Ramjiwan Ramnath v. Roop Chand — 1955 DIGILAW 266 (RAJ)

Wanchoo, C.J —This is an appeal by Messrs Ramjiwan Ramnath against the order of the Civil Judge Merta, dismissing the application filed by the appellant against Roop Chand and others for execution of a decree obtained by them against the respondents from the Culcutta High Court on the ground that execution was barred by limitation, and there had been no revivor as contemplated by Art. 183 of the Limitation Act. 2. The facts are that the appellant obtained a decree against Chhogmal and his sons Roopchand and others, who are respondent in the present appeal, from the Calcutta High Court on the 3rd of February, 1938. The appellant got this decree transferred to Aligarh in 1949, and applied for execution by arrest of Chhogmal, judgment-debtor, in December 1949. The proceedings in the Aligarh court are said to have come to an end sometimes in 1950. Thereafter, the appellant got the decree transferred to the court at Merta and applied for execution. 3. The execution of the decree was objected to by the judgment-debtors respondents, and, among other pleas, they raised a plea that the execution was barred by time. The case of the appellant decree-holder, however, was that by virtue of the execution which took place in the Aligarh Court in 1949 50 there was revivor within the meaning of Art. 183 of the Limitation Act. The lower court has, however, held that there was no revivor under Art. 183, and has dismissed the application for execution in consequence as barred by time. The present appeal is against that order. 4. Before we consider the question whether the decree in this case was revived by the proceeding which took place in the Aligarh Court in 1949, we should like to deal with an application by the appellant for admission of certain copies of order sheets of the Aligarh court. 5. The contention on behalf of the appellant in this connection is that a request had been made to the lower court to adjourn the hearing for taking evidence in the shape of certified copies of proceeding before the Aligarh Court; but the learned Judge did not give time for that purpose. 5. The contention on behalf of the appellant in this connection is that a request had been made to the lower court to adjourn the hearing for taking evidence in the shape of certified copies of proceeding before the Aligarh Court; but the learned Judge did not give time for that purpose. An affidavit of counsel appearing on behalf of the appellant was also filed in support, and it was stated therein that the counsel had requested the court for time on the question of limitation on the ground that copies of proceeding before the court of Aligarh had not been received, but the court refused to grant time. Therefore the appellant prayed that we should admit those certified copies. 6. We have gone through the order-sheets of the court below from September, 1952, to October, 1953. There were many hearings between this period, and the order-sheets show that the case was postponed from date to date for purposes of arguments. On none of these hearings, there was ever a request by the appellant from time to produce documents. Nor was there any request that issues should be framed before arguments were heard. To say now that the court below did not frame issues is of no avail to the appellant, for, in the first place, issues are not necessarily framed when objections in execution proceedings are decided, and, in the second place, the parties would not have allowed the case to be postponed from date to date for almost a year for arguments if anybody thought that issues were necessary. It is true that an affidavit has been filed by the learned counsel appearing in the lower court that he made an oral request for adjournment on the ground of production of copies of the proceeding in the Aligarh Court. There is no mention of any such request in the order-sheet of the 24th October, 1953. We must say that if a counsel feels that any oral request of his, which is material, is being refused, it is his duty to put in an application in writing containing that request, and get an order from the court on it. There is no mention of any such request in the order-sheet of the 24th October, 1953. We must say that if a counsel feels that any oral request of his, which is material, is being refused, it is his duty to put in an application in writing containing that request, and get an order from the court on it. It is, in our opinion, not proper that this court should be asked to disbelieve the record of proceedings contained in the order-sheet on the affidavit of learned counsel, when it is open to learned counsel to make an application, and get an order in writing. In any case, so far as the present matter is concerned, we feel that we cannot rely on the affidavit filed by the learned counsel who appeared in the court below. According to him, he wanted time because he did not receive the copies which he wanted to produce. Copies have been produced in this Court, but those copies were not applied for in 1923. It seems to us therefore that counsel could hardly have asked for time to produce copies which had not been applied for till then. We would not be prepared therefore to admit the copies which the appellant wants us to admit on the ground that he was not allowed an opportunity to produce them in the court below. But we do think that these copies, which have been produced, will be useful to us in disposing of this appeal, and we, therefore, admit them under O.XL1, r, 27(1) C. P. C. 7. The decree in this case was passed in 1938, and ordinarily no fresh application for execution would lie in July, 1951, when application was made in this case before the court below in view of the provisions of sec. 48 C.P. C. The appellant, however, relied on Art. 183 of the Limitation Act which provides for revivor in cases of decrees passed by any court established by Royal Charter in the exercise of its ordinary original civil jurisdiction. 