32; Hera Lall Chowdhry vs. Bistoo Lall Chowdhry, 22 W. R., 288; nor where no appeal lay to the lower Court-Hardyal Singh vs. Kunhya Lall, 19 W. R., 247; Chidambara Pillai vs. Kaman, 1 Mad., 189; nor where the lower Court dismissed an appeal after hearing it on the merits, though no appeal lay-Gholam Eshak vs. Hyder Mollah, W. R., Sp. No. 46; or reversed a decision and remanded the case for re-trial instead of keeping it on its own file and framing and issueGunga Monee Dassee vs. Issur Chunder Shaha, 17 W. R., 465; nor because the lower Court had admitted documents insufficiently stamped-Makbul Ahmad vs. Iftikharunissa, 7 Alla., 124; Hurchunder Ghose vs. Wooma Sunderee Dassee, 23 W. R., 170; Goluck Chunder Sein vs. Sheikh Khan Mahomed, 3 W. R., Act X, 158, made or an error in valuation not affecting jurisdiction-Kisto Churn Mojoomdar vs. Dwarkanath Biswas, 10 W. R., 32, or omitted to record an opinion on an Ameen's report -Freemutty Bindhoo Sookolany vs. Joy Pradash Singh, W. R., 1864, p. 367. Where the point is then raised for the first time, a special appeal will not lie on the ground that the plaint discloses no cause of action-Buksh Ali Sowdagar vs. Joyanut Khan. 11 W. R., 248; or has not been verified, when the defendant filed a written statement without objection...Shama Soonduree Debia vs. Rohimooddeen Sirdar, 24 W. R. 71, nor for a mistake in account... Ram Kunt Roy Chowdhry vs. Kalee Mohun Mookerjee, 22 W. R., 310; nor for hearing a case before the fixed date if the parties are present -Hukeemunnissa vs. Bibee Muckdoonun, 1 W. R., 246; nor, generally, for any error not of importance or not appealed against in the lower Court-Achumbheet Tewaree vs. Bhugwant Pandey, 1 Alla., 161, such as the admission of immaterial evidenceWatson & Co. vs. Gopee Soonderee Dosee, 24 W. R., 392.

A Vakeel cannot certify his own appeal-Thakoor Doss Mookerjee vs. Ameer Mundul, 14 W. R., 168.

Grounds of Appeal.—The grounds of special appeal should be full-Ram Kristo Deb vs. Raj Chunder Surmah, 11 W. R., 246, and specific, and should clearly indicate the error of law assigned, or the substantial error of defect in law or procedure or investigation which is imputed; and in the latter case it should be made to appear on the face of the ground of appeal that such error or defect probably produced error or defect in law in the decision on the merits, by stating what bearing the supposed error or defect had on the merits of the case-Nund Kishore Doss Mohunt vs. Ram Kulpo Roy, 15 W. R., 8; Ramaonoogra Sahoy vs. Mussamut Dhondia, 25 W. R., 140; Secunder Sikdar vs. Futteh Ali, 1 W. R., 246. The general rule as to grounds of appeal is that a party is not entitled to relief upon facts or documents not referred to or stated in the pleadings-Mahomed Zahoor Ali Khan vs. Mussamut Thakooranee Rutta Kooer, 11 Moore, 475; Nidhoo Monee Joginee vs. Kishen Nath Banerjee, 20 W. R., 442; Dwarkanath Haldar vs. Huree Mohun Roy, 20 W. R., 404, or inconsistent with them-Eshan Chunder Singh vs. Shama Churn Bhutto, 11 Moore, 7; Jowadunissa Saludai Khandan vs. Jhaman Lall Misser, 23 W. R., 158; nor any on ground which has never been considered, taken, or tried in the Courts below-Sreemuty Dassee vs. Ranee Lalahmonee, 12 Moore, 475; Protab Chunder Burooah Roy vs. Collector of Gowalparah, 22 W. R., 216; even though it be a point of law-Lalla Jwahir Lall Pandey vs. Court of Wards, 17 W. R., 214. And where parties allow a suit to be conducted in the lower Courts as if a certain fact was admitted they cannot afterwards, in a special appeal, question it, and recede from the tacit admission-Mohima Chunder Roy vs. Ram Kishore Acherjee Chowdry, 15 B. L. R., 155; Devaji Gogaji vs. Godaedbhai Godobhai, 2 Bom., 28; Gunga Phulojha vs. Gopal Oopadhya, 1 W. R., 136; and where instead of objecting to the form of a suit in the first Court they litigate on certain issues, they cannot recede from this position in special appeal-Mahomed Hashim vs. Kalee Churn Banerjee, 13 W. R., 94, and assert that the plaint disclosed no cause of actionBuksh Ali Sowdagur vs. Joy Anut Khan, 11 W. R., 248. See however-Lachman Prasad vs. Bahadur Singh, I. L. R., 2 Alla.. 884, though if the suit remanded to the first Court the appellant could do so there-Doorgaram Roy vs, Rajah Nur Singh Deb, 11 W. R., 134, a question of jurisdiction will be entertained in special appeal unless it appears clear on the face of the record-Bapuji Auditram vs. Umedbhai Hathe Sing, 8 Bom., 245, and the appellant has not waived it by not objecting-Mohammed Hossein vs. Raja Akhaya Narayan Pal, 2 B. L. R., Ap., 42. See also Aukil Chunder Sen vs. Mohinee Mohun, I. L. R., 4 Cal., 491.

