"Government of India" shall denote the Governor-General of India in Council or, during the absence of the Governor-General of India from his Council, the President in Council, or the Governor-General of India alone, as regards the powers which may be lawfully exercised by him or them respectively.

"Local Government" shall mean the person authorised by law to administer executive Government in the part of British India in which the Act containing such expression shall operate and shall include a Chief Commissioner.

3. The enactments specified in the first schedule hereto annexed are hereby repealed to the extent Enactments repealed. mentioned in the third column thereof. But all notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed and forms framed under any such enactment, shall, so far as they. are consistent with this Code, be deemed to be respectively published, made, appointed, filed, prescribed and framed hereunder.

References in previous

Acts.

And when in any Act, Regulation, or notification passed or issued prior to the day on which this Code comes into force, reference is made to Act No. VIII of 1859, Act No. XXIII of 1861, or the "Code of Civil Procedure," or to Act No. X of 1877, or to any other Act hereby repealed, such reference shall, so far as may be practicable, be read as applying to this Code or the corresponding part thereof.

Saving of procedure in suits instituted before 1st June 1882.

Save as provided by section 99A nothing herein contained shall affect any proceedings prior to decree in any suit instituted or appeal presented before the first day of June, 1882, or any proceedings after decree that may have been commenced and were still pending at that date.

Appeal pending on 29th July 1879.

Every appeal pending on the twenty-ninth day of July, 1879, which would have lain if this Code had been in force on the date of its presentation, shall be heard and determined as if this Code had been in force on such date; and every order passed before the same day, purporting to transfer a case to a Collector under Act No. X of 1877, section 320, and every notification published before the same day, purporting to be issued under Act No. X of 1877, section 360, shall be deemed to have been respectively passed and issued in accordance with law.

This section applies to H. C., P. S. C. C., and M. S. C. C.

As to the effect of this saving clause see Rustomji Burjoji vs. Kersowji Naik, I. L. R., 3 Bom., 161.

The proceedings were held to be governed by this Code in Elahi Buksh vs. Maruchow, I.L.R., 4 Cal., 825; 3 C.L.R., 593; and by Act VIII of 1859 in Chinto Joshi vs. Krishnaji Narayan, I.L.R., 3 Bom., 214; Narandas vs. Bai Mancha, I.L.R., 3 Bom. 217; Vidyaram vs. Chandra Shikaram, IL.R., 4 Bom., 163. See Runjit Singh vs. Meherban

Kooer; I.L.R., 3 Cal., 663; 2 C.L.R., 391; Thakur Prasad vs. Ahsan Ali, I.L.R., 1 Alla., 668; Obhoy Churn Coondoo vs. Golam Ali, I.L.R., 7 Cal., 413; Uda Begam vs. Imamudin, I.L.R., 2 Alla., 74; Syad Nadir Hossein vs. Bissen Chund Bassarat, 3 C.L.R., 437.

Enactments repealed. This will not affect proceedings commenced before the Code comes into force. See Act I, 1868, sec. 6, and the following decisions thereon, Syud Mahomed Hossein vs. Hadji Abdullah, I.L.R., 3 Cal., 727; Ratanchand Srichand vs. Hanmantrav Shirbakas, 6 Bom., A. C. J. 166; Ashootosh Dutt vs. Doorga Charn Chatterjee, I.L.R., 6 Cal., at p 508.

References to previous Acts.-See Act XIX, 1873, sections 176, 216.

4. Save as provided in the second paragraph of section 3, nothing herein contained shall be deemed to affect the following enactments (namely)

Saving of certain Acts affecting Oudh, Panjab, Central Provinces and Burmah.

The Central Provinces Courts Act, 1865:
The Burmah Courts Act, 1875:

The Panjab Courts Act, 1877 :

The Oudh Civil Courts Act, 1879:

or any law heretofore or hereafter passed under the Indian Councils Act, 1861, by a Governor or a LieutenantGovernor in Council, prescribing a special procedure for suits between landholders and their tenants or agents.

or any law heretofore or hereafter passed under the Indian Councils Act, 1861, by a Governor or a LieutenantGovernor in Council, providing for the partition of immoveable property.

And where under any of the said Acts concurrent civil jurisdiction is given to the Commissioner and the Deputy Commissioner, the Local Government may declare which of such officers shall, for the purposes of this Code, be deemed to be the District Court.

This Act will not apply to rent suits in Lower Bengal so as to interfere with any procedure laid down in Act VIII, (B.C.) of 1869.

