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  • Varma
  • Beevor, JJ.
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Smart Summary

Structured Summary of the Opinion (Beevor, J.)

Factual and Procedural Background

This appeal is against a decree of the Subordinate Judge of Guttack dated 25th March 1939. The appeal was filed by defendants 1 to 3 (sons of a deceased defendant, Binodini) and the plaintiff-respondents raised a preliminary objection to maintainability.

The dispute concerns the estate of Rai Bahadur Gobind Ballabh Rai (died July 1896). He was survived by a second wife, Swarnamai, who succeeded to and remained in possession of the estate until her death on 14th September 1935. The plaintiff-respondents claimed the estate as the nearest reversioners, asserting that Gobind Ballabh had only one daughter by his first wife and no entitled descendants living at the death of the widow. The original defendant, Binodini, claimed to be the second daughter by the first wife and entitled to the estate; after her death her sons were substituted as appellants.

Procedural history (as recorded in the opinion):

  • 14 Oct 1935: Plaintiffs applied for registration in the Land Registration Department.
  • 30 Nov 1935: Plaintiffs applied to the District Judge under Section 192 of the Succession Act; registered as Misc. Case No. 55 of 1935. Binodini filed a similar application on 13 Jan 1936 (Misc. Case No. 3 of 1936).
  • 20 Jan 1936: District Judge appointed an ad interim curator of the estate.
  • 15 Apr 1936: Plaintiffs filed the suit that produced the decree under appeal; main relief sought was a declaration that plaintiffs, as nearest reversionary heirs, succeeded to the disputed properties on the death of Swarnamai.
  • 16 May 1936: District Judge decided Misc. Case No. 3 of 1936 in favour of Binodini and ordered the ad interim curator to hand over possession to her.
  • 19 May 1936: Plaintiffs applied for appointment of a Receiver; on 5 Jun 1936 a Receiver was appointed by the Subordinate Judge.
  • 1 Jul 1936: Plaintiffs amended their plaint to add an alternative prayer for confirmation of possession or recovery of possession.
  • Binodini died 17 Jan 1938; her sons were substituted as appellants.
  • 25 Mar 1939: Trial Court decreed that plaintiffs were the nearest reversionary heirs and declared their succession to listed properties and directed possession be declared or delivered to them.
  • 24 Jul 1939: Appellants filed the present appeal and paid Rs. 30 as court-fee on the memorandum of appeal. Registrar taxed the appeal as requiring ad valorem court-fee and called for a deficit of Rs. 1,755; extensions and amendments followed; appellants amended memorandum on 1 May 1940 and abandoned certain additional grounds on 31 Jul 1940.
  • 24–29 Apr 1940 and thereafter: Possession of the properties was delivered to the plaintiffs in two batches (24 Jan 1940 and 4 Apr 1940 recorded as dates when possession was obtained).
  • 23 Sep 1940: Bench directed maintainability of the appeal be determined at the hearing.
  • 28 Nov 1945: Court granted appellants permission to amend their memorandum of appeal on terms and reserved reasons, which are provided in this judgment.

Legal Issues Presented

  1. Whether the appeal as framed is maintainable where the trial court granted two reliefs (a declaration of title and a decree for possession) but the appellants appeal only against the declaration of title.
  2. Whether allowing the appeal would effectively grant a declaration in favour of the appellants when such a declaration would be contrary to the proviso to Section 42 of the Specific Relief Act or would be infructuous.
  3. Whether the principle of restitution or Section 144 of the Code of Civil Procedure would enable the appellants to obtain effective relief (possession) if the declaration of title in the trial court were set aside on appeal.
  4. Whether the suit was properly characterised as a suit to alter or set aside a summary decision of the District Judge (with consequences for whether a fixed or ad valorem court-fee under Schedule II, Article 17 of the Court-fees Act was payable).
  5. Whether a plaint that includes a prayer for possession when the property was in custodia legis (in the hands of a curator or receiver) required fixed or ad valorem court-fee under the Court-fees Act.

Arguments of the Parties

Respondents' (Mr. B.C. De) Arguments

  • If the appeal as it stands were allowed it would be equivalent to granting a declaration in favour of the appellants; such a declaration could not be granted because it would contravene the principle in the proviso to Section 42 of the Specific Relief Act and would be infructuous.
  • The principle in Section 144 CPC would not assist the appellants even if their decree were allowed.
  • The trial court's decree granted two reliefs (declaration of title and decree for possession), both depending on the same facts; the unchallenged decree for possession would operate as res judicata on facts necessary to establish the title, preventing the appellants from successfully challenging the declaration of title.