were

Where the plaintiff in appeal to the District Court did not make it a ground of appeal that the lower Court had revived an ex-parte decree after the proper time, he was not allowed to make it the ground of special appeal-Boro Khasia vs. Jata Sirdar, 8 B. L. R., 78.

The plea of res judicata-Muhammad Israil vs. Chattar Sing, I. L. R.. 4 Alla., 69, and non-registration-Busuwe vs. Kulkapa, I, L. R., 2 Bom., 489, may be taken for the first time in special appeal.

Changing Nature of suit.-An appellant should not be allowed to set up a plea directly and fraudulently repudiated in the lower Court-Sutyabhama vs. Krishna Chunder, I. L. R., 6 Cal., 55; nor raise any point not raised below though there is some evidence in support of it if by any possibility the respondent might have rebutted it-ex-parte Firth, 19 Ch. Div., 419; nor should be allowed to change his suit in special appeal-Gopal vs. Hanmant, I. L. R., 6 Bom., 107, such as a suit based on benamee, to one's on want of consideration-Pariag Dutt vs. Brojo Koonwar, 9 W. R., 503; on a mowrasi, to a right of occupancy-Soorjo Koomar vs. Gungadhur Roy, 12 W. R., 81; for property as self-acquired, to a suit for a share of it as jointproperty-Hemanginie Dasse vs. Pitamber Dey, 5 W. R., 197, or as heir of A to heir of B-Kirpa Nath Mojoomdar vs. Saroda Chowdhrain, 1 W. R., 283; for property on the ground of plaintiff's father, a Hindu, having transferred it for one immoral purpose, to one for property as the joint owner under mitakshara law—Shiu Das Narain Singh vs. Bhagwan Dutt, 2 B. L. R., Ap., 15; from a suit based on den mohur, to one on heirship-Umbika Churn Dutt vs. Nadir Hossein, 11 W. R., 133. Nor unless under special circumstances from a set for confirmalion to one for recovery of possession-Terriput Sing vs. Gossain, I. L, R., 4 Cal., 46; nor from a suit for possession on a special title to one based on 2 years advise possession-Krishna Churn vs. Protab Chunder, I. L. R., 7 Cal., 560, or on possession as an occupancy ryot-Brindabun Chunder vs. Dhananjoy, I. L. R., 5 Cal. 246. And where a suit was contested on the ground whether A had purchased from B, the title of B was not allowed to be raised in special appeal-Shaikk Ahmed Mundul VS. Shaikh Sonaoollah, 8 W. R., 5; and this on the broad ground that a case should not be decided on grounds not raised in the lower Courts-Shib Suhaye Sing vs. Nursingh Lall, 22 W. R., 352; Bunnu Lall vs. Shiekh Aoladh Ahsan, id., 552; Jugdeep Narain Singh vs. Deen Dyal Lall, 20 W. R., 174, 192; Meer Bahadoor Ali vs. Mussamut Suneechuro, 6 W. R., 157. Where a Munsiff refused to examine a party's witnesses as he was satisfied without them, and the party did not raise the point when the suit was appealed-Gooroo Doss Akhoolee vs. Puran Mundle, 12 W. R., 363; Osman Singh vs. Chummun Mahtoon, 15 W. R., 87; or the first Court refused to summon his witnesses-Onooroop Chunder Mookerjee vs. Heera Monee