Judgement

The Appellants were the sons and heirs of Doorga Pur shad Roy Chowdery, who had in his life- time instituted a suit in the Zillah Court of the Twenty-Four Pergunnahs against the original Respondent, Tara Pur shad Roy Chowdery, who died pending the appeal, and was afterwards represented by the present Respondents. The object of that suit was to obtain a refund and recovery from the former Respondent of the sum of Rs. 23,294. 9.16 1/2. on account of principal and interest and costs; such principal money having been realized by him from Doorga Purshad Roy Chowdery, for interest which accrued on another principal sum, under a decree, dated the 12th of August, 1844, made in a suit instituted in the same Zillah Court. It appeared that this latter decree was contrary both in spirit and in terms to an Order of Her Majesty in Council of the 18th of July, 1849, made subsequently in an appeal (See Doorga Pershad Roy Chowdry v. Tarra Persad Roy Chowdry, 4 Moore’s Ind. App. Cases, 452), in another suit between the same parties involving substantially the same rights; raising the same questions of law and fact, and dealing with the same principal sum on which the

10 M.I.A. 203 ( 1863- 1866)

Shama Purshad Roy Chowdery V. Hurro Purshad Roy Chowdery

21

interest claimed and recovered by Tara Purshad Roy Chowdery in the above-mentioned suit had accrued.

The principal questions raised by the present appeal were, first, whether as the sum sought to be recovered by Doorga Purshad Boy Chowdery was obtained by the original Respondent under a decree of the Zillah Court, such decree could be pleaded, under Ben. Reg. III. of 1793, sec. 16, as a bar to the suit, notwithstanding the before-mentioned Order in Council; and secondly, whether, independently of that section of the Regulation, the money having been paid under a decree of a Court of competent jurisdiction, he was precluded from recovering in a new suit, so long as the decree under which it was recovered remained in force.

The material facts of the case are fully stated in the judgment.

At the hearing of the appeal,

Mr. Leith appeared for the Appellants, and

Mr. W. H. Melvill for the Respondents.

The case of Doorga Pershad Boy Chowdry v. Tarra Persad Hoy Chowdry (4 Moore’s Ind. App. Cases, 452), was referred to in the argument of the Appellants; and Ben. Reg. III., sec. 16, of 1793, upon the question of the suit being barred by the previous decree, was referred to and insisted on by the Respondents.

Judgment was delivered by

The Right Hon. the Lord Justice Turner [29th March, 1865] The fact of this case, so far as it is necessary to refer to them, lie in a narrow compass.

In the year 1821, Doorga Purshad, claiming to be entitled to the estate of his uncle, instituted a suit against Sharna Purshad Nundy a debtor to the uncles estate, for recovery of the sum of Rs. 23,024, principal and interest due upon a Bond. Pending this suit and in the year 1827, Tara Purshad Boy Chowdery, the original Respondent, sued Doorga Purshad for recovery of one-half of the estate of the uncle, to which he (Tara Purshad) claimed to be entitled.

In the year 1829 there was a compromise of the suit instituted by Tara Purshad against Doorga Purshad, under which compromise Tara Purshad became entitled to a six-anna share of the debt due from Shama Purshad Nundy. Subsequently to this compromise, and on the 27th of July, 1329, Doorga Purshad obtained a decree in the Provincial Court against Shama Purshad Nundy for the amount of the principal and interest due upon the bond. Prom this decree Shama Purshad Nundy appealed to the Sudder Court, and pending this appeal, and in the year 1831, there was a compromise of this suit also, which was effected by deeds, dated the 16th of May, 1831. The terms of this compromise were, that Shama Purshad should pay Rs. 24,217. 12. 17. at the end of three years, without interest, and that, in default of payment, Doorga Purshad should be at liberty to proceed and realize the amount. This