J. C. 1878 GIRI v. GRISH CHUNDER MYTI. constitute or effect legal separation in estate. The decree in Shibpershad's suit contained no direction for the partition of the JOY NARAIN estate, and would have been fully satisfied by the putting of Shibpershad into possession jointly with the Appellant, and the payment of the mesne profits awarded to him thereby. Reference was made to Appovier v. Rama Subba Aiyan (1), which overruled Badamoo Koer v. Wazeer Singh (2); Sheo Dyal Tewaree v. Indoonath Tewaree (3); Mussumat Vato Koer v. Roushun Singh (4); Debee Pershad v. Phool Koeree (5); In re Mussumut Phuljhari Koer (6). JOY NARAIN GIRI v. GRISH CHUNDER The Respondent did not appear. The judgment of their Lordships was delivered by SIR ROBERT P. COLLIER : The facts necessary to the understanding of this case are as follows: Joy Narain Giri and Shibpershad Giri were grandsons of Nund Kishore Giri; they were joint in estate, and between them had the whole interest in the estate inherited from their grandfather. Shibpershad Giri, in consequence of his cousin Joy Narain refusing to allow him any participation in this joint estate, left the house in which they had jointly resided, went to reside with the husband of his sister, and had to maintain himself for some time by moneys which he borrowed. Under these circumstances he brought an action against Joy Narain, in which he alleged that Joy Narain had expelled him from the joint family, and that he sued to recover possession of his eight annas share of all the joint properties, both real and personal, with mesne profits and interest from the date of dispossession. In that suit he obtained a decree the material part of which is in these terms, "The Court orders that the half of the various properties which, as stated above, are in the possession of Joy Narain be decreed to the Plaintiff; that the date of separation from commensality is to be reckoned from the month of Bysack of the year 1272, and that from that date to (1) 11 Moore's Ind. Ap. Ca. 75, 98. (2) 5 Suth. W. R. 78. (3) 9 Suth. W. R. 61. (4) 8 Suth. W. R. 82. J. C. 1878 GIRL V. GRISH CHUNDER MYTI. the date of obtaining possession he is to get the mesne profits of the immoveable properties according to what will be ascertained in execution of decree; that with regard to the household JOY NARAIN chattels, &c., the Plaintiff is to obtain half of what the Defendant has admitted; that the Plaintiff is to obtain half of the proceeds of the pledged properties which are sold for the realization of the government rent, as well as half of the amounts of the decrees Joy NARAIN realized from the month of Bysack, 1272; that the Plaintiff is to obtain half of the proceeds of 12 solees and 4 bissees of paddy at the rate of Rs.26 per bissee, and that he is to obtain half of all the properties mentioned in the said decree." From that decree of the Subordinate Court there was an appeal to the High Court of Calcutta, which confirmed the decree. After the confirmation of that decree by the High Court, and pending an appeal by Joy Narain to Her Majesty in Council, Shibpershad Giri died; and thereupon Joy Narain applied for his widow to be substituted for him in the suit as Respondent in the appeal. The Courts in India, however, gave effect to a will-which had been made by Shibpershad Giri some short time probably before his death, in which he gave all his property to Grish Chunder Myti, the son of his sister—and made Myti the Respondent. The appeal came on in 1873 before Her Majesty in Council, whereupon Her Majesty, by the advice of this Board, affirmed the decree of the High Court of Calcutta. Upon this, Joy Narain commenced the present suit, in which in effect he alleges that he and Shibpershad Giri having been joint in estate, and there having been no separation between them, the decree enured for his benefit, and that he, as the heir of Shibpershad Giri, was entitled to the whole of the joint property; there was also an alternative prayer that if that were not so he might be appointed as manager; and he sought, among other things, to set aside the will of Shibpershad Giri. Pending this present suit, Grish Chunder Myti, who, as substituted Respondent, had obtained the judgment of this Board affirming the decree in the previous suit, applied for the execution of that decree in 1874; whereupon Joy Narain objected upon the ground which he raises in this suit, namely, that the former suit really enured for his benefit, and that Grish Chunder Myti took no right under it; he also alleged, among other objections, the pendency JOY GIRI v. GRISH CHUNDER MYTI. J. C. 1878 of the suit which he had already brought. The Courts in India allowed Grish Chunder Myti to execute the decree; and the second JOY NARAIN appeal, which we have now before us, is from the High Court allowing the execution of that decree. GIRI v. GRISH CHUNDER MYTI. It appears manifest' from this statement of the case that the questions in both appeals are substantially the same. The real JOY NABAIN question in the cause is, whether there was a separation of estate between Joy Narain and Shibpershad Giri. GIRI v. GRISH CHUNDER MYTI. Their Lordships regard the conduct of Shibpershad Giri, when he left the house in which both he and Joy Narain Giri lived, and withdrew himself from commensality with his cousin, as indicating a fixed determination henceforward to live separately from his cousin, and they treat the fact of his borrowing money for his separate maintenance—as well as his making a will—as indicating, at all events, that he himself considered that a separation had taken