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of the respondent have been withdrawn, it is impossible for us
to decide whether the defendants have a right to remain in pos-
session after the expiry of the 30 years or not.



I would dismiss the objections with costs.

Wells, A.J. C — I concur in tlie order proposed by my
learned colleague. I wish however to add a few remarks.



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THE OUdH CASUS.



879



Tlie learned Connsel for the nppellants pressed upon us
a contention that the order of reni.-md bj a Bt-ncli of this
Court reported in 5 0. C. p. 118 wns wrong, when considered
in the liajht of a ruling of their Loi^dships of the Privy Coun-
cil published in Rampal Singh v. Balhhaddar Singh^ (!) ;
and that the Civil Courts had no jurisdiction to deal with the
present case, the Revenue Courts alone being competent to
decide the status of the ap[>ellants in a suit under section 52
of the Rent Act.

I am unable to appreciate that contention. In the case
of liampal Singh v. Balhhaddar Singh^ (1) Balhhaddar Singh
Bet up a perpetual lease in virtue of which he claimed an un-
der-proprietary right. Rumpal Singh sued for a declaration
that the defendant had no right in the village beyond that of
a lease and that he was liable to be ejected by ordinary notice
of ejectment. Counsel on both sides admitted that the Civil
Courts had no jurisdiction to make a declaration in the form
prayed for in the plaint, and so 'the question was not fully
discussed and threshed out before their Lordships. It does
not necessarily follow that the Civil Courts have no juri|-
didion in such cases because counsel admitted it in that
case. So much I think is indisputable that the Civil
Courts have no jurisdiction to decide whether the appellant
in the case of Rampal Singh v. Balhhaddar Singh (1) and the
appellants in the present case are liable to be ejected by ordi^
nary notice of ejectment. I certainly think it may be for
the Revenue Courts to decide whether there is at presetit
subsisting in favour of the appellants a lease in consequence
of which they can only be ejected by a suit under section
52 of the Rent A«t and not by a notice of ejectment.
But a perpetual lease does not constitute any one an nnder-
proprietor. If the respondent in this case had brought a suit
nnder section 52 in the Revenue Court there is no doubt that
the first plea raised wouW have been that the appellants are un-
der-proprietors. It is to be observed that they claim under-pro-.



Mnhe^har'

Parehail aiul

others

r.

Babti

Muhammad

Ewaz AU

Jkbaa.



(1)' I. L. B. 26A11.1.



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3.S0



THE OUDH CASES.



[Vol. VIT.



Parsliiui aiul
ot Iters

r,

Bnlm

Muhammad

Ewas All

Khan.



prietary rights iudepentlently of the lease and on account of
their status before ihe lease was granted or decreed. In this
respect therefore the case may be strongly difEerentiated from
the case of Rampal Singh v. Balhhaddar Singh,

It has not been contended here by the learned Counsel for
the appellants that any Court but the Civil Court can dispose
of claim for a pure and simple under-proprietary right.
In the ejectment proceedings the appellants set up such
a right and in the plaint in the present suit the res[)ondent
alleged that he had to bring this suit in consequence of the
appellants' denial of their status as tenants. It was the fact
that the Revenue Courts doubted whether the appellants were
tenants or under-proprietors which led to the present suit.
This suit now that the respondent has withdrawn his objection
under section 561, Civil Procedure Code, is merely a clearing
of the ground as to the matter of under-proprietary ri^^ht
before further proceedings are taken in the Revenue Courts.
1 see nothing in the raling in Rampal Singh v. Balhhad-
dar Singhy which shows that this Court cannot deal with the
<^estion of under-proprietary right as apart from any rights
created by the lease, or that the order of remand by the for-
mer Bench of this Court was erroneous.

In connection with this ruling I would say something as
to limitation. It has been argued that the ruling shows that
the decision of a Bench of this Court in the case of Tliakur
ChJuitardhari Singh v. Bahgwandin (I) is erroneous.
As noticed by my learned colleagae there is the circum-
Btance in the present case that the appellants set up their under-
proprietary right in 1893' during the currency of their lease
and thus the case differs from that of Rampal v. Balhhaddar^
But I would observe that the peculiar circumstances of
such a case as the present were not under the consideration
of their Lordships of the Privy Council when they decided

(1) 7 0. C. 187.



