affecttd. If a prior incumbrancer, having notice of a puisne incumbrance,
does not, when he puts his mortgage into suit, join the puisne incum-
brancer as a party, that puisne inoumbranoer's right to redeem will not
thereby be affected. NAMDAR GHAUDHRI v. KARAM RAJI, 13 A. 315 =
11 A.W.N. (1891), 90 199
(2) Suit Non- joinder of parties Limitation Act XV of 1877, s. 22CiinJ
Procedure Code, s. 32 Partnership Right of surviving partntr to sue for
debts due to firm. Except possibly in the case of an assignment by the
other surviving partner or partnere, it is not competent to one only of two
or more surviving partners to sue for a debt due to the firm,
A Court may, under s. 32 of the Code of Civil Procedure, add a party
necessary to a suit, although it may be obliged by the Indian Limitation
Act, 1877, to dismiss the suit after such party has been added. IMAM UD-
DIN v. LILADHAR, 14 A. 524 = 12 A.W.N. (1892), 101 ... 705
(3) Civil Procedure Code. s. 311 Execution of decree Application to set aside
s&le in execution De:ree-hcldtr an'.cessaiy party to such applica'.ivn. The
decree-holder is a necessary party to an application under s. 311 of the
Code of Civil Procedure.
Hence where a judgment-debtor applied under the above-meutioned section
to have a sale in execution of a decree against him set aside and made no
attempt to implead the decree-holder until long after limitation had
expired. Held, that the application must be dismissed. ALI GAUHAR
KHAN v. BANSIDHAR, 15 A. 407 = 13 A.W.N. (1893), 173 981
4) See APPEAL, 13 A. 78 ; 13 A. 290.
(5) See CIV. PRO. CODE, S. 559, 14 A. 454.
(6) See MORTGAGE (PRIORITY), 13 A. 432.
(7) See RES JUDICATA, 13 A. 53.
See RES JUDICATA, 13 A. 309.
tSee PARTIES TO SUITS, 14 A. 524.
Limitation Application for leave to appeal in forma pauperies Subsequent
appeal in regular form Payment of Court fee on, appeal no retrospectiva
Pauper Appeal (Concluded).
effect. Where an application for leave to appeal in forma pauperis having
been presented and rejected, a regular appeal was subsequently filed, but
after the period of limitation had expired.
Held that the payment of the court-fee on the regular appeal could not be
held to relate back to the memorandum of appeal which accompanied the
application for leave to appeal as a pauper, BO as to convert that memoran-
dum of appeal into a good appeal within time Until the regular appeal
was filed there was nothing before the Court which it could treat, even
provisionally, as a memorandum of appeal. BlSHNATH PRASAD v.
DAGARNATH PRASAD, 13 A. 305 = 11 A.W.N. (1891) 99 ... 19&
Suit in forma pauperis Appeal Right of Government to appeal in respect of
Court fee en portion of plaintiff's claim dismissed Civ. Pro. Code,
ss. 411, 412. In ^ "uit in forma pavpzris the District Judge decreed the
plaintiff's claim in rt and dismissed it in part, but omitted to make any
provision for piym. ;,c to Government of the court-fee on the portion
which was dismissed. The Secretary of State, not having been a party to
the litigation in the Court below, then preferred an appeal in respect of
the court fees on that portion of the plaintiff's claim which had been dis-
Held that such an appeal would lie ; though the more suitable procedure
would have been for the Government to have applied, through the Collec-
tor, to the Court of first instance to review its judgment and to repair the
omissiou in its decree. SECRETARY OF STATE v. BHAGWANTI BlBI,
13 A. 326 = 11 A.W.N. (1891) 97
Penal Code (Act XLV of 1860).
(1) 8s. 24, 147, 391 See RIOT, 15 A. 22.
(2) 8. 148 See LATHI, 15 A. 19.
(3) S. 182 Definition of offence providtd for in s. 182, explained. In order to
constitute the offence defined in s. 182 of the Indian Penal Code it is not
necessary that the public servant to whom false information is given
should be induced to do anything or to omit to do anything in con-
sequence of such information. The gist of the offence is not what action
may or may not be taken by the public servant to whom false information
is given : but the intention or knowledge (to be inferred from bis conduct)
of the person supplying such information, QUEEN EMPRESS v. BUDH
SEN, 13 A. 351 = 11 A, W.N. (1891) 109 ... 223
(4) 8. 182 See FALSE COMPLAINT, 15 A. 336.