Sections Mofussil Courts.

extending to Small Cause

5. The chapters and sections of this Code specified in the second schedule hereto annexed extend (so far as they are applicable) to Courts of Small Causes constituted under Act No. XI of 1865, and to all other Courts (other than the Courts of Small Causes in the towns of Calcutta, Madras and Bombay) exercising the jurisdiction of a Court of Small Causes. The other chapters and sections of this Code do not extend to such Courts.

Act XI of 1865, refers to Mofussil Small Cause Courts only. For how far the Code extends to the Presidency Small Cause Courts, see infra, sec. 8.

6. Nothing in this Code affects the jurisdiction Saving of Jurisdiction and or procedure

procedure

(a) of Military Courts of Request;

(a) of Military Courts of Request;

(b) of officers appointed to try small suits in Bombay;

(b) of a single officer duly appointed in the Presidency of Bombay to try small suits in military bázárs at cantonments and stations occupied by the troops of that Presidency; or (c) of Village Munsifs or Village Panchayats under the provisions of the Madras Code;

(c) of Village Munsifs

and village Panchayats

in Madras:

(d) of the Recorder of Rangoon sitting as an Insolvent Court in Rangoon, Maulmain, Akyab or Bassein;

(d) of Recorder of Rangoon sitting as an Insolvent Court.

or shall operate to give any Court jurisdiction over suits of which the amount or value of the subject-matter exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. With respect to―

Saving of certain Bom. bay laws.

(a) the jurisdiction exercised by certain jágírdárs and other authorities invested with powers under the provisions of Bombay Regulation XIII of 1830 and Act No. XV of 1840 in the cases therein mentioned, and

(b) cases of the nature defined in the enactments specified in the third schedule hereto annexed,

the procedure in such cases and in the appeals to the Civil Courts allowed therein, shall be according to the rules laid down in this Code, except where, those rules are inconsistent with any specific provisions contained in the enactments mentioned or referred to in this section.

Presidency Small Cause Courts.

8. Save as provided in sections, 3, 25, 86, 223, 225, 386, and chapter XXXIX, this Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.

But the Local Government may, by notification published in the official Gazette, extend to any such Court this Code or any part thereof, except so far as relates to appeals and reviews of judgment.

See Calcutta Gazette, October 30, 1878, p. 1173.

Division of Code.

9. This Code is divided into ten Parts, as follows:

The first Part:

The second Part:

Suits in General.

Incidental Proceedings.

OF THE JURISDICTION OF THE COURTS AND Res Judicata.

10. No person shall, by reason of his descent or place of birth, be in any civil proceeding jurisdiction by reason of exempted from the jurisdiction of any of the Courts.

No person exempt from

descent or place of birth,

This section applies to H. C. and M. S. C. C.

This section does not affect special legislation, such as that which has been provided for the care of the persons and property of minors-Re Shannon, 2 Alla., 79.

11. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is barred by any enactment for the time being in force.

Courts to try all civil suits unless specially bar. red..

Explanation.-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

This section applies to H. C.

A suit will not lie in the Calcutta High Court on a decree of the Small Cause Court-Moonshee Golam Arub vs. Curreem Bux, I. L. R. 6 Cal., 294; 4 C. L. R., 477; it will lie in Bombay-Fakirappa vs. Pandurangapa, I. L. R. 6 Bom., 7. In Calcutta, a suit may be brought on a decree of the High Court-Attermoney Dossee vs. Hurry Doss Dutt, I. L. R. 7 Cal., 74; but no such suit will lie in Bombay-see I. L. R. 6 Bom., 7. But a suit was held to lie in the Civil Court on a decree obtained in the Court of the Agent for Sirdars against defendant's father, the decree which was for payment of a sum of money by instalments having become incapable of execution on the death of defendant's father, defendant himself got being a Sirdar-Sakharam Dikshit vs. Ganesh Sathe, I.L.R., 3 Bom., 193.

A suit will not lie to set aside a certificate granted under Act XXVII, 1860– Roghoobur Dyal Singh vs. Ram Narain Koyla, 22 W. R., 312; though one for declaration of title to be used as a reason for asking the certificate to be withdrawn is

admissible-Russick Chunder Mohunt vs. Ram Lall Shaha, 22 W. R., 301. So a regu lar suit will not lie to set aside an order granting probate of a will, the grant must be contested by an application to revoke in the Court of Probate-Malyho vs. Williams, 2 Alla., 268, unless for fraud or want of jurisdiction-Komollochun Dutt vs. Nilrutton Mundle, I.L.R., 4 Cal., 360; 4 C.L.R., 175; and even a judgment-creditor who has attached-Umanath Mookhopadhya vs. Nilmoney Sing, I.L.R., 6 Cal., 429, or a mortgagee of the rent of keri – Nobeen Chunder Sil vs. Bhooboo Soonduri Dabee, I.L.R., 6 Cal., 460, may contest the grant; but no person can do so who has taken part in the probate proceedings, his remedy is, possibly, review of judgment-Soorji Jivandas, petitioner, I.L.R., 5 Bom., 638; but a decision as to the validity of a will in a suit under Act XXVII, 1860, will not be a bar between the same parties-Annund Chunder Mitter vs. Banee Madhub Mitter, 11 W. R., 127.

