Kolkata Court December 1879 Judgments
Shibkristo Sircar Vs. Abdool Hakeem
Court: Kolkata
Decided on: Dec-19-1879
Reported in: (1880)ILR5Cal602
Wilson, J.1. The case of the plaintiff as set out in his plaint is, that the defendant hired cargo boats of him, and that a balance of Rs. 3,121 is due to him on that account. He prays judgment for this sum without any other prayer for relief. The defendant's case, as set out in his written statement, is, that he was not the hirer of the plaintiff's boats, but was only employed as an agent to find hirers for them, except in the case of certain boats for which he had paid.2. I have come to the conclusion, on the whole of the evidence, that the defendant's version is the true one, and that the plaintiff cannot recover against the defendant as the hirer of his boats.3. It was said, however, for the plaintiff that, even on the defendant's own account of the facts, he was entitled to account and discovery. Prima facie, no doubt, a principal is entitled to such relief against his agent. But I think it clear that the plaintiff cannot have such relief in this suit as at present framed. I canno...
Tag this Judgment!In Re: Tokee Bibee Vs. Abdool Khan
Court: Kolkata
Decided on: Dec-18-1879
Reported in: (1880)ILR5Cal536
Wilson, J.1. This was an application under Section 147 of the High Courts Criminal Procedure Act (Act X of 1875) to transfer to this Court a proceeding before a Presidency Magistrate for the purpose of quashing an order made therein. (His Lordship then stated the facts of the case as above, and proceeded as follows): The section under which maintenance may be ordered (Section 234 of the Presidency Magistrate's Act) is as follows:If any person, having sufficient means, neglects or refuses to maintain his wife, or legitimate or illegitimate child unable to maintain itself, a Presidency Magistrate may, upon due proof thereof by evidence, order such person to make a monthly allowance for the maintenance of his said wife, or child, or both, at such monthly rate not exceeding fifty rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.Such allowance shall be payable from the date of the order.If any person so ordered...
Tag this Judgment!Parbutty Churn Sen and ors. Vs. Shaik Mondari
Court: Kolkata
Decided on: Dec-12-1879
Reported in: (1880)ILR5Cal594
Morris, J.1. Where a suit is brought under Section 52 of the Rent Law, for the recovery of arrears of rent and for ejectment in the same action, and the amount claimed is less than Rs. 100, an appeal cannot, under Section 102, lie to this Court. The ejectment of the ryot is not a necessary, consequence of execution of the decree in such a suit. It depends entirely upon a contingency arising out of the neglect or recusancy of the ryot to make payment within the time specified. That being so, the jurisdiction of the Court cannot possibly be affected by the conduct of one of the parties in the course of execution of the decree. The suit must, we think, be dealt with as it was originally laid, and the proceedings in execution treated as a part of that suit, and subject to the same rule as regards jurisdiction throughout its various stages, as the suit itself.2. In this view the preliminary objection must prevail, and the appeal be dismissed with costs....
Tag this Judgment!Bharrut Chunder Roy Vs. Kally Das Dey and ors.
Court: Kolkata
Decided on: Dec-12-1879
Reported in: (1880)ILR5Cal574
Jackson, J.1. The present suit was brought by the plaintiff, who is a co-sharer in a certain khas chuck in the Sunderbuns, against the defendants Nos. 1 to 7 as principal defendants and under-tenants, and against the defendants Nos. 8, 9, and 10, who appear to have been co-sharers in the chuck, for the purpose of obtaining from the principal defendants arrears of rent at an enhanced rate agreeably to notice. It is alleged, and for the purposes of this appeal we may assume it to be correct, that the plaintiff had previously been accustomed to recover rent separately from his co-sharers.2. The defendants raised various pleas; the first of them was, that the suit was improperly framed, as being a suit to enhance the rent of a moiety of the defendants' tenure. That question was embodied in the second of the four issues framed in the Court of first instance, 'whether the plaintiff, being one of several proprietors, can bring a suit for enhancement of rent.'3. The Munsif's decision upon the ...
Tag this Judgment!Rajendronath Roy Bahadoor Vs. Chunnoomul and Kalee Churn Lahoree
Court: Kolkata
Decided on: Dec-10-1879
Reported in: (1880)ILR5Cal448
Morris, J.1. The Judge of Rajshahye, to whom the decree had been sent for execution in this case, was wrong in declining jurisdiction and in refusing to entertain the application made by the judgment debtor under Section 258 of the Civil Procedure Code. If the judgment-debtor had paid money out of Court subsequent to the order under which the certificate was sent to him from the High Court, and if his application was made in due time as required by the. law of limitation subsequent to the payment, there is nothing in our opinion to prevent the Judge from dealing with the application, because, under Section 228, the Court executing the decree sent to it 'under this chapter, shall have the same power in executing such decree as if it had been passed by itself.'2. On this ground, therefore, we reverse the order of the Judge of Rajshahye, and direct him to take up the application and deal with it as required by law. Costs to abide the result....
