Allahabad Court February 1923 Judgments
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Misran and ors. Vs. Vilayat HusaIn and anr.
Court: Allahabad
Decided on: Feb-16-1923
Reported in: (1923)ILR45All396
Grimwood Mears, C.J.1. This is an interesting case which has given rise to a discussion as to under what circumstances a defendant can properly plead and rely upon facts showing that he and the plaintiff were in pari delicto. The circumstances are as simple as they can be Sheikh Vilayat Husain and Musammat Imaman were, on the 12th of September, 1904, indebted to various creditors. There was at least one decree outstanding which was in the course of execution. In that position of affairs they turned to Muhammad Ismail, who was a friend, and who agreed with them that a fictitious deed of sale of property should be executed in his favour, so that that might serve as a shield against the depends of creditors. That deed of sale was in fact executed on the 12th of September, 1904, and no consideration passed from Muhammad Ismail to the ostensible vendors. Muhammad Ismail put forward a claim and got this very properly released from the operation of the decree. Therefore the contemplated fraud...
Sheikh Vilayat HussaIn and anr. Vs. Musammat Misran and ors.
Court: Allahabad
Decided on: Feb-16-1923
Reported in: AIR1923All504; 72Ind.Cas.92
Grimwood Mears, C.J.1. This is an interesting case which has given rise to a discussion as to under what circumstances a defendant can properly plead and rely upon facts showing that he and the plaintiff were in pari delicto.2. The circumstance are as simple as they can be, Sheikh Vilayet Hussain and Musammat Imaman were, on the 12th of September 1904, indebted to various creditors. There was at least one decree outstanding which was in the course of execution. In that position of affairs they turned to Muhammad Ismail, who was a friend and who agreed with them that a fictitious deed of sale of property should be executed in his favour so that that might serve as a shield against the demands of creditors. That deed of sale was in fact executed on the 12th of September 1904 and no consideration passed from Murtammad Ismail to the ostensible vendors. Muhammad Ismail put forward a claim and gos this very property released from the operation of the decree. Therefore, the contemplated fraud...
Shah Muhammad Ehsanullah Vs. the Peoples Industrial Bank Ltd.
Court: Allahabad
Decided on: Feb-16-1923
Reported in: 72Ind.Cas.106
1. We have decided that it would be in the interests of justice to set aside the ex parte order and to remit this case to the learned District Judge to hear the application on the merits. Our grounds for doing so are as follows:--It is not desirable to disturb the established practice. The learned Judge's attention' was drawn to Section 169 of the old Act of 1882 which governs the Peoples' Industrial Bank Ltd. In liquidation, but his attention was not drawn to the authorities, such as they are, under that section. In 1894 the Bombay High Court decided that Section 169 did not apply to an application to set aside an ex parte order. Sir George Knox decided much the same thing in the year 1893 reported in the case of Mussoorie Bank Ltd. v . Himalaya Bank Ltd. 16 A. 53 : A.W.N. (1893) 205 : 8 Ind. Dec. (N.S.) 35, In England the view taken under the same section is that a certain amount of latitude is allowed, because in these matters of winding up, the previous orders of the Court are net ...
Mirza Umrao Beg Vs. Mirza Mukhtar Beg and ors.
Court: Allahabad
Decided on: Feb-16-1923
Reported in: AIR1923All494; 74Ind.Cas.687
1. This is an execution first appeal arising out of an unfortunate litigation which has already occupied our attention in connection with Regular First Appeal No. 39 of 1920. The point which we are now called upon to decide is, however, distinct from any of the questions raised in the connected appeal above referred to. The suit was one for partition. There, were fifteen plaintifts in the case, and in the preliminary decree as drawn up these plaintiffs were awarded their costs against the defendant. There was an appeal to this Court and also a petition of cross-objections on the part of the plaintiffs, with the result that the preliminary decree passed by the Trial Court was further modified in favour of the plaintiffs and the defendant was made liable to a further sum on account of costs. The application with which we have to deal is an application by fourteen of the plain tiffs, Nos. 2-15, asking that the entire decree for costs may be executed, subject to such orders as the Court, m...
Mohan Lal and anr. Vs. Ganga Prasad and ors.
Court: Allahabad
Decided on: Feb-15-1923
Reported in: (1923)ILR45All395
Piggott and Walsh, JJ.1. Prior to the hearing of these connected appeals a question has been raised by a petition presented to this Court from Mr. Sital Prasad, vakil, of Agra, it appears that there are two minors, Bala Prasad and Nanhe, whose interests are concerned in both these appeals. The court having failed to find any other person fit and willing to act as their guardian for the purposes of these appeals, has appointed Mr. Sital Prasad, vakil, to be such guardian.2. That gentle in an appeals to us to make a proper order as to the costs to be incurred by him in order that he may obtain the legal assistance necessary to the proper representation of the minors at the hearing of the appeals. We have been asked, to consider whether such order can properly be made by us under Order XXXII, Rule 4, of the Code of Civil Procedure. We are clearly of opinion that a vakil of the court is an officer of that court for the purposes of this rule, and that therefore we have jurisdiction to make ...