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THE OUDH CASES.



381



Rampal Singh v. Balhhaddar Singh, In that case a fresh and
substantial claim under a lease was set up but the present
case is I think an illustration of the extreme hardship which
would be inflicted on landlords in Oudh if they were
obliged to bring a suit for a declaratory decree against
every tenant who sets up a plea of under-proprietary right
in a case of phjection to ejectment by notice, or miscellaneous
revenue proceeding, under the penalty of the tenant acquiring
a title by adverse possession if the suit was not brought within
limitation commencing from the first assertion of the title, though
the claim had been rejected or ignored by the Revenue Court.
Here we have a case in which people whose title i to under-
proprietary right had been finally disposed of by the chief'
Court in the province alleging in a miscellaneous proceeding
that they had such a title. The Revenue Court ignored the
allegation and the respondent was justified in treating it with .
contempt.

I may say from several years' experience as a reveune
officer in Oudh that when a Thakur or a Brahman tenant was
served with a notice of ejectment he generally filed an objection
prepared by a petition writer who usually headed the objection
with an allegation of under-proprietary right. The notice
would often be upheld and the tenant having paid up his rent
or come to terms would be permitted to continue holding.
If in all these cases the mere assertion in the petition of
objection had involved the landlord in a suit for declaration of
his title, there would have been an immense amount of
needless litigation and harassment.

There is one point more which I wish to notice as
requested by the learned Counsel for the appellants. He
specially pressed on us the argument that under Act XXVI
of 1866 the Financial Commissioner had no jurisdiction to pass
the decree of January 6th 1869. We decline to consider this
argument. The Financial Commissioner was then the final
Court of appeal in Oudh in such cases and we decline to



Mahesbar

Parshad and

others

r.

Babn

Mahammad

Ewaz Ali

Khan. •



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382



THE OUDH CASES.



[Vol. VII.



Maheshar

Parsbad and

others

r.

Babu

Muhammad

EwaE Ali

Khan.



constitute oarselvos into a Court o£ appeal from the decision
of the Financial Commissioner.

His decision finally disposed of the appellants' claim to
under-proprietary title in the whole village. With regard t6 their
claim to under-proprietary rights by way of «V, in special plots,
which might have been decreed in spite of their failure to
obtain a sub-settlement of the whole village, they have not
been able to establish the facts which under Act XXVI of 1866,
would alone entitle them to decrees for sir.

They have therefore no under- proprietary rights of any
kind left. The way is now clear for the Revenue Courts to
determine whether the lease decreed by the Financial Commis-
sioner was only a lease for 30 years. which has expired render-
ing the appellants liable to ejectment by notice or whether tlie
lease was one in perpetuity, the rent of which might be revised
after 30 years.



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GEMEAI ISmX.



:o:



A.

Page.

ACCOUNT STATED.— Ziint^fl^um Act, soh, it, art 64.'] When an account
sbewirtg reciprocal demands between two parties is made up, a
balance is stiuck, and the debtor signs an acknowledgment tbat
the balance is due, there is an account stated wit bin the meaning
of art. 64 schedule ii of the Indian Limitation Act which eyidencea
a new contract and upon which a suit may be brought,

Musammat Jhapkan r. Ram Dajal ... 166

ACCUSED, EXAMINATION OF, IN THE NATURE OP CR0S8-

BXAMINATION. See Criminal Procedure Code, ss. 164 and 364. ... 191

ACT— 1839— XXXII ^INTEREST ACTJ. See Interest on arrears of rent 116

ACT— 1858— XXXV— 8. 5. See Lunatics Estates Act s, 6 ... 354

ACT— 1866— XIII. See Redemption, suit for ... 259

ACT— 1869— L See Act I of 1877, s. 42 ... 239

ss. 8. and 10. See Oudh Estates Act, 1869, ss. 8 and 10 264

88. 8, 13, 14, 16, and 22 cl. (6) CONSTRUCTION. See

Oudh Estates Act (I of 1869) ss. 8, 13, 14, 15 and 22 cl, (fi) cons-
truction ... 24$