Dossee, 11 W. R., 418; the party was not allowed to raise it in special appeal. So the competency of plaintiff to sue as agent-Soorendro Nath Roy vs. Rughoobur Deyal Awustee, 15 W. R., 392; as guardian-Thummun vs. Golab Rae, 2 Alla., 89; or as co-sharer...Nanoo Roy vs. Joomuck Lall Doss, 18 W. R., 376; whether of the value of the suit or the residence of the defendantor any other facts, such as special damage, and which is necessary for jurisdiction, has been shewn-Trilochun Doss vs. Gogun Chunder Roy, 24 W. R., 413; (but see Ramtarak Karati vs. Dinanath Mandal, 7 B. L. R., 184; Court of Wards vs. Mussamut Roop Moonjaree Kooer, 25 W. R., 260; Ramanund Roy Chowdhry vs. Urnokalee Debea, 2 W. R., 257); whether the subject in dispute had already been decided by a competent Court-Baker Mahomed vs. Seetul Chunder Sircar, 25 W. R., 28 (but see Mohesh Chunder Banerjee vs. Joy Kishen Mookerjee, 22 W. R., 362); in these and generally in all cases where the issue sought to be raised must be taken in connection with the evidence, or appears capable of explanation, it cannot be started for the first time in special appeal—Jan Ali vs. Khondkar Abdool Rahman, 14 W. R., 421. But when the objection goes to the root of the case, as that such a suit does not lie-i., or want of notice in a suit for Rejectment-Abdulla vs. Subbarayyar, I. L. R., 2 Mad., 346, or the Court has not jurisdiction, and the point manifestly arises out of the pleadings-Kalee Mohun Chutterjee vs. Kalee Kristo Roy, 11 W. R., 183; Kristo Pershad Mookerjee vs. Heeralall Audhicarry, 2 W. R., Act X, 42; Muhammad Ismail VS. Chuttar Singh, I. L. R., 4 Alla., 69, it may be raised in special appeal. Where the first Court released two defendants, the plaintiff was allowed to raise the question in special, appeal although he had not mentioned it in the first Appellate Court-Lal Mohun Sein vs. Anund Mohun Chuckerbutty, 4 W. R., Act X, 3; and where a Court admitted improperly an unregistered document in evidence, the High Court allowed the objection to be raised in special appeal, although it had not been raised in the first Court-Omatool Fatima vs. Ghunnoo Singh, 19 W. R., 23; Basawa vs. Balhapa, I, L. R., 2 Bom., 489; but where A sued for arrears of rent at an enhanced rate, and his suit was dismissed in the first Court, and in appeal he did not demand arrears at the old rate, it was held he could not do so in special appeal -Beejoy Gobind Bural vs. Janob Bromonya, 8 W. R., 252. See note at p. 80, ante.

Practice.-When a case is remanded to be tried on its merits, the question of limitation cannot be entertained in the lower Court-Mussamut Judobunsee Kooer vs. Mussamut Asman Kooer 14 W. R., 370; and a remand to try a single issue prevents the case being reopened-Syed Mooltan Alee vs. Shew Buksh, Marsh, 603; but see Pujee Jan Khatoon vs. Bykunt Chunder Chuckerbutti, 9 W. R., 380; Ram Chunder Surmah Chowdhry vs. Dagoe Khan, 10 W. R., 339.

