Bonwari Lal Roy vs Sohan Lal Daga

Chakravartti, C.J.—There are three appeals before us by the same Appellant. Appeal No. 132 of 1952 is against an order refusing leave to defend, passed in a suit brought under Order XXXVII, Rule 1, of the Code of Civil Procedure. Appeal No. 26 of 1953 is an appeal against an order refusing stay of execution of the decree subsequently passed in the aforesaid suit. Appeal No. 25 of 1953 is against an order appointing a Receiver by way of execution.

The main appeal is Appeal No. 132. In that appeal a preliminary objection was taken that no appeal lay from the order appealed from. In my view that contention is well-founded, but before I proceed to give my reasons, it is necessary to state the facts.

The Appellant was the second of two Defendants in a suit brought under Order XXXVII, Rule 1, of the CPC on the Original Side of this Court for the recovery of Rs. 15,159-6-0 on three hundies, all executed on October 30, 1951. The amount covered by the three hundies was Rs. 14,700. The additional amount included in the claim is explained by a claim for interest.

The hundies were all drawn by Banowari Lal Roy and Company, Ltd., a private limited company, of which the Appellant Banowari Lal Roy is a director, and all were accepted by the Appellant himself. The execution of the hundies was not denied, but the defence suggested in the application for leave to defend appears to have been that a sum of Rs. 15,800 had been paid towards the amount due under the hundies for which no credit had been given. The further case of the Appellant appears to have been that Banowari Lal Roy and Company, Ltd., were the managing agents of another company, called the Bengal Breweries, Ltd. In 1948, the latter company fell into financial difficulties and thereupon its management was handed over to one Harendra Lal Chakravarty, who undertook to procure the necessary finance. To that and Harendra Lal Chakravarty is said to have introduced the Appellant to a group of Marwari money-lenders of whom the Plaintiff, Sohanlal Daga, was one. That Sohanlal Daga, it was further alleged, was used to lending money in three different names, namely, the name of himself as also Chaganlall and Sons and Chagan Lal and Company The transactions were alleged to have been put through by Harendra Lal Chakravarty and the alleged payments, or the bulk of them, were said to have been made by the same person on behalf of the Appellant, Banowari Lal Roy. It was finally alleged that if proper account was taken of all the transactions between the parties, it would be found That hardly anything was due to the Plaintiff.

The suit was brought on July 16, 1952. The above application which was made on July 31, 1952, came to be heard and disposed of by Mitter, J., on August 21 following. The learned Judge appears to have taken the view that the defence proposed to be taken was not a bona fide defence at all and he pointed out the rather striking circumstance that the dates of all the alleged payments were prior to the date of the hundies. He did not overlook the allegation made by the Appellant that the hundies sued upon were documents executed in renewal of prior hundies, but disposed of that case by saying that he did not believe the story of such renewals. Nevertheless, the learned Judge offered certain terms to the Appellant on which he was prepared to make the order prayed for, but as the Appellant was not prepared, to be put on terms, the application was dismissed. Subsequently, a decree was passed on August 29, 1952.

Appeal No. 132 is against the order of August 21. No appeal was preferred from the decree passed on August 29 following.

It was contended on behalf of the Plaintiff-Respondent that no appeal lay at all from the order of August 21, inasmuch as no appeal was provided for by the Code itself and the order could not also be treated as a ''judgment'' within the meaning of Clause 15 of the Letters Patent. It was further contended that assuming that the order was a judgment and, as such, appealable under Clause 15, still no effective relief could be given in the appeal, inasmuch as the decree subsequently passed had not been appealed from. It was pointed out that if the appeal was allowed, leave would have to be given to the Appellant to defend the suit; but inasmuch as the suit had already been disposed of by a decree, which stood unchallenged, he would find no suit to defend. In those circumstances, it was submitted that it had become impossible to entertain the appeal and to give any relief therein.

On behalf of the Appellant a careful argument was addressed to us by Mr. Dutt. He contended, in the first place, that an order of the kind appealed from in the present case must be held to be a judgment, inasmuch as thereby a right of the Appellant had been finally determined. The consequence of the order, it was pointed out, was that a decree in favour of the Plaintiff would follow as a matter of course and therefore the effect of the order was to bar out the Appellant''s defence and to declare him liable to the Plaintiff for the amount claimed. In those circumstances, so it was contended, it could not possibly be held that the order merely regulated procedure and did not in any way affect or determine any right of the parties.

