RAJA NARSING DEB Vs. DURGARAM ROY AND OTHERS

JUDGEMENT

(1.) It appears to me that the special appeal in this case must fail on the two points which have been taken before us, the first being that the suit, as framed, will not lie. The ground of special appeal, as actually preferred, was that the plaint, as drawn by the plaintiff, is inadmissible. It appeared to me that a special appeal was not the stage at which the Court could fairly consider whether the plaint was admissible or not, because the plaint had been in fact admitted, and the parties had proceeded to trial. The pleader of the special appellant then, in modification of his ground, contended that the suit would not lie. It appears that the present suit, which was one for possession of a resumed mehal, by setting aside a settlement granted to the defendants, was at first thrown out by the Munsiff who tried it, on the ground of limitation. That decision was reversed by the lower Appellate Court, and the suit was remanded for trial on its merits. The defendant did not, in the lower Appellate Court, take any objection under Section 348 of the Code of Civil Procedure that the suit was not maintainable, and that question therefore not having been submitted to the lower Appellate Court, there has been no error in its judgment upon that ground. I am at present inclined to think that on the case going before the Munsiff on the new trial, the defendant would be at liberty to take this objection, amongst others, and if an erroneous decision be come to on this point, possibly further appeal and special appeal may lie.

(2.) The next point taken was that the lower Appellate Court was wrong in holding that the suit was not barred by Section 1, Clause 5, Act XIV of 1859, and Section 246 of the Code of Civil Procedure.

(3.) This ground also, it appears to me, is bad. The order which it is sought to make binding against the plaintiff, so as to bar the present suit, was an order passed on a claim which he preferred against the sale of the property in dispute which had been attached at the instance of an execution-creditor; and as the property of a judgment-debtor, neither of whom is the defendant in the present suit.