necessary for the administration of any such trust, the Advocate-General acting ex-officio, or two or more persons having a direct interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit in the High Court or the District Court within the local limits of whose civil jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree

(a) appointing new trustees under the trust;

(b) vesting any property in the trustees under the trust;

(c) declaring the proportions in which its objects are entitled;

(d) authorizing the whole or any part of its property to be let, sold, mortgaged or exchanged;

(e) settling a scheme for its management;

or granting such further or other relief as the nature of the case may require.

The powers conferred by this section on the AdvocateGeneral may, outside the Presidency-towns, be, with the previous sanction of the Local Government, exercised also by the Collector or by such officer as the Local Government may appoint in this behalf.

433.

Act No. X of 1840, section two, is hereby repealed.

This section applies to H. C.

"Persons having a direct interest :"-See Jan Ali vs. Atawar Ruhmun, 9 C. L. R., As to the difference between this section and section 339 Act X of 1877 see-Karuppa vs. Asamuga, I. L. R., 5 Mad., 383.

This section does not affect those special cases connected with religious uses in which the right of a private individual to sue has not been repealed by the Code, and any person interested in the proper observance of a religious endowment can sue on behalf of himself and all others interested to have the trust properly administered or any breach of trust that may have occurred, rectified-Kali Churn Giri vs. Golabi, 2 C. L. R., 129; Rup Narain Singh vs. Junko Bye, 3 C. L. R., 113; Radhabai vs. Chimnaji, I. L. R., 3 Bom., 27; Panch Cowrie Mull vs. Chunnoolal, I. L. R., 3 Cal., 563, and so can any representative of the person endowing the property-Brojomohun Doss vs. Hurrolall, I. L. R., 5 Cal., 700.

As to the previous practice in suits relating to charities within the jurisdiction of the Supreme Court, see as to Bombay-The Wardens of Nossa Senora da Salvacao vs. Hartmann, Perry's O. cases, 338; Doe Do. Howard vs. Pestonji Manickji, id., 535; The AdvocateGeneral vs. Damochar, id., 526, and as to Madras-The Advocate-General vs. Brodie, 4 Moore, 190; as to Calcutta-Panch Cowrie Mull vs. Chunnoolal, I. L. R., 3 Cal., 563; Buldeo Dass vs. Oodyram, 2 Tay. and Bell, 56.

By sections 14, 15, 18, Act XX, 1863, any person interested in a religious establishment may, after sanction, sue the officers connected with it for breach of trust. But that Act only applies to special officers while filling their offices-Sabapathi vs. Sabraya, I. L. R., 2 Mad., 58, in such endowments as had been or might have been under the management of Government by virtue of Reg. XIX of 1810-Kala Churn Giri vs. Golabi, 2 C. L. R., 128; Dhurrum Singh vs. Kissen Singh, I. L. R., 7 Cal., 767; Janali vs. Ram Nath Mundul, I. L. R., 8 Cal., 32; (see, however, Ganes Singh vs. Ram Gopal Singh, 5 B. L. R., App., 55); and does not apply to a suit by the members of a "Punch" to have certain dedicated property ascertained and licensed-Panch Cowrie Mull vs. Chunnoolal, 2 C. L. R., 121; nor to a suit by an officer of a religious establishment for dismissal-Syed Amir Sahib vs. Ibrahim Sahib, 4 Mad., 112; nor to compel the heir of a late manager to make good out of the property inherited by him a sum misappropriated by his father

198.

Jeyangaru Lavaroo vs. Durma Dossi, 4 Mad., 2; its scope is limited to suits charging misfeasance, malversation or neglect of duty-Agri Sharma Embrandri vs. Vishnu Embrandri. 3 Mad. Quare, if public charitable proposes" apply to the devasthan of a temple or idol dedicated merely for the purposes of the temple or idol-Radhabai vs. Chunnaji, I. L. R., 3 Bom., 27.

PART VI.

OF APPEALS.

CHAPTER XLI.

OF APPEALS FROM ORIGINAL DECREES.

Appeal to lie from all

540. Unless when otherwise expressly provided by this Code or by any other law for the time original decrees, except being in force, an appeal shall lie from the when expressly prohibited decrees, or from any part of the decrees, of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts.