-s. 33. See Award made by Financial Commissioner in



dispute regarding maintenance ... 218

ACT— 1870— VII s. 7, cl. ix and s. 17. See Court Fees Act s. 7, d. ix

and 8. 17 ... 152

ACT— 1872— I (INDIAN EVIDENCE ACT) ss. 4 and ^O^Documenb
more than thirty years old, proof of— Presumption as to document
more than thirty years old, discretion of Court as regards.]
The plaintiff produced a document more than thirty years old
which purported to come from proper custody. The lower Courts
called for proof of it, and as the plaintiff failed to prove the docu-
ment formally they rejected it. There were circumstances both
internal and external which threw great doubts upon the genuine-
ness of the document.

Held, that under s. 90 of the Indian Eyidence Act read with
8. 4 of the same Act, the Court has a discretion to call for proof of
a document although it be more than 30 yean old and purports to



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ii GENERAL INDEX.

Page.

come from proper cnstodj and that nnder the circumstances of the
present case the discretion was rightly exercised.

Masammat Shafiq-an-nisa v. Khan Bahadur Raja Shaban

AliRban ... 290

ACT— 1872— I 8. 13. See Possession, suit for ... 122

s. 32. See Lunatics Estates Act (XXXV of 1858) s. 5 ... 354

s. 65 cl. [c]. See Evidence Act, s. 65 cl. [«] ... 327

ss. 65 (e) and (/) and 74 (2). See Act III of 1877

8. 57 ... 365

' IX (INDIAN CONTRCT ACT), sections 69 and 70— iZinw-



bursement of person paying money due bi/ another — Justice^ equity
and good conscience,'] The defendant was the first; mortgagee of a
Tillage. Under the terms of the mortgage he was entitled to pos-
session and he was in fact in possession when the plaintifEs, who
were puisne mortgagees of half of the village and who wished to
prove that thej were in possession paid into the Tahsil certain
6UQ1S of money on account of the land-revenue on the village, for
which the defendant was responsible and the defendant was given
the benefit of the payments made by the plaintiffs. The plain tLffs
sued the defendant for recovery of the amount of their payments.

Ileld^ that under the circumstances neither according to " the
rult^s of justice, equity and good conscience," nor under the pro-
visiuus of section 69 or section 70 of the Indian Contract Act were
the plaintiflEs entitled to recover the amount of their payments.

Najju Khan and another tr. Ram Bali ... U6
B. 73. See Interest on



arrears of rent ... 116

ACT— 1873— XIX, (N.-W.-P. LAND-REVENUE ACT). See DisquaUfied

proprietor, suit against, in his own name ... 176

ACT— 1876— XVII, 8S. 108, 112 and 121. See Pre-emption, suit for ... 284

. .. XVIII, 8. 9. See Pre-emption, suit for ... 206

88. 10 AND 11. See Pre-emption, suit for ... 237

(Oudh Laws Act) chapter l\. See Pre-emption, suit for 31

ACT— 1877— I (SPECIFIC RELIEF ACT, 8. i2 - Declaratory decree^
Jlerersioner suit hy^ against Taluqdar's widow — Discretion of Court
^Oudk Estates Act I of 1869.1 J. 5 died on the 4th June 1877
possessed of a taluka, governed by the Oudh Estates Act (I of
1869). He left three widows and the first appellant as the first
married of the widows succeeded to the taluka. The other widows
subsequently died. On the 25th December 1896 the first appellant
executed a will by which she purported to declare the second ap-
pellant, her sister's son, as her heir and successor to the estate, and
the will w(^ Bab0eqnei}tly^duly roistered. The respondent sued



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GENERAL INDEX. iii

Page

the appellants, alleging himself to be the next reversionary heir
to the estate. He contended that the first appellant's will was
inralid for the purpose of transfering the estate, and he asked for
a declaratory decree to that effect. The appellants denied that the
first appellant was in possession as a Hindu widow and contended
that she was absolute owner of the estate under an oral will of her
husband, and that the mere execution of a will did not give the
respondent a cause of action to obtain a declaratory decree. The
Court of first instance granted the decree as prayed, and that
decree was affirmed on appeal by the Court of Judicial
Commissioner.