48 C.P. C. The appellant, however, relied on Art. 183 of the Limitation Act which provides for revivor in cases of decrees passed by any court established by Royal Charter in the exercise of its ordinary original civil jurisdiction. Thus a decree of the Calcutta High Could could be executed under the provision in the third column of Art. 183 within 12 years from the date of revivor, the relevant words being— "Provided that when the judgment, decree or order has been received.........the twelve years shall be computed from the date of such revivor.........or the latest of such revivors........." 8 Revivor has not been defined anywhere in the Limitation Act, but the leading case on the point is Jogindra Chandra Roy vs. Shyam Das(l) which has been followed by all the High Courts. It was opened out in that case that the term revivor was nowhere defined, but as it appeared in the Limitation Act of 1859 when there was a procedure for revivor of judgment prevalent on the original side of the Calcutta High Court, it would be only proper to construe the word revivor in the Limitation Act in that manner. The procedure was that execution could not issue upon judgments more than a year old without issuing a writ of Scirs Facias against the defendant. The learned Judges then considered the history of the writ of scire Facias and summed up the position thus at page 552— "The substance of the matter, so for as we are concerned, may therefore be thus stated. A Scire Facias is a judicial writ founded on some matter on record and having for its object the prevention of undue surprise by interposing itself as a warning between judgment and execution wherever a new party is to be charged or benefited by such execution, whenever such execution is contingent, after judgment, on the existence of certain circumstances to be first proved by the party charging; and lastly, whenever execution has been delayed beyond the specific period (a year and a day under the common law) after the judgment was signed, that delay not arising from the party charged." The learned Judges then went on to point out that it was not difficult to identify this writ substantially with the procedure embodied in sec. 248 of the Code of Civil Procedure (now equivalent to O. XXI, r. 16 and r. 22), though there are some difference in detail. Essentially, however, these two rules provide for issue of notice to the judgment-debtor when there is an assignment of the decree (O. XXI, r. 16), or when execution is sought more than a year after the passing of the decree, or against the legal representatives of the original judgment-debtor (O. XXI, r. 22). The difference is that under O. XXI, r. 16, no notice has to be issued where the decree is transferred by operation of law and further under O. XXI, r. 22 no notice is to be issued where execution is taken out within one year of the last execution. It appears, however, that in the case of Scire Facias notice had to be issued even when the decree was transferred by opera-tion of law, or when execution was being taken out more than a year after the passing of the decree, though it may not be more than a year after the last execution, The conclusion, to which learned Judges arrived in Jogendra Chandra Roys case (1) is stated at p. 552 in these words— "It seems to us to be fairly obvious, therefore, that when the Legislature used the term "revivor of judgment" in the Limitation Acts of 1871 and 1877, they had in view the procedure embodied in secs.216 of Code of 1859 and 248 of the Code of 1877." It is obvious, therefore, that the procedure provided by rules 16 and 22 of O. XXI is essential before it can be said that a judgment is revived within the meaning of Art. 183 of the Limitation Act. 9. The matter was again considered by the Calcutta High Court in Kamini Devi vs. Aghore Nath Mookerjee(2), In that case, what happened was that there was an application for execution in 1894, on which apparently notice was issued under the provision corresponding to O. XXI, r.22. There was an objection by the judgment-debtor on the ground that the execution was barred by limitation. This matter was considered by the Execution Court and the objection was overruled. Thereafter, the decree-holder intimated to the court that he did not wish to proceed with the execution at the stage. There was an objection by the judgment-debtor on the ground that the execution was barred by limitation. This matter was considered by the Execution Court and the objection was overruled. Thereafter, the decree-holder intimated to the court that he did not wish to proceed with the execution at the stage. Therefore, by the same order the execution court struck off the application for execution on the decree-holders statement. The argument in that case was that as no execution was actually taken out, there could be no revivor. This argument was repelled by the learned Judges! in the following terms at page 403 — "The essence of the matter is that to constitute a revivor of the decree, there must be, expressly or by implication, a determination that the decree is still capable of execution, and the decree-holder is entitled to enforce it. An order for execution operates as a revivor, because it necessarily implies such a determination. In the case before us the objection of the judgment-debtor was over ruled and it was decided that the decree was not barred by limitation. The effect of this order was to entitle the decree-holder to proceed with the execution and there was, consequently, a revivor of the decree." 