Kolkata Court June 1877 Judgments
Bheeka Lall Vs. Bhuggoo Lall
Court: Kolkata
Decided on: Jun-28-1877
Reported in: (1878)ILR3Cal24
Markby, J.1. At first I was inclined to think that the decision of the Court below was not correct; but, after hearing the argument, I think that decision was right. The plaintiff having been in partnership with the defendant brought this suit upon the ground that there was partition in the year 1870, under which it was arranged that each should be entitled to a moiety of any decree which should be recovered, and he alleges that the moiety of a certain decree was recovered on the 4th September, 1871, and that, therefore under that partition he was entitled to a moiety of the sum so recovered.2. The defendant answers that the plaintiff had already brought a suit in the year 1872 after this decree was recovered, in which he claimed, together with a number of other items, this very sum for which the present suit is brought. The plaintiff replies to that, that the former suit was not based upon any right which he had under the partition, but upon a general right to an account, alleging tha...
Tag this Judgment!Kally Prosonno Hazra Vs. Heera Lal Mundle
Court: Kolkata
Decided on: Jun-21-1877
Reported in: (1877)ILR2Cal468
Markby, J.1. In this case, whilst execution proceedings were going on, the judgment-debtor filed a petition in Court notifying payment of a part of the sum due under the decree, and asking for a stay of execution for four months. The judgment-creditor signified his assent to this application by signing the petition, which was granted. The question we have to determine on special appeal is, whether a new period of limitation runs either from the date of this petition under the provisions of Section 20 or from the date of the part-payment under the provisions of Section 21, Act IX of 1871. Both these sections are applicable to 'debts and legacies' only, and I do not think that the sum due under a decree is a 'debt' within the meaning of these two sections. It seems to me that the proviso to Section 21, which is general, would be unmeaning as applied to sums due under a decree; and the proviso to Article 169, Schedule II would also have been wholly useless if part-payment of money due und...
Tag this Judgment!The Empress Vs. Donnelly
Court: Kolkata
Decided on: Jun-21-1877
Reported in: (1877)ILR2Cal405
Markby, J.1. The petitioner appealed to the Sessions Judge of Hooghly, who on the 28th of May affirmed the conviction and sentence. The petitioner then applied to this Court to set aside the conviction as illegal: first, because the Magistrate had no power to revive the prosecution against the petitioner after she had been discharged; and, secondly, because the Magistrate could not appear as a witness in a case in which he was the sole judge. On the argument of the case, it was also contended that there was no evidence which would support a conviction.2. As regards the last point, we intimated at the close of the argument for the petitioner, that there was some evidence. Of course we express no opinion whatever as to the sufficiency or otherwise of that evidence; that is a matter into which this Court does not enter upon an application of this kind, nor is it desirable to comment upon this evidence; but I may say with reference to an argument used by Mr. Jackson, that, in my opinion, t...
Tag this Judgment!Empress on the Prosecution of Jodoonath Ghose Vs. Brojonath Dey
Court: Kolkata
Decided on: Jun-21-1877
Reported in: (1877)ILR2Cal425
Markby, J.1. The question turns on the construction of Bong. Act III of 1864, which was in force when the order of Mr. Jeffery was made. The powers and duties of the Municipal Commissioners are defined in Sections 6 to 23. No power to stop up or divert public highways is anywhere in express terms given by the Act; but public highways not being the property of Government or private property are, by Section 10, vested in the Municipal Commissioners, By s, 9 the Municipal Commissioners are enabled to sue and he sued in their corporate name, to hold parties, moveable and immoveable, and to convey the same, and to enter into all necessary contracts for the purposes of the Act. By Section 12, the Municipal Commissioners are required to apply all property vested in them for the purposes of the Act.2. The argument is, that Shudgoppara Lane was a public highway vested in the Municipal Commissioners, and that, under the Act, the Municipal Commissioners may dispose of their property in any way th...
Tag this Judgment!Grish Chunder Roy and anr. Vs. Boydonath Bag
Court: Kolkata
Decided on: Jun-21-1877
Reported in: (1878)ILR3Cal26
Markby, J.1. As regards the question of the tenure being protected from enhancement, I do not think that there is any ground for interfering. As regards the other point, the facts seem to be that several persons, members of a joint family, were the owners of this tenure. Some of these persons brought a suit for rent at an enhanced rate. It was objected in the course of the suit that it was wrongly framed, because all the members of the family interested in the tenure were not joined; thereupon the other members of the family came in and expressed their assent to the suit. I take it that what was then done amounts to this,--that although no formal order was then drawn up, still the suit was from that time a suit by all the members of the family. That is how the lower Appellate Court treats it, and that is how we treat it. Now this being a suit for which a very short period of limitation is provided, it turned out that these parties who were subsequently added as plaintiffs were so added...