Bhagwan Das Naik and ors. Vs. Mahadeo Prasad Pal and ors.
Court: Allahabad
Decided on: Feb-15-1923
Reported in: AIR1923All298; (1923)ILR45All390
Muhammad Rafiq and Lindsay, JJ.1. The suit which has given rise to this appeal was brought to enforce a mortgage, dated the 24th of May, 1907, executed in favour of the predecessor in interest of the plaintiffs by three mortgagors, Mahadeo Prasad Pal, Harihar Prasad Pal and Banke Bahadur Pal.2. Of these the only survivor is Mahadeo Prasad, who was impleaded as the first defendant. Banke Bahadur died without issue, while Harihar Prasad, also deceased, is now represented by his two sons and a grandson, defendants 2, 3 and 4.3. The fifth defendant is a grandson of Mahadeo Prasad.4. The suit was resisted by the sons and grandson of Harihar Prasad, who pleaded that the property mortgaged was joint family property and that the mortgage debt had not been incurred for any family necessity nor for any purpose which would render the family property liable for its discharge.5. The lower court dismissed the suit, finding that there was no legal necessity for the loan.6. The learned Subordinate Jud...
Abdul Ghafoor Vs. Qamar-ud-din
Court: Allahabad
Decided on: Feb-15-1923
Reported in: AIR1923All397; 71Ind.Cas.973
1. This appeal arises out of a suit for redemption of a mortgage made on the nth of February 1893. The property which was mortgaged under this mortgage was subsequently mortgaged to one Nanku Lal in 1895. The prior mortgagee obtained a decree upon his mortgage in 1911 without impleading the subsequent mortgagee. The subsequent mortgagee obtained a decree upon his mortgage without making the prior mortgagee a party to his suit. The decree under the first mortgage was purchased by one Mazhar Ahmad. In execution of the decree upon the second mortgage the property was sold and was purchased by the present plaintiff. The original mortgagor is dead and Mazhar Ahmad, the purchaser of the decree under the first mortgage, has inherited a portion of the rights of the original mortgagor Aziz-ud-Din. As the second mortgagee was not made a party to the suit brought upon the prior mortgage, his right to redeem the prior mortgage did not become extinguished, and as the plaintiff is the purchaser unde...
Syed Samasul Hasan and anr. Vs. Syed Hasan
Court: Allahabad
Decided on: Feb-15-1923
Reported in: AIR1923All430; 75Ind.Cas.612
1. A Muhammadan lady, by name Khudija-al-kubra, died on the 29th of November 1906, in child birth. The dower-debt owing by her husband was said to be Rs. 5,000 and a female member of the family who was present stated that the lady had an apprehension of death. There was apparently some difficulty in reference to the delivery of the child which was then in her womb, and she, it is said, having the fear of death on her, did renounce her dower in favour of her husband after having asked him to forgive her faults and expressing manifestly the opinion that she was about to die. She in fact died shortly after. In 1919, after a lapse of th rteen years, the plaintiffs who were minors in 1906 brought this suit for the recovery of their share of the dower in accordance with their degree of relationship. The defendants pleaded that Musammat Khudija-al-kubra gi ted her dower-debt before her death according to the practice of the brother ood. No particulars were asked as to when, where and under wh...
Ram Sewak Rai and ors. Vs. Sheo Naik Rai and ors.
Court: Allahabad
Decided on: Feb-15-1923
Reported in: 73Ind.Cas.945
1. In the year 1869 the predecessors of the plaintiffs put in execution a simple money-decree which they had obtained against one of the defendants and the predecessor-in-title of the others. In those proceedings the parties came to an agreement which was embodied in an application made to Court. According to that agreement it was acknowledged that the sum due to the plaintiffs was Rs. 301, and certain plots of lend measuring 3 bighas 12 biswas belonging to the defendants were put into possession of the plaintiffs and it was agreed that they should take the usufruct in lieu of the interest due on the debt and that the defendant could redeem on payment of Rs. 301. It was further agreed that if the plaintiffs were dispossesed they should then proceed with the execution of the decree. The Court passed orders in terms of this compromise and the plaintiffs obtained possession. They remained in possession of the whole land until the year 1884, when, during the settlement, the area in their p...
Sheo Naik Rai and ors. Vs. Ram Sewak Rai and ors.
Court: Allahabad
Decided on: Feb-15-1923
Reported in: (1923)ILR45All388
Ryves and Gokul Prasad, JJ.1. In the year 1869 the predecessors of the plaintiffs put in execution a simple money decree which they had obtained against one of the defendants and the predecessor in title of the others. In those proceeding the parties came to an agreement which was embodied in an application made to court. According to that agreement it was acknowledged that the sum, due to the plaintiffs was Rs. 301, and certain plots of land measuring 3 bighas 12 biswas belonging to the defendants were put into possession of the plaintiffs and it was agreed that they should take the usufruct in lien of the interest due on the debt and the defendants could redeem on payment of Rs. 301. It was further agreed that if the plaintiffs were dispossessed, they should then proceed with the execution of the decree. The court passed orders in terms of this compromise and the plaintiffs obtained possession. They remained in possession of the whole land until the year 1884, when, daring the settle...
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