10. Thus notice and adjudicial determination, expressly or by necessary implication, are the minimum requirements which must be fulfilled before a judgment can be said to be revived within the meaning of Art. 183 of the Limitation Act. We are also of opinion that this procedure must be strictly followed if the intention is to revived the judgment or decree, for the result of the revivor is that a decree, which would otherwise be barred by limitation and could not be executed generally after a period of 12 years in view of sec 48 of the Civil Procedure Code, becomes capable of execution for ever if it is revived within 12 years. That is why various courts have held various proceedings which have been taken after the decree as not sufficient for reviving the decree. 11. That is why various courts have held various proceedings which have been taken after the decree as not sufficient for reviving the decree. 11. In Chutterput Singh vs. Sait Sumari Mal (3), the requirements for constituting a revivor were restated, and an application for transmission of a certified copy of a decree taken with an order thereon that the application should be granted was held not to constitute a revivor of the decree, even though the application was written upon a form which was applicable to an application for actual execution of a decree, and even though notice had been issued to the judgment-debtor on the application for transmission of the decree. It was remarked that the procedure under sec. 248 (now corresponding to O. XXI, r.22) had no application to an application for transmission of the copy of the decree, and therefore a notice issued in proceedings for transmission of the copy of the decree taken with the final order for transmission did not operate as a revivor. 12. In Banku Behari Chatterji vs. Narain Das Datt(4), it was held than an application for transmission of a decree from the High Court to the District Court was not by itself a revival of the decree, inasmuch as it was a mere ministerial act of an officer of the Court, and not the judicial act of a judge. 13. In M.P.P.S.T. Palantappa Chettiar vs. Villiammai Achi(5),it has been held that an order transferring a decree for execution to another court does not give a new starting paint of limitation qua order Of transmission. 14. In Harnarain vs. Dayabbai Hira Chand (6), it has been held that mere issue of notice under O.XXI, r. 20 does not amount to revivor, and that there must be expressly or by implication a determination that the decree is still capable of execution, and the decree-holder is entitled to inforce it. It has also been held that the proceeding for obtaining leave under O.XXI.r. 20 is not an application for execution, nor does the leave granted amount to any order for execution, and does not therefore amount to revivor, 15. In M.G. Murugesan Chetty vs. E. Kanniappa Mudaliar(7), it is held that an order bringing on record legal representatives of decree-holder, and allowing them to execute the decree is an order of revivor within the meaning of Art. 183. In M.G. Murugesan Chetty vs. E. Kanniappa Mudaliar(7), it is held that an order bringing on record legal representatives of decree-holder, and allowing them to execute the decree is an order of revivor within the meaning of Art. 183. But in the case of a decree against two persons an order of revivor made on an application for execution against only one of them does not operate as a revivor against the other. 16. On a consideration,therefore,of these authorities, it seems to us that a revivor takes place only if the procedure provided by r.16 and r.22 of O.XXI is followed, namely that a notice is issued, and a determination made either expressly or by necessary implication that the decree is subsisting, and the decree-holder has a right to enforce it. Naturally this determination has to be made within 12 years of the passing of the decree or of the last revivor as the case may be. If it is made more than 12 years after, there can be no revivor even though the procedure prescribed by rules 16 and 22 has been followed, and a determination made Reference in this connection may be made to Hasan Vali Bagas vs. Isap Bapuji Patel (8). We are further of opinion that there should be strict compliance with this procedure for reasons already mentioned. 