(5) 8. 188 See GRIM. PRO. CODE, Ss. 133, 136, 140, 13 A, 577.
(6) Ss. 191, 193 Ses CRIM. PRO. CODE, 15 A. 11.
(7) 8. 355 See GRIM. PRO. CODE, 8. 192, 14 A. 346.
(8) 8s. 361, 3(56 See MISDIRECTION OF JURY, 14 A. 25.
(9) 8, 395 See DACOITY, 15 A. 299.
(10) S. 411 See STOLEN PROPERTY, 15 A. 317.
(11) Ss. 415, 511 Bee ATTEMPT, 15 A. 173.
(12) 3s. 463, 471 See USING FORGED DOCUMENT, 15 A. 110.
(13) Ss. 511, 307, 300, 299 Attempt to commit murder Facts massaru to
constitute such attempt, Section 511 of the Indian Penal Code|does not
apply to attempts to commit murder which are fully and exclusively
provided for by s. 307 of the paid Act.
A person is criminally responsible for an a atttempt to commit murder when,
with the intention or knowledge requisite to its commission, he has done
the last proximate act necessary to constitute the completed offence, and
when the completion of the offence is only prevented by some cause
independent of his volition. QUEEN-EMPRESS v. NlDDAH, 14 A. 38 =
11 A.W.N. (1891) 176 ... 397
Bee CONTRACT ACT, 15 A. 232.
See RESTORATION OF APPEAL, 15 A. 55.
Perpetual Lease. PAGE
See LANDLORD AND TENANT, 15 A. 231.
See BIAS, 15 A. 192.
Place of Worship.
See MAHOMEDAN LEW (MOSQUE), 13 A. 419,
See VERIFICATION OF PLAINT, 15 A. 59.
Pleader and Client.
(1) Counsel and client Authority of counsel to compromise a case on behalf of
his client Nature of powtr conferred by counsel's retainer. A counsel,
unless his authority to act for his client is revoked and such revocation is
notified to the opposite side, has, by virtue of his retainer and without
need of further authority, full power to oompromise oase on behalf of
his client ; and the Court will not disturb a couipr 'use so entered into,
unless it appears that it was entered into under a mistake and that some
palpable injustice has been thereby caused to the client. JANG BAHA-
DUR SINGH v. SHANKAR RAI, 13 A. 272 (F.B.) = n A.W.N. (1891) 61 ... 170
(2) See COSTS, 15 A. 169.
(1) See ARMS ACT, Ss, 19 (/), 25, 15 A. T29.
(2) See LANDLORD ANT TENANT, 13 A. 403.
(1) Possession Ejectment Suit in ejeclinint on a possessory title Act I
I Specific Relief Act, s. 9. Per EDGE, O.J., STRAIGHT aud TYRRELL, JJ.
(MAHMOOD, J., diisentisnte).
Section 9 of the Specific Belief Act is intended to provide a special sum-
mary remedy for a person who, being, whatever bis tile, in possession of
immoveable property, is ousted therefrom,
That section does not debar a person who has been ousted by a trespasser
from the possession of immoveable property to which he has merely a pos-
sessory title, from bringing a suit in ejectment on his possessory title after
the lapse of siz months from the date of his dispossession.
Per MAHMOOD, J.
A person who is suing upon a merely possessory title to recover possession
of immoveable property against a person who has ousted him must bring
his suit, if at all, under s. 9 of Act I of 1877, and therefore within siz
months from the date of his dispossession. WALI AHMAD KHAN v.
AJUDHIA KANDU, 13 A. 537 = 11 A.W.N. (1891) 196 340
(2) Suit for recovery of possession of immoveable property Limitation Adverse
possession Burden of prcof-Act XV of 1877 (Limitation Act), s. 28.
Where a suit for the recovery of possession of imrnovaable property is re-
sisted by a plea of adverse possession for more than twelve years, the ques-
tion of limitation becomes a question of title, and it lies upon the plaintiff
in the first instance to give satiscfatory j>rima facie evidence of his posses-
sion within twelve years of the euit. JAFAR HUSAIN v. MASHQ ALI, 14
A. 193 = 12 A.W.N. (1892) 55 ... 494
(3) Practice Suit for exclusive possession Decree for joint possession, circum-
stances under which such decree miy be granted. Although under certain
circumstances in a suit for exclusive possession of immoveable property a
decree for joint possession may be given, nevertheless such a decree should
not be given unless the plaintiff asks for it and the evidence shows that
he is entitled to it. ANTU SINGH v. MANDIL SINGH, 15 A, 412 = 13 A.