Under s. 42 of the Specific Relief Act, 1877, a claim to a dec-
laratory decree is not a matter of right but rests with the
judicial discretion of the Courts. Considering the circumstances
of the present case it was held that the decisions of the Courts
below made in the deliberate exercise of a discretion entrusted to
them by law should not' be interfered with.

Thakurain Jaipal Eunar and another v. Bhayia Indar Bahadur
Singh ... 239

ACT— 1877— III (REGISTRATION ACT) s. 17 els. (J) and (d)

and s. 49. See Lease for quarrying lime stone. ^ ... 231

8. 50. See Registration Act

8. 50 ... U2

■ s. 57. See Evidence Act s. 65



cl.(«) ... 82T

■ 8.57. — Certified copy of regis,

tered document^ admimhility in evidence of— Public document —
Evidence Act, ts. 65 (O and (f) and 74 (2),'\ A private
document which has been registered does not become a public
document under s. 74 (2) of the Evidence Act ; and a certified
copy of it cannot te used to prove the contents of the
original either under s. 65 (e) ot (f) of that Act or under section
57 of the Registration Act.

\^Beni Pershad v. Sahai Lai and others (1) overruled ; Harish
Chunder v. Prosunna Coomar (2) referred to.]

Raj Gobardhan Singh r. Musammat Nasiban and another ... 365^



-XV (INDIAN LIMITATION ACT) SCH. II, ART. 10. See



Pre-emption, suit for ... 9S

SCH. II, arts; 10 AND



120. iS^tf Pre-emption suit for ... ... 8

• SCH. II, ART. 64. See



Account stated * ... 16S>

(1) 7 0.0^827 (2) 22W.B., 808.



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iv GENERAL INDEX.

Page.

ACT— 1877— XV (INDIAN LIMITATION ACT) SCH. Il, ARTS. 65, 120

AND 132. S0e Arrears of rent, suit for ... 108



SCH. II, ART. 91. See



Fictitious sale-deed, suit to set aside ... 319
SCH. II, ART. 113.



See Award not filed in Court within six months, enforcement of ... 369

^ SCH. II, ART. 116. See

Mortgage, suit for recorery of money due on ... 11
SCH. II, ART. 120. See



Pre-emption suit for
SCH. II, ART. 120. See



Limitation for declaratory suit by landlord against tenant after
order of Revenue Court cancelling notice of ejectment ... 187
SCH. II, ART. 142. See



Redemption, suit for ... 259

ACT — 1882 — II, ss. 88 and 90. See Purchase of mortgagor*s right by mort-
gagee at sale in execution of decree of third party ... 307

,- IV, (TRANSFER OF IPROPERTY ACT), s. 6 cl. I). See

Mortgagee of tenants holding under decree of Court, suit by
landlord for possession against ... 265

— B. 43. See Pre-
emption, suit for ... 98

88. 67 AND 99—

Suit by mortgagee far sale of equity of redemption of mortgaged
property for atnount due under a einiple money decree — Moiigage.']
In March 1893 the defendant mortgaged certain immoveable pro-
perty to the plaintiff for one lac of rupees. In March 1896 the
defendant executed a simple money-bond for Rs. 22,000 in favour
of the plaintiff on which he sued in 1898 and obtained a money-
decree for Rs. 23,385, In September 1902 in execution of this
decree he caused the mortgaged property to be attached. On the
strength of this attachment the plaintiff brought a suit in which
he claimed a decree for recovery of the amount due under the
decree by sale of the mortgaged property, i. «., the remaining
rights of the mortgagor.

Held that having regard to the provisions of s. 99 of the
Transfer of Property Act, the plaintiff*s suit was not maintainable.

The result oC , the enactment in s. 99 is that a mortgagee who
has attached the mortgaged property in execution of a decree for
the satisfaction of a claim arising under the mortgage, e. g.^ a
claim for interest may notwithstanding 8. 43 of the Code of Civil
Procedure include that claim in any suit that he may be able to
bring under s. 67 of the Act and that a mortgagee who has attached
the mortgaged property in execution of a decree for the satia&iction



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GENfiRAL INDEX. v

Page,
of a claim not arising under the mortgage must first sue on
his mortgage under s. 67, if his mortgage a<lmit8 of such a suit, so
that the mortgagor may exercise his right of redemption. Theu if
such a suit is brought and the mortgagoror any other person redeems
the mortgage it ceases to stand in the way of the execution of the
money decree and the erstwhile mortgagee may if necessary pro-
ceed to enforce his attachment by sale of the property ; if on the
other hand the mortgage is not redeemed then the property is put
up for sale and the creditor may if necessary enforce his claim
under the attachment against the surplus proceeds if any or if
only a portion of the mortgaged property has been sold against
the portion remaining unsold.

