Allahabad Court February 1917 Judgments
Kulsum Fatima Vs. Ali Akbar and ors.
Court: Allahabad
Decided on: Feb-28-1917
Reported in: (1917)ILR39All401
Piggott, J.1. This is an appeal from a decree of the Third Additional Subordinate Judge of Aligarh in an original suit. That decree purports to be passed on the basis of an award, and there is no suggestion in any of the pleas in the memorandum of appeal that the decree is in excess of or not in accordance with the award. A preliminary objection is taken on behalf of the respondents that no appeal lies, or more strictly speaking, that the appeal cannot be heard on any of the pleas taken in the memorandum of appeal before us.2. The facts essential to the determination of this point seem to be the following : The suit in the court below was filed on the 11th of September, 1913. There was a single plaintiff and there were four defendants. The court fixed the 14th of November, 1913, for settlement of issues. On that date the court took note of the fact that three of the defendants, namely, defendants Nos. 1, 2 and 3 (there is a clerical error on this point in the proceedings of the court b...
Tag this Judgment!Bithal Das and ors. Vs. Madhuki Surendra Sahi
Court: Allahabad
Decided on: Feb-28-1917
Reported in: (1917)ILR39All450
Piggott and Walsh, JJ.1. The appeal before us purports to beg a first appeal from an order passed under Rule 4 of Order X of the Code of Civil Procedure. A preliminary objection is taken that no appeal lies. Under Order XLIII, Rule 1 (e), an appeal lies against an order under Rule 4 of Order X pronouncing judgement against a party. Whether an order passed by a court which is purporting to deal with one of the parties under the provisions of Order X, Rule 4, of the Code of Civil Procedure does or does not amount to pronouncing judgement against that party, must depend on the particular facts of each case, and on what actually took place. We have examined the record, and we are quite satisfied that it cannot be said that the court below pronounced judgement against the present defendant appellant within the meaning of that rule. That court seems to have gone on and tried the suit on the merits. The appeal will lie against the final decree, and in the course of that appeal, if this partic...
Tag this Judgment!Kunwar Madhava Surendra Sahi Vs. B. Bithal Dass and ors.
Court: Allahabad
Decided on: Feb-28-1917
Reported in: AIR1917All300(1); 39Ind.Cas.151
1. The appeal before us purports to be in first appeal from an order passed under Rule 4 of Order X of the Code of Civil Procedure. A preliminary objection is taken that no appeal lies. Under Order XLIII, Rule 1(e), an appeal lies against an order under Rule 4 of Order X pronouncing judgment against a party. Whether an order passed by a Court which is purporting to deal with one of the parties under the provisions of Order X, Rule 4, of the Code of Civil Procedure does or does not amount to pronouncing judgment against that party, must depend on the particular facts of each case and on what actually took place. We have examined the record and we are quite satisfied that it cannot be said that the Court below pronounced judgment against the present defendant appellant within the meaning of that rule. That Court seems to have gone on and tried the suit on the merits. An appeal will lie against the final decree and in the course of that appeal, if this particular defendant has any grievan...
Tag this Judgment!Gaya Prasad and anr. Vs. Sher Ali and ors.
Court: Allahabad
Decided on: Feb-28-1917
Reported in: AIR1917All402(1); 39Ind.Cas.574
1. This application is one for revision of a decree made by the Small Cause Court dismissing the plaintiffs' suit on the ground of limitation. The suit was brought upon a bond dated the 19th day of November 1909. The money was re-payable within three years from the date of the bond and the interest was payable monthly but the bond contained a further stipulation that if default was made in payment of interest, the interest should be added to the principal and further interest charged. On default of payment of interest the holder of the bond was entitled, at his option, either to sue forthwith to recover the amount or to await the stipulated period. The Court below seems to have decided the case on the authority of the ruling in Gaya Din v. Jhuman Lal 28 Ind. Cas. 910 ; 13 A.L.J. 510 37 A. 400. That case was decided as being a case to which Article 132 of the Schedule to the Limitation Act applies. That Article provides that the period of limitation for the enforcement of payment of mon...
Tag this Judgment!Musammat Kulsum Fatma Vs. Saiyed Ali Akbar and ors.
Court: Allahabad
Decided on: Feb-28-1917
Reported in: AIR1917All71; 39Ind.Cas.730
Piggott, J.1. This is an appeal from a decree of the Third Additional Subordinate Judge of Aligarh in an original suit. That decree purports to be passed on the basis of an award and there is no suggestion in any of the pleas in the memorandum of appeal that the decree is in excess of or not in accordance with the award. A preliminary objection is taken on behalf of the respondents that no appeal lies, or more strictly speaking, that the appeal cannot be heard on any of the pleas taken in the memorandum of appeal before us.2. The facts essential to the determination of this point seem to be the following: The suit in the Court below was filed on the 11th of September 1913. There was a single plaintiff and there were four defendants. The Court fixed the 14th of November 1913 for settlement of issues. On that date the Court took note of the fact that three of the defendants, namely, defendants Nos. 1, 2 and 3 (there is a clerical error on this point in the proceedings of the Court below,...