Appellants' (Mr. M.S. Rao) Arguments

  • The suit was, in substance, one to alter or set aside a summary decision or order of the District Judge within the meaning of Schedule II, Article 17(i) of the Court-fees Act, and therefore a fixed court-fee was payable on both the plaint and the memorandum of appeal under that article.
  • At the time of filing the plaint and its amendment, the defendants (now appellants) were not in possession; the property was in custodia legis, so the plaintiffs were neither required nor legally entitled to sue these defendants for possession — the possession prayer was redundant. Therefore, appellants were not required in appeal to get that redundant relief set aside.
  • If the appellate court set aside the declaration of title in favour of the plaintiffs, restitution in execution would result in revocation of delivery of possession to the plaintiffs (i.e., the appellants could recover possession by restitution if the declaration were set aside).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Full Bench of the Calcutta High Court in 7 W.R 1991 (judgment of Sir Barnes Peacock) Held that a summary order made under Act 19 of 1841 did not operate as a bar to a regular suit to try the title and that such a suit might be brought within twelve years. Used to support the conclusion that a suit brought after a District Judge's summary decision may still be a regular suit to recover possession on the basis of title and is not necessarily a suit to set aside the summary decision (hence not a suit under Sch. II, Art. 17(1), Court-fees Act).
Madras High Court decision in 56 M.L.J. 199 (referenced as following the Calcutta Full Bench) Followed the Full Bench principle that a regular suit to try title is distinct from a suit to set aside a summary decision. Relied upon as precedent showing more recent acceptance of the Full Bench view; helped persuade the Court that the present suit was not one under Sch. II, Art. 17(1) of the Court-fees Act.
Madras cases: 27 Mad. 591; 36 Mad. 624; I.L.R (1939) Mad. 9865 Showed the principle that where property is in custody of the Court (e.g., Receiver or Curator), a plaintiff may bring a suit under Section 42 of the Specific Relief Act without a prayer for consequential relief, and that a fixed fee under Sch. II, Art. 17(iii) of the Court-fees Act may apply; applied even where a Receiver has been ordered to hand over but has not yet actually done so. The Court noted these decisions and discussed their relevance to whether the plaintiffs' prayer for possession was improperly framed and whether fixed or ad valorem fees were payable; ultimately the Court found it unnecessary to decide the point fully for the purposes of maintainability of the appeal.
Anantakrishna Ayyar, J. in A.I.R. 1930 Mad. 471 Set out the principle that a decree for possession, being founded on the same facts as a declaration of title, can operate as res judicata in respect of facts necessary to establish title. The Court accepted this principle and held that the decree for possession would operate as res judicata, preventing the appellants from challenging the declaration of title so long as the possession decree remained intact.
Judicial Committee (cited authorities) — 48 Cal. 832 Stated that powers of amendment should be liberally exercised. The Court invoked this principle under Order 6, Rule 17 CPC to justify allowing the appellants leave to amend their memorandum of appeal subject to terms.
Judicial Committee (cited authority) — 11 M.I.A. 4688 Recognised that leave to amend will ordinarily be refused where the effect would be to take away from a respondent a legal right accrued by lapse of time, but that this is an ordinary principle and not absolute. The Court applied this balancing principle in deciding to permit amendment because the substantive controversy was known to both sides and the amendment primarily affected the appellants' exposure to ad valorem court-fees (a matter in substance between appellants and Government/revenue authorities).

Court's Reasoning and Analysis

The Court examined the preliminary objection to maintainability raised by the plaintiff-respondents and the counter-arguments of the appellants. The judge considered each major contention in turn and applied statutory provisions, cited precedent, and procedural principles. The core steps of the Court's analysis were:

  1. Characterisation of the suit: The Court concluded that the plaintiffs' suit was not, in substance, a suit to set aside a summary decision of the District Judge under the Succession Act (and therefore not a suit falling under Schedule II, Article 17(1) of the Court-fees Act). The reasoning was:
    • At the date the suit was filed there was no decision by the District Judge that could be set aside; and although a District Judge decision was later given and the plaint amended, no prayer was added to expressly set aside that decision.
    • Even if plaintiffs could have brought a suit to set aside a summary decision under Section 194 of the Succession Act, a separate regular suit to try title may nonetheless be brought and is distinct from a suit to set aside a summary decision — a principle supported by the Full Bench of the Calcutta High Court and followed by a Madras decision.
  2. Court-fee and the possession prayer: The Court addressed the appellants' contention that the possession prayer was redundant because the property was in custodia legis (and cited Madras decisions where a fixed fee applied when the property was in custody of the Court). The Court observed:
    • Even if the Madras view were accepted (that a fixed fee should have been paid because the Receiver/Curator held the property and thus a prayer for possession was inappropriate), that would only show that plaintiffs erred in adding a possession prayer and that the trial court was wrong to grant such relief.
    • It does not follow that appellants can ignore the portion of the decree granting possession; the relief granted is effective until set aside.
  3. Restitution and Section 144 CPC: On the appellants' contention that restitution would remedy any wrongful delivery of possession if the declaration were set aside, the Court found restitution to be inadequate in this situation:
    • The principle of restitution is not confined strictly by the wording of Section 144 CPC, but even accepting the appellants' argument, restoring a Receiver and ordering re-delivery to defendants would leave the plaintiffs' decree for possession intact and available for execution;
    • If defendants obtained possession after restitution, plaintiffs could execute the possession decree against them — meaning restitution would not effectively vindicate the appellants' rights.
  4. Res judicata effect of the possession decree: The Court accepted the respondents' third contention that the decree for possession operates as res judicata on the facts necessary to establish title:
    • Since the possession decree and the declaration of title rest on the same facts, so long as the possession decree remains intact it will prevent appellants from successfully challenging the declaration of title.
    • The Court cited Anantakrishna Ayyar, J.'s statement in A.I.R. 1930 Mad. 471 for this principle and applied it to conclude that the appeal as framed was not maintainable.
  5. Discretion to amend: Recognising the procedural rule under Order 6, Rule 17 CPC and the authority that amendments should be liberally allowed, the Court nevertheless identified limits (e.g., cannot substitute a distinct cause of action or ordinarily take away a right accrued by lapse of time). The Court balanced these considerations and:
    • Granted the appellants leave to amend their memorandum of appeal on the terms previously ordered (28 Nov 1945), observing that the primary controversy had been apparent to both sides and the amendment's main effect was to shift who bore significant ad valorem court-fees (a matter in substance between appellants and Government).
    • Stated that if the appellants carried out the terms of the order, the appeal would proceed; if not, the appeal would stand dismissed with costs for being not maintainable.

Holding and Implications

APPEAL NOT MAINTAINABLE AS FRAMED

Holding (direct effect on the parties):

  • The Court held that the appeal, as formulated at the time of the hearing, was not maintainable because the trial court had granted two reliefs (declaration of title and possession) based on the same facts, and the unchallenged decree for possession operated as res judicata on those facts, preventing the appellants from successfully challenging the declaration of title.
  • However, the Court granted the appellants leave to amend their memorandum of appeal on the terms stated in the Court's order dated 28th November 1945. If the appellants comply with those terms (including payment of any required deficit court-fees as provided by that order), the appeal may proceed. If they fail to do so, the appeal will stand dismissed with costs as not maintainable.

Broader implications:

  • The decision applies established principles (as drawn from cited authorities) concerning (a) the distinction between a suit to set aside a summary proceeding and a regular suit to try title, (b) the res judicata effect of a decree for possession founded on the same facts as a declaration of title, and (c) the liberal exercise of the Court's amendment powers under Order 6, Rule 17 CPC, subject to limits.
  • The opinion did not purport to create new legal precedent; it applied existing authorities to the facts to resolve the preliminary question of maintainability and to determine whether amendment should be permitted on terms.

Order accordingly. (Varma, J. agreed.)

Show full summary ...