W.N. (1893). 177 98*
(4) Bee FORFEITURE ACT, 8. 20, 13 A. 108.
(5) See RES JUDICATA. 14 A. 512.
Practice and Procedure.
(1) See APPEAL, 14 A. 221.
(2) Bee APPELLATE COURT, 15 A 315.
(3) Sse LIMITATION, 15 A. 123.
Practice and Procedure -(Concluded), PAGE
(4) See POSSESSORY SUIT, 15 A. 419.
(5) Sea SECOND APPEAL, 13 A. 530, 15 A. 367.
(6) See SESSIONS TRIAL, 14 A 312.
(7) See SET-OFF, 13 A. 296.
(1) Act XIX of 1873 i North-Western Provinces Land Revenus Act), as. 166,168
and 188 Act XII of 1881 (North-Western Provinces Bent Act), s. 177 In-
terpretation of statutes-Meaning ol the terms "Patti" and "Patti of a mahal
Pre-emption. The expression " patti of a Mahal " as used in s. 188 of
the North-Western Provinces Land Revenue Act (XIX of 1873) means a
division of a mahal distinct from the share of an individual oo sharer.
The right of pre-emption, therefore, which is given by the above-named
section is not ererciseable on the sale merely of the share of an individual
CD-sharer not amounting to such a division of a mahal.
Moreover the provisions of s. 188 of Act XIX of 1873 do not apply to a sale
under s. 168 of the same act of land other than that in respect of which
the arrears which it is sold to satisfy accrued.
Hence where the share of a co-sharer in an imperfect pattidari village, not
being the land in respect of which the arrears of rent, for the satisfaction
of which the said share is sold, are due, is sold under the previsions of
s. 177 of the North- Western Provinces Rent Act (XII of 1881), no right
of pre-emption can be claimed in respect of such sale.
So held by EDGE, G. J. and YOUNG, J.
MAHMOOD. J., contra. There being no statutory definition of the word
"patti" that word must be taken in its ordinary acceptation, and in that
acceptation it means the share of a pattidar, whether such share amounts
to a definite division of a Mahal or not. The exigencies of the law of
pre-emption require that in s. 188 of Act XIX of 1873 the word " patti "
should be construed in its broader signification as equivalent to any
share of a pattidar.
The words of s. 168 which provide that land sold under that section is to be
proceeded against " as if it were the land on account of which the revenue
is due under the provisions of this Act " render the incidents of sales under
B. 166, including pre-emption, applicable to sales under s. 163, with the
exception thar in such case only the defaulter's interest in the land
sold passes by the sale.
Hence a right of pre-emption would accrue under s. 188 in respect of the
compulsory sale of any share of a cc-sbarer though such share did not
amount to a " patti " iu the sense of a definite division of a mahal. BAIJ
NATH v. SITAL SINGH, 13 A. 221=11 A.W.N. (1891)68 ... ill
(2) Civil Procedure Code, s, 214 Decree for pre-emption conditioned on piyment
within fixed time Omission to state consequence of non-payment Limitation,
Where in a suit for pre-emption the decree, while decreeing the plaintiff's
. right to pre-emption upon payment of the pre-emptive price within one
month from the date of the decree, omitted to state what would be the
effect on the plaintiff's suit of non-payment within the prescribed period:
Held that the plaintiff unless he had paid the pre-emptive price before the
expiry of the said month, could not enforce his decree for pre-emption.
JAI KlSHN v. BHOLA NATH, 14 A. 529 = 12 A.W.N. (1892) 106 ... 708
(3/ Wajib-ul-arz Gift Sbankalap, No right of pre emption arises where land
is assigned without consideration as shankalp. HAR NARAIN PANDE v.
