Kolkata Court December 1880 Judgments
Kadumbini Dabya Vs. Koylash Chunder Pal Chowdhry
Court: Kolkata
Decided on: Dec-22-1880
Reported in: (1881)ILR6Cal554
Bronghton, J.1. The question in this case arises on the construction of Section 58 of Beng. Act VIII of 1869, which enacts as follows:No process of execution of any description whatsoever shall be issued on a judgment in any suit for any of the causes of action mentioned in Sections 27, 28, 29, or 30 of this Act, after the lapse of three years from the date of such, judgment, unless the judgment be for a sum exceeding Rs. 500, in which case the period within which execution may be had shall be regulated by the general rules in force in respect to the period allowed for the execution of decrees of the Court.(After stating the facts, the learned Judge continued):2. There is some confusion in the case owing to the judgment of the Court of first instance deciding the case with reference to the application of the 19th August 1879, although the case (which is called No. 35 of 1880) apparently refers to the application of January 1880. This is, however, immaterial, because it' the application...
Tag this Judgment!Akbur Ali Vs. Bhyea Lal Jha and ors.
Court: Kolkata
Decided on: Dec-22-1880
Reported in: (1881)ILR6Cal666
Richard Garth, C.J.1. I think that this case ought to go back to the Court below for retrial.2. It seems to me that the lower Appellate Court has thrown the burden of proof upon the wrong party.3. The suit is brought to have it declared that four plots of land, which lie within the zamindari of which the plaintiff is the patnidar, are the mal lands of the zamindari; and the occasion which gave rise to the suit is this:4. The defendants Nos. 2 and 3 were the tenants to the plaintiff of a large portion of land within the zamindari; and a judgment was obtained against them by the defendant No. 1, under which certain plots of land lying within the ambit of the zemindari, and as far as we know, within the ambit of the lands held by the defendants Nos. 2 and 3 as tenants to the plaintiff, were sold as being the rent-free lands of the defendants Nos. 2 and 3; and they were bought by, the defendant No. 1. The plaintiff, therefore, brings this suit to have those plots declared to be his mal lan...
Tag this Judgment!Land Mortgage Bank of India, Limited, and ors. Vs. Radhanath Kundu
Court: Kolkata
Decided on: Dec-22-1880
Reported in: (1881)ILR6Cal559
Mc Donell, J.1. The objections which are put forward in this second appeal on behalf of Radhanath Kundu are two-1st.---That the Bank has already failed in a suit on another mortgage relating to the same property, and that as the right they now claim was then in existence, they ought to have included it in the other suit, and not having done so are barred under Act VIII of 1859, Section 7.2nd.---That this defendant has priority under his purchase of first August 1874.2. With regard to the first objection, it appears that the Land Mortgage Bank had obtained a decree against Doorgachurn Shaha on another mortgage, in execution of which decree the same property was put up to sale.3. Radhanath Kundu objected to the sale, on the ground that he had purchased the property on the 1st August 1874, and on the 10th April 1875 his objection was allowed. Thereupon the Land Mortgage Bank, on the 30th of June 1876, filed a suit, which was numbered No. 39 of 1876, against Radhanath Kundu and Doorgachurn...
Tag this Judgment!Burmamoye Dassee Vs. Dinobundhoo Ghose and anr.
Court: Kolkata
Decided on: Dec-22-1880
Reported in: (1881)ILR6Cal564
Broughton, J.1. This second appeal arises out of a suit for possession after foreclosure of a mortgage of a taluq, to which the defendants plead limitation. The mortgage is dated the 30th of Jeyt 1265, corresponding with the 11th June 1858; default was made on the 30th of Jeyt 1266, or 12th of June 1859. An application under Reg. XVII of 1806 was made to foreclose the mortgage in Assin 1273 (Sept.-Oct. 1866); and the year of grace expired in Assin 1274 (Sept.-Oct. 1867).2. The present suit was instituted in 1284, on the 10th of April 1878. And the question is, whether the data from which the period of limitation counts was to run from the 30th of Jeyt 1266, the date of default, or from Assin 1274, when the year of grace expired.3. The new Limitation Act, XV of 1877, came into operation before the suit was filed; but the Courts below have applied Act IX of 1871, which differs materially from Act XV of 1877, on the ground that the right to sue was barred before the Act of 1877 came into ...
Tag this Judgment!Ramtonu Acharjee Vs. Pearymohun Acharjee
Court: Kolkata
Decided on: Dec-21-1880
Reported in: (1881)ILR6Cal551
Richard Garth, C.J.1. I think that this rule should be made absolute. It was obtained on the ground that the Small Cause Court had no jurisdiction to try the suit.2. The facts were these: the plaintiff and defendant and a third person, being co-proprietors of certain lands, the plaintiff brought this suit to recover his share of the rent of a portion of those lands, which the defendant had received from the ryot.3. The answer of the defendant was this, that he and the plaintiff and a third person, being co-proprietors of the lands, the defendant had, with the plaintiff's consent, received the rent not only of this particular jote, but of several other jotes; and that he had disbursed that money in various ways for the benefit of the three co-proprietors.4. Under these circumstances it was contended, and it seems to me rightly contended, that it was impossible to try the case, so as to do justice to all parties concerned, except by taking an account. The sums which the defendant had dis...
