Baleswar Bagarti v. Bhagarathi Das

Stephen, J.:— This case comes before us in second appeal from a judgment of the Subordinate Judge of Sambalpur and a preliminary objection is raised that we have no jurisdiction to deal with it, because the Governor-General in Council acted ultra vires in purporting to extend the jurisdiction of this Court over Sambalpur which was till the date of the order hereafter mentioned a district in the Central Provinces.

The matter stands thus. The Statute 28 and 29 Vict., C. 15, sec. 3 enacts that “It shall be lawful for the Governor-General of India in Council by order from time to time to transfer any territory or place from the jurisdiction of one to the jurisdiction of any other of the High Courts established or to be established under the said Act (i.e, the Indian High Courts Act, 1861) and to authorise and empower any High Court to exercise all or any portion of the jurisdiction and powers conferred or to be conferred on it by Her Majesty's Letters Patent establishing the came, or any other Letters Patent issued by Her Majesty under the provisions of the Indian High Courts Act, 1861, within any such portions of Her Majesty's dominions in India, not included within the limits of the presidency or place or places for which such High Court was established as the Governor-General in Council may from time to time determine.” The Statute 28 and 29 Vict., C. 17, sec. 4, enacts: It shall be lawful for the Governor-General of India in Council from time to time to declare and appoint by proclamation that part or parts of the Indian territories for the time being under the dominion of Her Majesty shall be or continue subject to each of the Presidencies and Lieutenant-Governor-ships for the time being subsisting in such territories and to make such distribution and arrangement or new distribution and arrangement of such territories into or among such Presidencies and Lieutenant-Governorships as to the said Governor-General in Council may seem expedient.”

On the 1st September 1905, the Governor-General in Council made a proclamation No. 2833 published in the India Gazette, on 2nd September 1905, p. 636, by which he transferred Sambalpur to Bengal under 28 and 29 Vict., C. 17. On the same day by a Notification No. 1363, published in the same Gazette, p. 637, acting under the above-mentioned section of 28 and 29 Vict., C. 15, he authorised and empowered this Court to exercise “within that portion of His Majesty's dominions in India which is comprised within the limits of the Sambalpur District” (excepting two named zemindaries) “and is not included within the limits of the places for which the said High Court was established, all such jurisdiction and powers as the said High Court may from time to time exercise within the limits of the places for which the said High Court was established.”

No objection is taken to this proclamation and notification, but what is said is that the portion of sec. 3 of the 28 and 29 Vict., C. 15, that I have quoted is to be taken as one enactment, that the first part gives the Governor-General in Council power to transfer a place from the jurisdiction of one High Court to that of another, and that the rest of the enactment does nothing more than provide means by which jurisdiction may be conferred on the transferee Court when such a transfer is made. Apart from the conclusions to be drawn from the contents of a repealed enactment that I will refer to afterwards, and apart from authority, that is, looking merely at the language of section itself, I am quite unable to see how this, can be so. The first part of the section relating to the transfer of a place from the jurisdiction of one High Court to that of another is complete in itself; and if the Governor-General in Council can transfer a place to the jurisdiction of a High Court no more power can be needed to give that Court jurisdiction. This may be seen by a reference to the Bengal, North-Western Provinces and Assam Civil Courts Act, 1857 (Act XVII of 1887, B.C), sec. 3, where power is given to the Local Government “to fix and alter the local limits of the jurisdiction of any Civil Court,” and no other provision exists enabling the Local Government to give jurisdiction, to the transferee Court. Also I cannot see that there is anything in the second part of the section referring to the first part. It confers powers on any High Court, not specifically one of the High Courts to which the first part of the section refers in any given case, and it gives the Courts referred to jurisdiction over any portions of Her Majesty's dominions in India with limitations which also contain no specific reference to what goes before. I am strengthened in this view by the fact that the section concludes with a provision for extending the jurisdiction of a High Court over Christian subjects of Her Majesty in Native States, which is plainly a wholly separate provision from what precedes it my opinion on the meaning of the section as it stands, therefore, decidedly is that it deals with three distinct matters: (a) a transfer of a place from the jurisdiction of one High Court to that of another; (b) the extension of the jurisdiction of a High Court to a place not originally within jurisdiction of a High Court; (c) the extension of the jurisdiction of a High Court to Christian subjects of Her Majesty in Native States. And if the section is so read the only way in which (b) can be considered complementary to (a) is that it provides for cases not included in (a) and it is impossible that it should merely provide machinery for carrying out the provisions of (a)