RAM PRASAD MISR, H A. 333 = 12 A.W.N, (189-2) 39 ... 580
<4) Wajib ul-arz, ccnstruction of Muhammadan Law, In a suit for pre-emption
based on a wajib-ul-arz the material words of the wajib-ul-arz under the
heading of " custom j>for pre-emption " were as follows : Attbe time a
proprietary share is transferred a right of purchase will vest, first, in a
co-sharer of the same family, and then in the other oo sharers of the
village in preference to a stranger, provided that the same price is paid by
the co-sharer as is offered by the stranger."
Held that these words were intended to define a special custom of pre-
emption, and did not merely mean that the custom of pre-emption
Pre-emption (Concluded). PAGE
according to the Mubammadan law was to be followed. JASODA NAND
v. KANDHAIYA LAL, 13 A. 373 = 11 A.W.N. (1891) 136 :... 238
( 5) Conditicnal sale Wajib-ul-arz Pre-i motion. The pre-emptional rights of
the parties to a deed of conditional sale cannot be affected by awajib-ul-arz
prepared subsequently to the execution of the deed of conditional sale,
but prior to tbe tale becoming absolute, they not being parties to the
wojib-ul arz, and the ivajib-ul are not apparently indicating any pre exist-
ing custom of pre-emption in the village. EECHAN RAI v. NAND KlS-
HOBE RAI, 14 A, 341 = 12 A.W.N. (1892) 18 ... 585
(6) Decree conditional en poyment of price stated within a fixed period, other-
wise suit to stand dismissed Non paymtnt of pre-emptive price Appeal
after txpiraticn of period fixed by decree. The plaintiff in a pre eruption
suit obtained a decree in his favour for pre-emption of the .hare in suit on
payment of a fixed sum within a period specified in the decree otherwise
his suit was to stand dismissed.
Held, tbat such plaintiff cculd appeal frcm euch decree after the period pre-
scrided therein bad elapsed without his paying in the pre-emptive price
fixed thereby, both as to the correctness of the pre-emptive price and as to
the reasonableness of tbe time allowed for payment. KODAI SINGH v.
JAISRI SINGH, 13 A. 376 (F.B.) ... 239
(7) Regulation XVII of 106, ss 1 end 8 Mortgage by conditional sale Fore-
closure Pi e-emplim, mil for Limitation Act XV tf 1811 (Indian Limi-
tation Act), sch.ii, art. 1*20. Where a mortgage by conditional sale had
been duly foreclosed in accordance with tbe procedure laid down in ss. 7
and 8 of Regulation XVII of 1806 and at the expiration of the year of
grace a portion of the mortgage money remained unpaid ; It eld in a suit
for pre-emption of the mortgaged property that the title of the conditional
vendee became absolute on tbe expiration of the year of grace, and that
the plaintiff's right of pre-emption accrued and limitation began to run
against him frcm tbe expiration of such year of grace. ALI ABBAS v.
KALKA PRASAD, 14 A. 405 (F.B.! = 12 A.W.N. (1892) 108 . ... 627
(8) Muhammadan Law Vicinage Sfparate mahals - Where an estate, originally
one, has been divided into two peparate mahals, no right of preemption
under tbe Muhammadan law will Eubsist on behalf of one of euch mahals
in respect of the other mtrely by reason of vicinage : nor will any right of
pre-emption arise from the fact that certain appurtenances to the original
maJtal are still enjoyed in common by the owners of the separated
mahals. ABDUL RAHIM KHAN V. KHARAG 8INGH, 15 A. 104 = 12 A.W.N.
(1892) 240 ... 783
(9) See MAHOMEDAN LAW PRE-EMPTION, 13 A. 407.
See SANCTION TO PROSECUTE, 15 A.
See EASEMENT, 14 A. 185.
Presentation to proper Court.
See APPELLATE COURT, 13 A. 320-
(1) See ARMS ACT, S. 19 (c) ; 15 A. 27.
(2) See EASEMENT, 15 A. 270.
Principal and Agent,
See LIMITATION ACT, Art, 120, 13 A. 368.
Principal and Surety,
(1) Si*rtty, liability of -Judgment-debtor applying to be declared an insolvent
Civil Prcc(dure Cote, ss. S36, 344. A person who executes a bond under-
taking to produce a judgment-debtor at any time when tbe Court should
direct him to do EO, and standing security under s. 336 of the Civil Proce-
dure Code for tbe judgment-debtor's applying to be declared insolvent, is
released frcm his obligation under the bond when the judgment debtor
files his petition under s. 344 to be declared insolvent, RAMZAN v.
