Henry Richard, C.J.
1. This appeal arises out of a suit in which the plaintiffs claimed property known as the Landhaura Estate. One Raghubir Singh was the last owner. He died leaving a widow Rani Dharam Kuar, who gave birth to a posthumous son named Jagat Prakash Singh. This boy died shortly after his birth and the Rani purported to adopt a number of boys, one after the other all of whom died in infancy. Finally she is alleged to have adopted the defendant Balwant Singh. The Rani died on the : 12th of November, 1912, and the plaintiff No. 1 claims to be the reversioner and entitled to the estate on the death of the Rani. The second plaintiff is an assignee of portion of the estate from plaintiff No. 1 and is probably the financier of the present litigation.
2. The allegation of the plaintiffs is that Raghubir Singh never gave authority to his widow to adopt a son. The court below has dismissed the plaintiff's suit holding that a previous litigation between Rani Dharam Kuar and Balwant Singh operates as res judicata. The court did not receive any evidence on the question whether or not the plaintiff No. 1 is what he claims to be, namely the reversioner and heir to the property, nor on the question whether or not the Rani was authorised by her husband to adopt. The sole question which we have to decide in the present appeal is whether the previous litigation operates as res judicata.
3. It seems to me that we are bound to deal with the appeal on the assumption that the plaintiffs might possibly have been able to adduce evidence which would satisfy the court, first, that the plaintiff No. 1 is the reversioner and second, that Raghubir Singh never authorised his wife to adopt a son. If the court below was correct in holding that the previous litigation operated as res judicata, it was quite unnecessary to go into the evidence on either of these two points. If on the other hand, the previous litigation does not operate as res judicata, then clearly the court ought to have heard the evidence and it is our duty to remand the case for that purpose.
4. There can be no doubt (whether the Rani had the authority to adopt or not) that a ceremony of adoption was in fact gone through in the most public manner possible. Prior to or simultaneously with the alleged adoption, the Rani had obtained an agreement from the father of Balwant Singh that not with standing the adoption she should be allowed to remain in possession of the estate during her life. Immediately after the alleged adoption disputes arose between the Rani and Balwant Singh; the latter wished to repudiate the agreement and go into possession of the estate, a course of action which was strongly resented by the Rani. The result was that she instituted a suit in the year 1905, alleging that she had no power to adopt Balwant Singh and that she had not adopted him. This was the commencement of the litigation which the court below has found to operate as res judicata.
5. The court of first instance (in that suit) declined to go into any evidence on the question of the Rani's authority to adopt, holding that whether or not the Rani had authority, she was estopped by her conduct from denying her authority and dismissed the suit. The Rani appealed to the High Court. The High Court confirmed the decision of the court below and dismissed the plaintiff's suit. It will thus be seen that the courts in India decided the case on a ground entirely personal to the Rani and without having considered or even received the evidence on the question as to whether or not authority to adopt had been conferred on the Rani.
6. The law of res judicata is set forth in Section 11 of the Code of Civil Procedure. It provides that 'No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.' The plaintiff in the present suit was of course no party to the previous litigation, nor does he claim under the Rani. He claims as reversioner or heir of the last male owner. No doubt the doctrine of res judicata has been extended by the courts to cases in which it can fairly be said that the widow represents the estate. A common case of this kind is where a widow in possession or entitled to possession of her husband's estate brings a suit to recover possession of the property which she claims to belong to that estate against a third party. If that litigation is fairly and honestly conducted the reversioner is not allowed to re-open the question after the widow's death. The principle established being, as it seems to me, that in the majority of cases the widow can and does represent the estate and that in all such cases the reversioners are bound. The principle is most reasonable and it is to be regretted that it is not expressly enacted in the Code so, as to make the latter complete.