    Narendra Nath Sen v. Mahasay Ganesh Prasad Ray

    Beevor, J.:— This is an appeal against a decree of the Subordinate Judge of Guttack, dated 25th March 1939. The appeal has been filed by defendants 1 to 3 and the plaintiff-respondents have raised a preliminary objection that this appeal is not maintainable. We have heard Mr. B.C De for the plain-tiff-respondents and Mr. M.S Rao for the appellants on this preliminary objection. Both the appellants and the plaintiff-respondents are claiming the estate of one Rai Bahadur Govind Ballabh Rai who died in July 1896 leaving surviving him his second wife and an unmarried daughter by her and either one or two daughters by his first wife. The second wife Swarnamai succeeded to the estate on his death and remained in possession until her death on 14th September 1935. The plaintiff-respondents then claimed the estate as the nearest reversioners of Gobind Ballabh Rai, their case being that Gobind Ballabh had only one daughter by his first wife and had no descendants who were entitled to inherit still living on the death of the widow Swarnamai. The original defendant in the suit was named Binodini and after her death, her sons, the present appellants, have been substituted in her place. Their case is that Binodini was the second daughter of Rai Bahadur Gobind Ballabh Rai by his first wife and that she was entitled to the estate on the death of the widow Swarnamai and that on her death the appellants were entitled to the estate. They also denied the plaintiff's claim to be the nearest reversioners of Rai Bahadur Gobind Ballabh Rai.

    2. Disputes arose almost at once after the death of the widow Swarnamai which took place on 14th September 1935. On 14th October 1935 the plaintiffs applied for registration of their names in the Land Registration Department. On 30th November 1935, they applied to the District Judge under Section 192 of the Succession Act, and their application was registered as Miscellaneous case No. 55 of 1935. A similar application was filed by Binodini on 13th January 1936, which was registered as Miscellaneous case No. 3 of 1936. On 20th January 1936, the District Judge appointed an ad interim curator of the estate. On 15th April 1936, the plaintiffs filed the suit out of which this appeal arises. The main relief claimed in the plaint as originally filed was

    [2a] “that it may be declared that on the death of the widow Swarnamai Dasi the plaintiffs as the nearest reversionary heirs of her husband have succeeded to the disputed properties and that the defendant has no lawful title to the same.”

    3. The only other reliefs claimed were costs and any further relief the Court might award. On 16th May 1936, the District Judge decided Miscellaneous case No. 3 of 1936 in favour of Binodini and ordered the ad interim curator to hand over possession to her. On 19th May 1936 the plaintiffs applied in the suit for appointment of a Receiver and on the same day the Subordinate Judge asked the ad interim Receiver not to deliver possession until further orders and on 5th June 1936 the Subordinate Judge appointed Receiver in the suit to take charge of the estate. On 1st July 1936 the plaintiffs amended their plaint by adding to the main relief the words; “That the possession of the plaintiffs be confirmed or in the alternative a decree for recovery of possession be passed in favour of the plaintiffs.” Binodini died on 17th January 1938 and the present appellants were substituted in her place, and on 25th March 1939 the trial Court gave the plaintiff-respondents a decree declaring that on the death of the widow Swanrarnai the plaintiffs were the nearest reversionary heirs of the late Rai Bahadur Gobind Ballav Eai and as such they succeeded to the properties described in schedules Ka, Ga except lot No. 7 and Gha and that possession be declared or delivered to them over the said properties. There were certain incidental directions in the decree which are immaterial for the present purpose. The present appeal was filed on 24th July 1939 and the prayer portion then claimed that the appeal be allowed and the plaintiffs' suit be dismissed with costs throughout. They paid court-fee of Rs. 30 on the memorandum of appeal. On 23rd December 1939 the Registrar as Taxing officer held that ad valorem court-fee was payable and called on the appellants to file deficit court-fee of Rs. 1755. On 20th January 1940 the appellants obtained extension of time for paying court-fees. On 24th January 1940 the plaintiff-respondents obtained delivery of possession of some of the properties decreed to them and on 4th April 1940 they obtained delivery of possession of the remainder. On 20th April 1940, the appellants applied to amend their memorandum of appeal and on 29th April 1940 they obtained an order from this Court permitting them to amend the memorandum of appeal at their risk and in accordance with that order they amended the memorandum on 1st May 1940 by restricting the prayer portion of the memorandum through the addition of the words “(Except delivery of possession of schedules Ka, Gha and Ga except lot No. 7 of the properties mentioned in the plaint).” They also added certain additional grounds which were additional grounds 1 to 7. The Registrar then held that the court-fee was payable ad valorem on two particular sums mentioned in additional grounds 6 and 7 but that the court-fee paid was sufficient on the remaining portion of the memorandum of appeal. On 31st July 1940, the appellants abandoned additional grounds 6 and 7 and were, therefore, not required to pay ad valorem court-fee on those two sums. On 23rd September 1940 a Bench of this Court directed that the question of maintainability of the appeal be determined at the hearing.