The first Court held the suit was barred; this decision was set aside on regular appeal and the case remanded for trial on the merits. The first Court then decreed the claim, and the Appellate Court dismissed it. In special appeal it was held that though the defendant might have appealed from the first decision of the Appellate Court on the question of limitation, he could raise the same objection in cross-appeal on the plaintiff's special appeal-In the matter of Mirza Himmut Bahadur, B. L. R., F. B. R., 429.

The general affirmation of a judgment in special appeal can only refer to the points raised by the appellant, and the rejection of the appeal does not necessarily affirm the other findings of fact or law incidentally arrived at by the lower Court-Shaikh Ahmed Hossein vs. Mussamut Bandee, 15 W. R., 91. Where the lower Court decided the issue of limitation against, but the other issues in favour of, the defendant, and the High Court remanded the case without passing any judgment on the issue of limitation, it was held that when the case came up again in special appeal, the Court could enter on the question of limitationMussamut Phool Koomaree Bibee vs. Woonkar Pershad Rustoby, 7 W. R., 67; Man Singh Mahtoon vs. Bhaik Narain Mahtoon, 19 W. R., 210.

Practice. When it is stated in special appeal that the lower Court refused to examine witnesses, it is not sufficient to put in an affidavit to the effect that a verbal request of the vakeel to examine witnesses was refused. The general practice is for the pleaders to apply for examination of witnesses by petition-Ramessur Bhattacherjee vs. Shib Narain Chuckerbutty, 14 W. R., 419. See note under section 180, ante; Raj Lukhee Debia vs. Gokool Chunder, 3 Moore, 225, 226.

When a Judge states that an admission was made before him by one of the parties to the suit, the High Court cannot in special appeal enquire whether the Judge is right or wrong in making the statement-Bykuntnath Goopta vs. Prosunno Moyee Dabia, 5 W. R., 196.

Second appeal on no other grounds.

585. No second appeal shall lie except on the grounds mentioned in section 584. This section is new. It applies to H. C.

No second appeal in certain suits.

586. No second appeal shall lie in any suit of the nature cognizable in Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees.

This section applies to H. C.

In Bombay, when a suit is of a Small Cause Court nature, but a question of title has been gone into and decided in the first Appellate Court, a special appeal will lie-Dikshit vs. Dikshit, 2 Bom., 4; and this was the practice up to a late period in Bengal-Pachoo Raree vs. Gooroo Churn Dass, 15 W. R., 557: but now a special appeal will not lieHedaetoolah vs. Sheikh Karloo, 7 W. R., 73; Mohesh Mahto vs. Sheik Piru, I. L. R., 2 Cal., 470; but as this section only applies to appeals from appellate decrees and not to appeals from orders it does not prevent an appeal from an order remanding a care for re-trialCollector of Bijnore vs. Jaffer Ali Khan, I. L. R., 3 Alla., 18.

No special appeal lies in a suit for damages of any kind below Rs. 500Bheenuck Lall Mahtoon vs. Rung Lall Mahtoon, 11 W. R., 369; Gopeenath Pal vs. George, 6 W. R., 7; except for damages on account of withholding a receipt for agricultural rent. Shaybendro Geer Sunnyasee vs. Patoo Doss Basanea, 23 W. R., 304; nor in a suit by an heir for personal property valued at Rs. 200, said to have been taken from his ancestor-Kapalee Bewa vs. Keshram Kooch, 11 W. R., 93; nor in a suit for the recovery of the value of fruit alleged to have been misappropriated -Shamanund vs. Nund Koomar, 4 Agra, 290.

Any Suit. This section applies to such suits as are made cognizable under section 525 of this Code-Mussamut Banoo vs. Narain Sahoo, 13 W. R., 233; and to proceedings in execution-Debee Pershad Sing vs. Syud Delawar Ali, 12 W. R., 86.

A special appeal lies from a decree on a mortgage bond for an amount under Rs. 500, if the property is made liable-Tripoora Soondaree vs. Koylas Chunder Bose, 15 W. R., 265; but where A sued for Rs. 500 on a bond, and the suit was decreed by consent, and the decree-holder got 13 beegas of land instead of money, it was held that this did not change the nature of the suit so as to give an appeal-Talun Bibee vs. Tenoo Bibee, 15 W. R., 65. A special appeal will lie from a decree for possession of six decrees valued less than Rs. 500, with declaration of power to execute them-Balam Das vs. Babu Dwarka Das, 7 Alla., 88; and from a decree in a suit of a Small Cause Court nature, where the suit is wrongly brought in the ordinary Court-Debukee Nundun Sein vs. Mudhoo Muttee Goopta, 24 W. B., 478.