7. We have now to see whether in the previous litigation to which I have referred the Rani can be said to have represented the estate. It seems to me that up to the time of the decree of the High Court dismissing the appeal she most certainly did not represent the estate. The courts did not allow her to 'represent' the estate; they excluded evidence which she should have given if she was 'representing' the estate. The case was decided both by the trial court and the High Court on a ground personal to the Rani herself. These courts had held that evidence as to authority to adopt having been conferred on her was immaterial and irrelevant inasmuch as, even if the Rani had no authority, she ought not to be allowed to say so as against the defendant Balwant Singh. The issue as to the authority of the widow to adopt was not 'heard or finally decided.' On the contrary, the court declined even to receive evidence on the issue. The Rani, however, was not satisfied with the decision of the High Court and appealed to His Majesty in Council. Their Lordships affirmed the decree of the High Court and dismissed the appeal of the Rani. In the course of their Judgment their Lordships said 'Their Lordships in reviewing the facts of the case are of opinion that the question may well be decided as one of fact on the Rani's own statements without recourse to the doctrine of estoppel. In their view she was speaking the truth in Baldeo Singh's action when she was pleading as to her authority. Their Lordships do not differ from the courts below in the view they have taken as to the applicability of the doctrine of estoppel in this case, of course the estoppel pleaded against the Rani must be taken as purely personal. It does not bind any one who claims by an independent title, but in view of the decision now given that the respondent was in fact duly adopted further litigation on the point may be taken as happily out of the question.' Notwithstanding that the Rani had by her conduct rendered it extremely difficult for her to fairly 'represent' the estate in her litigation with the defendant, it may perhaps be conceded that the finding of their Lordships would have operated as, res judicata had the evidence been admitted and recorded. It seems to me however quite clear that had their Lordships' attention been called to the (act that the trial court had declined to receive evidence they would never have decided the case as a question of fact so as to bind the estate without at least directing evidence on the issue to be recorded and considered. The Rani was not a very truthful person, and in a previous suit by one Baldeo claiming to be the reversioner and challenging (inter alia) the alleged authority to adopt, the court found that Baldeo had failed to establish that he was the revervsioner and that it was therefore unnecessary to decide the issue as to authority, but the learned Judge gave it as his opinion that it was highly improbable that any authority had been conferred. I mentioned this fact merely as suggesting that no finding on the statement of the Rani could be satisfactory without hearing all material evidence that could be produced. It seems to me that the Judgment of their Lordships can no more operate as res judicata than the Judgment of the trial court if it had decided an issue after excluding evidence relevant thereto. It is, however, contended that in the absence of fraud all decrees against a Hindu widow bind the reversioners and certain expressions of learned Judges of the Indian Courts and of their Lordships of the Privy Council are quoted in support of the contention. This contention is clearly not correct. Their Lordships themselves evidently felt that if the case was decided on a ground personal to the Rani the reversioner would not be bound. It seems to me that it is very dangerous to place too much reliance on expressions of learned judges used in giving Judgment in other cases where the facts and circumstances were different. The expressions relied on one and all occur in judgements in cases where the Hindu widow could be said to have fairly 'represented' not only herself but also the estate. Jessel M.R. in In re Holletts Estate (1879) 13 Ch. D. 696, 712, speaking of the proper use of authorities says : 'The only use of authorities, or decided cases, is the establishment of some principle which the Judge can follow out in deciding the case before him.' In Quinn v. Leatham (1910) A.C. 495, Halsbury, L.C. says : 'Now before discussing the case of Allen v. Flood and what was decided therein there are two observations of a general character which I wish to make and one is to repeat what I have very often said before that every Judgment must be read as applicable to the particular facts proved or assumed to be proved, since, the generality of the expressions which may be found, there are not intended to be expression of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it decides.'
8. In G. and C. Kreglinger v. New Patagonia Meat and Gold Storage Co., Ld. (1914) A.C. 25, Haldane, L.C, says : 'To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect the previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a Code. But when a previous case has not laid down any new principle but has merely decided that a particular set of facts illustrates an existing rule there arc few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances and to erect a previous decision into a governing precedent merely on this account. To look for any thing except the principle established recognised by previous decisions is really to weaken and not to strengthen the importance of precedent.'