This section applies to H. C.

Under the Code the directions of the law as to appeals from orders and from decrees are distinct.

Appeals lie only from the decrees or any part of them and not from the decisions of Courts of original jurisdiction-Koylas Chunder vs. Ram Lall, I. L. R., 6 Cal., 206; and if a party, wishes to appeal from a particular issue he must have it embodied in the decreeNiamut Khan vs. Phada Buldia, I. L. R., 6 Cal., 319, see however Luchman Singh vs. Mohan, I. L. R., 2 Alla., 497. In a suit to recover certain lands by setting aside a zur-ipeshgi lease the Judge dismissed the suit, although he found that part of the consideration of the lease was borrowed for necessary purposes. It was held that defendant could not appeal against the finding-Mussamut Pan Kooer vs. Bhugwunt Kooer, 6 Alla., 19; overrulingSheo Golam Singh vs. Nursing, 4 Alla., 120. So where plaintiff sued for a kaboolyat at enhanced rates, and the first Court held defendants were not protected from enhancement but dismissed the suit, the defendant was not allowed to appeal on the question of the right to enhance-Shama Soonduree Debia vs. Digumburee Debia, 13 W. R., 1; but see Soroop Chunder Paul vs. De Dombal, 1 W. R., 72. M sued B his tenant holding over, for possession of certain lands. B pleaded a right of occupancy. N and R intervened, claiming adversely to both M and B, and were made parties to the suit. The Court dismissed the suit, because i' accepted the title of the intervenors. Held, that B could not appealNoubat Rai vs. Bagrangi Lal, 6 Alla., 413.

Decree.-The word "decree" does not include orders either original or appellate upon matters arising in the course of the suit or in execution of decree-Jackson, J.-Runjit Sing and others vs. Meherban Koer, Sp. Ap. No. 360 of 1877, but does include ex-parte decrees and orders made refusing to set them aside-Luckmidas Vithaldas vs. Ebrahim, I. L. R., 2 Bom., 644; Modalatha, I. L. R., 2 Mad., 75; in re Apuch Ojha, 4 C. L. R., 18; see however Lal Singh vs. Kunjan, I. L. R., 4 Alla., 387. See note at p., ante.

If a party wishes to make the conduct of the Judge a ground of appeal, he should draw the Judge's attention to the matter by presenting a petition or otherwise-Ram Koomar Kyburto Dass vs. Sonatun Dass, 3 C. L. R., 23; see however Jardine vs. Tarini Mohan Sen, 8 B. L. R., App., 44.

In execution proceedings the formal order of the Court in which the result of the proceedings is embodied is a decree, and is appealable in all cases in which a decree is appealable, and the procedure must in such cases be governed by the provisions of the chapters which relate to appeals from decrees; clause 1, section 588, seems superfluous-In the matter of Thakoor Dass Pershad-Pioneer, June 5th.

To what Court an appeal lies-The Court to which the appeal lies depend on the actual value of the subject-matter in dispute in the original case out of which the contest may have arisen-In the matter of Duli Chand, 9 B. L. R., 190; 18 W. R.,

261; Chunderbhan Singh vs. Mahunt Jairam Geer, 5 Alla., 175; Act VI, 1871, section 22; Rayasynji Shibsanji vs. Gulam Rasul, 9 Bom., 286; Aukhil Chunder Sen vs. Mohini Mohun Dass, 4 C. L. R., 441, So also in Madras the appeal is governed not by the value of the proximate subject-matter in dispute, but by the value of the subject-matter in the original suit-Muthusami Pillai vs. Muthuchidambara Cheeti, 7 Mad., 356; Act III, 1873, section 13.

The decision of the first Court, on the question of valuation is not final for the purpose of determining jurisdiction-Brojo Coomar Sen vs. Eshan Chunder Dass, 3 C. L. R., 79.

Where an appeal is wrongly preferred to a District Court, the High Court will in special appeal set aside the judgment as made without jurisdiction although neither side objected to the jurisdiction of the Court-Aukhoy Chunder Sen vs. Mohinee Mohun Dass, 4 C. L. R., 491.

