Kolkata Court January 1878 Judgments

Gobind Ram Marwary Vs. Mathoora Sabooya and ors.

Court: Kolkata

Reported in: (1878)ILR3Cal339

Jackson, J.1. The lower Appellate Court dismissed the appeal of the plaintiff, and, it may be said, virtually dismissed his suit, on the ground that notice--that is to say, formal written notice--of dishonour had not been served on the defendants. Now, neither the case which the lower Appellate Court cites, Anunt Ram Agurwala v. Nuthall 21 W.R. 62 nor any other case, has been brought to our notice which decides that in this country either a written formal notice of dishonour is necessary, or that the absence of such a notice would be a sufficient defence unless it is shown that by such absence the defendant has been prejudiced. So far, therefore, the judgment of the lower Appellate Court appears to be erroneous, and must be set aside. [The learned Judge then proceeded to consider the other points in the case, and with reference to them, the case was remanded to the lower Appellate Court.]...

Gopal Chand Marwaree Vs. Thakurani Mohakoom Kooaree and anr.

Court: Kolkata

Reported in: (1878)ILR3Cal314

Kennedy, J.1. The general principle seems well settled that the existence of an unstamped promissory note does not prevent the lender of money from recovering on the original consideration, if the pleadings are properly framed for that purpose: Farr v. Price 1 East 55. In this country, the great power given of raising the true issues between the parties prevents the question of pleading having much importance. Our only difficulty arose from the decision of Sir E. Couch in Ankur Chunder Roy Chowdhry v. Madhub Chunder Ghose 21 W.R. 1. When that case, however, is examined, it does not support the proposition for which it was cited by the respondents' pleader. It is not very satisfactorily reported, there being no note of the argument or statement of the facts; but so far as we can gather, there had been no attempt in the lower Court to give independent evidence of the consideration, the contention for the plaintiff' being that there was a sufficient admission of the note in the written st...

Jonmenjoy Mullick Vs. Doss Money Dossee

Court: Kolkata

Reported in: (1878)ILR3Cal364

Kennedy, J.1. The present suit is brought against the mortgagor and the first auction-purchaser to enforce the lien created by the mortgage bond against these lands.2. The difficulty in which the plaintiff has been placed is entirely one of his own creation. Instead of suing the mortgagor on his bond, and obtaining a decree declaring his lien and directing the lands to be sold towards satisfaction of it, he adopted a course which ensured the lands being sold so as to realize the smallest price possible. The course is one frequently adopted in Bengal, but this frequency cannot make it less liable to be stigmatized as oppressive if not fraudulent.3. However this may be, the question for us now to decide is, whether the present suit can be maintained, and we have come to the conclusion that it cannot; and that the decision of the Full Bench in Haran Chunder Ghose v. Dinobundhoo Bose 14 B.L.R. 408 : S.C. 23 W.R. 187 precludes us from giving the relief he sought.4. In the second suit, which...

Unnoda Prasad Roy Vs. Sheikh Koorpan Ally

Court: Kolkata

Reported in: (1878)ILR3Cal519

Kemp, J.1. The decree-holder is the special appellant in this case. The question is, whether the application which was made on the 19th of June 1875, is within time or not. The Judge of Tipperah has held that it is not. The grounds of special appeal taken are: first, that the lower Appellate Court is wrong in holding that the last application for execution was barred by limitation; second, that the lower Appellate Court is wrong in holding that the proceedings in execution taken before the passing of Act IX of 1871 are to be governed by the said law. The contention of the pleader who appears for the decree-holder on the first ground raised in special appeal is, that a notice having been issued under the provisions of Section 216, on the 7th of August 1872, and the present application being dated the 19th June 1875, he is within time, and that the Judge was not competent to look behind the date of the notice, and to take cognizance of any proceeding which had been taken before the date ...

Parbutty Dossee Vs. Poran Sookh Chunder and ors.

Court: Kolkata

Reported in: (1878)ILR3Cal612

L.S. Jackson, J.1. It appears to us that the objection taken during the argument of this special appeal, although it was not taken in the memorandum of appeal, is a valid objection to the decision. The facts of this case are shortly these: (The learned Judge stated the facts of the case as set out above, and having remarked that the particular question before the Court might not have been discussed by the defendants in the Court of first instance continued).--The defendants appeal specially to this Court, and of course we are not only entitled, but bound to consider an objection which raises the question whether the plaintiff was entitled to maintain the suit and to obtain the decree which she asked for. It has been constantly ruled in this Court and in the other High Courts, and the law is stated in the case noticed by Mr. Broughton in his edition of Act VIII of 1859--Padagalingam Pillay v. Skanrmigham Pillay 2 Mad. H.C.R. 333--that a suit ought not to be maintained where 'the plainti...

