Allahabad Court October 1937 Judgments
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Collector of Benares and anr. Vs. Jai NaraIn Rai
Court: Allahabad
Decided on: Oct-21-1937
Reported in: AIR1938All89; 173Ind.Cas.428
Allsop, J.1. This is a second appeal against an order refusing to confirm a sale in execution of a decree. The decree was obtained from the Court of Small Causes at Benares on 8th November 1921. It appears that infructuous attempts were made to execute this decree and finally on 3rd November 1933 the decree-holder obtained an order for the transfer of the decree for execution to the Court of the Munsif of Benares. Thereafter on 6th October 1934, more than 12 years after the decree had been passed, he made an application to the Munsif for the execution of the decree. This application was obviously barred by time under the provisions of Section 48, Civil P.C., but the report of the Munsif's office upon the application was that it was within time. A notice was Issued under the provisions of Order 21, Rule 22, Civil P.C., and thereafter attachment of a house was directed. The judgment-debtor made an objection under Section 60, Civil P.C. upon the ground that he was an agriculturist. When t...
Mt. Araz Bibi Vs. Mubarak Ali Khan and anr.
Court: Allahabad
Decided on: Oct-19-1937
Reported in: AIR1938All85; 173Ind.Cas.337
Niamatullah, Ag. C.J.1. This is an execution second appeal by a judgment-debtor. The decree, holders attached her house in execution of their decree. She objected on the ground that she was an agriculturist and the house, which was alleged to be her residential house, was exempt from attachment and sale in execution of decree. The objection was dismissed by the first Court. An appeal by the judgment-debtor to the Subordinate Judge of Bulandshahr was dismissed summarily. In second appeal this Court set aside the order of the Subordinate Judge and remanded the case for a fresh decision with the direction that the Court should consider the question of admitting fresh evidence in appeal. The lower Appellate Court again dismissed the appeal of the judgment-debtor and refused to admit fresh evidence which she desired to produce. In the present second appeal the view of law on which the lower Appellate Court's order is based, is challenged. That view of law is that a judgment-debtor, who wag ...
Chaube Sheodarshan Lal Vs. Balmakund and ors.
Court: Allahabad
Decided on: Oct-18-1937
Reported in: AIR1938All82
Niamatullah, J.1. This is a Letters Patent appeal from an order of remand passed by a learned single Judge of this Court in a second appeal from the decree of the Additional District Judge of Agra. The appellant in this Court was a defendant in the suit which has given rise to-this appeal. He was sued by the plaintiff, respondent in the Court of an Assistant Collector, First Class, for ejectment under Section 82, Agra Tenancy Act (3 of 1926) from a four bigha 18 biswa land situate in village Datoji, mahal Daya Kishan, district Agra. The plaintiff respondent is the proprietor and lambardar of the aforesaid mahal and alleged in his plaint that the defendant-appellant was an occupancy tenant of the land referred to and bad sublet his holding in contravention of the provisions of the Tenancy Act, which fact rendered him liable to ejectment. The defendant pleaded that he was not an occupancy tenant but a proprietor and therefore not liable to ejectment for the reason alleged by the plaintif...
Mirza Zahid Beg and ors. Vs. Emperor
Court: Allahabad
Decided on: Oct-08-1937
Reported in: AIR1938All91; 173Ind.Cas.838
Allsop, J.1. The three appellants in this appeal are Zahid Beg, Man Khan and Dwarka. Zahid Beg has been sentenced to rigorous imprisonment for a period of 8 years under Section 304, I.P.C., for the offence of culpable homicide not amounting to murder and to rigorous imprison. merit for a period of 2 2/1 years under Section 201, I.P.C., for attempting to destroy evidence of this offence. The other two appellants have each been sentenced to rigorous imprisonment for a period of two years under 201, I.P.C. Zahid Beg was the Sub-Inspector in charge of the police station at Jaitpur in the district of Agra. A double murder was committed at Naugawan about eight miles from Jaitpur on 16th or 17th June 1936. On 17th June, sometime about 6 or 7 P.M., Ajudhi, chaukidar, went to Jaitpur to report this occurrence. It is agreed that the appellant Zahid Beg was not present at the police station at the time. His own story is that he had been away from the 15th and did not return till 20th June. Accord...
Ram Prasad Vs. Tirloki Nath
Court: Allahabad
Decided on: Oct-07-1937
Reported in: AIR1938All50
Niamatullah, J.1. This is a reference by the learned District Judge of Cawnpore, and though it does not purport to be under Order 46, Rule 1, Civil P.C., we treat it as such, as it raises the question of court-fee in an appeal which was pending when the reference was made. The appeal had been filed by a judgment-debtor under Section 5(1), Agriculturists' Relief Act. He paid the court-fee of eight annas, under Scnedule 2, Article 11 of the Court-fees Act, under which a court-fee of eight annas is to be paid on an appeal from an order not having the force of a decree. It was con-tended before the learned District Judge by the Stamp Inspector that the order in question had the force of a decree and therefore ad valorem court-fee was payable.2. Section 5, U.P. Agriculturists' Relief Act, entitles the judgment-debtor to apply to the Court passing a decree for money or a preliminary decree for sale or fore-closure that the same be converted into a decree for payment by instalments. It goes o...