For valuation in a suit for partition, see-Ragendro Lall Gossami vs. Shama Churn Lahoory, 4 C. L. R., 417.

Who may appeal-No person can appeal unless he is a party to the suitCaemmerer vs. Birch, 1 Mad., 8, when decree is passed-Gokool Pershad Discheet vs. Brojo Monee Debia, 24 W. R., 259; see however Markham vs. Markham, 16 Ch. Div., 1; and against whom a decree has been given-Ram Dass Lushkur vs. Hureehur Mookerjea, 23 W. R., 86; see also ex-parte Ditton, 11 Ch. Div. 56, and if a suit is brought by A on behalf of himself and others, one of the class cannot appeal-Watson vs. Cave, 17 Ch. Div., 19. The representative of a party cannot appeal without an order of Court allowing his name to be entered on the register of suits -Juggoo Lal vs. Lalla Bhikun Lal, 5 W. R., 133; and if he be a purchaser, he must join his vendors-Dhunnoo Sowdagur vs. Sunnoo Bibee, 15 W. R., 106; Judooputtee Chatterjee vs. Chunder Kant Bhuttacharjee, 9 W. R., 309; unless the transfer took place early in the case and the vendee got his name substituted without objection on the part of his opponent-Moneeroodeen Mojoomdar vs Parbuty Churn Ghose, 15 W. R., 121. So it has been held that the purchaser of the right, title and interest of a defendant in a suit has no right as such to appeal from a decree passed against the defendant-Gujadhar Pershad vs. Gunesh Tewaree, 15 W. R., 485; 7 B. L. R., 149. So also it was held under Act VIII, 1859, that the name of a purchaser of the rights of a plaintiff in a suit could not be substituted for that of the plaintiffs, nor upon the application of a party so substituted could the suit be allowed to be withdrawn; but that such an order, if made, was not open to appeal, but might be brought before the High Court in the exercise of its special powers of superintendence under its charter -Judooputtee Chatterjee vs. Chunder Kant Bhuttacharjee, 9 W. R., 309.

The power to appeal is limited by the relations between the different parties. Thus, a defendant, whether interested or pro forma only, cannot appeal against a co-defendantGudadhur Banerjee vs. Mussamut Mun Mohinee Dossea, 7 W. R., 366; (but if he does, and the decree is against him, he is estopped-Kasee Chunder Roy vs. Sreemutty Doorga, 11 W. R., 410); and if a decree is passed partly in favour of, and partly against, plaintiff, and one defendant appeals against the decree in favour of plaintiff making the co-defendant a respondent, the latter need not appear, and plaintiff cannot be allowed at the hearing to raise objection to the portion of the suit dismissed against him and in favour of the other defendant-Goonomonee Dossia vs. Parbutty Dossia, 10 W. R., 326. A person who was wrongly made a party under Act VIII, section 73, appealed against the decree. The suit was remanded for trial after expunging his name. The defendant was held not debarred from appealing against the decree, after remand, although he had left the first appeal to the intervenor-Bucha Singh vs. Mirza Mashook Ali, 15 W. R., 572. Where, however, a decree was obtained against A and others, and A not appealing the decree was set aside and the case remanded on the appeal of the co-defendants, but re-affirmed by the first Court. Held, A could not appeal from the last decree-Nund Kishore Singh vs. Balmokund, 1 Shome, 12.

Stamp.-An Appellate Court has no power to receive an instrument on payment of the proper stamp and penalty unless they were tendered in the lower Court-Champabutty vs. Bibi Jibun, I. L. R., 4 Cal., 213. A cannot appeal so as to effect B's rights under the decree unless he makes B a respondent-In the matter of Ram Mohun Dey, 20 W. R., 149.

Agreement not to appeal.-If appellant agrees not to appeal no appeal will lieMunshi Amir Ali vs. Maharani Inderjeet Singh, 14 Moore, 203; Protab Chunder vs. Arratoon, 10 C. L. R., 443; and if he carries on the appeal contrary to the contract a suit for damages will lie-Jati Ran vs. Dass Ram, 3 C. L. R., 574. See also Rogober Dyal vs. East India Company, Fulton, 146.