Tag this Judgment!Ashootosh Dutt Vs. Doorga Churn Chatterjee
Court: Kolkata
Decided on: Dec-20-1880
Reported in: (1881)ILR6Cal504
White, J.1. The decree is more than twelve years old, and as such execution would be barred under Article 180, sched. ii of the Indian Limitation Act, 1877. But Mr. Kennedy, for the plaintiff, has contended with much ability and learning, that the order of this Court of the 18th of September 1869 was a revivor of the decree within the meaning of the proviso attached to the foregoing article, and which is in these words, 'provided that when the judgment or decree has been revived...the twelve years shall be computed from the date of such revival, or the latest of such revivals.'2. The petition does not state how the order of the 18th of September 1869 came to be made. But it was, made long after the Code of 1859 had been applied to this Court on its Original Side. It also appears to have been the first order from execution which issued upon the decree, and to have been made after the lapse of more than a year from the date of the decree; so I must take the order to have been made under ...
Tag this Judgment!Horakh NaraIn Singh Vs. Ram Dutt Singh
Court: Kolkata
Decided on: Dec-18-1880
Reported in: (1881)ILR6Cal549
Mitter, J.1. This is a suit to recover Rs. 439-6, being money paid by the plaintiff, between September 1866 and August 1878, as revenue of Mouza Tulsipore, belonging to defendant, with interest thereon. The plaintiff held the other mouzas of the defendant's estate under baibilwafa and lease, by the conditions of which he was to pay the revenue of them, there being no obligation on him to pay the revenue of Tulsipore. But his allegation is, that the defendant neglected to pay the revenue of Tulsipore, and that he, the plaintiff, was, therefore, compelled to do so.2. The defence was, first, that, by Article 99, Schedule ii, Act XV, 1877, the plaintiff's suit was wholly barred; second, that the plaintiff paid the revenue of Tulsipore by arrangement, receiving a corresponding reduction of his rent. This last plea was decided against the defendant in both the lower Courts, and although allusion is made to it in the last ground of appeal, it has not been mooted-before us. Both the lower Cour...
Tag this Judgment!In Re: Maharajah of Durbhungah and ors.
Court: Kolkata
Decided on: Dec-17-1880
Reported in: (1881)ILR7Cal21
Richard Garth, C.J.1. We think that the instrument in question is already sufficiently stamped.2. It is neither a 'conveyance,' nor a 'settlement,' nor an 'instrument of partition,' within the meaning of Act I of 1879.3. It is in its nature a deed of arrangement, by which a sum of money was paid absolutely, and a maintenance grant made by the Maharajah of Durbhungah to his younger brother, by way of discharge and satisfaction of all claims, by way of maintenance or otherwise, to which the latter was entitled as the son of the late Maharajah.4. The instrument would, no doubt, have been a 'conveyance' under the Stamp Act of 1869, because it is a deed by which property is conveyed inter vivos; but the definition of a conveyance in the Act of 1879 [see Section 3 (9)] excludes all transfers or conveyances, which are not made by way of sale and this transfer, we consider, was clearly not made by way of sale....
Tag this Judgment!Patterson Vs. Manly
Court: Kolkata
Decided on: Dec-16-1880
Reported in: (1881)ILR7Cal394
Pontifex, J.1. This case arises under somewhat singular circumstances. About the year 1823, a sum of Rs. 10,000 was settled in trust for Mr. Robert Manly for life, with remainder to his wife for life, with remainder for the children of the marriage, as Robert Manly and his wife or the survivor of them should appoint, and in default of appointment, for the children. Shortly after the settlement, the husband, Mr. Manly, being possessed of a piece of land, persuaded the trustees to advance him the Rs. 10,000 in order to build a house upon it.2. The deed under which the Rs. 10,000 was advanced was drawn in the form of an absolute conveyance to the trustees without any proper proviso for redemption, and without any covenant for payment of the money to the trustees. The conveyance was to the trustees of the settlement and the succeeding trustees to be appointed thereunder, to be held upon and subject to the several trusts of the settlement, and thus an express trust was impressed on the prop...
Tag this Judgment!Luchman Lall Vs. Ram Lall
Court: Kolkata
Decided on: Dec-14-1880
Reported in: (1881)ILR6Cal521
Mitter, J.1. These are two cross-suits between persons who at one time were carrying on a partnership business in grain. The object of the suits was for adjustment of account, and for recovery of the money due to each other. The suits were instituted in the Court of the Munsif of Patna. The Munsif dismissed both these suits. There were two appeals; and the District Judge on appeal held, that the Munsif had no jurisdiction to entertain the suit, because, under Section 265 of the Contract Act, it was the District Judge's Court which had sole jurisdiction to grant relief in a case like this. We think that the District Judge is wrong in this view. It has been decided by the Madras High Court in the case of Javali Ramasami v. Sathambakam Theruvengadasami (I. L. R., 1 Mad., 340) that Section 265 is only an enabling section,-that is to say, it leaves to the option of the plaintiff either to institute proceedings under that section in the District Judge's Court, or to pursue his ordinary civil...
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