintiff), Respondent. THE following is a transcript of the decision of the Principal Sudder Ameen, which contains a full detail of the circumstances of the case, and the reasons which influenced the lower Court to pass a decision in favor of the plaintiff's claim. Claim, Rs. 6,870-8-2, principal and interest, due on a mortgage bond, dated 17th September 1846, and a rooqah, or note dated 22nd January 1847, executed by Mr. Siddell. "In this case, the plaintiff states to this effect. That the late Mr. William Siddell borrowed from him Rs. 5,000, on the 17th September 1846, on the mortgage of two bungalows, a screwhouse, and compound, appertaining to them, possessed by him, situated in Imambarrah and Loheea Tolah, and executed a mortgage bond for the same, promising to repay the money in one year, with interest at 14 annas per cent. per mensem; that he had also stipulated, at the same time, not to alienate the mortgaged property till the money lent had been liquidated: that afterwards, namely, on the 22nd January 1847, he had borrowed the further sum of Rs. 500, under a roogah or note, which had been granted by him, wherein he had promised to repay the same in two months: that these sums are entered in his buhee khata accounts; that before the expiration of the period limited in the mortgage bond, the said Mr. Siddell had demised, in consequence of which an inventory of his property was made under the superintendence of the Principal Sudder Ameen: that on that occasion he (plaintiff) had submitted an application to him dated 12th June 1847, wherein he made known his claims in respect to the property pledged to him, and prayed that it be not sold or alienated till they were satisfied; that afterwards, at the request of the said officer, he laid his mortgage bond before him; that when the papers connected with the inventory of the deceased's property were transmitted to the Judge's Court, he |