Allahabad Court October 1938 Judgments
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Ram NaraIn Vs. Ram NaraIn and ors.
Court: Allahabad
Decided on: Oct-18-1938
Reported in: AIR1939All110
Mulla, J.1. These are two second appeals (Nos. 1006 and 1007 of 1936) which arise out of the same suit. The appellant in both appeals is the plaintiff in the suit. The suit was for possession of the site of a kotha by demolition of the constructions existing thereon and of an adjoining piece of land by demolition of the walls enclosing it. It was instituted in the following circumstances:The plaintiff, Ram Narain, who is one of the zamindars of the village in which the property in dispute is situated, obtained a decree for arrears of rent against Ram Sahai and others. He put that decree into execution and attached a kotha which ha alleged was owned and possessed by Ram Sahai. Thereupon Ram Narain, son of Than Singh, who is a respondent in both appeals, made an objection under Order 21, Rule 58, Civil P.C. alleging that the kotha really belonged to him and he was in possession thereof. This objection was dismissed by the first Court, but allowed in appeal with the result that the kotha ...
Bachu Lal Vs. Ram DIn and anr.
Court: Allahabad
Decided on: Oct-18-1938
Reported in: AIR1939All117
ORDERMulla, J.1. This is an application in revision under Section 115, Civil P.C. by one Bachu Lal whose objection under Order 21, Rule 58, Civil P.C. to the attachment of a house in execution of a decree has been dismissed by the learned Munsif of Cawnpore. The house in dispute originally belonged to Gokul, the opposite party No. 2, who executed two mortgages in respect thereof, one on 14th February 1934 in favour of the present applicant and the other dated 3rd December 1934 in favour of one Jagannath. A few days after the latter mortgage, that is on 18th December 1934, he transferred the house to the present applicant under a sale deed. Jagannath brought a suit (No. 809 of 1935) to enforce his mortgage by sale of the house in dispute. The present applicant, who was impleaded in that suit as a subsequent transferee, pleaded that he was a prior mortgagee and was therefore entitled to exercise the right of subrogation. It appears that in the meantime Gokul had been adjudicated an insol...
Md. Karimul Rahman Khan and anr. Vs. Saraswati Sugar Syndicate and ors ...
Court: Allahabad
Decided on: Oct-18-1938
Reported in: AIR1939All314
Iqbal Ahmad, J.1. Apart from the question whether the order sought to be assailed by the present appeal is an appealable order, we have come to the conclusion that there are no merits in this appeal and that the decision of the Court below must stand. 16 is well settled that so long as the mortgaged property remains in the hands of the mortgagor it is open to the mortgagee to realize the mortgage debt from the whole or any portion of the mortgaged property. The reason for this rule is that every item of mortgaged property is a security for the entire mortgage debt, and, as such, it is open to the mortgagee to realize the mortgage debt from any item of the mortgaged property. This rule is however subject to two exceptions. Firstly the rule is subject to the doctrine of marshalling provided for by Sections 56 and 81, T.P. Act, and secondly to the Court's power under Order 34, Rule 4, Civil P.C., to adjust the equities between the mortgagor and subsequent transferees from him by directing...
Debi DIn Vs. Secretary of State
Court: Allahabad
Decided on: Oct-17-1938
Reported in: AIR1939All127
Bennet, J.1. This is a reference by the Taxing Officer of the following question to me as Taxing Judge:Is the court-fee payable on a memorandum of appeal against an award by a Tribunal, constituted under the U.P. Town Improvement Act of 1919, under Section 8, Court-fees Act, on the difference between the amount awarded and the amount claimed by the appellant, or is a fixed court-fee payable2. The matter has been fully argued by learned Counsel for the appellant and various rulings have been laid before me. The grounds for the appellant are comprised in an application dated 25th October 1937. The facts of the present case are that there was a decision of the Improvement Trust Tribunal at Cawnpore in regard to compensation to be paid to Debi Chand and Debi Chand has filed this first appeal before the High Court claiming Rs. 1,00,000 more compensation than has been awarded to him. The appellant has paid a court-fee of Rs. 10 only and he claims that this amount is sufficient under the Cour...
Lachmi NaraIn and ors. Vs. Har Swarup and ors.
Court: Allahabad
Decided on: Oct-13-1938
Reported in: AIR1939All170
Bennet, J.1. This is a second appeal by the defendants against a decree of the lower Appellate Court awarding the plain, tiffs Rs. 750 on account of 7 bighas 10 biswas with interest as damages for breach of the covenant of title and quiet possession. There was a sale deed executed by the defendants on 23rd July 1924. This sale deed transferred zamindari property described as follows:We the executants have therefore, while in a sound state of body and mind and of our own free will and accord, absolutely sold the entire land, situate in Mauza Nagal Jwalapur, Pargana Purwa, District Dehra Dun, which stands recorded in the khewat of the said village in the name of us the executants or in the name of any of us and which comprises 400 bighas and 4 biswas.2. The sale deed was registered on the following day and the plaint set out that on the next day after the registration of the sale deed the defendants made an application for mutation of names in favour of certain persons not parties to the...
Shiva Prasad Gupta Vs. Gokul Chand and ors.