Tag this Judgment!Ram Manickya Dey Vs. Juggunnath Gope and ors.
Court: Kolkata
Decided on: Dec-10-1879
Reported in: (1880)ILR5Cal563
Morris, J.1. In our opinion the lower Appellate Court has put a wrong interpretation upon the decree of the 6th July, 1871, and has thereby extended the period for which the judgment-creditor is entitled to mesne profits.2. The decree is silent as to the date up to which mesne profits are to run. It merely says that mesne profits are to be ascertained and realized on a specified quantity of land at the time of execution of the decree. The Judge on this point observes: 'The appellant, as judgment-debtor, is quite mistaken in supposing that in the decree there are any words of limitation which would exclude the decree-holder from the items under objection. Taking the decretal order as a whole, and reading it in connection with the subsequent proceedings, I cannot help thinking that the present interpretation now set up is an after-thought.'3. Then the Judge admits that there are no terms in the decree which limit or define the period for which the judgment-debtor is liable for mesne prof...
Tag this Judgment!The Empress Vs. Pitambur Singh
Court: Kolkata
Decided on: Dec-08-1879
Reported in: (1880)ILR5Cal566
Richard Garth, C.J.1. We think it clear that, in this case, the evidence of the marriage is not sufficient to justify a conviction for adultery.2. The marriage of the woman, as observed by the learned Judges who referred the case, is as essential an element of the crime charged as the fact of the illicit intercourse, and the provisions of the Evidence Act (Section 50) seem to point out very plainly, that where the marriage is an ingredient in the offence, as in bigamy, adultery, and the enticing of married women, the fact of the marriage must be strictly proved in the regular way....
Tag this Judgment!Mrinamoyi Dabia on Behalf of Shibchand Chuckerbutty Vs. Jogodishuri Da ...
Court: Kolkata
Decided on: Dec-05-1879
Reported in: (1880)ILR5Cal450
Morris, J.1. The preliminary objection taken, that this appeal cannot proceed, must, we think, prevail. The minor whom the appellant Mrinamoyi represents in the appeal, was not a party, as the law requires, to the proceedings, in the Court below, nor can he be affected by these proceedings. The application for revocation of the probate, applied for by Jogodishuri, was made by Khetternath, who styled himself 'father and guardian of the minor Shibchand.' There is nothing in the record to show, and so far as the Court is aware, Khetternath had obtained no certificate under Act XL of 1858, nor had he permission granted by the Court, under the special circumstances specified in Section 3 of that Act, to represent the minor as objector in the probate proceedings. It is contended, that it may be presumed, that the Court gave the necessary permission under Section 3 to represent the minor; but we think that this permission must be formally recorded by the Court as it is an act of judicial disc...
Tag this Judgment!Gopal Dat Panday Vs. Drig Bijai Singh
Court: Kolkata
Decided on: Dec-05-1879
Reported in: (1881)ILR6NULL218(P.C.)
Sir R. P. Collier, J.1. In this case the plaintiff made a claim to a settlement in virtue of his under-proprietary right, which he describes as that of a 'birt zamindar,' in twenty-eight village; but that claim has now been reduced to a claim in respect of two villages and half of a third. It was at first dismissed by the Settlement Officer, on the ground that, inasmuch as the plaintiff did not prove that he had been in possession in 1262 and 1263 Fasli-in other words, in the year 1855, the year before the annexation of Oudh-his claim could not be entertained. The Commissioner of Oudh not being satisfied with the decision on this ground, remanded the case; and upon remand, first the Settlement Officer, and secondly the Commissioner, found that the plaintiff was entitled to the right he claimed, which is sometimes described as a 'birt sankalp' right, sometimes as a 'sankalp' right (some kinds of sankalp being almost identical with that of birt, some being different from it), and an unde...
Tag this Judgment!Mohamed Elahee Buksh and ors. Vs. Kally Mohun Mookhopadhya and anr.
Court: Kolkata
Decided on: Dec-04-1879
Reported in: (1880)ILR5Cal589
Morris, J.1. This appeal raises a question as to the proper reading of the decree which is sought to be executed, and the still more important question, whether the lower Court was right in refusing to allow certain moneys that had been paid in execution of the decree to the judgment-creditor, to be recovered back and refunded to the judgment-debtor.2. The lower Court, as we think, read the decree aright, namely, as a decree containing the condition that the rent claimed for 1279 in excess of the ordinary rate, shall be allowed only in the event of the Appellate Court affirming a previous decree allowing a similar sum in excess as enhanced rent for the year 1278.3. The decree was positive only in regard to the amount claimed at the old rate of rent. And it seems singular that, in spite of the condition relative to the sum claimed as enhanced rent, the Court, in the execution department, should, before the appeal referred to in the decree was decided, have allowed the judgment-creditor ...
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