17. Let us now see what actually happened in this case as evidence by the copies of order sheets of proceedings in the Aligarh court. On the 7th of December, 1949, the District Judge, Aligarh, received a copy of the decree from the Calcutta High Court, and he passed an order to the effect that an execution application be awaited. On the 15th of December, 1949, the execution application was filed by the decree-holder. Thereupon, the District Judge ordered that the execution application be transferred to the Civil Judge, Aligarh,for execution. On the 16th of December, an objection was filed by Chhogmal, judgment-debtor, and it was ordered that application be also sent to the Civil Judge along with the execution application. The matter was put up before the Civil Judge, Aligarh, on the same day. and the order-sheet shows that the decree-holder applied for issue of warrant of arrest with out issue of notice. The matter was put up before the Civil Judge, Aligarh, on the same day. and the order-sheet shows that the decree-holder applied for issue of warrant of arrest with out issue of notice. The application of Chhogmal judgment-debtor was also put up, and it was ordered that the matter be put up on the 23rd of December, 1949, in the presence of counsel for parties. for further orders. The order-sheet of the 23rd of December, 1949, says that the application for execution as well as the objection of the judgment-debtor was put up, but the judgment-debtor was absent, and consequently the objection was dismissed. It was also ordered that warrant for arrest be issued. No notice was issued to the judgment-debtor. Thereafter, proceedings continued, and the order-sheet of the 11th March, 1950, shows that Chhogmal was brought under arrest to the court on that date. As however, expenses for maintenance of Chhogmal in jail had not been deposited, he was ordered to be released. Thereafter, on the same day, another application was put up on behalf of the decree-holder for issue of warrant against Chhogmal and his son Roopchand (one of the respondents before us). It was ordered that warrants be issued on deposit of necessary expenses. The proceedings then dragged on till the 3rd of November, 1950. when the execution was struck off for default of the decree-holder. The warrants ordered to be issued on the 11th of March, 1950, were never served on Chhogmal and Roopchand, though they were issued a number of times. 18. The contention on behalf of the appellant is that in view of these proceedings the decree was revived as against Chhogmal It is admitted that as the present respondents were never served, there could be no revivor of the decree against them We have, therefore, to see whether on these facts it can be said that the decree was revived even against Chhogmal. 19. The first point, that is clear from the copies of the order sheets that have been produced, is that no notice under O. XXI, r. 22. was ever issued by the court in this case. Further, is clear that no notice under O. XXI, r. 37 was ever issued, though warrants for arrest were issued. 19. The first point, that is clear from the copies of the order sheets that have been produced, is that no notice under O. XXI, r. 22. was ever issued by the court in this case. Further, is clear that no notice under O. XXI, r. 37 was ever issued, though warrants for arrest were issued. It has been urged that the absence of notice so far as Chhogmal is concerned is of no importance in this case because Chhogmal did appear at one stage of the proceedings and made an objection to the issue of a warrant of arrest against him. Reliance in this connection has been placed on a number cases to show that non-issue of a notice under O. XXI, r. 22 is not fatal to the execution proceedings which were carried on. These cases are —Grish Chunder Banerjee vs. Bhanno Motee Chowdhrain (9), Fakhrul Islam vs. Bhubaneshwari Kuer (10), Chandra Nath Bagchi vs. Nabadwip Chandra Dutt.(11) Anil Kumar Roy Chaudhury vs. Ahammad Ali Sarkar(12) and Shiyali Vengu Chetti vs. Valjee Kanjee and Co. Madras(13). 20. It may be accepted as well-settled that where notice under O. XXI, r. 22 has not been issued, and proceedings have gone on in the presence of the judgment-debtors and their objections have been decided, the mere non-issue of the notice does not invalidate the subsequent proceedings in execution The law, if we may say so with respect, has been laid down in the following observations of Rankin C. J in Chandra Nath Bagchis case (11) at page 478— I do not in any way seek to throw doubt upon the proposition that where such a notice has not issued and the party who is entitled to notice does not in substance get notice and is not given or does not take an opportunity to object to the execution of the decree, the sale which follows will be without jurisdiction in the sense that, even if the sale is to a stranger, the sale will not be binding or valid. The parties in the present case have been litigating actively with each other upon the question whether this execution should proceed and how it should proceed.......It appears to me to be merely piling unreason upon technicality to hold upon the circumstances of this case that it is open to the judgment-debtors on these grounds to object to the jurisdiction of the Court because they have not got a formal notice to do something, namely to dispute the execution of the decree when in point of fact they were busy disputing about it in all the Courts for the best part of the last two years." But none of these cases, exrept Shiyali Vengu Chettis cased 3), are cases of revivor. Shiyali Vengu Chettis case was also not a case of revivor, though the decree in that case appears to have been passed by the Madras High Court. We are, therefore, of opinion that notice under O. XXI, r, 22 is not necessary where the Judgment-debtor has been fighting out the execution tooth and nail in cases which have nothing to do with revivor. It is an altogether different thing to apply that principle in a case of revivor where there is a specific procedure which must be undergone if there is to be revivor. As we have already pointed out, it is possible to keep a decree alive by revivor for ever against the provisions of sec. 48 of the Code of Civil Procedure. In such circumstances, we are of the view that notice under O. XXI, r. 22 is essential. 