Trevelyan and Beverley, JJ.
1. The only real question for our decision is whether the terms of Section 317 of the Code of Civil Procedure bar the suit. As against the appellant's contention there are to be found at least three reported cases of this Court, Kanizak Sukina v. Monohur Das I.L.R. 12 Cal. 204, Seetanath Ghose v. Madhub Narain Roy Chowdhry 1 W.R. 329, and a third case, not so much in point, Khyrat Ali v. Syfullah Khan 8 W.R. 130. There are also against the appellant's contention two Allahabad cases, Sohun Lall v. Lala Gya Pershad 6 N.W. 265, and Puran Mal. v. Ali Khan I.L.R. 1 All. 285.
2. It is true that the appellant has in his favour a very recent case--Rama Kurup v. Sridevi I.L.R. 16 Mad. 290--in which the learned Judges came to the conclusion that the case of Kanizak Sukina v. Monohur Das I.L.R. 12 Cal. 204, was wrong; but in that case the learned Judges do not seem to have been referred to any of the other decisions.
3. Before we could give effect to the appellants' contention we should have to refer the case to a Full Bench : but as we agree with the judgment of Mitter and Macpherson, JJ., in Kanizak Sukina v. Monohur Das I.L.R. 12 Cal. 204, which supports the cases of Seetanath Ghose v. Madhub Narain Roy Chowdhry 1 W.R. 329, and Khyrat Ali v. Syfullah Khan 8 W.R. 130, we decline to refer this case to a Full Bench, and dismiss the appeal with costs.