Rajendra Singh Vs. Uma Prasad
Court: Allahabad
Decided on: Oct-07-1937
Reported in: AIR1938All80; 173Ind.Cas.922
Niamatullah, J.1. This is an appeal from an order passed by the Special Judge of Dehra Dun exercising jurisdiction under the U.P. Encumbered Estates Act. The learned Judge has appointed a receiver in respect of the property of the landlord whose application was forwarded to him by the Collector under Section 6 of the aforesaid Act. The order was passed at the instance of a creditor who had obtained a decree for sale on foot of a mortgage deed executed by the landlord. It is contended before us that the learned Judge had no jurisdiction to appoint a receiver in the exercise of his powers of a Special Judge under the Encumbered Estates Act. The question was raised in the lower Court bud the matter does not appear to have been argued as elaborately before it as it has been argued here. The only ground on which the learned Judge justifies the appointment of a receiver is that the appointment 'will not hurt an honest debtor whilst it will help a creditor'. It seems to have been assumed that...
Mathura Prasad Vs. Bhola Nath and ors.
Court: Allahabad
Decided on: Oct-07-1937
Reported in: AIR1938All144
Niamatullah, J.1. This is a defendant's second appeal arising out of a suit for ejectment. The plaintiff-respondents are zamindars of village Lachhmipur, in which the defendant-appellant purchased a house belonging to a 'riaya' and started making constructions without the permission of the zamindars. The latter instituted a suit challenging the transfer in favour of the defendant vendee and seeking to eject him. The defendants pleaded that there was a local custom in the village which entitled the occupier of the house to sell not only the superstructure but also the right of occupation. In proof of this allegation they produced a number of sale deeds. Some witnesses were also examined on both sides. The Court of first instance held that the defendants had failed to establish the custom not up by them. Accordingly the suit was decreed. The defendants appealed in the Court of the Civil Judge of Shahjahanpur but without success. It is contended in second appeal that village Lachhmipur wa...
Sidh Nath Singh and ors. Vs. Badri Singh and ors.
Court: Allahabad
Decided on: Oct-06-1937
Reported in: AIR1938All53; 173Ind.Cas.658
Niamatullah, J.1. These two cross, appeals are directed against an order of remand passed by the learned Civil Judge of Azamgarh in an appeal from the decree of a Munsif of that district dismissing the plaintiffs' suit for declaration. The order of remand confirms the decree of the first Court as regards three-fourths of the property in dispute and reverses it as regards the remaining one-fourth, in respect of which the suit was remanded with a direction that the same be tried on the merits. It appears that partition proceedings were instituted in the Revenue Court in respect of village Benipur by one of a large number of co-sharers, namely Dwarka On the date fixed by the proclamation, the plaintiff in the suit, which has given rise to these appeals, together with some other co-sharers, made an application alleging that they had obtained a decree in respect of one-fourth share of Mt. Badshali Kuar in khata khewat No. 5, that an application for mutation of names was pending and that the...
In Re: Brahma Nand
Court: Allahabad
Decided on: Oct-06-1937
Reported in: AIR1938All75; 173Ind.Cas.344
Niamatullah, J.1. This is a reference under Order 46, Rule 1, Civil P.C., by the learned Special Judge of Budaun. Prom the statement submitted to us it appears that Brahma Nand (applicant) obtained somo zamindari property from one Ram Gharan Lal on a theka. The theka raonoy was not paid by the fchekedar and Ram Charan Lal had to bring a suit, No. 17/27 of 1933-34, in the Revenue Court for the recovery of arrears due by Brahma Nand. The suit was decreed and in execution of the decree some property of the judgment-debtor (applicant) was put up for sale. The property was eventually purchased by Mt. Shiam Lata but no confirmation of the sale has yet taken place. During the pendency of the aforesaid proceedings, Brahma Nand (applicant) applied to the Collector under Section 4, U.P. Encumbered Estates Act. The Collector being satisfied that the application was made according to the provisions of Section 4, forwarded it to the Special Judge under Section 6 of the Act. On the application of Br...
Phool Chand and ors. Vs. Mt. Mantia and ors.
Court: Allahabad
Decided on: Oct-06-1937
Reported in: AIR1938All182
Harries, J.1. This is a defendants' appeal against a decree of the lower Appellate Court modifying to some extent a decree of the Court of first instance passed in favour of fcka plaintiff-respondents. The plaintiffs brought the suit out of which this appeal arises for a declaration that they were the owners of 4078 sihams out of 17,280 sihams in the property left by Kunwar Khan and for possession of such share in the property if it was found that they were out of possession. The plaintiffs were Mt. Sahibzadi, a daughter of the said Kunwar Khan, and the heirs of Mt. Zaiban, deceased, another daughter of Kunwar Khan. It was the case for the plaintiffs that on Kunwar Khan's death they were entitled to 4078 sihams out of 17,280 sihams in the property left by the deceased. It was alleged that they entered into possession of their shares and that the other heirs of Kunwar Khan had without their know-ledge and consent mortgaged or transferred certain portions of Kunwar Khan's property and th...
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