It was sought to found an argument to the contrary effect on the provisions of the Indian High Courts Act, 1861 (24 and 25 Vict., C. 105), sec. 18, repealed by the Act of 1865. This section gave the Crown power to transfer a place from the jurisdiction of one to that of another High Court and generally to alter and determine the territorial limits of the jurisdiction of the said several High Courts. The chief purpose of the Act of 1865 was to transfer the powers of the Crown to the Governor-General in Council, and it is argued that the repealed section gave the Crown no power to extend the jurisdiction of a High Court to a place not already within the jurisdiction of such a Court, and that sec. 3 of the repealing Act is substantially a re-enactment of the repealed section, substituting the new for the old authority, but giving no wider powers to the Governor-General in Council than were before given to the Crown.

I cannot assent to the effect so attributed to the repealed sec. 18 of the Act of 1861. The Crown could alter the territorial limits of the jurisdiction of this Court, and from, the terms of the section this must be taken to have been something different from a transfer of a place from the jurisdiction of one to that of another High Court. It seems to me therefore probable that the Crown could extend the jurisdiction of a High Court to a place not within such a jurisdiction. And if this is so I see no reason for supposing that the legislature in passing the later Act intended to withhold from the Governor-General in Council any powers in respect of the present matter that were exercised by the Crown. But it is not necessary to decide this point as the terms of sec. 3 of the Act of 1865 are far fuller than those of sec. 18 of the Act of 1861; and if the earlier section did not give the power in question to the Crown it still seems to me certain that the later section is in terms not a mere re-enactment of the repealed section, but did give such a power to the Governor-General in Council. This is consistent with the repealed preamble of the Act of 1865, which recites the expediency of making “further provision than is in the said Act (i.e, the Act of 1861) contained for empowering the alteration, from time to time, of the local limits of the said High Courts, and for the exercise, in places beyond the limits of the presidencies or places within and for which such High Courts are established of a jurisdiction and powers conferred by Her Most Excellent Majesty's Letters Patent on the said High Courts.” The effect of the repealed section thus seems to me to favour the view of the later section that I have suggested.

There then remains to be considered what is perhaps the strongest point made by the Appellant. This is a note by Sir Courtenay Ilbert in his Government of India, 2nd edition, page 247, where after referring to the present section he says, “It would seem that sec. 3 of the Act of 1885 ……. only empowered the Governor-General to make an order transferring any territory from the jurisdiction of one Court to the jurisdiction of another, and that the second branch of the section was only to enable the Governor-General to authorize the Court to which such transfer was made to exercise jurisdiction.” He then suggests that the Governor-General in Council could not extend the local and personal jurisdiction of the High Court at Allahabad over the province of Oudh, a supposition which seems to be on all fours with this case. For the reasons I have given I cannot agree with this suggestion, high though its authority is. I dissent from it with the less hesitation because I find that I am supported by the authority of Sir Henry Maine who in a minute written on the 29th May 1566 (minutes by Sir Henry Maine, 1862-1869, No. 45) seems to express exactly a contrary opinion to that of Sir Courtenay Ilbert. The construction of sec. 3 is apparently not immediately relevant to the point discussed in the minute, but, in describing the effect of that section, the writer divides it into three paragraphs marked by (a), (b) and (c) respectively, an arrangement I have copied above. He then proceeds: “under cl. (a) the plainest case is an actual transfer of territory as for example, the transfer of Behar to the jurisdiction of the High Court of the North-West; under cl. (b) the western part of the Central Provinces might be wholly brought within the jurisdiction of the High Court of Bombay,” a suppositious case which resembles that put by Sir Courtenay Ilbert only in being on all fours with the present. This difference between two of the highest possible non-judicial authorities at least leaves me free to follow my own opinion as stated above.

In conclusion, I have only to add that it seems that the Governor-General has at least twice acted on the assumption that he has the power that is now called in question as will be seen on a reference to Notification 1203, dated the 23rd September 1874, and published in the India Gazette of 26th September 1874, giving the High Court of Allahabad jurisdiction over a part of the East India Railway and its appurtenances that lie partly in Central India and partly in the Central Provinces; and to Notification No. 335, dated the 18th February 1901, and published in the India Gazette of the 23rd February 1901, giving this Court jurisdiction in parts of Sibsagar in Assam.

I therefore hold that the notification of the Secretary of State giving this Court jurisdiction over Sambalpur was not ultra vires, that this Court can therefore exercise the same jurisdiction over Sambalpur that it can exercise over the rest of Bengal, and that we therefore have jurisdiction to hear this appeal.