21. Learned counsel for the appellant drew our attention to two cases in this connection. In Chutterput Singhs case(3), it was said at page 490 that the order, which was made on the 12th February, 1900, for the execution of the decree by the arrest of the defendant, constituted a revivor within the meaning of that clause. But|the circumstances, in which that order was made, do not appear in the judgment. It is enough to say that the procedure under O. XXI, r. 37 relating to arrest comes into play after the notice under O. XXI, r, 22 has been issued in cases where notice has to be issued under that rule. But|the circumstances, in which that order was made, do not appear in the judgment. It is enough to say that the procedure under O. XXI, r. 37 relating to arrest comes into play after the notice under O. XXI, r, 22 has been issued in cases where notice has to be issued under that rule. Therefore, it is possible that the order of the 12th of February, 1900, for execution by arrest which has been treated as a revivor in this case, might have been passed after issue of notice under O. XXI, r. 22 also, or the corresponding provision of the previous Code. That case, therefore, is no authority for holding that an order for arrest will necessarily constitute a revivor without even going through the procedure provided by O. XXI, r. 22. 22. Similarly in Harnarains case(6), the learned Judge doubted whether an order under O. XXI, r. 37 without issue of notice would amount to a revivor; but as that was not the point before him he assumed it for purposes of that case that it would amount to a revivor against the person who was arrested. But he went on to hold that it could not amount to a revivor against the other judgment-debtors who were not parties to that execution proceeding. It is enough to point out that an order for execution by arrest under O. XXI, r. 37 can also amount to revivor if it is passed after notice provided in O. XXI, r. 22. 23. The direct case on the point relating to arrest is B. K. Mitra vs. Bhajan Lal Chaudhury (14). In that case, it was held that an order for execution by arrest after a notice under O. XXI, r. 37 did not amount to revivor as the procedure provided by O. XXI, r. 22 had not been gone through, the Courts can-dispense with the notice or O. XXI, r. 16 where they have to consider whether the decree has been revived or not. 24. In the present case, as there was no notice whatsoever under O. XXI, r. 22 the decree cannot be said to have been revived merely because Chhogmal judgment-debtor was arrested in pursuance of a warrant issued under O. XXI, r. 37. 25. 24. In the present case, as there was no notice whatsoever under O. XXI, r. 22 the decree cannot be said to have been revived merely because Chhogmal judgment-debtor was arrested in pursuance of a warrant issued under O. XXI, r. 37. 25. We are also of opinion that the petition made on behalf of Chhogmal on the 16th of December, 1949, was not the sort of petition contemplated under O. XXI, r, 22. Let us see what he has said in that petition. He first says that the decree against him was ex parte, and no summons or notice was ever served on him. That is an objection which no judgment-debtor can take in execution proceedings. Then he says that the objector was an old man, and the decree was not legally executable against him That is a meaningless objection because the age of the judgment-debtor has nothing to do with the excitability of the decree against him. Then he says that the decree was bogus, and execution was being taken out on account of enmity in order to wreck his business. This again is not an objection which can be taken in execution proceedings. Then he says that he was intending to move the Calcutta Court for restoration of the suit, and was collecting information regarding it. This again is not an objection which can be raised in an execution court. Then he says something about his son Roopchand, namely that Roopchand was an not, in our opinion, under O. XXI, r 22 agriculturist, and that the decree could be executed against him by arrest. We need not attach any importance to this objection because it is not even the appellants case that the decree was revived against Roopchand. Lastly, it is said that the issue of a warrant of arrest without any opportunity being given to the judgment debtor will seriously harm his reputation as a business man There is thus not a single objection in the application of the 16th December, 1949. which can be said to refer to the excitability of the decree, and which can be properly raised in an execution court. Finally, it was prayed that the objection be allowed, and the proceedings be stayed. which can be said to refer to the excitability of the decree, and which can be properly raised in an execution court. Finally, it was prayed that the objection be allowed, and the proceedings be stayed. So all that Chhogmal was praying for was stay of proceedings presumably with the intention of moving the Calcutta High Court under O.IX, r. 13, and getting the ex-parte decree set aside. If a notice had been issued under O. XXI, r.22 asking Chhogmal to show cause why execution should not be levied against him, he might have been able to raise proper objections to the excitability of the decree. The fact, therefore, that such an objection was made by Chhogmal is, in our opinion, of no consequence in the absence of a notice under O. XXI, r. 22. 