High Court, Calcutta.-A petitioner in regular appeal should not be called upon by the department registrar to deposit the costs of translating, &c., any papers of which he has not furnished a list with a view to their inclusion in the paper book. The party or his pleader must determine the papers necessary for his case, and the Deputy Registrar must prepare his estimate and demand payment accordingly-Lalla Bhoop Narain vs. Mussamut Nawab Abassee Begum, 23 W. R., 458.

const whey move it, held that such an order madebya protin adge canothe afterwards cancelledbyte Subordinate Judge upon the 5411 I for hearing for hund PEALE FROM ORIGINAL DEGREE Cale 1.

1

APPEALS

409 Limitation.-An appeal to the Court of the district Judge must be filed within thirty days from the date of the decree appealed against-Art. 152, schedule II, Act XV, 1877, but it may be admitted after the prescribed period when the appellant satisfies the Court that he had sufficient cause for not presenting it within the period-section 5, Act XV, 1877; Flowest vs. Syud Kootub Hossein, 1 Agra, F. B., 100; but if the Court does not think the cause sufficient, the order of refusal is final-In the matter of Bhujohuree Mundul, 18 W. R., 293; Rajcoomar Roy vs. Shaikh Mahomed Walis, 7 W. R., 337; if on the other hand it admite the appeal, the decision can be contested in an appeal from the decree-Mouree Bewa vs. Soorundarnath Roy, 10 W. R., 178; Surbhai Devalji vs. Raghunathji Vasanji, 10 Bom., 397. Miscalculation of the period is not a sufficient causeZaibulnissa Bibi vs. Kulsam Bibi, I. L. R., Alla, 251; and where an appellant withdrew his appeal and thus prevented a cross appeal by the respondent, it was held that this did not constitute a sufficient reason for admitting the latter to appeal after time-Surbhai Devalji vs. Raghanathji Vasanji, 10 Bom., 397. So also where a person merely pleaded illness his application was rejected-Masoom Ali Khan vs. Panchoo Bibi, 9 W. R., Mis., 29; but the illness of a mokhtar-Anund Moyee Dossee vs. Poornoo Chunder Roy, 9 Moore, 26; or the fact that there is a review pending-Koller Singh vs. Jewan Singh, 22 W. R., 79; see B. L. R., F. B. R., 349, 728; or that the applicant has been unable to obtain a copy of the judg ment-section 541; Jagarnath Singh vs. Shewratan Singh, 15 B. L. R., 272, is sufficient. For previous practice, see Horil Pattuck vs. Bhowanee Ram, 21 W. R., 308.

Form of appeal.

541. The appeal shall be made in the form of a memorandum in writing presented by the appellant, and shall be accompanied by a copy of the decree appealed against and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.

What to accompany memorandum.

Contents of memorandum.

Such memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed against, without any argument or narrative; and such grounds shall be numbered consecutively.

Where the judgment in the case governs other cases the filing of that judgment is a substantial compliance with the section-Muthoora Nath Chuckerbutty vs. Kissen Mohun Ghose, W. R., Mis., 1864 p. 9; Bhyrub Nath Sandyal vs. Huro Soonduree, W. R., 1864, Mis. 28.

The memorandum of appeal should be presented to the Judge, and not the Moonserim : placing it on the table when the Judge is not present, is not a presentation to him-Taj Uldeen Khan vs. Mussamut Ghufoorulnissa, 3 Alla., 341.

If presented by a pleader, the grounds must have been drawn up by a pleader who shall certify that he has examined the record, and that the grounds set forth are good. Examining copies of the record is sufficient-Noor Ahmed, 17 W. R., 338. If presented by a party or his recognised agent, no pleader will be allowed to appear in support of it unless he certifies that the grounds of appeal set forth are good-Cal. Civ. Cir. O. No. 17, 1879.