It is to be noticed in the first instance that the CPC itself provides for no appeal against an order passed under Rule 3 of Order XXXVII. Order XXXVII, Rule 1, as passed by the legislature, makes the Order applicable only to the High Courts of Calcutta, Madras and Bombay, the Court of the Judicial Commissioner of Sind and certain other courts to which Sections 532 to 537 of the CPC of 1882 had already been applied. The Order portion of the Code of Civil Procedure, however, can be amended by the High Court and it appears that the right of amendment has been exercised freely. So far as this Court is concerned, a new clause, termed Clause (cc), has been added and by that addition Order XXXVII has been made applicable to all civil courts (except Courts of Small Causes) in the districts of Chittagong, Dacca, Patna and 24-Parganas.

That amendment was made by a notification, dated November 29, 1933. Similarly, the Allahabad High Court has extended Order XXXVII to any court in the Province of Agra exercising Small Cause Court powers. There have been other amendments by other Courts. What strikes one at the first instance is that if notwithstanding the fact that the Code provides for no appeal from an order passed under Rule 3 of Order XXXVII, an appeal be held, nevertheless, to lie under Clause 15 of the Letters Patent, an anomalous position will result in that an order passed under the rule by a court in 2A-Pargands will not be appealable, whereas the same kind of order passed under the same rule by a Judge on the Original Side of this Court will be. A construction of the relevant provisions of law which leads to such an anomalous result should not be adopted, unless there be any compelling reason to do so. In my view, no reason to hold that an appeal would lie under Clause 15 of the Letters Patent can be made out in the present case, inasmuch as the special type of suit contemplated by Order XXXVII is a creature of the Code and consequently if there be any right of appeal, such right must be sought for and found in the Code itself. I do not, however, propose to base my decision on that ground, since in my view even the argument based on Clause 15 of the Letters Patent must fail.

I have already referred to the reasons advanced by Mr. Dutt in support of his contention. As regards authority, he relied, in the first instance, on a decision of the Bombay High Court in the case of Ramanlal Shantilal and Company v. Chimanlal Damodardas ILR (1981) 58 Bom. 268. That case, it appears to me, has been widely misunderstood and has at times been taken as a decision on Order XXXVII, Rule 3, which it is not. The suit dealt with by that decision was a suit for recovery of the price of goods sold and delivered and the order appealed from was an order, giving the Defendants leave to defend on their depositing in court a sum of Rs. 5,000 by a specified date. The suit was brought at a time when the position in the Bombay High Court was somewhat peculiar. The High Court had amended Sub-rule (1) of Rule 2 of Order XXXVII, so as to make it comprise a wide variety of suits other than suits on negotiable instruments, such as liquidated claims under contracts, express or implied, and even suits for possession of property. Sub-rule (2) of Rule 2, however, had not been amended and that rule, which lays down what kind of decree. can be made in a suit brought under the summary procedure, continued to be confined to suits brought on negotiable instruments. The suit which the learned Judges of the Bombay High Court had before them was actually brought, not under Order XXXVII, but under certain rules of the Original Side of their Court which appear to me to be, akin to those contained in Chapter XIIIA of the Rules of our Court. It was, however, contended that the Rules of the Original Side had to be read along with the provisions of Order XXXVII and it was only in that connection that some remarks came to be made on the true scope of an order made under the Code and its appealability or otherwise. Ultimately, however, the decision was given under Rules 205 and 206 of the Bombay High Court Rules (Original Side), 1930.