9. It seems to me that the principle established or recognised in the decisions, in which the expressions relied on occur, is this, namely, that in many suits brought by or against Hindu widows the widow can and does fairly represent not only herself but the estate, and that the doctrine of res judicata should be applied in all such cases where the reversioners seek to re-Open decided questions. The reason and justice for the principle is absent in any case where for any cause the widow did not in truth represent the estate. In my Judgment the Rani in her suit could not and did not represent the Landhaura Estate. The courts in India and also their Lordships of the Privy Council held that she had estopped herself from denying her authority to adopt the defendant. If she performed a ceremony of adoption without authority it was an act against the estate, yet she was not allowed to prove the true facts. As the result of her conduct the courts in India refused to admit evidence which she tendered to show that she could not adopt the defendant. Much as I regret the protraction of the present litigation, I think that the suit should be remanded to the court below.
10. This appeal arises out of a suit relating to the Landhaura Raj, which is a large estate of great value. It has unfortunately been the subject of considerable litigation which commenced so far back as the year 1872. The last Raja was. Raghubir Singh, who died in 1868 leaving a widow Rani Dharam Kuar. A posthumous son was born to him, who died shortly afterwards. The history of the estate and of the previous litigation relating to it is given in the Judgment of this Court delivered on the 10th of December, 1903, and it is also set forth in the Judgment of the court below. Rani Dharam Kuar was in possession of the estate after her husband's death till she died on the 12th of November, 1912. She made successive adoptions, the last of which is alleged to have been made in January, 1899, when she is said to have adopted the defendant Balwant Singh, the boys previously adopted having died. Disputes, however, arose between her and Balwant Singh and a suit was brought by her on the 9th of January, 1905, for a declaration that she had not in fact adopted Balwant Singh, that even if she did adopt him she had no authority from her husband to do so and that for this and other reasons the adoption was invalid. The court of first instance found that Balwant Singh had in fact been adopted but it was of opinion that Rani Dharam Kuar was estopped from questioning the validity of the adoption and accordingly dismissed the suit, without trying other issues or recording oral evidence in regard to them. This decision was affirmed by this Court on appeal. The Judgment of this Court is reported in I.L.R., 30 All., 549. From this Judgment an appeal was preferred to the Privy Council. Their Lordships agreed with this Court as to the factum of adoption but proceeded to determine the question 'whether the Rani had authority from her husband to adopt the defendant.' Upon a consideration of the documentary evidence, of which there was a considerable amount on the record, their Lordships came to the conclusion that authority to adopt had been proved. In their opinion the question might 'well be decided as one of fact...without recourse to the doctrine of estoppel.' Their Lordships, however, did not differ from the courts below in the view they had taken of that doctrine but they observed as follows: 'Of course the estoppel pleaded against the Rani must be taken as purely personal. It does not bind any one who claims by an independent title, but in view of the decision now given that the respondent was in fact duly adopted further litigation on the point may be taken as happily out of the question.' It is clear from these observations that their Lordships were of opinion that their decision on the question of the validity of the adoption would be binding on reversioners who claimed independently of the Rani.
11. In spite of this decision of their Lordships the present suit was brought by the first plaintiff, with the help of the second plaintiff, who is apparently a speculator financing the litigation, for possession of the estate on the same grounds as those on which Rani Dharam Kuar had based her claim, namely, that, Balwant Singh had not in fact been adopted and that the Rani had no authority to adopt. The first plaintiff, Risal Singh, alleges himself to be the next reversioner to the estate and he has transferred one-half of his alleged rights to the second plaintiff Fateh Chand. The title of Risal Singh as reversioner is denied on behalf of the defendants but the court below has not tried that question, and on the assumption that he is the reversioner, has dismissed the suit on the ground that he is bound by the decision of their Lordships of the Privy Council in the suit of the Rani. The plaintiffs have preferred this appeal and the only question argued before us is whether that decision is binding.