26. The next question is whether, even if it can be said that Chhogmal having made the application dated 16th December, 1949, the formality of a notice under O. XXI, r.22 can be dispensed with in his case though we are of opinion that a notice in terms either of O. XXI, r 16. or O. XXI r. 22 is necessary if the decree is to be revived). It cannot be said that ther was a judicial determination of the question of the excitability of the decree. We have already shown that, on the 15th of December, 1949, the decree-holder applied for execution to the District Judge. On the 16th of December, Chhogmal made his objections also to the District Judge. On the same day the execution application as well as the objection was transferred to the Civil Judge for disposal, and an order was passed that this application should be put up on the 23rd of December, for further orders. There is nothing to show in the order-sheet of the 16th December, 1949, in the court of the Civil Judge, Aligarh, that Chhogmal or his counsel was present when the matter was ordered to be put up on the 23rd of December, 1949. There is nothing also in the order-sheet of the 16th of December, requiring the presence of Chhogmal personally on the 23rd of December, 1949. We do not know whether Chhogmal or his counsel even knew that the application of Chhogmal would come up for decision on the 23rd of December. There is nothing also in the order-sheet of the 16th of December, requiring the presence of Chhogmal personally on the 23rd of December, 1949. We do not know whether Chhogmal or his counsel even knew that the application of Chhogmal would come up for decision on the 23rd of December. Yet the order of the 23rd December, says that Chhogmal is not present in person to show that he was old and infirm. and there was no application on his behalf, and consequently the objection was dismissed. In our view, this can hardly be called a judicial determination of the question that the decree is still capable of execution, and the decree-holder is entitled to enforce it The court does not seem to have addressed itself to that question at all, and Chhogmals application was dismissed for default without it being certain that he had even notice of that date, namely the 23rd of December, 1949. In any case, the only matter considered, according to the order sheet of the 23rd of December, 1949, was whether the decree should be executed by issue of a warrant. This was a subsequent question and arises only after the court has decided after issue of notice under O. XXI, r. 22 whether the decree is executable at all. 27. We are, therefore, of opinion that in this case it can neither be said that there was such notice as it necessary for purposes of revivor, nor that there was judicial determination, expressly or by implication, that the decree was capable of execution, and the decree holder was entitled to enforce it. The order of the 23rd of December, 1949, at any rate, does not show that the court ever addressed its mind to this question of excitability. In this view of the matter, we are of opinion that the lower court was right in holding that the proceedings in the court at Aligarh were not sufficient to receive the decree even against Chhogmal. Therefore, as the present execution application was made in 1951, more than 12 years after the decree, it is barred by limitation, and has been rightly dismissed. 28. Another argument Was raised on behalf of the judgment-debtor respondent with regard to the validity of Art. 183 itself after the coming into force of the Constitution in 1950. Therefore, as the present execution application was made in 1951, more than 12 years after the decree, it is barred by limitation, and has been rightly dismissed. 28. Another argument Was raised on behalf of the judgment-debtor respondent with regard to the validity of Art. 183 itself after the coming into force of the Constitution in 1950. The argument is that Art. 183 is a discriminatory piece of legislation, and is hit by Art. 14 of the Constitution inasmuch as there is no sufficient reason why the decrees of the High Court of Calcutta, Bombay, and Madras on the original side should be treated differently from decrees of other Courts of other States which are all governed by sec. 48 of the Code of Civil Procedure. In the view, however, that we have taken in this case of what revivor is, and what is the minimum requirement for the revivor of a judgment, decree or order, we do not think it necessary to enter into this rather difficult question raised by the respondents. It may have to be decided in a proper case where the court may come to the conclusion that there was actually a revivor in the manner provided by law. 29. Learned counsel for the respondents wanted to raise other points. We have, however, not permitted him to do so because the judgment of the court below is based entirely on one point only namely revivor, and we would not be prepared to go into other points without the benefit to the lower courts view on those other points. 30. We, therefore, dismiss the appeal with costs to the respondents.