It is true that of the two learned Judges who decided the case, one of them, namely, Beaumont, C.J., had certain observations to make with regard to the appealability of an order refusing leave to defend or giving leave on terms under Rule 3 of Order XXXVII. The learned Chief Justice was not able to point out anything in the language of the Code which warranted an appeal. What he said was that since an appeal would in any event lie from the decree passed and in that decree the propriety of the order refusing leave to defend or giving leave on conditions could be challenged, it would be more convenient if a right of appeal directly from the interlocutory order was conceded. It was added that in an appeal from the decree there would not be any other question that could be canvassed, because the merits would not have been gone into at all and the only matter which could be considered would be the propriety or otherwise of the order made under Rule 3 of Order XXXVII. Besides, as an order refusing leave to defend or granting leave on terms which could not be complied with, entitled the Plaintiff to a decree in terms of his plaint, an order refusing leave or granting leave on conditions appeared to the learned Chief Justice to be an order virtually determining the rights of the parties as regards the claim in the suit. Rangnekar, J., who was the other Judge associated with the learned Chief Justice, felt the difficulty created by the amendment of Sub-rule (1) of Rule 2 and the retention of Sub-rule (2) in the state in which it was originally in the Code. It was contended at the Bar that since Sub-rule (2) of Rule 2 had remained in its original condition, it could not comprise any suits other than suits on negotiable instruments although Sub-rule (1) had been amended, and, therefore, in respect of such other suits, the consequences mentioned in Sub-rule (2) of Order XXXVII could not follow. Rangnekar, J., disposed of that contention by saying that the case fell to be decided by the Rules of the Original Side under which there was no such difficulty and, therefore, he thought that since the Plaintiff would get a decree as a matter of course if leave to defend was not given or was given on conditions which could not be complied with, an appeal ought to be held to lie. In the course of the judgment of the learned Chief Justice, reference was made to certain decisions of this Court to which I shall refer later, but they were not discussed in the view that the cases turned on the Rules of this Court which were not before the learned Judges.

With great respect, it appears to me that the ground upon which the learned Judges of the Bombay High Court proceeded cannot be accepted as sound. It may be that their actual decision was right under the Rules of the Bombay High Court which required a decree to be immediately passed in terms of the plaint, if leave to defend was not given or having been given on conditions, was not availed of. But in so far as the construction they put on Order XXXVII, Rules 2 and 3, is concerned, it appears to me that they were creating by judicial decision a right of appeal on equitable considerations and considerations of convenience and not construing the provisions of the Code, as they were. I have already pointed out that if the matter be looked at purely from the point of view of the Code, it cannot possibly be contended that an appeal lies. If it be looked at from the point of view of Clause 15 of the Letters Patent, even then it cannot, in my view, be contended that an appeal lies because unlike an order made under Chapter XIIIA of the Rules of the Original Side, an order made under Rule 3 of Order XXXVII, refusing leave to defend or giving such leave on conditions, neither involves, nor is automatically followed by, a decree. As a matter of practice, the decree is passed on a subsequent date when the Judge has to make a further declaration. If nothing else requires to be proved, the service of summons, I presume, must at least be proved and if any bar of limitation appears on the surface of the plaint, that also, I presume, must be given effect to. If an order refusing leave to defend is made under any provision of law in such terms that it in itself contains the final decree, then in such a case it can, in my view, be said that the order contains an adjudication of the claim and is therefore appealable but under the scheme contained in Order XXXVII of the Code of Civil Procedure, an order under Rule 3 is not an order of that kind. It does not itself contain or involve a decree, nor is it automatically and invariably followed by a decree in terms of the plaint, notwithstanding anything contained in any other law.

That appears to me to have been the view taken in two decisions of this Court on which reliance was placed on behalf of the Plaintiff-Respondent. The first of those decisions is Sukhlal Chundermull v. Eastern Bank, Ltd. ILR (1915) 42 Cal. 735. It was held in that case that an order made by a single Judge, sitting on the Original Side, under Order XXXVII, Rule 2, of the Code of Civil Procedure, directing a Defendant to give security as a term on which leave to defend should be given was not a judgment within the meaning of Clause 15 of the Letters Patent and was not appealable. The actual order passed in that case by the trial Judge, Chitty, J., was that upon the Defendant within a fortnight from the date hereof; giving security to the satisfaction of the Registrar of this Court to the extent of the Plaintiff bank''s claim in this suit, he be at liberty to appear in and defend this suit.

It was thus an order giving leave on conditions. Dealing with that order, Jenkins, C.J., who delivered the judgment of the Court, observed that the order complained of was nut a judgment from which an appeal lay under the Letters Patent. For what a ''judgment'' meant, the learned Chief Justice referred to the decision to which reference is always made, namely, the decision of Sir Richard Couch in the well-known case of The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 B.L.R. 433. That decision, it will be recalled, defines a ''judgment'' as:

a decision which affects the merits of the question between the parties by determining some right or liability.