Tag this Judgment!Baijnath and ors. Vs. Dulare
Court: Allahabad
Decided on: Feb-24-1917
Reported in: AIR1917All379(2); 39Ind.Cas.582
1. We see no reason to differ from the view taken by the learned Judge of this Court. We must take it for the purposes of this appeal that the defendants were in possession of the land sought to be recovered as mortgagees under a mortgage made some thirty or more years ago. It is admitted that the defendants never put forward their claim before the Special Judge after an application had been made by the proprietor under the provisions of Act I of 1903. Section 12 of that Act states that 'every claim against the proprietor in respect of a private debt shall, unless made within the time and in the manner required by this Act, be deemed for all purposes and on all occasions to have been duly discharged.' It seems to us that the provisions of this section mean that the debt secured by the mortgage must be deemed to be discharged, and if there is no longer any debt, then the plaintiff is entitled to recover the mortgaged property. It is said that his only remedy was under Section 18 to appl...
Tag this Judgment!Shibba Mal and anr. Vs. Naurang Mal
Court: Allahabad
Decided on: Feb-24-1917
Reported in: AIR1917All118; 39Ind.Cas.739
1. This appeal arises under the following circumstances. The plaintiffs and defendant accupy houses in the same vicinity. Between their houses lies a piece of waste land used by them as a passage, (In all probability it was left vacant for this purpose.) The finding of the lower Appellate Court is that this piece of land is the joint property of the parties. The defendant has built a balcony from his house projecting over a considerable width of the passage. The plaintiff has instituted the present suit for the removal of this balcony. The first Court held that the passage was a public way and dismissed the plaintiff's suit on that ground. The lower Appellate Court granted the plaintiff's claim in the main. In second appeal a learned Judge of this Court reversed the decree of lower Appellate Court and restored the decree of the Court of first instance. The present appeal is against the decree of the learned Judge of this Court. It seems to us that the view taken by the learned Judge is...
Tag this Judgment!Emperor Vs. Umar Khan
Court: Allahabad
Decided on: Feb-23-1917
Reported in: (1917)ILR39All399
Tudball and Muhammad Rafiq, JJ.1. This is a reference by the Sessions Judge of Saharanpur. One Umar Khan is an accused person who was examined by a Magistrate and his statement recorded in accordance with Section 364 of the Code of Criminal Procedure. When called upon by the Magistrate to sign the record of his statement Umar Khan refused to comply. He has been tried and convicted of an offence under Section 180 of the Indian Penal Code. The learned Sessions Judge is in doubt as to the correctness of this conviction in view of the decision in Imperatrix v. Sirmpa (1877) I.L.R. 4 Bom. 15, and he has referred the matter to this Court. The decision to which the Sessions Judge has referred is one which was passed when Act X of 1872 was in force. In Section 346 of that Act there was a separate paragraph which ran as follows: 'The accused person shall sign, or attest by his mark, such record.' It was held in that case that this was merely directory and not mandatory, and therefore the accuse...
Tag this Judgment!Beni Prasad and anr. Vs. Harnam Das and ors.
Court: Allahabad
Decided on: Feb-23-1917
Reported in: AIR1917All239(1); (1917)ILR39All396
Henry Richards, C.J. and Pramada Charan Banerji, J.1. This application arises under the following circumstances. A suit was brought) for redemption. The first court decreed the plaintiff's claim conditional upon payment of a certain sum into court. This Court modified the decree of the court of first instance by making the redemption money considerably larger. The present application purports to be under Order XXXIV, Rule 8, for an extension of time within which to pay in the mortgage money. A preliminary objection has been taken that the proper court to which the application ought to have been made is the court of first instance. We think that there is force in this objection, The point was expressly decided in the case of Ram Dhani Sahu v. Lalit Singh (1907) I.L.R. 31 All. 328. It is true that that case was decided before the present Code of Civil Procedure came into operation. We think, however, that there has been no change in the law. Certain sections of the Transfer of Property A...
Tag this Judgment!Damodar Das Vs. Jhaoo Singh
Court: Allahabad
Decided on: Feb-23-1917
Reported in: AIR1917All295; 39Ind.Cas.87
1. This is a reference made by the District Judge. A suit was brought by a tenant under Section 95 of the Tenancy Act for a declaration that he was an occupancy tenant. The Court of first instance decreed the claim. The tenant claims as the adopted son of a deceased tenant. At the hearing of the suit an objection was apparently raised that the Revenue Court had no jurisdiction to go into the question of adoption and decide it. The Court framed an issue and decided that issue. An appeal was preferred to the Commissioner who returned the memorandum of appeal for presentation to the District Judge under the provisions of Section 177, Clause (f), of the Tenancy Act. The District Judge is of opinion that really no question of jurisdiction properly arose in the matter at all, and it was a mistake of the Court to fix the issue mentioned above, and that the word 'properly' should be read into Section 177, Clause (f). In other words, that Clause (f) should be read as follows: 'A question of jur...
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