    4. Now the arguments of Mr. B.C De against the maintainability of the appeal as it stands may be summarised in three propositions. First, that if the appeal as it stands were to be allowed, it would be equivalent to granting a declaration in favour of the appellants and that such a declaration could not be granted firstly because it would be against the principle embodied in the proviso to Section 42 of the Specific Relief Act, and secondly that it would be infructuous. The second, proposition is that Section 144 of the CPC, or the principle embodied therein would be of no assistance to the appellants if their decree were allowed. His third proposition is that the trial Court's decree granted two reliefs—one a declaration of title and secondly a decree for possession and that the, right to both these reliefs depends on the same facts; and that if there are two reliefs granted both involving the same facts and there is an appeal in respect of only one relief the decree for the other operates as res judicata in respect of those facts.

    5. On the other side, the contentions of Mr. M.S Rao are, first, that the suit was in substance one to alter or set aside a summary decision or order of any of the civil Courts not established by Letters Patent within the meaning of Sch. II, Article 17(i), Court-fees Act, and that, therefore, a fixed court-fee was payable both on the plaint and on the memorandum of appeal under that article. His second point was that at the time of the filing of the plaint and even at the time when the plaint was amended on 1st July 1936, the defendants were not in possession of the property but it was in custodia legis and, therefore, the plaintiff-respondents were neither required nor legally entitled to sue these defendants, now appellants, for possession and, therefore, the appellants were not required in appeal to get “the redundant relief” granted to the respondents set aside. He contended further that if the Court on appeal would allow his claim and set aside the declaration of title given to the plaintiff-respondents, then the Court in execution or acting on the principle of restitution would revoke the delivery of possession granted to the respondents.

    6. Now Mr. B.C De for the respondents conceded that if the suit had actually been a suit to set aside a summary order of the District Judge, then a fixed court-fee would have been payable on the plaint under Sch. H, Article 17, Court-fees Act. He urged, however, that this was not such a suit. On this point, I think, he is clearly correct for two reasons, first, that at the date the suit was filed there was no decision yet given by the District Judge which could be set aside and after the District Judge gave a decision, although the plaint was amended no prayer was added to set aside that decision. Assuming that the plaintiffs had a right to bring a suit to set aside the decision of the District Judge made under Section 194 of the Succession Act, it does not follow that a suit brought by them in respect of the property after that decision must be treated as a suit to set aside that decision. A Full Bench of the Calcutta High Court in 7 W.R 1991 held that a summary order made under Act 19 [XIX] of 1841 did not operate as a bar to a regular suit to try the title and that such a suit might be brought within twelve years. The provisions of Act 19 [six] of 1841 have been replaced by part vir, Succession Act, including ss. 192 to 210. Section 209 which describes the effect of the decision of a District Judge in a summary proceeding under this part and S. 208 which saves the right of suit are almost exactly in the same wording as Ss. 18 and 17 of Act 19 [six] of 1841 which are quoted in the judgment of that Full Bench delivered by Sir Barnes Peacock. It is noticeable that at the beginning of his judgment he reserved his opinion on the point whether any suit was maintainable to set aside the summary decision of the District Judge but that case is a clear authority to show that even though a suit may he to set aside a summary decision, a suit may also he to recover possession on the basis of title and that such a latter suit is of a different kind from a suit to set aside a summary decision. Although that is an old decision, it has been followed in recent times as for example, by the Madras High Court in 56 M.L.J 199.2 I am, therefore, satisfied that this is not a suit under sch. II, Article 17(1), Courts-fees Act. On his second point, Mr. M.S Rao cited to us a number of decisions showing that when a property is in the custody of the Court either through a Receiver or by some officer such as a Curator, the plaintiff may bring a suit under Section 42 of the Specific Relief Act, without adding a prayer for consequential relief and the court-fee then payable on the plaint is a fixed fee under sch. II, Article 17(iii), Court-fees Act. He also cited decisions of the Madras High Court in 27 Mad. 591,3 36 Mad. 624 and I.L.R (1939) Mad. 9865 to show that principle will continue to apply even though the Receiver or officer holding property on behalf of the Court has already been ordered by the Court, on whose behalf he holds, to hand over the property to the defendant before the plaint is filed, provided he has not by that date actually handed over possession. It does not appear that other High Courts have applied this principle in similar circumstances. It is, however, in my opinion unnecessary to deal with this question more fully because we are not now concerned with what should have been done by the plaintiffs in framing their plaint and paying court-fees thereon, but we are concerned with the memorandum of appeal which arises out of the plaint as it has actually been framed and the decree passed by the lower Court. Even if the Madras view on this last point is accepted, it merely means that the plaintiffs were wrong in adding a prayer for possession in their plaint and that the lower Court was wrong in granting such a relief in the decree. It does not follow that the appellants can ignore that portion of the lower Court's decree which, on this view of the law, would be held to be wrongly granted. Even if the prayer for delivery of possession in the plaint could be considered redundant, I do not think that in effect the relief granted could be regarded as redundant.