12. I agree with the court below in holding that the decision of their Lordships in that suit is binding on the reversioners. The law on the subject has in my opinion been correctly stated by the learned Subordinate Judge. Where the estate of a deceased Hindu has vested in a female heir a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraudor collusion, binding on the reversionary heirs. Where, however, the decree relates to a matter personal to her, it is not so binding. The earliest authority on the point is the well known case of Katama Natchiar v. Srimut Rajah Mootoo Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya Taver (1863) 9 Moo. I.A. 539. In dealing with the question whether a decree, obtained in 1847, in the life-time of the widow in possession, would have bound those claiming in succession to her, their Lordships of the Privy Council held as follows : 'Their Lordships are of opinion that unless it could be shown that there had not been a fair trial of the right in that suitor, in other words, unless that decree could have been successfully impeached, on some special ground, it would have been an effectual bar to any new suit by any person claiming in succession to her. For, assuming her to be entitled to the zamindari at all, the whole estate would for the time be vested in her, absolutely for some purpose, though in some respects for a qualified interest, and until her death it could not be ascertained who would be entitled to succeed. The same principle which has prevailed in the courts of this country as to tenants in tail representing the inheritance, would seem to apply to the case of a Hindu widow, and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow ' (at page 604). The principle thus enunciated by their Lordships was re-affirmed by them in several subsequent cases I may refer to Jugul Kishore v. Jotendra Mohun Tagore (1884) I.L.R. 10 Calc. 985, Pertab Narain Singh v. Triloki Nath Singh (1884) I.L.R. 11 Calc. 186 at, Harinath Chatterjee v. Mothur Mohan Goswami (1893) I.L.R. 21 Calc. 8 at p. 17. It has been accepted and acted upon by all the High Courts in this country. The cases on the point are collected on page 910 of Mayne's Hindu Law, 8th Edition, and as most of them are set forth in the Judgment of the court below I deem it unnecessary to refer to them. The principle laid down by the Privy Council was thus summarized by Sir. Barnes Peacock, C.J., in his Judgment in the Full Bench case of Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty (1870) 9 W.R. 505 : 'In the absence of fraud or collusion a decision against a widow, with regard to her deceased husband's estate, would be binding upon the reversionary heirs' (at page 507). It is true that the circumstances of all the cases were not identical but in all of them the principle was recognised. As observed by Lord Haldane, L.C., in the recent case of G. and C. Kreglinger v. New Patagonia Meat and Gold Storage Co., Ld, decided by the House of Lords (1914) L.R. A.C. 25 at p. 37, ' the binding force of previous decisions, unless the facts are indistinguishable, depends on whether they establish a principle. To fo Now previous authorities, so far as they lay down principles, is essential, if the law is to be preserved from becoming unsettled and vague.' The decisions of the Judicial Committee (acted upon as they have been by the courts in this country), having laid down a principle, it is essential that they should be followed by us so as not to unsettle what has hitherto been understood to be the law on the point.
13. We have next to consider whether this principle applies to the present case. Rani Dharam Kuar claimed to be in possession of the Landhaura Estate either as the widow of her deceased husband or as the mother of her son. It is in her capacity as the person who represented the estate that she instituted the suit brought by her against Balwant Singh. Ho was claiming title to the estate as the validly adopted son of Raja Raghubir Singh and the object of the suit was to protect the estate from that claim. In her plaint in that suit she alleged that upon the death of her son she obtained possession of the whole of the estate, as his heir and continued in possession as such. In the fourth ground of her appeal to this Court she stated that 'in her character as representing the estate of her son Jagat Prakas Singh she was at liberty to repudiate' the alleged adoption of the defendant. Again in the 23rd ground of her appeal to His Majesty in Council she asserted that she was not 'precluded from bringing a suit as representing the estate of her husband.' It is manifest from these statements that she brought her suit as representing the estate and not in a personal capacity. She sought to establish that Balwant Singh was not validly adopted and that he had no right to the estate. By asserting a valid adoption he was casting a cloud on the title of the Rani as representative of the estate and on that of the reversioners who were to come after her and it was to remove this cloud that she instituted her suit. In the plaint in this case the plaintiffs also have stated that she was in possession as a Hindu widow. As she did not set up any right other than that of a widow