On the merits of the case the Plaintiff sues for recovery of possession of a certain mouzah on the strength of a foreclosed mortgage granted by one Muasamat Bhaino. It is found that the Plaintiff obtained a foreclosure decree in respect of the mortgage in a suit in which the Defendant was a party. But it was suggested in the first place that it had not been proved that Bhamo was sole owner of the mouzah. The lower Appellate Court held that she was such owner because Bhamo had sued Satyabadi, the Defendant's deceased brother, and it was found that Bhaino was the owner of the entire village. To that suit the Defendant was not made a party being a minor, but it was said that Satyabadi was then joint with him, and the lower Appellate Court accordingly held that the Defendant was bound by the decree. This finding, may in terms be open to objection in the circumstances of the case, but the suit at least shows an assertion of title by Bhamo, and the Judge holds that a khewat of a settlement and copies of certain chowoalas clearly prove that Bhamo was the sole owner of the village. Under these circumstances the findings of fact in the Court below are too strong for the Defendant to succeed on this point.

It is further argued that the foreclosure decree is not binding on the Defendant, but he was a party to the suit and the validity of the mortgage was determined in his presence, though no decree was made against him on the ground that he had no interest in the property. Under the present circumstances it is impossible to hold that he is not bound by the decree.

The result is that this appeal is dismissed with costs.

A rule was issued in this case on the Plaintiff to show cause why the delivery of possession should not be stayed pending the hearing of this appeal on certain terms, and pending the hearing of the rule delivery of possession was stayed. This rule is now discharged.

Mookerjee, J.— This is an appeal from a decision of the District Judge of Sambalpur in an action for recovery of possession of land commenced by the Plaintiffs-Respondents in the Court of the Subordinate Judge of Sambalpur. A decree has been made in favour of the Plaintiffs by both the Courts below, the validity of which is questioned on behalf of the Defendant, substantially, on the ground that the District Judge has misunderstood the legal effect of the decrees in two previous litigations. A preliminary objection is taken to the hearing of the appeal, on behalf of the Respondents. It is argued that the District of Sambalpur is outside the territorial limits of the jurisdiction of this Court, inasmuch as Proclamation No. 2833 issued by the Governor-General in Council on the 1st of September 1905, which declared and appointed that the District of Sambalpur shall cease to form part of the Central Provinces and shall be subject to and included within the limits of the Bengal Division of the Presidency of Fort William, is ultra vires (Gazette of India, 2nd September 1905, Part I, page 636). The question raised is one of some novelty and of considerable importance, and requires careful consideration. As it goes to the root of our jurisdiction, it must be decided before we can take cognizance of the appeal.

It is argued by the learned vakil for the Respondents that the Governor-General in Council had no authority under Statute 28 and 29 Vict., Ch. 15 to issue this proclamation so as to transfer a portion of the territory originally comprised within the jurisdiction of the Court of the Judicial Commissioner of the Central Provinces and place it within the jurisdiction of the High Court, and, in support of this position, reliance is placed upon a passage from a treatise on the Government of India by Sir Courtenay Ilbert (First edition, 250, second edition, 246). The validity of this contention must be tested primarily by reference to the language of the Statute to which I have just referred.

