1. This appeal is directed against an order of remand bywhich the Court of Appeal below has ordered a re-trial of the suit on themerits. The plaintiff-respondent instituted the suit for a declaration of histitle to a one-ninth share of certain properties alleged to be jointly owned byhim and the principal defendant and for recovery of possession thereof. Thedefendants resisted the claim on the merits, on the ground that the propertieswere not joint properties as alleged by the plaintiff. They also contended thatthe suit was barred by the provisions of sections 43 and 44 of the Code ofCivil Procedure of 1882. The Court of first instance gave effect, to thiscontention and dismissed the suit. Upon appeal the District Judge has held thatthe suit is not barred under section 43 in view of the decision of this Courtin the case of Jogendra Nath Roy v. Baladeb Das : 12 C.W.N.127 : 6 C.L.J. 735. He has not considered the question whether the suit is oris not barred under the provisions of section 44 of the Code of 1882. Upon themerits he has held that there has been no proper trial at all, inasmuch asimportant questions were disallowed during the examination of witnesses andsufficient opportunity was not afforded to the plaintiff to adduce evidence insupport of his claim. In this view, the District Judge has allowed the appealpreferred to him and remanded the case for re-trial.

2. In support of the present appeal preferred by thedefendants, three contentious have been urged, namely, first, that the suit isbarred under section 43 of the Code of 1882; secondly, that the suit if barredunder section 44; and thirdly, that he remand has been made under circumstancesnot contemplated by the Code of Civil Procedure. In our opinion, there is no substancein any of these contentions.

3. In so far as the first contention is concerned, reliancehas been placed upon section 43 which provides that if a plaintiff omits to suein respect of or intentionally relinquishes, any portion of his claim, he shallnot afterwards sue in respect of the portion so omitted or relinquished. Withreference to this provision of the law, our attention has been invited to thecircumstance that in 1904 the plaintiff brought a suit for partition ofproperties jointly hold by him along with the predecessors-in-interest of thedefendants. The learned Vakil for the appellant has argued that it wasobligatory upon the plaintiff to include in the previous suit for partition theclaim he has put forward in the present litigation, and that his failure toinclude the claim in this manner operates as relinquishment of his title to theproperty now in controversy. This contention was advanced in the Court ofAppeal below and was, as we have already stated, overruled by the District Judgeupon the authority of the decision of this Court in the case of Jogendra NathRoy v. Baladeb Das : 12 C.W.N. 127 : 6 C.L.J. 735. In ouropinion, the view taken by the District Judge is manifestly well founded. TheDistrict Judge has pointed out that the plaintiff was not aware, at the time ofthe institution of the suit for partition, of the existence of the propertiesnow in dispute which stood in the name of the defendants, although, accordingto the plaintiff, they are properties jointly owned by the parties; under thesecircumstances, it is impossible to hold that the plaintiff omitted to sue inrespect of or intentionally relinquished his claim to the properties now indispute. In support of this proposition, it is sufficient to refer to thedecision of the Judicial Committee in the case of Amanat Bibi v. Imdad Husain: 15 C. 800 : 15 I.A. 106, where their Lordships pointed outthat, as at the date of the previous suit, the respondent was not aware of therights on which he subsequently insisted, he was not barred; a right which alitigant possessed without knowing or ever having known that he possessed it,could hardly be regarded as "portion of his claim" within the meaningof the section in question. It may be pointed out that, an apparently differentview seems to have been taken by their Lordships in the case of Buzloor Ruheemv. Shumsoonnissa Beyum : 8 W.R. 3 : (P.C.) : 11 M.I.A. 551 atp. 604. In that case, as explained in the subsequent decision of the JudicialCommittee in Ram Hurry Mondul v. Mathoor Mohun Mondul 20 W.R. 450, twopropositions appear to have been laid down, namely, first, to ascertain whetherthe case falls within the scope of section 7 of Act VIII of 1859, the correcttest is whether the claim in the new suit is in fact founded on a cause ofaction distinct from that which was the foundation of the former suit; andsecondly, that the section included accidental error and involuntary omissionof the subject of the new suit; that is to say, if the matter was omitted to bebrought in the former suit through error or mistake, that would not prevent theoperation of the section. It is worthy of note, however, that the decision oftheir Lordships in the case of Buzloor Ruheein v. Shumsoonnissa Begum: 8 W.R. 3 : (P.C.) : 11 M.I.A. 551 at p. 604 turned upon theconstruction of section 7 of Act VIII of 1859, whereas the section to beapplied to the case before us is section 43 of Act XIV of 1882 where the wordintentionally has been introduced before the word relinquish. It is notnecessary for us to consider whether the decision of their Lordships in thecase of Buzloor Ruheem v. Shumsoonnissa Begum : 8 W.R. 3 :(P.C.) : 11 M.I.A. 551 at p. 604 can be strictly reconciled with their laterdecision in Amanat Bibi v. Imdad Husain : 15 C. 800 : 15 I.A.106 because it appears to us to be fairly clear upon section 43 of the Code of1882 that the present plaintiff cannot be said to have omitted to sue inrespect of or intentionally relinquished his claim in respect of properties thetitle to which was not brought to his notice at the time of the commencement ofthe previous suit. We may add that the same conclusion is supported by another consideration,namely, that the claim now put forward does not arise out of the same cause ofaction as lay at the foundation of the previous suit. In that suit, theallegation of the plaintiff was that it was inconvenient for him to holdjointly with the defendants their joint properties: he consequently asked thatthe joint properties might be divided between the parties. In the present case,the cause of action is that the defendants have fraudulently taken steps torecover debts which, although they stood in the name of the defendants,belonged jointly to the plaintiff and the defendants. It is obvious that thecause of action upon which the present suit is brought is distinct from thecause of action stated in the present litigation. We may also point out thatthe effect of the previous decision was to leave untouched the joint characterof the properties now in controversy. In the plaint in the unit for partitionthe plaintiff stated that he had discovered to the heat of his ability what thejoint properties were and he called upon the defendants to mention if therewore other properties jointly belonging to the members of the family so thatthey might be brought into hotch-potch and made the subject of the partitionsuit. It was open to the defendants in that litigation to take objection to theframe of the suit. They might have argued that the suit was not properlyconstituted because all the joint properties had not been mentioned in theplaint and the duty was thus cast upon them to disclose all the jointproperties which at that time were in their custody. But they omitteddeliberately to mention the properties now in controversy. The position,therefore, is the same as if the properties now in dispute were included in thescope of the previous suit but were, by consent of parties, excluded forpartition. It is thus obvious that the decree in the partition suit did notaffect either the title of the plaintiff to the properties now in dispute oralter their character as joint properties. Consequently, the plaintiff hascause of action against the defendants for partition of these properties. Theobjection, therefore, that the suit is barred under section 43 of the Code of1882 cannot be supported.