Shib NaraIn Shaha and anr. Vs. BipIn Behary Biswas and anr.

Court: Kolkata

Kemp, J.1. The pleader for the special appellant refers to Bagram v. Wise 1 B.L.R. F.B. 91 and contends that the finding of the Judge is wrong. In that case the late learned Chief Justice, Siv Barnes Peacock, who delivered the judgment of the Full Bench, remarked, that 'as soon as a copy of the decree, which is sent for execution to another Court, is filed in the Court to which it is transmitted, it has the same effect as a decree of that Court,' and 'that Court,' that is to say, the Court to which the decree is transmitted, 'is to proceed to execute it according to its own rules in the like cases.'2. No doubt the Munsif of Julpigori had authority and was competent to execute a decree of the Munsif of Rungpore that was transmitted to him, provided lie had jurisdiction; but this is a case which, in our opinion, is not covered by the decision of the Full Bench quoted above. This was an application to the Munsif of Julpigori not to execute the original decree passed by the Munsif of Rungp...

Bhyrub Chunder Vs. Golap Coomary

Court: Kolkata

Reported in: (1878)ILR3Cal518

Kemp, J.1. Who was of opinion that the cases quoted conclusively showed that an appeal could not be maintained....

Holodhur Pal Vs. Ekram Mundul and ors.

Court: Kolkata

Reported in: (1878)ILR3Cal271

Richard Garth, C.J.1. We think that this appeal should be decreed. The facts of the case are correctly stated in the decision of Mr. Justice Ainslie; and we quite agree with that learned Judge, that before the plaintiff in this case (the landlord.) could sue the tenant for increased rent, upon the ground that the land demised consisted of more than 47 bigas and 5 cottas, he was bound to give the defendant a previous notice that the increased rent would be required of him.2. It seems to us that this notice was rendered necessary by Section 14 of Beng. Act VIII of 1869; because we have had the lease in question read, and it appears to be one 'not specifying the period of the engagement;' so that, until he had received such a notice as the section requires, the defendant could not be called upon to pay a higher rent than he did in the year preceding the suit. Mr. Justice Ainslie considers that the defendant was entitled in this case to some notice, though he thinks that Section 14 does no...

Parbutty Nath Roy Chowdhry and ors. Vs. Mudho Paroe and ors.

Court: Kolkata

Reported in: (1878)ILR3Cal276

Richard Garth, C.J.1. We have felt some difficulty in coming to a conclusion upon this case, partly from the peculiar nature of the rights claimed by the plaintiffs, and partly from there being no provision in the Limitation Act of 1871 which applies to, or contemplates, a suit of this nature.2. The plaintiff's claim to be entitled to an 8-anna share of a certain jalkar, and they pray for a declaration as against the defendants,--first, that they are entitled to receive rent from them for fishing in their jalkar; or, secondly, that the defendants have no right to fish there without paying them (the plaintiff's) rent; or, in other words, that the plaintiffs are entitled to enjoy their jalkar, rights without the defendants interference.3. The Munsif very properly dismissed the first portion of the plaintiffs' claim, upon the ground that the defendants were not, and had never claimed to be, the plaintiffs' tenants. But he decreed their claim in the other alternative, declaring in substanc...

The Empress Vs. Thacoor Dyal Sing and anr.

Court: Kolkata

Reported in: (1878)ILR3Cal320

Ainslie, J.1. Independently of this there is another reason for which the order must be set aside. In the order of the Magistrate by which he referred the case to the Deputy Magistrate for explanation, it is said that the petitioner before him had asserted that six and twenty villages out of the thirty which formed the subject of the order were actually held in ticca. The Deputy Magistrate in his reply does not deny that there are certain villages in the possession of ticcadars, but he contends that there being a dispute between the contending parties as to collection of rent, it is necessary to decide the question of possession in respect of all the villages held in Khas and ticca jointly, by which he apparently means all the villages, whether held khas or leased out. No doubt it has been held that questions between zemindars as to the right of collecting rents directly from the ryots may be considered by Magistrates, and that this right of so collecting rents is in fact possession wi...