GERARD, 18 A. 100 = 11 A.W.N. (1891) 5 ... 65
Principal and Surety (Concluded). PA
(2) Civil Procedure Code,ss. 244,336,632 Insolvency Surety for filing petition
Revision. One B. M. became surety under a. 336 of the Code of Civil
Procedure on behalf of one G.B., a judgment-debtor, to the effect that G.
B. would appear before the Court when called on, and would within one
month file an application to be declared an insolvent. G. B. did so apply,
but on the surety's asking the Court to declare him discharged of his
liability the Court is refused to do so. Held, (1) that the surety's liability
was discharged by the judgment debtor applying to be made an insolvent
and (2) that the order refusing to discharge him was not appealable was
therefore opan to revision under s. 622 of the Code. BANNA MAD v.
JMMA DAS, 15 A. 183 = 13 A.W.N. (1893), 63 ... 835
Privy Council Appeal.
See APPEAL TO PRIVY COUNCIL.
Privy Council Appeal (Criminal Case).
Bee APPEAL TO PRIVY COUNCIL, 15 A. 310.
See STAMP DUTY, 13 A. 66.
Provincial Small Cause Courts Act, 1887.
(1) S. 25 See APPEAL, 15 A. 373.
(2) S. 25 SeeClV. PRO. CODE, Ss. 203, 562, 622. 647, 13 A. 533.
(3) 8. 25 Bee BEVISION, 15 A. 139.
(4) 8. 25 See BEVISION. 13 A. 277.
(5) Boh. II, cl, 18 See BEVISION, 14 A. 413.
(6) 8. 35 See SMALL CAUSE SUIT, 13 A. 324.
(7) Son. II, ol. 6 See STANDING CROPS, 14 A, 30.
Question of Fact.
See ATTEMPT, 15 A. 173.
Question of Law.
See APPEAL, 15 A. 413,
Re-examination of prosecution witnesses.
See GRIM. PRO. CODE, 14 A. 346.
Reformatory Shools Act, 1876.
S. 22 Government Notification, (India] No. 173 of the 14th March, 1889 Sen-
fence Reformatory ScJuol. Where a boy over fourteen, but otherwise
of uncertain age, was ordered upon conviction by a Magistrate, to be
detained in a reformatory School for two years. Held that such sentence,
haying regard to the rule made by the Governor General-in-Counoil en
the 14th of March 1889, under s. 22 of Act No. V of 1876, was illegal.
The proper course for the Magistrate to have adopted with reference to
the abovementioned rules was to have ascertained as near as might be
the exact age of the offender and sentenced him to a specified period of
detention which should be that elapsing between his conviction and the
attainment by him of the age of eighteen years. QUEEN-EMPRESS v.
NARAIN, 15 A. 208 = 13 A.W.N. (1893) 107 ... 851
Sae BBS JUDICATA, 15 A. 327.
See COURT, 15 A. 141.
Registration Act (III of 1877).
(1) Sa. 3, 17, 47, 49 See STEP-IN-AID OF EXECUTION, 13 A. 89.
(2) S. 50 Registered and vnregitftred document Priority Mortgage under
registered deed compiling with auction -purchaser at a sale under a decree
on a prior unregistered mortgage deed. Under s. 50 of the Begistration Aot
the decree or order which is not to be affected by a registered document must
be a decree or order made prior to the execution and registration of the re-
gistered document. Therefore where the plaintiffs, who were mortgagees
A VII 131
Registration Act (111 of 1 877) -(Concluded). PAGE
under a registered instrument, Rued to set aside a sale to the defendants
under a decree on an unregistered mortgage, the plaintiffs' registered
mortgage being subsequent to the unregistered mortgage on which the
defendants relied, but prior to the decree thereon held that the defend-
acts, auction-purchasers, must take subject to the rights of the plaintiffs
us mortgagees. JAGRUP RAI v. RADHEY SINGH, 13 A. 288 (F.B ) = 11
A.W.N. (1891) 63 ... 181
(3) 8. 73 See COURT, 15 A. 141.
Reg XVII of 1806 [Bengal Land (Redemption and Foreclosure}.]
83. 7 and 8 See PRE-EMPTION, 14 A. 405.