The preamble to Statute 28 and 29 Vict., Ch. 15, explains, among other things, that the object of the statute was to make further provision than is contained in the Indian High Courts Act of 1861, (Stat. 24 and 25 Vict., Ch. 104) for empowering the alteration from time to time of the local limits of the High Courts and for the exercise, in places beyond the limits of the Presidencies or places within and for which such High Courts are established, of jurisdiction and powers conferred by Her Majesty's Letters Patent on the High Courts. Sec. 2 of the Statute next repeals secs. 10 and 18 of the High Courts Act, the former of which provided that the High Courts were to exercise the same jurisdiction as the Supreme Courts, and the latter provided that the territorial limits of the jurisdiction of a High Court might be altered by an Order in Council. Sec. 3 of the Statute then authorizes the Governor-General in Council to alter the local limits of the jurisdiction of the High Courts. It provides that it shall be lawful for the Governor-General in Council, first, to transfer any territory or place from the jurisdiction of one to the jurisdiction of any other of the High Courts established or to be established under the High Courts Act; secondly, to authorise and empower any High Court to exercise all or any portion of the jurisdiction and power conferred or to be conferred on it by Her Majesty's Letters Patent within any such portions of Her Majesty's dominions not included within the limits of the Presidency, place or places for which such High Court was established, as the Governor-General in Council may from time to time determine and, thirdly, to exercise any such jurisdiction in respect of Christian subjects of Her Majesty resident within the dominions of such of the Princes and States of India in alliance with Her Majesty as the Governor-General in Council may from time to time determine. The plain reading of the third section of the statute seems to be that it consists of three independent clauses. We were invited, however, by the learned vakil for the Respondents to treat the first of these clauses alone, as embracing the essence of the section, and the remainder as merely consequential. In my opinion, there is no foundation whatever for this argument. The first clause clearly contemplates the transfer of any territory comprised within the jurisdiction of one High Court to the jurisdiction of any other High Court. As soon as such a transfer has been effected by an appropriate order made in terms of the section the transfer would be operative in the sense that the High Court, within the jurisdiction of which the new territory has been brought, would have power and authority to exercise jurisdiction there over. It would be entirely superfluous to add a second clause for this purpose. In fact, upon a close examination of the second clause, it is obvious that it is in no sense subordinate or subservient to the first clause, and that its scope is-entirely different. The second clause enables the Governor-General in Council by an appropriate order to bring within the jurisdiction of any High Court, entirely or partially, a territory not originally comprised therein, because such territory is not included within the limits of the Presidency, place or places for which the High Court has already been established. Clearly, by no stretch of language, can this be regarded as a provision consequential to that contained in the first clause. This view is considerably strengthened, if we examine for a moment the scope of the third clause, which empowers the Governor-General in Council to authorise a High Court to exercise its jurisdiction in respect of Christian subjects of Her Majesty resident within the dominions of allied princes and states. Surely this clause can in no event be treated as consequential to the first clause. It may well be asked then, what is the foundation for the suggestion that the second clause is not independent of the first, but merely subordinate to it? Upon an examination then of all the provisions of the third section of the statute, there does not appear to be any room for reasonable doubt that the Governor-General in Council has authority, not only to transfer any territory from the jurisdiction of one High Court to that of another, but also to place within the jurisdiction of any High Court entirely or partially, territory not originally included therein even though, in the latter event, such place was not part of the Presidency, place or places for which the High Court had already been established. I am fortified in this view of the object and scope of sec. 3 by an examination of the repealed provisions of the Indian High Courts Act of 1861. I may point out that this mode of interpretation is perfectly legitimate and is supported by high authority, Heydon's case(1). It is well settled that, although a repealed statute has to be considered as if it had never existed, this does not prevent the Court from looking at a repealed Act in pari materia on a question of construction [Exp. Copeland(2)]; nor can it be disputed that when the provisions of a statute as to the, scope of which there is room for reasonable doubt, have to be construed, reference may legitimately be made to the previous history of the law on the subject, as was done by the Judicial Committee in Ishuree Prosad v. Chutterput(3), and Brown v. Mclachlan(4). I am not unmindful that it is only when the statute or its phraseology is ambiguous and such as to admit of two meanings that a historical investigation of this kind is permissible [Queen v. Most(5), United States v. Chase(6)], and that, in any case, as observed by Lord Watson in Bradlaugh v. Clarke(7), it is an extremely hazardous proceeding to refer to provisions, which have been absolutely repealed, in order to ascertain what the legislature intended to enact in their room and stead. With those observations in view, if we turn for a moment to the provisions of secs. 10 and 18 of the Indian High Courts Act of 1861, what is the position? Sec. 10 defined the jurisdiction of the High Courts to be identical with that of the Supreme Courts. Sec. 18 then provided that it shall be lawful for Her Majesty from time to time, by Order in Council, to transfer any territory or place from the jurisdiction of one to the jurisdiction of any other of the High Courts established under the Act, and generally to alter and determine the territorial limits of the jurisdiction of the said several Courts, as to Her Majesty with the advice of Her Privy Council may seem meet. The reasonable construction of this provision of the law seems to me to be that the territorial limits of the jurisdiction of any High Court might be altered by an Order in Council. What, then, was the object which the Legislature had in view, when sec. 18 was replaced by secs. 3 and 4 of Statute 28 and 29 Vict., Ch. 15 There is nothing to indicate that the intention of the Legislature was to restrict the exercise of the powers of alteration of territorial limits of the jurisdiction of High Courts, only to cases of transfer, of territory from one High Court to another. The intention, on the other hand, seems to have been of an entirely different character namely, to make an alteration of jurisdiction possible without the previous sanction of the Crown.. Under sec. 18 of the Statute of 1861, the authority was vested in the Crown alone. Under the Statute of 1865, the authority is vested in the Governor-General in Council, subject to the authority of the Crown to disallow any order made by the Governor-General in this behalf. If we accede to the contention of the Respondent, the result would be that neither the Governor-General nor the Crown would have any authority to alter the jurisdiction of any High Court by inclusion of territory not comprised within the jurisdiction of a High Court. Such intention is undoubtedly not manifested by the language of sec. 3 of the Statute of 1865, and in the absence of clear indication to the contrary, I would hesitate to support the inference that the object and effect of the Statute of 1865 was to deprive the Crown of the authority which it possessed under the Statute of 1861, I have not been able by an examination of the history of the working of the Statute of 1861 or of the history of the legislation of 1865 to lay any solid basis for the theory that mischief had resulted, because the Crown possessed practically unlimited powers of alteration of territorial limits of jurisdiction of High Courts and that it became consequently necessary to restrict those powers. I have tried to place myself in the place of the Legislature at the time of the enactment of the Statute of 1865 and I have not been able to ascertain any historical facts which would justify me in the conclusion, that the object of the legislation of 1865 was to restrict the authority of the Crown. [People v. Supervision(8), U.S v. Union(9).] It follows consequently that an examination of the language of the repealed sections of the Statute of 1861 confirms the interpretation at which we arrive on an examination of the plain language of sec. 3 of the Statute of 1865. Some stress must also be laid upon the circumstance that the construction which I place upon the section has hitherto been accepted as the true interpretation of the section, which has been on at least two occasions similarly interpreted and applied by the Governor-General in council. It is a well settled principle of interpretation that Courts in construing a statute will give much weight to the interpretation put upon it at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it. I do not suggest for a moment that such interpretation has by any means controlling effect upon the Courts, Stuart v. Laird(10), United States v. Dickson(11). Such interpretation may, if occasion arises, have to be disregarded for cogent and persuasive reasons, and, in a clear case of error, a Court would without hesitation refuse to follow such construction, Evanturel v. Evanturel(12), U.S v. Tanner(13), Greely v. Thompson(14). In the present case, however, the language of sec. 3 of the Statute, whether interpreted by itself or in the light of the provisions of the repealed sections of the Statute of 1861, or in view of the construction which has been placed upon it for a long series of years does not lend any support to the contention of the Respondents.