place. His plaint indicates that he accepts what he terms the expulsion of his cousin from the joint family, and claims the share to which he would be entitled after that expulsion, and after a separation. But further, it appears to their Lordships that the decree which has been read is in effect to give to Shibpershad Giri a separate share of the property of the grandfather. It gives him in terms possession of the 8 annas which he claimed of the real estate; it gives him mesne profits from the day of the alleged separation,—that is, from the time when he left the house in which he had been living with his cousin,—and it gives him also a half of the personal property. That being so, their Lordships are of opinion that although the suit is not actually in terms for a partition, yet that the decree does effect a partition, at all events, of rights which is effectual to destroy the joint estate under the doctrine laid down in the case which has been quoted of Appovier v. Rama Subba Aiyan (1). Their Lordships think it necessary to say that they do not regard their decision in this case as conflicting with a case which has been called to their attention of Debee Pershad v. Phool Koeree (2). The suit in that case is described by Mr. Justice Kemp as a suit by Debee Pershad for a declaration of his right to a share in the estate of his grandfather Deen Dyal. Such a suit would not be (1) 11 Moore's Ind. Ap. Ca. 75. (2) 12 Suth. W. R. 510. J. O. 1878 GIRI inconsistent with an intention on the part of Debee Pershad to obtain a declaration of his being entitled to a joint interest in a joint estate; but here, for reasons already given, their Lordships Joy NARAIN regard the plaint as of a totally different character, indicating a distinct intention, to which effect is given by the judgment, of obtaining a separation of estate, and as regards both the real and personal property. For these reasons their Lordships are of opinion that the decree of the High Court is right, and they will humbly advise Her Majesty that that judgment be affirmed, and that both appeals be dismissed. Solicitors for the Appellant: Watkins & Lattey. v. GRISH CHUNDER MYTI. JOY NARAIN v. GRISH CHUNDER MYTI. Act VIII, of 1859, sect. 119—Right of Appeal from Decree obtained ex parte. In sect. 119 of Act VIII. of 1859, the words "no appeal shall lie from a judgment passed ex parte against a Defendant who has not appeared,” relate to the case of a Defendant who has not appeared at all in the suit, and not to a Defendant who has once appeared, but who fails to appear on a day to which the cause has been adjourned. APPEAL from a decree of the High Court (August 26, 1875) which dismissed an appeal from an order of the subordinate Judge of Moradabad (April 8, 1874). The ground of such dismissal was that the last mentioned order having been obtained ex parte, no appeal lay to the High Court, and that the Appellant's remedy was to follow the procedure prescribed by sect. 119 of the Civil Procedure Code. * Present:-SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR Montague E. SMITH, and SIR ROBERT P. COLLIER. J. C. 1878 The judgment of the High Court was as follows: "The suit was instituted on the 14th of September, 1872, and SAHIBZADA after much delay, owing to the residence of both parties in foreign ZEINULABDIN v. KHAN. KHAN territory, the hearing was, at the request of the pleaders of both SAHIBZADA parties, adjourned for the 5th of January, 1873, issues were framed, AHMED RAZA and October the 28th fixed for the hearing; the suit was not called on that date, but on the 7th of November, 1873. It was again adjourned at the like request to the 2nd of February, and subsequently to the 8th of April. On the 6th of April the Defendant Appellant submitted a petition praying for a further adjournment, on the plea that his pleader had gone to Calcutta to consult the Advocate-General, and could not return in time. This petition was not presented by a pleader nor by any duly authorized agent, and was rejected. On the 7th of April the Defendant's pleader telegraphed to the Subordinate Judge, requesting him to postpone the hearing. The Subordinate Judge refused to consider this irregular application, and on the 8th of April the case was called on in due course. Although the Defendant had an agent in Moradabad, no other pleader than Ganesh Pershad, who was absent in Calcutta, was appointed, and the Defendant appearing neither in person nor by pleader, on the 8th of April the case was heard and decided ex parte under the provisions of sects. 147 and 111. The Appellant subsequently took the proper step of applying to the Subordinate Judge, under sect. 119, for an order to set aside the judgment, but unfortunately he did not proceed with that application, and it was struck off for default, the Appellant being advised by his counsel to proceed by way of appeal. He is met by the objection that the appeal does not lie, as the judgment was passed ex parte. The Appellant's counsel urges that the case was not heard by the Subordinate Judge ex parte under sect. 111, that the default of the Appellant was such a default as is contemplated in sect. 145, and not such a default as is contemplated in sect. 147. It appears clear to us that the former section applies where the parties appear, but either of them fails to proceed with the case, while sect. 147 applies to cases like the present, in which at an adjourned hearing a party failed to appear. If the Judge heard the suit at all in the absence of the Appellant, he could only do so under the provisions of sect. 111. Having the option of |