Court: Allahabad
Decided on: Oct-12-1938
Reported in: AIR1939All97
Bennet, J.1. This is an execution first appeal by the decree-holder against an order of the learned Civil Judge of Allahabad to the following effect:As the judgment-debtor has applied under the Encumbered Estates Act in Benares (vide order of Collector) execution cannot proceed and is shelved. Certificate sent shall be withdrawn.2. This first appeal which was originally filed as a civil revision came before a Bench which recommended a reference to a Pull Bench which has now been made. The ground of the reference was that there was a decree passed in a partition suit in regard to properties belonging to a joint Hindu family and the decree directed the payment of a certain amount by one of the coparceners to another coparcener, and the question which arose was whether the amount which was to be paid constituted a debt within the meaning of the United Provinces Encumbered Estates Act, Act 25 of 1934. On 25th May 1922, there was an agreement between the members of a very wealthy joint Hind...
Sheo Bandhan Pande Vs. Kishan Prasad Pande and ors.
Court: Allahabad
Decided on: Oct-10-1938
Reported in: AIR1939All45
Iqbal Ahmad, J.1. The question of law that arises for decision in the present appeal is whether a right of pre-emption under the Agra Pre-emption Act accrues on a transfer of a zamindary property being made by the Collector in favour of a decree-holder in accordance with the provisions of Section 5, United Provinces Regulation of Sales Act, 26 of 1934. The last mentioned Act was passed with the object of regulating 'the sale of agricultural land in execution of Civil Court decrees against agriculturists,' and by Clause (a) of Section 4 of that Act a decree-holder was given the option to 'take' the agricultural land or a portion of the agricultural land of the judgment-debtor in full satisfaction of the decree at a valuation fixed by the Collector in accordance with the provisions of Section 3 of the Act. In case a decree-holder decided to exercise this option the Collector was authorized by Section 5 to transfer the land to him in full satisfaction of the decree.2. In the present case ...
Gangi Sah Vs. Harlal Sah and ors.
Court: Allahabad
Decided on: Oct-10-1938
Reported in: AIR1939All137
Verma, J.1. This is an appeal filed by one of three defendants in a suit for declaration of right to, and recovery of possession of, a two-fifth share in certain property which has been decreed by both the Courts below. The parties are residents of a village in the District of Almora and belong to the same family. The following pedigree is given in the plaint and has been admitted, by the defendants: SHIVA LAL SAH | |--------|-------------|--------|-----------|----------|------------|-----------| Tula Ram Lachhi Ram Joga Sah Saham Lal Parma Sah Shri Ram Parsi Sah Gangi Sah Sah. Sah. | Sah. | Sah. | | | |-------------| | | Nathi Sah Inderlal Sah Gangi Sah, Harlal, Badri Sah, | Bhawani Das (Deft.3) (Deft. 2) (Defendant 1.) (Plaintiff 1.) (Plaintioff 2.) | Sah. | |-------------------|------------------------| Mathura Sah. Kundan Lal Sah, (Piff.) Kishore Lal Sah, (Piff. 4) | |---------------------------------| Prakashi Lal (Plaintiff 5.) Govindlal (Plaintiff 6.)2. Of the eight sons of Shiv...
Lala Lallu Mal and ors. Vs. Mt. Aziz Fatima and anr.
Court: Allahabad
Decided on: Oct-07-1938
Reported in: AIR1939All90
Verma, J.1. This is an appeal by the plaintiffs whose suit for demolition of certain constructions put up by the defendants and for a permanent injunction has been dismissed by both the Courts below. The facts have been given in detail in the judgments of the Courts below and both the Courts have given sketches of the locality in their judgments. The Munsif inspected the locality and a sketch of the locality is given in his inspection notes also. The position briefly is this. In the town of Bareilly there is a market place known as Bazar Englishganj which is situated in mahalla Qila. The particular portion of this mahalla Qila with which we are concerned is divided into four squares by means of two public roads which cross each other at right angles. We are concerned in this case with the square which is situated in the southwest. It is in this square, which has been marked No. 4 in the sketches given in the judgments of the Courts below, that the shops of the parties are situated. The...
Ali Ahmad Vs. Meharban Ali
Court: Allahabad
Decided on: Oct-06-1938
Reported in: AIR1939All59
Bennet, J.1. This is a second appeal by defendant 2 who was one of the two defendants who contested the suit of the plaintiff. The plaintiff is a zamindar who had a decree for arrears of rent against defendant 8 Najm-ud din and defendant 9 Hissam-ud-din, sons of Qalandar Bakhsh. He obtained a decree on 17th December 1931 and prior to April 1932 he attached the one-half of the standing rabi crop of these two tenants in nine other plots which were not in his zamindari but which were in the zamindari of defendants 1 to 7. These defendants are four sons of Wazir Ali, his wife and his two daughters. Defendants 1 to 7 subsequent to the attachment purported to distrain the rabi crop in satisfaction of arrears of cash rent and this distraint was made in April 1932. The plaintiff then brought the present suit on 3rd May 1932 alleging that the rent paid by defendants 8 and 9 to their zamindars, defendants 1 to 7, was not a cash rent but 'batai' and that the alleged distraint was fictitious. The ...
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