Babn Lai Sahu v. Ram Pershad and others ... 814

ACT— 1882— IV (TRANSFER OFiPROPERTY ACT) 8.85. iS«? Purchaser
in execution of decree on prior mortgage when sale takes place
after sale on subsequent mortgage ... 243

B. 87. See Foreclosure,

suit for ... 137

I ' 8. 99. See Purchase



of mortgagor's rights by mortgagee at sale in execution of decree of
third party ••• 307
8. 107. See Arrears



of rent, suit for — ^^^
^-. s. 108 cl. (c). See



Suit for value of crops distrained for arrears of rent due to landlord

by sub tenant against tenant ... 351

ACT— 1886— s. 108 cl. (15.) See Profits, suit for a share of ... 84

ACT— 1887— IX, s. 21— 'Small Cause Court suity trial of, at regular tuit
without returning of plaira for presentation to proper Court — -4;?-
pealfrom Munsifs decree in suit instituted as Small Cause Court
suit and tried as regular suit.'\ A suit was instituted in the
Munsifs Court as a Court of Small Causes. The Munsif before
delivering judgment formed the opinion that the suit was one
excluded from the jurisdiction of a Court of Small Causes and
directed that it be removed from the register of Small Cause suits
and entered in the register of regular suits. He then tried the
case as a regular suit and decreed the claim. Held, that the suit
was tried as a Small Cause Court suit and under section 27 of Act
IX of 1887 no appeal lay from the decree of the Munsif.

Kandhai Gir and others r. Bhagwant Gir and others ... 144

SCH. II, ART. 31. See Second appeal in a suit for less

than Rs. 600 ... 202

ACT— 1894— V. (N.-W.-P. AND OUDH ACT) 88. 13 and 14. See
Rural Police Rate, suit by proprietor against under-proprietors for
recovery of ••. ^^



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vi GENEfiAL INDEX.

Page.

ACT— 1901— 111 (N..W.-P. AND OUDH LAND-BEVENDE ACT)
88. 191 and 192 — Partition <jwm, transfer of-^urUdictivn of Court
of Judicial Commissioner — Code of Ciril Procedure^ t. 25 — Revenue
Court, jurisdiction o/.] The Court of the Jadicial Commissioner can
exercise no jurisdiction under s. 25 of the Code of Ciril Procedure
in respect of partition cases to which se. 191 and<192 of Act 111 of
1901 apply.

Thakur Baldeo Bux and others r. Thaknr Balbhadnr Singh ... 143

ADDITION OR SUBSTITUTION OP NAME AS PLAINTIFF IN A
8UIT BBOUOHT BT ONB NOT BKTITLVD TO BBIKO IT. See

Civil Proc^ure Code, ss. 27 and 868 ... 78

ADMISSIBILITY OF UNREGISTERED LEASE FOR QUARRYING

LIMESTONE. Sfic Lease for quarrying limestone ... 231

ADMISSION OF APPLICATION FOR REVIEW, OBJECTION TAKEN

TO, IN APPEAL. See Review ... 345

ADVERSE POSSESSION. 5tf« Redemption, suit for ... 259

ADVERSE TITLE BY TENANT, ASSERTION OF— Tenant— Deelara-
tory suit by landlord against tenant sfitting up under-jfroprietarj
title — Under-proprietor — Civil Court, jurisdiction of— Under-pro-
prietary right — Interpretation of Revenue Court's decree by Civii
Court."] It is not merely an assertion of an adverse title on the
part of a tenant which necessitates a suit for a declaration on be-
half of the landlord with respect to his title. It is only when on
the basis of such an assertion an order adverse to the landlord has
been passed by the Revenue Court, thab the landlord will be
required to file a declaratory suit.

