Allahabad Court January 1928 Judgments
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Girwar Dayal Vs. NaraIn Singh and ors.
Court: Allahabad
Decided on: Jan-12-1928
Reported in: AIR1928All211a
Ashworth, J.1. This second appeal arises out of an objection brought by the respondent-judgment-debtors to the attachment of certain zamindari property and of a residential house. The debt on which the decree was obtained was incurred by the father of the first four respondents and husband of respondent 5. A decree on that debt was obtained against the respondents, but was confined for execution to the estate of the deceased debtor in their hands. The deceased debtor left some zamindari property and he left this house. Both the lower Courts have refused to allow this property to be attached or sold in execution on the ground that as regards the zamindari property it was exempt from attachment by certain sections of the Bundelkhand Encumbered Estates Act (U.P. Act 1 of 1903). As regards the house they held that it was exempt from attachment under Clause (c), Sub-section 1 to Section 60, Civil P.C., as a house belonging to an agriculturist and occupied by him.2. The appellant's first con...
Bala Prasad and ors. Vs. Shyam Behari Lal and ors.
Court: Allahabad
Decided on: Jan-10-1928
Reported in: AIR1928All168; 108Ind.Cas.575
Dalal, J.1. The learned Judge of the lower appellate Court was wrong in refusing to hear the appeal on the ground that no appeal lay. A decree in a suit for recovery of arrears of rent was passed by an Assistant Collector on 31st August 1926. On that date the former Tenancy Act (2 of 1901) was in force and the appellant had a right on that day to file an appeal. Before the appeal was filed on 18th October 1926, Act 3 of 1926 came into operation on 7th September 1926. Under Section 242(1)(a) an appeal did not lie because the value of the subject-matter does not exceed Rs. 200 though it exceeded Rs. 100. Under the new Act the limit of appeal was raised from Rs. 100 to Rs. 200. The learned Judge was of opinion that the Act applicable would be the Act which was in operation on the date on which the appeal was filed. I disagree with that view. When the suit was decided the appellant acquired a right of appeal and the passing of a statute subsequently cannot apply retrospectively so as to de...
Gangadhar Vs. Kanhai
Court: Allahabad
Decided on: Jan-10-1928
Reported in: AIR1928All306; 109Ind.Cas.421
Dalal, J.1. In my opinion the Court of Small Causes has gone wrong on a point of law and this Court must interfere. The plaintiff was surety of the defendant Gangadhar with respect to a particular debt. Gangadhar applied for an order of adjudication subsequent to the debt being contracted and the plaintiff becoming a surety for the payment of that debt. Such an order was passed and subsequently he was discharged under Section 41, Provincial Insolvency Act. Subsequent to the discharge the creditor Daru sued the surety Kanhai and recovered his debt from him. Kanhai was bound to make payment because under Section 44(3) an order of discharge does not release any person who was surety for the person discharged. On making payment to Daru Kanhai brought a suit against Gangadhar for recovery of the amount paid by him to Daru. The question then arises whether Kanhai's debt was provable under the Provincial Insolvency Act or not.2. It is laid down in Clause 2 of Section 44, that an order of disc...
Niadar and ors. Vs. M. Mohammad Ahmad
Court: Allahabad
Decided on: Jan-10-1928
Reported in: AIR1929All258; 114Ind.Cas.870
Dalal, J.1.In this second appeal findings of fact are attacked and there is only one point of law. The learned Judge of the lower appellate Court held in a suit for declaration by the plaintiff that the plaintiff was the zemindar of the plots in suit and the defendants were his tenants. I he point of law is whether a tenant of a certain holding after purchase of a fractional share in the proprietorship of the village can become khudkast holder of the holding or must he remain tenant as before. This point has been decided against the tenant in Abdul Hasan Khan v. Bhura [1906] A.W.N. 226. A previous Bench ruling of 1901 in the case of Mahabir Singh v. Ahsanullah [19011 A.W.N. 53 was not so definite. There have, however, been previous rulings of a Bench of two Judges in this Court referred to in the 1906 ruling which definitely held that the tenant who purchased a share in the zamindari property did not thereby cease to be tenant of his holding even to the extent of the share purchased by...
Tula Ram Vs. Dwarka Das and anr.
Court: Allahabad
Decided on: Jan-10-1928
Reported in: 115Ind.Cas.655
Ashworth, J.1. This is a reference by the Taxing Officer for a decision as to the proper Court-fee to be paid in a suit out of which has arisen First Appeal No. 322 of 1925. According to the plaint the plaintiff and his nephew were co-parceners in respect of certain property. On the 15th of September, 1913, the nephew, Roshan Lal, executed a usufructuary mortgage in favour of defendant No. 1. On the death of Roshan Lal, some eight or nine months later the mortgagee brought a suit for foreclosure against Musammat Kausila, widow of Roshan Lal and got a decree, The plaintiff asks for a declaration that the mortgage deed was void and ineffectual as Roshan Lal had no right to transfer the family property. There is no statement in the plaint whether Roshan Lal was the manager or not of the family. The second relief claimed was possession of the property.2. Now in a suit for possession it is not necessary for the plaintiff to sue for a declaration as to his title. At any rate in a suit of thi...