Much reliance was placed on behalf of the Respondents upon the opinion of Sir Courtenay Ilbert, who observes in sec. 104 of his treatise on the Government of India that sec. 3 of the Statute of 1865 only empowers the Governor-General in Council to make an order transferring any territory from the jurisdiction of one Court to the jurisdiction of another and that the effect of the second branch of the section is only to enable the Governor-General to authorise the Court to which such transfer has been made, to exercise its jurisdiction. With all deference to the opinion of so learned an author, I am unable in the present instance to adopt it as well founded, and I observe that Sir Courtenay Ilbert puts forward is view with some apparent hesitation. On the other hand, it must not be overlooked that the authority of Sir Henry Maine is directly opposed to the view indicated by Sir Courtenay Ilbert. Sir Henry Maine points out that the Statute of 1865 must be interpreted by reference to the two sections of the Statute of 1861 which it repeals and observes that it was plainly intended to enable the Governor-General in Council subject to the veto of the Secretary of State, to do certain things by notification, which under the repealed sections could only be done by the Crown. After reference to secs. 10 and IS of the Statute of 1861, he next proceeds to analyse sec. 3 of the Statute of 1865 as follows:—

“Sec. 3 empowers the Governor-General in Council,

(a) to transfer any territory or place from the jurisdiction of one to the jurisdiction of another High Court,

(b) to authorise any High Court to exercise all or any portion of its jurisdiction and power within any such portions of Her Majesty's dominions in India not included within the Presidency or place for which such High Court was established, as the Governor-General in Council shall from time to time determine,

(c) to authorise any High Court to exercise any such (that is, all or any part of its) jurisdiction, in respect of Christian subjects of Her Majesty resident in such Native States, as the Governor-General in Council shall determine.

Under cl. (a), the plainest case is an actual transfer of territory, as for example the transfer of Behar to the jurisdiction of the High Court of the North West.