A decree or judgment must be considered valid until reversed or superseded. Hence, money recovered under a decree or judgment cannot be recovered back in a regular suit so long as the judgment or decree under which it was recovered remains in force-Shama Purshad Roy Chowdery vs. Hurro Purshad Roy Chowdery, 10 Moore, 211; and where money is deposited in an action under an order of Court, a separate suit will not lie for its recovery-Vaughan vs. Demetrius Elias, 7 S. D. A. Sel., 175. A suit to recover money paid to a zemindar under a Revenue Court's decree after the same amount had been paid to his gomashta will not lie— Srimati Soudamini Dassi vs. Srimati Thakomani Debi, 3 B. L. R. App., 114.

But a suit will lie for the recovery of damages for cutting and carrying crops from certain land of which the defendant had obtained possession under a decree which was set aside on appeal-Shurnomoye vs. Sukar, I. L. R., 4 Cal., 625. And when successive decrees for rent have been obtained, each depending on the first which is afterwards reversed on appeal, a suit will lie to recover the excess money paid under the other decrees-Jogesh Chunder Dutt vs. Kali Churn Dutt, I. L. R., 3 Cal., 30. A suit will lie to set aside a decree on the ground of fraud-Golab Chunder Baboo vs. Prosunno Coomaree Dabia, 20 W. R., 86; but not if the plaintiff urged fraud in the first Court after the decree had been passed and failing did not appeal, though an appeal was allowed-Rajkissen Mookerjee vs. Modhoosudan Mundul, 17 W.R., 413.

A suit will not lie for right of way over land taken up for public purposes-In the matter of H. B Fenwick, 6 B. L. R. App., 47; 14 W. R., Cr., 72. But a suit will lie to set aside the order of a Magistrate passed under section 518, Act X, 1872-Kedarnath vs. Rughonath, 6 Alla., 104; Gopi Mohun Mullick vs. Jaramoni, I. L. R., 5 Cal., 7; but not to set aside an order declaring a road public-Ujulmayi Dasi vs. Neogi, 4 B. L. R., (F. B.), 24. But such orders do not prevent the person against whom the order has been given to show in a suit that it is his own property-Laljí Ukheda vs. Jowba, 8 Bom., 94; Queen vs. Hutchins, 6 Q. B. Div., 300.

Act XIII of 1848 operates in certain cases to give to a survey award the full effect of a decree of a Civil Court by taking away from the Courts the power of entertaining any suit for contesting the justice of such award after a limited timeMokund Mooraree Biswas vs. Wooma Churn Mookerjee, 23, W.R., 173.

The Code of Civil Procedure, except so far as its provisions enact rules for appeals from subordinate Courts, does not apply to proceedings under the Military Courts of Requests Act, Act XI of 1841-Gunsam oss vs. Mooltan Mull, 2 Alla., 192. Suits regarding minors, under Act IX of 1861, are cognizable by principle Civil Courts of Districts; a Moonsiff has no jurisdiction to try them-Kristo Chunder Acharjee vs. Kashee Thakooranee, 23 W. R., 340.

A suit involving a separation and partition, with a separation of revenue upon it from the remainder of the revenue-paying estate will not lie in a Civil CourtRuttun Monee Dutt vs. Brojo Mohun Dutt, 22 W.R., 333; Kalee Mohun Sen vs. Ram Soonder Sen, 24 W. R., 243; see also Mussamut Bhurton Koeree vs. Tangore Singh, 13 W. R., 147. A suit by the owner of a fractional share of an undivided estate, for a kubooleut, will lie-Indur Chunder Doogur vs. Bindabun Beharee, 15 W. R., (F. B.,) 21. The purchaser of a share of undivided lakheraj estate has a right to apply for a separation of his share from those of the other shareholders. In such a case the Collector could not make the butwara under the provisions of Regulation XIX of 1814; the Civil Court alone would have jurisdiction, and the partition must be made by the Civil Court either by the Moonsiff or by an officer of the Court-Futteh Bahadoor vs. Jankee Bibee, 13 W. R. 74.

Where an estate is seized by the Crown by its right of conquest, and not by virtue of any legal title, such seizure must be regarded as an act of State, and is not liable to be questioned in a Municipal Court-Sirdar Bhagwan Singh vs. Secretary