[Thakur Chattardari Singh v. Bhagwandin (1) approved.]
When it was proved that a person was holding under w decree
which it was alleged created a perpetual lease in his favour and
that he could not claim under- proprietary rights because he or his
ancestors had never been proprietors, a mere assertion on the part
of the lessee during the currency of the lease that he was an under-
proprietor could not create an under-proprietary right in his favour
by adverse possession. [Raja Rampal Singh v. Balbhaddar Singh
(2) and Seshamma Shettati v. Chickaya Hegade (3) distinguished.
JBudesab y. Hanamanta (4) referred to.]

Held per WeUs, A. J. C. that it was within the jurisdiction of
the Civil Court to decide whether the particalar decree under which

(I) 7 O. C, 187. (2) I. L. R., 26 All., I.

(3) I. L. B., 25 Mad., 507. (4) I. L. R., 21 Bom., 509 at p. 516.



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GENERAL INDEX. vii

Page.

the appellant was holding created an under-proprietary right in
his favour.

Maheshar Parshad and others v. Babu Muhammad Ewaz All

Khan ... 872

ADVOCATE OF CHARTERED HIGH COURT. S^e Pleader, refusal by,

to accept notice of date of hearing of case ... 308

ADVOCATE, WITHDRAWAL OF, FROM CASE. See ?le&der, refusal

by. to accept notice of date of hearing of case ... 303

ALLOWANCE OF WARD GRANTED BY COURT OF WARDS, AT-

TACHMENT OF, UT EXECUTION OF DECREE AGAINST HIM. See

Court of Wards Act 1899 s. 22 ... 174

AMENDMENT OF PLAINT. See Suit in the name of an alleged minor

bynextfiiend ... 234

ANOMALOUS MORTGAGE. See Mortgage, suit for recovery of money

due on ... 11

APPEAL. See Partition, suit for ... 161

— . See Pre-emption suit for ... 359

, DISMISSAL OF, IN DEFAULT. See Pleader refusal by, to

accept notice of date of hearing of case ., 303
, DISPOSALOF BY SUBORDINATE JUDGE. See Oudh Civil

Courts Act, s. 18 cl. [3] ... 321
FROM MUNSIFS DECREE IN - SUIT '.INSTITUTED AS



SMALL CAUSE COURT SUIT AND TBIED AS BEGULAB SUIT. See
Act IX of 1887, s. 27 ... 144

APPELLATE COURT, POWER OF, TO SET ASIDE ORDER OF LOWER

COURT PUTTING OOMjPLAINANT IN POSSESSION OP TaJHHD— Code
of Criminal Procedure i, 423 cL (d) and s, 522 — Indian Penal
Code 8. 447.1 The acoosed was convicted of an offence under s. 417
oflthe Indian Penal Code and sentenced to pay a fine of Rs. 61 . An
order was also passed at the same time under s. 522 of the Code of
Criminal Procedure for putting the complainant in possession of
the land in dkpnte and for removing '.certain fencings which had
been erected by the accused. The Sessions Judge quashed the
conviction and sentence and set aside the order under s. 522 of the
Code of Criminal Procedure.

Heldy that under s. 425, ol. (d) of the Code of Criminal
Procedure the Sessions Judge ihad power to set aside the order
under s. 622 of the Code of Criminal Procedure.

Sarabdawan Singh v. Eing-Emperor and another ... 208

APLICATION BY APPELLANT FOR EXTENSION OF TIME FOR

PATMmn: OF PBIOE^ See Pre-omption, suit for ... 359

FOR BXBCUTION BY BEKAUIDAB, OF PURCHASSB
OF BIOHTS or DBOBBB-HOLDSB, Sw KxccatioD of decree ... 229



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APPLICATION FOR REVIEW FILED BEFORE FILING OF APPEAL,

JURI8DICTIQ2J OP COURT REOAHDIKO. See Review of judgment... 299

ARREARS OF RENT, SUIT BY PROPRIETOR AGAINST ONDER-

PROPRIBTOR FOR. S^tf Interest on arrears of rent ... 116

^ SUIT FOB,— Decree of Settlement Churt— Money

charged upon immovable property — Jurisdiction of Civil Court —



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