It is interesting to note that Jenkins, C.J., referred to the fact that there was no provision for appeal in the Code itself and added that if the case had arisen in Bombay, that circumstance would possibly have been regarded as decisive of the question against (he Appellant, but it was not very material in Bengal The meaning of that observation obviously was that, in 1915, when the decision was given, Clause (cc) had not been added by this Court to Rule 1 of Order XXXVII, and, therefore, so far as this Province was concerned, Order XXXVII was limited only to the High Court. In Bombay, the position, appears to have been otherwise and that probably was the reason which led to the observation made by the learned Chief Justice.

The other decision on which the Respondent relied was the decision in Chattu Lal Misser v. The Marwari Commercial Bank, Ltd. (1925) 30 C.W.N. 298. There, the order dealt with was one passed under Chapter XIIIA of the Original Side Rules, but their Lordships had occasion to explain more fully what the decision in Sukhlal Chundermull v. Eastern Bank, Ltd. Supra, really meant and how it was to be distinguished as not applying to cases where leave to defend was refused under Chapter XIIIA or such leave was given on conditions under that chapter. The order made in that case was one giving leave to defend on condition that the Defendants furnished security to the extent of eight lacs of rupees to the satisfaction of the Registrar by a particular date and it was added that in default of the Defendants furnishing such security within the time fixed or within such further time as the Registrar might allow, a decree shall be drawn up in this suit against the Defendants for the sum of rupees sixty-four lacs ninety thousand and nine hundred annas seven and pies eleven with the costs of this suit.

Both Sanderson, C J., and Buckland, J''., pointed out that an order in those terms not only gave leave to defend on conditions, but also contained the final decree itself which would come to be passed by a mere ministerial process in case the conditions were not complied with by the Defendants. It was on that ground that they distinguished an order made under Chapter XIIIA from an order made under Rule 3 of Order XXXVII. In fact, Buckland, J., said that but for the fact that an order under Chapter XIIIA involved an adjudication on the claim and made the order a final judgment, he did not know that he should have taken the view that he was actually taking.

Both these decisions, therefore, proceeded on the footing that an order under Rule 3 of Order XXXVII, refusing leave to defend or giving leave on conditions decided no rights, but was merely an order regulating procedure which could not be said to be a judgment within the meaning of Clause 15 of the Letters Patent. No good reason was shown before us by the Appellant why we should not follow those decisions.

It was contended by Mr. Dutt that the order dealt with by the decision in Sukhlal Chundermull v. Eastern Bank, Ltd. Supra, was a conditional order in respect of which it might perhaps be said that by itself it determined no rights, but an order, refusing leave to defend altogether, could not be said to belong to that category. In support of that contention he referred to an observation of Page, C.J., made in the case of A.S. Chettiar Firm v. V.T. Veerappa Chettiar ILR (1935) 13 Ran. 239. The suit there was a suit under Order XXXVII of the CPC and not under any special rules framed by the Court. The order passed was that the Defendants would have leave to defend, provided they paid into Court within a certain time a certain sum of money and furnished security for the balance of the claim to the satisfaction of the Court. The order said further that in the event of the Defendants failing to pay the amount in Court within the time stipulated or failing to furnish security, leave to defend would be withdrawn and the Plaintiff would be entitled to a decree for the full amount claimed. It will be noticed that this order went much further than the order passed by Chitty, J., in the case in Sukhlal Chundermull v. Eastern Bank, Ltd. Supra, because it contained, besides the conditions on which leave was granted, also a direction as regards the consequences of a failure to comply with the conditions. The order passed by Chitty, J., contained no such penalty clause or consequential direction. Nevertheless, the Rangoon High Court held that the order was not a judgment within Clause 13 of the Letters Patent of that Court, but was an order merely regulating the procedure in the suit and not determining any right or liability as between the parties. In the course of his judgment, however, Page, C.J., had occasion to refer to an observation of Rangnekar, J., in the Bombay case to which I have already referred that an order refusing leave and a conditional order granting leave stood on the same footing. The comment of Page, C.J., on that remark of Rangnekar, J., was that the two types of order referred to by the learned Bombay Judge differed toto coelo. In the opinion of the learned Chief Justice an order refusing absolutely an application for leave to defend was an order which finally disposed of the rights of the parties, whereas an order granting conditional leave did not do any such thing.

