JUDGMENT
1. We are unable to agree with the learned Judge that it must be assumed that if the 1st defendant “had collected any rents, they were taken into account in the proceeding upon which” the decree was passed.
2. If any such sums had been so taken into account, it lay upon the 1st defendant to prove that fact as a defence to the plaintiff’s claim.
3. The plaintiff’s claim for rents of the house purchased by him from April 1910 was not a matter (so far as we could see) which could have been or was intended to be gone into in the suit for partition.
4. We think that the most appropriate course is (in discharge of the learned Judge’s order)
5. (a) to direct under Section 47 (2) of the Code of Civil Procedure this application by Judge’s summons to be treated as a suit, the appellant to pay the additional Court-fees within two weeks;
6. (b) to direct the appellant to file in Court an additional statement in which the necessary additional allegations should be made (in addition to the allegations contained in the affidavit filed in support of the Judge’s summons), showing particulars as to the actual collections of rents and profits made by the respondent and also indicating, where any portion of the claim is prima facie barred by limitation, how it is not barred.
7. The additional statement ought to be filed in four weeks. The case is remanded for final disposal as suit, the costs hitherto being costs in the cause.