4. In so far as the second point is concerned, it is urgedthat section 44 presents an insuperable bar to the maintenance of the suit.That section provides as follows: "No cause of action shall, with theleave of the Court, be joined with a suit for the recovery of immoveableproperty or to obtain a declaration of title to immoveable property, except (a)claims in respect of mesne profits or arrears of rent in respect of theproperty claimed, (b) damages for breach of any contract under which theproperty or any part thereof is held, and (c) claims by mortgagee to enforceany of his remedies under the mortgage." The foundation of the objectionof the defendant is that one of the properties claimed by the plaintiff is amortgage decree. The Court of first instance held that the mortgage-decree wasan interest in immoveable property, as defined in the General Clauses Act, andthat consequently it was not open to the plaintiff to claim the one-ninth sharein the mortgage-decree along with the other properties in view of section 44 ofthe Code of 1882. It is sufficient for us to point out that the suit is not onefor recovery of immoveable property or to obtain a declaration of title toimmoveable property within the meaning of section 44. It was ruled in the caseof Tawell v. State Company 3 Ch. D. 629 that an action for foreclosure was notan action for recovery of laud within the meaning of the rule of the SupremeCourt Order XVII, rule 2, which corresponds with section 44 of the Code of1882. In our opinion, section 44 has no application to the circumstances of thepresent case, and the second ground must be overruled.

5. In support of the third objection taken by the appellant,it has been argued that as the suit had been tried out on the merits by theCourt of first instance, it was not competent to the Court below to make anorder of remand under Order XLI, rule 23 of the Code of 1908. It may beconceded that rule 23 had no application to the case before us. At the sametime, it cannot be doubled that the powers of a Court of Appeal under the Codeof 1908 are much wider in this respect than the powers of a Court of Appealunder the Code of 1882. This is duo to the circumstance that section 564 of theCode of 1882 which prevented a Court of Appeal from making an order of remandexcept as provided in section 562 is not reproduced in the Code of 1908. In ouropinion, the procedure adopted by the District Judge was proper under thecircumstances of the case and was perfectly competent. All the contentionsurged on behalf of the appellants, therefore, fail.

6. The result, consequently, is that this appeal isdismissed with costs. We assess the bearing fee at two gold mohurs.

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Gora Chand Haldar vs.Basanta Kumar Haldar (27.06.1911 -CALHC)