    7. As regards Mr. Bao's contention that if he succeeds in displacing the lower Court's decree for declaration of title in favour of the plaintiff-respondents he could succeed in recovering possession by restitution, it is certainly correct that the principle of restitution is not restricted by the exact words of Section 144 of the CPC, but I do not think that in fact restitution would be an effective remedy if the appeal as it stands were allowed. Accepting for the purposes of argument Mr. Rao's contention on this point, it would follow that on the appeal being allowed the trial Court in restitution should restore the Beceiver to possession, and if the Receiver was then directed to give possession to the defendant-appellants the decree for possession passed in favour of the plaintiff-respondents would remain intact and as soon as these defendant-appellants obtained possession the plaintiff-respondents could execute that decree.

    8. I am also of opinion that the third contention of Mr. B.C De is correct. The plaintiff-respondents have been granted two reliefs first, a declaration of title and secondly a decree for possession. Their right to the second relief depends on the very same facts which give rise to their title. The decree for possession would, therefore, operate as res judicata on the facts necessary to establish that title. So long, therefore, as the decree for possession remains intact it would operate as res judicata to prevent the appellants from challenging the decree for declaration of title. On this point, I think, the principle has been clearly set out by Anantakrishna Ayyar, J. in A.I.R 1930 Mad. 471.6

    9. I come, therefore, to the conclusion that the appeal as framed is not maintainable. At the conclusion of the arguments Mr. M.S Rao asked that in the event of the Court holding against his contentions regarding the maintainability of the appeal, his clients should be given an opportunity to amend the memorandum of appeal and pay deficit court-fees thereon. Mr. B.C De opposed this prayer. We then on 28th November 1945, granted that prayer on certain terms and stated in our order that we would give reasons for our order in the judgment dealing with the maintainability of the appeal. I will now proceed to give the reasons. Under O. 6, R. 17 of the CPC, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Although there are some limits to the exercise of this power, it has been stated by the Judicial Committee in 48 Cal. 832,7 that ??? powers of amendment must be enjoyed and should always be liberally exercised. One restriction is that there is no power to substitute one distinct cause of action for another as was stated by their Lordships of the Judicial Committee in that very case. Another principle is that ordinarily leave to amend will be refused where the effect of the proposed amendment is to take away from the respondent a legal right which has accrued to him by laspe of time, but this is a principle which will apply ordinarily and not in every case. This was recognised by the Judicial Committee of the Privy Council as far back as 11 M.I.A 4688 at p. 485. In the present instance it is quite clear that the real matter in issue between the parties has been clear to both sides throughout and the only question involved in the proposed amendment is whether the defendant appellants in order to have that matter tried would be forced to frame their prayer in a form which would render them liable to pay ad valorem court-fees, the amount of which is considerable. The question involved regarding the maintainability of the appeal or the necessity for amendment was, there-fore, in substance a dispute between the appellants and Government or the revenue authorities and with this the plaintiff-respondents were only indirectly concerned. It is for these reasons that I consider that the prayer for amendment should be allowed. As a result, if the amendment is made in accordance with the terms of our order dated 28th November 1945, the appeal would proceed, but if the terms of that order are not carried out, this appeal will stand dismissed with costs as not maintainable.

    Varma, J.:— I agree.

    K.S

    10. Order accordingly.

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    Narendra Nath Sen v. Mahasay Ganesh Prasad Ray
    (Dec 4, 1945)