Tag this Judgment!The Empress Vs. Dedar Sirkar
Court: Kolkata
Decided on: Jun-19-1877
Reported in: (1877)ILR2Cal384
Ainslie, J.1. We think that, under the circumstances stated by the Magistrate, it is not desirable that the Court should interfere in the present ease. In the 4th paragraph of his letter the Magistrate expresses a doubt whether the High Court is competent to call upon him to state the grounds upon which he fixed the amount of security. With reference to this, we desire to call his attention to a ruling of the Madras High Court, at page 450 of Mr. Prinsep's edition of the Code of Criminal Procedure (4 Mad., H.C. Rep., App. 47), an expression of opinion in which we entirely concur. It is there said: 'The imprisonment is provided as a protection to society against the perpetration of crime by the individual, and not as punishment for a crime committed, and being made conditional in default of finding security, it is only just and reasonable that the individual should be afforded a fair chance at least of complying with the required conditions of security.' If the Magistrate declined to fu...
Tag this Judgment!Khoblall Baboo Vs. Ramchunder Bose
Court: Kolkata
Decided on: Jun-19-1877
Reported in: (1877)ILR2Cal435
Kennedy, J.1. I had this case set down for settlement of issues, because one of the Judges of this Court has expressed an opinion that a suit on a decree of the Small Cause Court cannot be maintained in this Court. I knew that there had been decisions in cases in which the question was not argued, allowing such suits to he brought in this Court; and I applied to the Chief Justice to allow the case to be referred to a Full Bench. I came, however, to the conclusion that the course which had been allowed to prevail in this Court was a right one, and the Chief Justice thought that, under those circumstances, a Full Bench could not be granted. The difficulty has been raised by the decision of the Court of Queen's Bench in Berkeley v. Elderkin 1 E. and B. 805 in which it was held that no action could he maintained in the Superior Courts on a judgment of a County Court in England, Lord Campbell, the Chief Justice, gave a judgment in that case, in which ho went into several reasons why such su...
Tag this Judgment!Kellie Vs. Fraser
Court: Kolkata
Decided on: Jun-19-1877
Reported in: (1877)ILR2Cal446
Richard Garth, C.J.1. The appellant, Mr. Kellie, contends--1st. That this Court had no jurisdiction to confirm the award, and2ndly. That the authority of the arbitrators was revoked by both parties before the award was made.2. In support of the first objection, it has been argued that the only Court competent to confirm the award under Section 327 was the Court in which a suit must have been brought to settle the differences between the parties, if those differences had not been referred to arbitration; and that as the subject-matter in dispute was a tea garden at Darjeeling, and as both the litigants were resident there, the suit would have been a suit for land, and must have been brought in the Darjeeling district, and therefore that the Darjeeling Court was the only one capable of confirming the award.3. The answer to this contention on the part of Mr. Frazer was that the suit under such circumstances would not have been a 'suit for land' within the meaning of Clause VI of the Lette...
Tag this Judgment!Ede Vs. Kanto Nath Shaw
Court: Kolkata
Decided on: Jun-18-1877
Reported in: (1878)ILR3Cal221
Kennedy, J.1. (after finding on the evidence in favour of the plaintiff) continued: The next question is with respect to the alleged alteration. As to that I fully believe the plaintiff's account of what occurred, and discredit the defendant's. However that may be, I do not think that the words amounted to an alteration or addition within the rule of English law. I think the alteration must be either something which appears to be attested by the signature or something which, as in Davidson v. Cooper 13 M. & W. 343 alters the character of the instrument. I was not referred to authorities on what constitutes an alteration, but on the principles upon which Pigot's case has been extended to contracts not under seal, I think it must be so. Endorsements, marginal observations, &c.;, &c.;, clearly do not come within that principle, and I think that this does not. Possibly, this would not be said to be a forgery within Section 464 of the Penal Code, Clause 2; and on comparison with Master v. M...
Tag this Judgment!Parichat Vs. Zalim Singh
Court: Kolkata
Decided on: Jun-12-1877
Reported in: (1878)ILR3Cal215
J.W. Colvile, J.1. This is an appeal from an order made by the Judicial Commissioner of the Central Provinces whereby he has decreed to the respondent, the plaintiff in the suit, who does not appear upon this appeal, the possession of a certain village called Simeeria. The facts, so far as it is necessary to mention them, may be very shortly stated. The father of the appellant, the late Rajah Bahadoor Singh, was the owner of an estate consisting of five villages, one of which was this village of Simeeria. They had been held by his ancestors for a long time, but there seems to have been some doubt to what extent they were rent-free, though enjoyed by him as such. Ultimately, however, the Government of the North-West Provinces determined to recognise the right of the Rajah and his heirs to hold them in perpetuity as rent-free. Before that question (which is not material to the decision of the present appeal) was settled, the Rajah having then no legitimate son, but having an illegitimate...
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