Allahabad Court May 1909 Judgments
Mahabir Sahai and ors. Vs. Oudh Bihari Pande and anr.
Court: Allahabad
Decided on: May-31-1909
Reported in: (1909)ILR31All590
Richards and Alston, JJ.1. The decree-holders obtained two decrees on the 26th of March, 1896. One decree was obtained in suit No. 275 of 1895. The other was obtained in suit No. 272 of 1895. The decrees were for sale on foot of mortgages; Orders absolute were obtained on the 15th of December, 1899. The first application for execution was made in respect of the decree in suit No. 275. The decree was apparently time-barred. The decree-holders, however, alleged that the proceeds of certain timber had been applied in part payment of the decree. The court executing the decree found the part payment not proved by the decree-holders, and rejected the application. The first application in suit No. 272 for execution of the present decree was made on the 9th of January 1903. The decree-holders there also alleged part payment. The decree-holders obtained an order that notice should go to the judgment-debtors. The application was, however, subsequently struck of without any further order having b...
Tag this Judgment!Oudh Bihari Pande and anr. Vs. Mahabir Sahi and ors.
Court: Allahabad
Decided on: May-31-1909
Reported in: 2Ind.Cas.524
1. The decree-holders obtained two decrees on the 26th of March 18,98. One decree was obtained in suit No. 275 of 1.895. The other was obtained in suit No. 272 of 1895. The decrees were for sale on foot of mortgages. Orders absolute were obtained on the 15th of December 1899. The first application for execution was made in respect of the decree in suit No. 275. The decree was apparently time barred. The decree-holders, however, alleged that the proceeds of certain timber had been applied in part payment of the decree. The Court executing the decree found the part payment not proved by the decree-holders, and rejected the application.2. The first application in suit No. 272 for execution of the present decree was made on the 9th of January 1903. The decree-holders there also alleged part payment. The decree-holders obtained an order that notice should go to the judgment-debtors. The application was, however, subsequently struck off without any further order having been made. The present...
Tag this Judgment!Gajraj Singh and anr. Vs. Baijnath Singh and anr.
Court: Allahabad
Decided on: May-28-1909
Reported in: 2Ind.Cas.677
Alston, J.1. The facts which have given rise to the only question that has been argued in this second appeal are as follows: -A suit for profits, brought in the Court of an Assistant Collector, was dismissed under Section 102 of the Civil Procedure Code in default of appearance. An application for restoration of the suit was made under Section 103 of the Code and was rejected. From this latter order the plaintiff filed an appeal in the Court of the District Judge. It is not disputed here that this appeal was improperly entertained by the District Judge, for there is no appeal from an order passed by an Assistant Collector under Section 103 of the Civil Procedure Code. The appeal was, however, heard and allowed by the District Judge, who set aside the order refusing to restore the suit, and the case was in consequence remanded to the Court of the Assistant Collector for trial. The suit was eventually decreed, and this decree was upheld in appeal by the same District Judge; At the hearin...
Tag this Judgment!Kishan Lal Vs. Shib Narain
Court: Allahabad
Decided on: May-27-1909
Reported in: 3Ind.Cas.505
Tudball, J.1. This appeal arises out of a suit brought by the plaintiff to set aside the alienation made by his father of certain movable property alleged to have been acquired by the father out of joint ancestral funds.2. The claim was decreed by the Court of first instance but was dismissed by the lower appellate Court on the sole ground that the suit was one falling within the scope of article 49 Schedule II of the Limitation Act of 1877, and as it was brought more than three years after the sale made by the father it was, therefore, barred by limitation.3. On appeal to this Court it is urged that article 126 governs the case. The plaintiff's case is directed against his own brother who apparently will not join him in the suit, as well as against the alienee. The facts alleged by him are that he and his father and brother formed a joint Hindu family subject to the Mitakshara, that out of ancestral funds the family purchased certain ' Jajmani Bahis' (they are a family of Brahmins and...
Tag this Judgment!Kabula and ors. Vs. Syed Mohammad Hashim Ali Khan
Court: Allahabad
Decided on: May-27-1909
Reported in: 2Ind.Cas.551
1. This is an application in revision. The facts are shortly as follows: The plaintiff brought a suit to enforce a mortgage. He impleaded the mortgagor and the subsequent mortgagee. In his plaint he set forth property which he sought to sell in order to realise his mortgage debt. The property as set forth was merely a kotha and a sugar-cane press An ex parte decree in terms of the plaint was passed. The mortgage really comprised some zemindari property. This was not specified in the plaint nor in the decree. The decree was obtained in 1905 and was duly made absolute in 1906. In the order making the decree absolute the zemindari property was again omitted. The kotha and sugar-cane press were sold and then in the year 1908 the plaintiff applied to the Munsif to amend the decree by including the zemindari property. It is perfectly clear that the jurisdiction of the Court was only to amend the decree so as to bring it into conformity with the judgment. The decree was already in conformity ...
Tag this Judgment!Niaz-ud-dIn Vs. Abdul Aziz and ors.