Under cl. (b), the western part of the Central Provinces might be wholly brought within the jurisdiction of the High Court of Bombay, or again, the High Court of Bombay might be wholly powered to exercise part of its jurisdiction over all or part of the Central Provinces, for example, its jurisdiction over European British subjects criminally charged or such matrimonial or testamentary jurisdiction as it now exercises over European British subjects in the Bombay Presidency beyond the limits of its ordinary original jurisdiction.

Cl. (c) is very large. Taking literally, it would allow us to give the High Court appellate civil jurisdiction over Christians in Native States, but the use of the phrase ‘Christian subjects’ indicates what, no doubt, was the real intention, namely, that the portion of jurisdiction meant to be exercised was that usually exercised extra-territorially, i.e, matrimonial, testamentary and criminal jurisdictions.” (Minutes by Sir Henry Maine No. 46 pages 82 to 86 of the edition of 1889, and No. 45 pages 83 to 85 of the edition of 1892.)

It is interesting to observe that one of the hypothetical cases mentioned by Sir Henry Maine is substantially identical with the case now before us, and, in view of this exposition of the section from such an eminent jurist as Sir Henry Maine, I feel no doubt that the contention advanced by the Respondents is not based on any solid foundation and must be overruled. The appeal, therefore, must be considered on the merits.

As regards the merits of the case, the decision of the District Judge is attacked on two grounds, namely, first, that the decree in a previous litigation to which the present Appellant was not a party ought not to have been treated as binding upon him, and secondly, that a decree in another litigation to which the Appellant was a party but in which no relief was awarded as against him ought not to have been treated as binding upon him. To test the accuracy of these contentions, it is necessary to explain that the property in dispute is a village which the Plaintiffs allege belonged to a lady named Bhamo from whom they claim to have derived title under a foreclosure decree. The Defendant, on the other hand, claims title to the property on the basis that it was owned by Samo, the second husband of Bhamo. The question, therefore, to whom the property belonged, ultimately reduces itself to one of fact. The District Judge, however, it is said, has based his conclusion upon the question of title partially on a decree in a previous suit between the brother of the Appellant and Bhamo, in which Bhamo successfully asserted her title. That decree is obviously not binding upon the Defendant who was not a party to that litigation, nor can it be suggested with any show of reason that his brother was a party to that suit in a representative capacity. If the decision of the District Judge had been based on this decree, it would consequently have been necessary to remand the case. The judgment shows, however, that his conclusion was based upon evidence, independent of this decree, viz.:— evidence of possession and settlement papers. Under these circumstances, it is unnecessary to remand the case. [Womes Chunder Chatterjee v. Chundce Charan Boy(15).] The present case in fact is in one sense much stronger, because there can be no doubt that, although the decree is not binding upon the Defendant, it is admissible in evidence as against him, as an instance of a litigation in which the right now in controversy was successfully asserted by the predecessor of the Plaintiffs against a member of the family to which the Defendant belonged, Ram Ranjan v. Ram Naruin(16), Bitto v. Kesho(17), Dinomoni v. Brojomohini(18). I must hold, therefore, that the finding of the District Judge upon the question of title to the village cannot be successfully challenged.

The second ground upon which the judgment of the Court below is attacked is that the decree in the foreclosure suit obtained by the Plaintiffs against shako is not binding upon the Defendant. It is to be observed, however, that the Defendant was a party to that litigation; the genuineness of the mortgage was established in his presence, but no relief was awarded as against him, because it was alleged that he had no interest in the equity or redemption. Under these circumstances, it is difficult to say that the decree is not binding upon him. If he had contended in that litigation that he was interested in the equity of redemption a liability could have been imposed upon him under the decree. He escaped liability on the ground that he had no interest in the equity of redemption. He now seeks to make out that it was he who was interested in the property and not the mortgagor, Bhamo. In this state of facts, it is impossible for him to avoid the effect of the decree, which was passed in his presence against the mortgagor [Nilakant Banerjee v. Suresh Chandra Mullick(19), Bhaja v. Chuni Lal(20)]. In any event, if the finding upon the question of the title of Bhamo to the village cannot be successfully challenged on this appeal, the foreclosure decree obtained in the presence of the Defendant in the mortgage suit, is a sufficient foundation for the title of the Plaintiffs to entitle them to a decree for ejectment as against the Appellant. Neither of the grounds, therefore, upon which the judgment is sought to be assailed can be successfully maintained.

The appeal consequently fails and must be dismissed with costs.

The rule for a stay of proceedings pending appeal is discharged; but no order is made as to costs.

N.G

Appeal dismissed.