Ex-proprietary tenant Reliriquishmenl of exproprietary rights Act XII of
1381 (North-Wes'ern Provinces Rent Act) , ss. 9, 31. Though an ex-proprie-
tary tenant oannot transfer bis right? as such for a consideration, there is
nothing to prevent his voluntarily relinquishing those rights. GAYA
SINGH V. UDIT SINGH, 13 A. 396=11 A, W.N. (1891) 140 ... 253
(1) Civil Procedure Code, s. 566 Rimand Court to which temand is made not
competent to delegate is functions in respicl of such remand. When a case
is remanded under s. 566 of the Code of Civil Procedure to the lower Appel-
late Court for findings on certain issues, it is not competent to that Court
to delegate the decision of those issues to a Court subordinate thereto.
SABBI v. GANESHI, 14 A. 23 = 11 A.W.N. U691) 205 ... 387
(2) Civil Procedure Code, ts. 562, 591 Appeal Objecticn to previous order in the
case Such objection to be talsen in memorandum of appeal. Unless such
objection is taken in his memorandum of appeal, it is not open to an
appellant at the hearing of an appeal from the decree to question the
validity of an order of remand previously made iu the case under s. 562 of
the Code of Civil Procedure. TlLAK RAJ SINGH v. CHAKARDHARI
SINGH, 15 A, 119 = 13 A.W.N. (1893), 14 ... 793
(3) Bee APPEAL, 15 A. 413.
(4) See CIV. PRO. CODE, Bs. 'J03, 672, 622, 647, 13 A. 533.
(5) Sse OATHS ACT, Bs. 10 & 11, 13 A. 386.
See TRESPASS, 13 A. 98.
(1) See SET-OFF, 15 A. 404.
(2) SaeUSE AND OCCUPATION, 14 A. 176.
Reply. Right of,
See SESSIONS TRIAL, 14 A. 212.
(1) Act XIX of 1873 (N.W.P. Land Rtver.ue Act), s. UZ-Cwil Ptocedun Code,
s, 13Q*est'onoftitle arising on an application for partition before a Revenue
Court, how to be determined Suit for declaration of right to partition.
Where a decree declaring a right to partition has not been given effect to
by the parties proceeding to partition in accordance with it, and the
decree has become, by lapse of time or otherwise, unenforoible, it is com-
petent to the parties, or any of them, if they still continue to be interested
in the joint property, to bring a fresh suit for a declaration of their right
to partition. Such a suit will not be barred by reason of the former decree
for partition, though that decree may operate as res judicata in respect of
any claim or defence which was, or might have been, raised in the suit in
which it was passed.
If a Revenue Oourt in disposing of an application for partition determines a
question of title, it must, in so doing, act in conformity with the provisions
of s. 113 of Act XIX of 1873. If it disposes of the application otherwise
than in the manner contemplated by s. 113, its proceedings are ultra vires
and will not debar the parties from suing in a Civil Oourt for t* declara-
tion of their right to partition, NASRAT-ULLAH v. MUJIB ULLAH, 13
A. 309 = 11 A W.N, (1891) 117 ... 195
Res Judicata (Continued). ' P.\GR
2) Civil Procedure Cods, s. 13 Finiiig in judgment in conflict wi'li terms of
decree. The decree in a suit gava the plaintiff an unrestricted right to
tbo property claimed by him, bat in the judgment on which that decree
was based it was stated, the finding apparently not being a finding on any
material issue in the suit, that the defendants were entitled to certain
rights in respect of the property decreed to the plaintiff. No application
was mde to bring the decree into conformity with the judgment, and the
decree as it stood was affirmed on appeal. Held that the defendant?, as
plaintiffs in a subsequent suit between the same parties relating to the
same property, could not plead the finding in their favour in the judg-
ment as constituting res ./ztiicato in the face of the clear wording of the
decree. INDARJIT PRASAD v. RlCHA RAI, 15 A. 3 = 12 A.W.N. (1392)
113 ... 716
(3) Civil Procedure Cede, s. 13, Expl, II Execution of decree Principle of tea
judicata as applied to extcuticn prcceedings. Where a person on his own
application was added as a party respondent to an appeal, and on the rase in
appeal being remanded under s. 562 of the Co&a of Civil Procedure for re-
trial on the merits, practically took no steps whatever to defend the suit.
Held that he could not afterwards plead, by way of objection to exenu-
tion of the decree, matters which ought to have formed part of his defpnoe