or mother and as her right was thus limited to an estate for life her suit was in substance a suit for the protection of the interests of the reversioners on whom the property would devolve after her death. The final decision in that suit is, therefore, binding on them, in the absence of fraud or collusion. It has not even been suggested that there was fraud or collusion between the Rani and Balwant Singh. Having regard to the relations which existed between them, to the fact that they were at arm's length, to the earnest manner in which the suit was fought out in this country and before the Judicial Committee, the idea of fraud or collusion is out of the question. The main ground on which the learned Counsel for the appellants contends that the decree in the former suit is not binding on the appellants is that in that suit the trial court did not go into evidence on the question of authority to adopt. That Court, it is true, decided the case on the ground of estoppel and refused to record oral evidence on the issue as to authority. This Court also decided the case on the same ground. Had the matter rested there and had the Rani's suit been finally decided on the ground of estoppel only, the decision would have been on a ground personal to the Rani and would not have been binding on the reversioners. But when the case went before the Privy Council their Lordships preferred to decide the question of authority and the validity of the adoption as one of fact, 'without recourse' as their Lordships observed, 'to the doctrine of estoppel.' Their Lordships were fully cognizant of the fact that oral evidence had not been recorded on the point but in spite of this they proceeded to decide the question on the documentary evidence before them. The Rani was represented before their Lordships by eminent Counsel and it must be presumed that they urged every point that could be reasonably put forward. It may be that in view of the length of time which had elapsed since the death of Raja Raghubir Singh their Lordships considered, as also did the learned Counsel who presented the Rani's case before them, that oral evidence would be of little value. To take an extreme view, it may also be (if I may say so without presumption) that their Lordships decided the case erroneously. The fact, however, remains that their Lordships proceeded to try the question on the merits and decided it in favour of the defendant. It cannot under the circumstances be said that there was not a fair trial. That the possibility of claimants coming forward as reversioners was present to their Lordships' minds is clear from their Judgment and when they said that 'in view of the decision now given that the respondent was in fact duly adopted, further litigation on the point may be taken as happily out of the question,' they clearly meant that their decision would be binding on reversioners and the validity of Balwant Singh's adoption would be for all time beyond the region of controversy. To hold otherwise would be to render their Lordships' decision wholly nugatory and it would be open to as many claimants as might assert themselves to be reversioners to re-open the question a number of times and to harass the defendant repeatedly. In this connection I may also point out that in the case of Jugul Kishore v. Jotendro Mohun Tigore (1884) I.L.R. 10 Calc. 985 referred to above, the Judicial Committee held a decree and an auction sale which followed, to be binding although the widow against whom it was passed did not appear and the decree was made ex parte, and this circumstance did not in the opinion of their Lordships render the decree any the less binding.
14. It may be that the rule of res judicata, as enacted in Section 11 of the Code of Civil Procedure, is not strictly applicable, as the plaintiffs were not parties to the previous suit and do not claim under a party to that suit. But in the Sivaganga case their Lordships held a decree obtained against the widow in possession to be binding on reversionary heirs on the ground of convenience. The decree being binding on the estate binds all persons who succeed to the estate. In my Judgment the decree passed by the Privy Council in the suit brought against. Balwant Singh by Rani Dharam Kuar is, on the above grounds, binding on the reversioners and this suit is not maintainable. I would dismiss the appeal.
15. The learned Judges having differed, the case was referred to Chamier, J. After the case had been argued before him he delivered the following judgment.
16. This appeal was referred tome under Section 98 of the Code of Civil Procedure in consequence of a difference of opinion between the learned Chief Justice and Mr. Justice Banerji. The point upon which they differed is whether the decision of their Lordships of the Privy Council in the suit of Rani Dharam Kuar against the defendant respondent Balwant Singh, to the effect that the Rani duly adopted Balwant Singh under authority given to her by her husband, is binding upon the plaintiff appellant, Risal Singh, who claims to be the reversionary heir of the husband, and entitled to the estate on the death of the Rani which occurred in November, 1912, a few months before the present suit was brought.