I confess that I am unable to understand on what basis any distinction can be made between the two types of order which Page, C.J., had to consider. The question under Rule 3 of Order XXXVII is whether leave to defend shall or shall not be given or shall be given on conditions. The Plaintiff will insist that leave should not be given, whereas the Defendant will claim that it should be. If leave is refused, the Defendant''s claim is negatived and if leave is granted on conditions and the conditions are not complied with, even then his claim is negatived, although its rejection may be postponed for a time. Whether or not an order under Rule 3 of Order XXXVII decides any rights as between the parties, it appears to me impossible to say that an order refusing leave determines certain rights, but an order granting leave on conditions does not. If in the latter case the conditions are not complied with, the same consequences will follow as would follow from an order refusing leave to appeal altogether.

But even assuming that the distinction made by Page, C.J., on which Mr. Dutt relied is a valid distinction, it is of no practical benefit to him in the present case, because, as I have already pointed out, the learned trial Judge offered to put the Appellant on terms, but he refused to accept the offer. The position in substance was that the learned Judge did actually make an order on terms, but the terms were not complied with in the form that they were not accepted at all, and, therefore, the position seems to me to have been in no way different from one where leave being granted on conditions, the latter are not complied with. The argument based on the Rangoon case must therefore fail, since on the facts of the present case that argument is not applicable and since the facts are directly covered by the decision in Sukhlal Chundermull v. Eastern Bank, Ltd. Supra.

It appears to me for the ''reasons I have given above that, both on principle and on authority, the conclusion is inescapable that no appeal lies from an order made under Rule 3 of Order XXXVII of the Code, either refusing leave to defend or granting such leave on conditions, since such an order is not a judgment within the meaning of Clause 15 of the Letters Patent and since no appeal is provided for by the Code.

Even assuming, however, that an appeal could be taken from the order, it appears to me that the present appeal has become infructuous, inasmuch as no appeal having been preferred from the decree subsequently passed, no effective relief can be given to the Appellant even if he makes out a case therefore. It is well-settled and one of the fundamental principles on which courts act is that they do not make ineffective orders or orders which cannot possibly be carried into effect. The decree subsequently passed not having been appealed from, stands and that means that the suit has been finally disposed of and there is at the present moment no suit to defend. Unless, therefore, it can be said that the consequence of allowing the present appeal would be to set aside the decree as well, the Appellant is in the difficulty that an order in his favour in the present appeal will be of no use to him whatsoever.

On that point it was contended by Mr. Dutt that the final decree passed was in reality consequential to the order refusing leave to defend and therefore, if he could get rid of the order which barred his defence, the consequential decree would automatically fall to the ground. According to Mr. Dutt, the analogy between a preliminary and a final decree would apply. Apart from giving that reason, he referred to a decision of the Madras High Court in the case of G. Sundaram Chettiar Vs. P.A. Valli Ammal, , a decision of Beasley, C.J. and King, J.

The Madras case is a decision on an application for stay of further proceedings by way of execution of the decree finally passed, pending the disposal of the appeal preferred from an order granting conditional leave to defend. The order passed was that the Defendant would have leave to defend on condition that he paid within one week from the date of the order, the full amount claimed in the plaint into Court. The order which was originally passed by the Master was slightly varied on appeal by a learned Judge who extended the period of one week to fourteen days and instead of requiring the Defendant to make a cash payment, permitted him to furnish security for the full amount. The order of the Appeal Court contained a further provision that upon the failure of the Defendant to furnish security within the period fixed, the application for leave to defend would stand dismissed with costs. The security was not furnished with the result that the application stood dismissed with costs, and thereafter a decree was passed. No appeal was preferred from that decree, but an appeal was preferred from the order granting conditional leave and in that appeal an application was made for stay of the execution of the decree, so long as the appeal might remain pending.

It was contended on behalf of the Plaintiff-decree-holder that the Defendant Appellant could not legitimately ask for a stay, because, not having appealed from the final decree, he would remain bound by it in any event, and consequently there was no reason why the proceedings by way of execution should be interfered with. That contention was repelled by the Court and it was held, although with hesitation twice expressed, that the decree was consequential upon the conditional order not having been complied with and therefore, if the conditional order was set aside, the decree would disappear, its basis having been removed. In support of that conclusion the learned Judges referred to certain decisions of their own Court and also to the Full Bench Decision of this Court in the case of Talebali v. Abdul Aziz ILR (1929) 57 Cal. 1013. With regard to the last mentioned case Beasley, C.J., observed as follows:

It is quite true that those cases were cases in which a preliminary decree had been passed but it seems to me, although I say so with some hesitation, that the same effect must be given to cases where a wrong order has resulted in a wrong decree.