Provisions as to second

587. The provisions contained in chapter XLI shall apply as far as may be to appeals under this chapter, and to the execution of decrees passed in such appeals.

appeal.

This section applies to H. C.

The Appellate Court in special appeal can remand a case for re-trial-Wazeer Ali vs. Kalee Coomar Chuckerbutty, 11 W. R, 228; or for a finding on an issue-Lalla Ram Lall vs. Mohurput Roy, 21 W. R., 52; and in Bengal can allow a cross appeal to be raised on any point which might have been taken by regular appeal-Hills vs. Ishore Ghose, Marsh., 151; not so in Madras-Makudu Ravulan vs. Mastan Sahib, 1 Mad., 132.

CHAPTER XLIII.

OF APPEALS FROM ORDERS.

588. An appeal shall lie from the following orders under this Code and from no other such

Orders appealable.

orders :

(1) orders under section 20, staying proceedings in a suit; (2) orders under section 32, striking out or adding the name of any person as plaintiff or defendant;

(3) orders under section 36 or section 66, directing that a party shall appear in person;

(4) orders under section 44, adding a cause of action; (5) orders under section 47, excluding a cause of action; (6) orders returning plaints for amendment or to be presented to the proper Court;

This means the Court of first instance... Bindesheri Chaubey vs. Nundee, I. L. R., 3 Alla., 456.

(7) orders under section 111, setting-off, or refusing to setoff, one debt against another;

(8) orders rejecting applications under section 103 (in cases open to appeal) for an order to set aside the dismissal of a suit ;

(9) orders rejecting applications under section 108, or an order to set aside a decree ex-parte;

(10) orders under sections 113, 120 and 177;

(11) orders under section 116 or section 245, rejecting, or returning for amendment, written statements or applications for execution of decrees;

(12) orders under sections 143 and 145, directing anything to be impounded;

(13) orders under section 162, for the attachment and sale of moveable property;

(14) orders under section 168 for attachment of property, and orders under section 170 for the sale of attached property;

(15) orders under section 261, as to objections to draftconveyances or draft-endorsements;

(16) orders under section 294, the first paragraph of section 312 or section 313, for confirming, or setting aside, or refusing to set aside, a sale of immoveable property;

(17) orders in insolvency-matters, under section 351, section 352, section 353 or section 357;

An appeal lies from an order refusing to grant an application to be made by an insolvent -Nubbi Bakal vs. Chasni, I. L. R., 6 Cal., 168; 7 C. L. R., 282.

(18) orders under section 366, paragraph two, section 367 or section 368;

(19) orders rejecting applications under section 370 for dismissal of a suit;

(20) orders under section 371, refusing to set aside the abatement or dismissal of a suit;

(21) orders disallowing objections under section 372;

(22) orders under section 454, section 455 or section 458, directing a next friend or guardian for the suit to pay costs;

(23) orders in interpleader-suits under section 473, clause (a), (b) or (d), section 475 or section 476;

(24) orders under section 479, section 480, section 485, section 492, section 493, section 496, section 497, section 502 or section 503;

(25) orders under section 514, superseding an arbitration;

(26) orders under section 518, modifying an award;

(27) orders of refusal under section 558, to re-admit, or under section 560 to re-hear, an appeal;

(28) orders under section 562, remanding a case;

An order remanding a Small Cause Court can for re-trial is appealable though none would lie from the final decree-Collector of Bijnore vs. Jafar Ali, I. L. R., 3 Alla., 18.

When a case is remanded by the lower Appellate Court and an appeal is preferred against the order of remand, the High Court is not restricted to a consideration merely of the form of the order but may examine it on its merits-Loke Mahtoon vs. Ajail Lal, C. L. R., 465,