17. In the previous suit the court of first instance declined to take evidence (or rather oral evidence, for the parties were required to put in their documentary evidence) on the question whether the Rani had authority to adopt Balwant Singh, and dismissed the suit on the ground that the Rani was estopped from disputing her alleged authority to make the adoption, the factum of which is beyond dispute. This Court also decided the case on the question of estoppel confirming the decree of the first court. The Rani appealed to His Majesty in Council, one of the grounds taken in the application for leave to appeal being that the first court should have allowed her to give evidence on the question of her authority to make the adoption. A similar ground was taken in her appeal to this Court. Their Lordships of the Privy Council agreed with the Indian Courts that the Rani was estopped from denying that she had authority to adopt Balwant Singh; but they observed that the estoppel was purely personal and would not bind any one who claimed by an independent title. They, however, as I read the judgement, decided and intended to decide that the evidence shewed that the Rani had authority to adopt Balwant Singh. I think that this is clear not only from the passages quoted by Mr. Justice Banerji but also from the earlier portions of the judgment, for example, the passage in which they say: 'He gave formal and emphatic directions to his wife in regard to the adoption of a son. The Rani herself has pledged her word as to the nature and scope of those directions on more than one public and important occasion. She did so particularly in the deed of the 13th of January, 1899, and in her defence to the action of one Baldeo Singh.' Then, later on their Lordships say that ' in reviewing the facts of the case they are of opinion that the question may well be decided as one of fact on the Rani's own statements without recourse to the doctrine of estoppel. In their view she was speaking the truth in Baldeo Singh's action when she was pleading to her authority.' The learned Chief Justice is of opinion that, though in his view the Rani's conduct rendered it difficult for her to fairly represent the estate, it might perhaps be conceded that the finding of the Privy Council would have operated as res judicata had the evidence as to the Rani's authority to adopt been admitted and recorded. But he thinks it is clear that, if their Lordships' attention had been called to the fact that the first court had declined to receive evidence, they would never have decided the case on the question of fact so as to bind the estate. It seems to me that, if there was any misapprehension as to the proceedings of the first court that might be a ground for a review of judgment, but is no ground for holding that clear and definite decision on the question of fact is not binding on the estate. A court may refuse to summon witnesses or admit evidence, and, when its decision is subsequently relied upon as constituting a question res judicata, the court trying the subsequent case cannot disregard the decision because 'it thinks that the court trying the earlier case ought to have summoned the witnesses or admitted further evidence. In my opinion the Rani in the previous case represented the estate. Upon this I have nothing to add to what Mr. Justice Banerji has said. The Rani wanted to give evidence on the question of her authority, and both in appeal to this Court and in her application for leave to appeal to His Majesty in Council she complained of the action of the court in refusing to admit that evidence. Therefore there can be no doubt that she was doing her best to 'shew that there had boon no valid adoption, and her action was in the interest of the reversionary heir of her husband. The reports of the case in the Law Reports Indian Appeals and in the Indian Law Reports are not as full as in the Allahabad Law Journal and the Calcutta Weekly Notes. The last mentioned report, volume 16, page 675, represents Sir Robert Finlay as having contended that the appeal to their Lordships was confined to the applicability of the doctrine of estoppel and their Lordships as having then intimated that in their opinion there were sufficient materials on the record to decide all questions arising in the suit. Whether counsel for the appellant acquiesced in this view or not it is impossible to say, but the Judgment of their Lordships makes it clear that the question of the Rani's authority to make the adoption was argued. The report in the Calcutta Weekly Notes only makes clear, what one would infer from the other reports, that whether the counsel for the appellants was willing to do so or not their Lordships deliberately decided to take up the question of the Rani's authority to make the adoption. It is impossible to suppose the neither counsel for the appellant nor their Lordships were aware that the first court had declined to take oral evidence on the subject. A perusal of the record shews that notwithstanding the order of the court there was before their Lordships a mass of evidence bearing on the question of the Rani's authority to adopt. What was shut out must have been mainly oral evidence as to the events which had happened many years ago, and it is quite possible that counsel for the Rani in deference to the opinion of their Lordships did not press the contention that the Rani should be allowed a further opportunity of giving evidence. However that may be I think it is clear that their Lordships deliberately decided the question knowing full well that their decision would bind the reversioners and in the hope that their decision would put a stop to further litigation.
18. I am of opinion that the decision of their Lordships is binding on the plaintiffs in the present suit and justifies the dismissal of the suit without trial on the merits.
19. Let the record be placed before the Chief Justice.
20. By the Court - This appeal having now been disposed of under the provisions of Section 98 of the Code of Civil Procedure the order of the Court is that the appeal be dismissed with costs.