Ultimately the Court held that it was competent to entertain an application for staying the execution proceedings, but in making the order the learned Chief Justice again said that he had come to that conclusion "with some hesitation".

It appears to me, with great respect, that the hesitation felt by the learned Chief Justice was well-founded. What was held in the case of Talebali v. Abdul Aziz Supra was that a preliminary decree in a mortgage or a partition suit was not merely an interlocutory order, but was itself a decree, as defined in the CPC and as such it was appealable. The contention which the Full Bench had to deal with was whether the passing of a final decree before an appeal from a preliminary decree was presented made such an appeal incompetent, and what was held was that a preliminary decree was appealable in its own right, if I may use that expression, and that, therefore, the passing of another decree, namely, the final decree, was immaterial. As to what would happen to the final decree if one came to be passed, but no appeal was preferred therefrom, the Full Bench held that such a final decree being a subordinate and a dependent decree, would come to nothing when the decree on which it was dependent was set aside. The reason why a final decree was dependent on the preliminary decree was stated to be that the function of the final decree was merely to restate and apply with precision what the preliminary decree had ordained. It is thus clear that the principle upon which the Full Bench proceeded was that in a mortgage or a partition suit, it was the preliminary decree which was made final and if a preliminary decree on which a final decree had been passed was itself modified or reversed, there would no longer remain any preliminary decree which had been finalised by the final decree already passed and therefore that decree would lose the basis on which it stood. It is impossible to see how that principle can apply in a case between an order passed under Rule 3 of Order XXXVII refusing leave to defend or giving conditional leave and a final decree, passed in the suit. Such an order only disposes of the question as to whether the Defendant shall or shall not be allowed to defend or whether he shall be allowed to defend on terms. It is true that it is only after excluding the defence that the court can pass a decree in terms of the plaint, but that, to my mind, does not make the final decree imposing a monetary liability upon the Defendant, a consequence of the order refusing leave to defend in the sense that it is that order which is worked out into the shape of the decree passed. The decree passed in such a case is not one which restates and applies with precision what the order refusing leave to defend or giving leave on conditions has already ordained. It deals with a quite different matter altogether and cannot be, in my view, viewed as standing in the relation of effect to the cause constituted by the order refusing leave to defend.

That being so, it appears to me that if the present appeal were to be allowed, it would not be one of the consequences that the decree already passed would disappear automatically or at all. To grant the Appellant leave to defend would, therefore, be to grant him leave to defend nothing. No court will make an order of that kind. Cases where an appeal has got to be preferred from the final decree, if any effective relief is to be had from an appeal from an interlocutory order, are by no means exceptional or unknown. Where two such appeals are required in order that actual and workable relief can be given, failure to appeal from the final decree is, in my opinion, fatal to an appeal from the interlocutory order.

It is quite true, as pointed out by Page, C.J., in the Rangoon case to which I have already referred, that although no appeal may lie from an order refusing leave to defend, the propriety of the order can be canvassed in the appeal from the decree. That right is open to the Defendant u/s 105 of the Code of Civil Procedure. It seems to me that that may have been the reason why the Code did not provide for appeals from interlocutory orders made under Order XXXVII. The order deals with summary procedure for suits and the end it aims at is certainly abridgment of the proceedings and rapidity of disposal. The Code, to my mind, did not intend to defeat itself by providing appeals from interlocutory orders and did not consider it unjust not to provide for such appeals because all points open to the Defendant could be canvassed once and for all in the appeal from the decree that would be passed. The construction which the decisions of this Court have put upon Order XXXVII, Rule 3, appears to me to be consonant with the object which Order XXXVII of the Code has clearly in view.

For the reasons given above, I hold that no appeal lies from the order appealed against and that in any event the appeal has become infructuous by reason, of the Appellant''s failure to appeal from the decree subsequently passed. The appeal (Appeal No 132 of 1952) is accordingly dismissed with costs.

In view of our decision in the principal appeal, the remaining two appeals must also be dismissed, as the Learned Counsel for the Appellant admitted, because the substance has clearly gone out of them. Appeals Nos. 25 of 1953 and 26 of 1953 are, therefore, also dismissed with costs. We assess the counsel''s fee in appeals Nos. 25 and 26 five gold mohurs in each of the appeals.

Sarkar, J.

I agree.