Jagdeo and anr. Vs. Ujiyari Kunwar and anr.
Court: Allahabad
Decided on: Jan-09-1928
Reported in: AIR1928All354; 108Ind.Cas.899
Dalal, J.1. The second appeal 1112 of 1926 is filed against the same order of the lower appellate Court which is under revision in this application. An appeal will not lie. Ram Sewak, judgment-debtor, applied under Order 21, Rule 90 to have the sale set aside on the ground of fraud and irregularity and the trial Court granted the application. Such an order is appealable under Order 43, Rule 1(J). The conclusion, therefore, is that in a case like that the adjudication is treated as an order and not as a decree under Section 47, Civil P.C.2. The matter, however, may be considered in revision. It was pointed out by the learned Counsel for the respondent that this Court had no jurisdiction under Section 115, as the lower appellate Court had jurisdiction to decide illegally if it chose and that further there was no material irregularity in the exercise of its jurisdiction. In my opinion there was material irregularity in the exercise of the jurisdiction by the lower appellate Court because ...
Emperor Vs. Kishan Narain
Court: Allahabad
Decided on: Jan-06-1928
Reported in: AIR1928All270
Walsh, J.1. This is a Government revision questioning the view which was taken by the Sessions Judge on an appeal from an order made by a Magistrate under Section 117, calling upon the party summoned to give security to keep the peace. The matter has been brought before us with the view of settling a point, which is undoubtedly of importance and on which there have been in the past some differences of judicial opinion. It is merely a question of procedure. The facts are that on 26th May, the Magistrate received a report from a Sub-Inspector stating that there had been old enmity between one person and the present party and that the enmity was continuing, that the two persons who were concerned in the dispute, were preparing to make false charges against one another, that there was an apprehension that there would be a breach of the peace and, more than that, of the commission of a serious offence. Everybody knows the tendency of parties, when they get into this acute condition of quarr...
Emperor Vs. Kunwar Rananjai Singh of Amethi
Court: Allahabad
Decided on: Jan-06-1928
Reported in: AIR1928All261; 108Ind.Cas.230
Walsh, J.1. This case comes before us by way of reference by the District Magistrate. Unfortunately the facts, if they can be dignified by that description, disclose an unparalleled disregard of the principles of proper procedure and an astounding condition of misunderstanding and muddle. No evidence has been taken in the case at all. A plea of 'guilty' by a pleader has been recorded to an offence under a section which does not relate to any offence at all, but only to the penalties to be inflicted for of fences under other sections. If the real offence intended to be charged, and intended to be covered by the plea of 'guilty' was that which has generally been assumed to be the offence, it is clear that the fine inflicted of Rs. 10 was utterly inadequate. The suggestion on behalf of the defence before us to-day, so far as we can understand it, is that the gentleman summoned is of such social standing and public position that he could not be reasonably expected to attend a Court of just...
Bohray Jugul Kishore Vs. Emperor
Court: Allahabad
Decided on: Jan-06-1928
Reported in: AIR1928All300; 108Ind.Cas.565
Ashworth, J.1. In this case a notice by a Magistrate was issued under Section 133, Criminal P.C., to one Jugal Kishore as trustee or manager of a temple to remove a certain alleged encroachment over a public drain. He applied in revision to the Sessions Judge but his application was rejected. He applied again in further revision to this Court, and an order staying the carrying out of the order was issued by this Court. Meanwhile Jugul Kishore died. The case was postponed by this Court in order to find out for certain that the trustee was dead and also to enable Dr. Vaish, who was the counsel of the deceased trustee, to find out the wishes of his successor-in-office.2. Dr. Vaish appears today and says it is a fact that Jugul Kishore is dead. He asks for postponement for the purposes of ascertaining the wishes of the successor-in-office as that successor has promised to come to Court today but has not yet come.3. In my opinion this application in revision may be dismissed as no longer re...
Ram Shanker Tewari Vs. Ram NaraIn Tewari
Court: Allahabad
Decided on: Jan-06-1928
Reported in: AIR1928All301; 108Ind.Cas.576
Dalal, J.1. I requested Mr. Upadhiya not to argue the application on the point of law. The point of law is a difficult one and would require a decision by a Bench of two or three Judges. The question raised by Mr. Upadhiya is whether an executing Court has jurisdiction to restore under Order 9, Rule 9, Civil P.C., an application to set aside a sale under Order 21, Rule 90. The facts here are such that there was practically no order of dismissal. It appears that the judgment debtor was called out by Court and his pleaders declared that they had no instructions. The Court dismissed the application in default and immediately afterwards the man appeared in Court and applied for restoration. If I had been the trial Court I would have immediately withdrawn my order. I remember once the pronouncement of Mr. Justice Aikman in this Court that no orders of dismissal in default should be passed till the end of the day when the Court was rising because there could be no default until the Court ros...
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