The memorandum must bear a stamp according to the law in force for the time being5 Mad., xliv. The stamp_value may be made up by several stamps, though the petition is written on one sheet-Tarinee Churn Nyabachusputty vs. Taranath Gooho, 12 W. R., 449. If excess stamps have been filed the excess should be returned-In the matter of Mr. G. H. Grant, 14 W. B., 47; and if the stamps are inadequate the Court should give the appellant an opportunity of making up the deficiency before rejecting the appealNusserat Ali Chowdhry vs. Mahomed Kanoo Sikdar, 11 W. R., 541; unless the valuation affects jurisdiction-Subah Roy vs. Buldeo Singh, 24 W. R., 225; and where an appeal is tried relief cannot be limited to the portion covered by the stamps-Balo Ram Sircar vs. Ram Narain Banerjee, 10 W. R., 242.

Where appellant described the respondents as "A and others" it was held that the names of the other respondents could not be added after the expiry of the period of limitation-Himmatoonnessa, appellant, S, D., Sum, Decis. April 24, 1851.

Appellant filed an appeal against the judgment of the first Court without a copy of the decree, subsequently he filed the decree within the time allowed to appeal, and the Judge accepted it. It was held that the irregularity was cured, and the appeal should have been heard-Lallee vs. Ram Pershad, 2 Agra, 35.

Under the rules of practice adopted by the Allahabad High Court copies of judgments are not required in appeals under clause 10 of the Letters Patent and no deduction will be made from the period fixed for appealing on account of the time necessary to obtain copies of them-Fazul Mahomed vs. Phul Kuar, I. L. R., 2 Alla., 192.

A petitioner for review of an order passed under section 409, and must file a memorandum of objections in the form presented for a memorandum of appealAdarji Edulji vs. Manikji, I. L. R., 4 Bom., 414.

Appellant confined grounds set out.

to

542. The appellant shall not, without the leave of the Court, urge or be heard in support of any other ground of objection, but the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant:

Provided that the Court shall not rest its decision on any ground not set forth by the appellant, unless the respondent has had sufficient opportunity of contesting the case on that ground.

This section applies to H. C.

It is a condition precedent to an advocate or vakil being heard that some duly certified ground or grounds of appeal should have been filed. When appellant filed the grounds of appeal himself, and did not appear in person, but through a vakil, who declined to certify to the grounds of appeal, the appeal was dismissed-Kishen Chunder Roy vs. Hurish Chunder Bose, 3 W. R., 216. But if any ground has been properly filed, the Court is not confined to it, and may take into its consideration any thing in the case which either affects the regularity of the proceedings of the Court below, or relates to the correctness of the decision upon the merits-Shamachurn Chuckerbutty vs. Bindabun Chunder Roy, B. L. R., F. B. R., 900; if the decree appears on the face of it illegal it may, as a rule, be impugned at the time of argument-Poran Sookh Chunder vs. Parbutty Doss, I. L. R., 3 Cal., 612; Lachman Prasad vs. Bahadur Singh, I. L. R., 2 Alla., 884. provided the respondent has had a sufficient opportunity of meeting the case on that ground, and the Court does not go beyond the subject-matter of the appeal laid before it. A sued B for possession of property belonging to C and got a decree for one-half C's property minus X. A appealed as regards X only, and it was held that the Judge had no power to award her the whole of C's property instead of the one-half-Sharoda Soonduree Debee vs. Gobind Monee, 24 W. R., 179.

In a suit for rent one of the defendants appealed on part but, with the leave of the Court, argued against the whole decree, on the ground that a co-proprietor had not been made a defendant, and the suit was dismissed. The High Court set aside the judgment on the ground that the Judge could not entertain such an objection upon the appeal only of one of the defendants as to a small portion of the decree-Nakur Chunder Saha vs. Jadoo Nath Chuckerbutty, 24 W. R., 389.

Notes of Counsel.-Notes of counsel may be referred to in appeal-Earl De La Warr vs. Miles, 19 Ch. Div., 80.

Rejection or amendment of memorandum.

543. If the memorandum of appeal be not drawn up in the manner herein before prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.

When the Court rejects under this section any memorandum, it shall record the reasons for such rejection.

When a memorandum of appeal is amended under this section, the Judge, or such officer as he appoints in this behalf, shall attest the amendment by his signature.

This section applies to H. C.