Court: Allahabad
Decided on: May-27-1909
Reported in: 2Ind.Cas.552
1. This was a suit to recover a certain sum of money under somewhat peculiar circumstances : The plaintiff says that he sold a decree to one Kali Prasad on the terms that Kali Prasad should retain out of the purchase money a sum of Rs. 500, the object being that Kali Prasad should go security to that extent for the plaintiff. Kali Prasad sold the decree to Abdul Aziz. It is suggested that the reason for this second sale was that Kali Prasad could not give the security himself, and he, accordingly, sold the decree to Abdul Aziz on the same terms. The plaintiff then says that neither Kali Prasad nor Abdul Aziz went security, and consequently he became entitled to recover from one or the other of them Rs. 500. He made both parties defendants to the suit. The first Court held that Abdul Aziz was liable and dismissed the suit against Kali Prasad. Abdul Aziz appealed. The plaintiff did not appeal, and Kali Prasad was not made party to the appeal. The lower appellate Court dismissed the suit ...
Tag this Judgment!Nizam-u-ddIn Vs. Abdul Aziz and ors.
Court: Allahabad
Decided on: May-27-1909
Reported in: (1909)ILR31All521
Richards and Alston, JJ.1. This was a suit to recover a certain sum of money under somewhat peculiar circumstances. The plaintiff says that he sold a decree to one Kali Prasad on the terms that Kali Prasad should retain out of the purchase money a sum of Rs, 500, the object being that Kali Prasad should go security to that extent for the plaintiff. Kali Prasad sold the decree to Abdul Aziz. It is suggested that the reason for this second sale was that Kali Prasad could not give the security himself, and he accordingly sold the decree to Abdul Aziz on the same terms. The plaintiff then says] that neither Kali Prasad nor Abdul Aziz ever went security, and consequently he became entitled to recover from one or the other of them Rs. 500. He made both parties defendants to the suit. The first court held that Abdul Aziz was liable and dismissed the suit against Kali Prasad. Abdul Aziz appealed. The plaintiff did not appeal, and Kali Prasad was not made party to the appeal. The lower appellat...
Tag this Judgment!Baldeo Vs. Badri Nath and anr.
Court: Allahabad
Decided on: May-26-1909
Reported in: (1909)ILR31All519
Banerji and Tudball, JJ.1. This appeal arises out of a suit for pre-emption under the Muhammadan Law which has been found to be applicable under a custom prevailing in the locality in which the property in question is situated. The plaintiff claimed preemption as Shafi khalit, that is as a partner in the immunities and appendages of the property sold. The lower appellate court has found that the defendant vendee is also a partner in the immunities and appendages of the said property and that therefore the plaintiff has no right of pre-emption preferential to that of the vendee defendant. It has been found that the plaintiff has a right to discharge water on the property sold. This would give him a right of pre-emption as Shafi khalit according to the ruling in Karim v. Prio Lal Bose (1905) I.L.R. 28 All. 127. What we have to consider is whether the vendee also is a pre-emptor of the same class. The lower appellate court has found that between the property sold and the house of the vend...
Tag this Judgment!Lekhraj and anr. Vs. Parshadi Alias Ram Prashad
Court: Allahabad
Decided on: May-26-1909
Reported in: 2Ind.Cas.409
1. The defendant Parshadi alias Ram Parshad executed a sale-deed of his zamindari in favour of the plaintiffs, on the 21st of June 1904. On the same date he executed another document relinquishing his rights as ex proprietary tenant in respect of his sir and khudkasht lands in favour of the plaintiffs for a consideration of Rs. 500. The plaintiffs' allegation was that the defendant surrendered possession to them and that they wore in possession of the sir and khudkasht lands from 1904 to 1907 Fasli, and that in 1907 Fasli the defendant dispossessed them. They brought the present suit for a refund of Rs. 500, the consideration for the second deed executed on the 21st of June 1904 and in the alternative for possession of the sir and khudkasht lands. The Court of first instance found that Rs. 500 had boon paid by the plaintiffs to the defendant and made a decree in their favour for that amount with interest. From this decree both parties appealed. In their appeal the plaintiffs claimed po...
Tag this Judgment!Baldeo Das Vs. Pandit Badri Nath and anr.
Court: Allahabad
Decided on: May-26-1909
Reported in: 2Ind.Cas.458
1. This appeal arises out of a suit for pre-emption under the Muhammadan Law, which has been found to be applicable under a custom prevailing in the locality in which the property in question is situated. The plaintiff claimed pre-emption as shafi-khalit, that is as a partner in the immunities and appendages of the property sold. The lower appellate Court has found that the defendant-vendee is also a partner in the immunities and appendages of the said property and that, therefore, the plaintiff has no right of pre-emption preferential to that of the vendee-defendant. It has been found that the plaintiff has a right to discharge water on the property sold. This would give him a right of pre-emption as shafi-khalit, according to the ruling in Karim v. Priya Lal Base 28 A. 127. What we have to consider is whether the vendee also is a pre-emptor of the same class. The lower appellate Court has found that between the property sold and the house of the vendee there is a lane which is not a ...
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