Kolkata Court January 1882 Judgments

Luchmun Persad Singh and ors. Vs. Kishun Persad Singh and ors.

Court: Kolkata

Reported in: (1882)ILR8Cal219

Richard Garth, C.J.1. We are of opinion that the application in question is governed by Article 180 of the 2nd schedule of the Limitation Act.2. Although an order of Her Majesty in Council may confirm the decree of the Court below, that order is undoubtedly the paramount decision in the suit, and any application to enforce it is, in point of law, an application to execute the order, and not the decree which it confirmed: see Pitts v. La Fontaine L.R. 6 App. Cas. 482.3. The test of this is, that before the decree-holder can obtain execution, he must apply to the High Court under Section 610 of the Code to transmit the order of Her Majesty to the Court whose duty it is to issue execution, and it is clear from the language of that section, that the Court to which the order is transmitted has to execute, not its own decree, but the order itself. If this were not so there would seem no necessity for applying to the High Court at all.4. As the application, therefore, in this case was to exec...

Ram Lochun Deb and ors. Vs. Bhugirath Patoni and ors.

Court: Kolkata

Reported in: (1882)ILR8Cal275

Prinsep, J.1. In the year 1869, the plaintiffs sued the present defendants and those who represent the half-share of the tenure for arrears of rent and obtained an ex parte decree in the Court of the Deputy Collector at the rate of Rs. 37-4 per annum for the half-share now in dispute. In the year 1870, they sued the tenants of the other half-share at the same rate. That suit was contested and was dismissed, but in appeal a decree was given at the rate admitted by those defendants, namely, Rs. 15, for that half-share.2. In the present case the plaintiffs rely on the ex parte decree of 1869. The defendants, on the other hand, produce the decree in the suit of 1870 against the tenants of the other share, and claim to be treated in the same way. There is no evidence on the record except those two decrees. The lower Appellate Court, setting aside the judgment of the first Court, considered that, inasmuch as the defendants in the present suit had not obtained a reversal of the ex parte decre...

In Re: Radhabullubh Sil

Court: Kolkata

Field, J.1. The appellant in this case, Oomamoni Dassee, is the guardian of her minor son Radhabullubh. She holds a certificate under Act XL of 1858, and she has also obtained a certificate under Act XXVII of 1860. It appears that certain Bank of Bengal shares form a portion of the property belonging to the minor, and the appellant obtained power, under the certificate granted to her under Act XXVII of 1860, to draw the dividends falling due upon those shares. After the passing of the Presidency Banks Act, XI of 1876, she applied to be registered under the provisions of Section 4 of that Act. The portion of this section, which is material to the present case, is as follows:The several persons who are then proprietors and shareholders of each of the present Banks of Bengal and Madras, or executors or administrators of such proprietors and shareholders respectively, shall be entitled to be registered as proprietors and holders of a like quantity of stock and a proportionate number of sha...

In Re: Petition of Nasibun and ors. and Vs. Preosunker Ghose

Court: Kolkata

Reported in: (1882)ILR8Cal534

Field, J.1. The question in this case is, whether the Judge of the Small Cause Court at Jessore is wrong in holding that a certain instrument is a promissory note, and requires to be stamped as such. It appears that the plaintiffs, who obtained this rule, had a decree against the defendant; that this decree was being executed; that the parties came to a compromise; and that the instrument with which this rule is concerned was executed thereupon. The instrument, leaving out the immaterial portions, runs as follows.2. Now this instrument recites the fact of the decree having been under execution and the fact of the execution-proceedings having been struck off. It then recites that 'you,' that is the mukhtar, in whose favour the instrument was executed 'having spoken to the decree-holders, will adjust the decree' (for this we take it, is the proper signification of these words) and then the instrument goes on to state that the amount will be paid by instalments on certain dates. The argum...

Rajendro Coomar Roy and ors. Vs. Madhub Chunder Ghose and ors.

Court: Kolkata

Reported in: (1882)ILR8Cal343

Field, J.1. In this case there is an appeal by the decree-holders, and a cross-appeal by the judgment-debtors, against an order of the Subordinate Judge of Dacca, passed in certain execution-proceedings, and dealing with the assessment of mesne profits, which, under the terms of the original decree, were left to be settled by the subsequent proceedings in execution. Several grounds have been taken in the petition of appeal; but the learned Counsel for the appellants has only pressed one of these grounds upon us; and that is the first ground, which is, that the lower Court has erred in not giving the decree-holders interest on the yearly amounts of wasilat from the end of the years for which such amounts were allowed respectively up to the date on which such wasilat was ascertained. The question whether interest upon the sums allowed as mesne profits for each year, such interest to be calculated from the close of the years in respect of which such sums have been allowed respectively up ...

Miller Vs. Nasmyths Patent Press Company

Court: Kolkata

Reported in: (1882)ILR8Cal312

Wilson, J.1. The question is, what lien are the defendants entitled to. The Official Assignee contends, that they are only entitled to a lien on each bale of jute for costs of baling of that specific bale. The defendants first claim a general lien under Section 171 of the Contract Act, on the ground that they are wharfingers. To me it seems clear that they are not wharfingers. They have a wharf as an accessory to the screw-house. Occasionally jute is brought to the screw-house in carts. All that is purely ancillary to the pressing business, and they are not wharfingers. They are not entitled to a general lien in that sense.2. They further contend that they are entitled to a lien on all jute delivered under the agreement of January 1881 for charges on jute baled and delivered under the agreement. In that contention I think they are right. The case of Chase v. Westmore 5 M. & S. 180 appears to me an express authority for the proposition that where a person does work under an entire contr...

Saroda Prosad Gangooly and anr. Vs. Prosunno Coomar Sandial and ors.

Court: Kolkata

Reported in: (1882)ILR8Cal290

Prinsep, J.1. In our opinion the Subordinate Judge sitting in appeal is clearly wrong in holding that the plaintiffs were not entitled, under any circumstances, to recover damages on account of arrears of road and public works cesses due from the defendants. The terms of Section 25 of Beng. Act X of 1871 are clear on this point, and permit the zemindar, or the holder of an estate or tenure, to recover such cesses in the same manner and under the same penalties as if the same were arrears of rent in respect of land in respect of which such sums were payable. Under Section 44 of the Rent Law damages would have been payable had the claim been for arrears of rent, and, therefore, the present claim being for cesses, the defendants are liable to pay such damages.2. It has been pressed upon us by the respondents' pleader, that we ought to remand the case to the lower Appellate Court for a finding as to the amount at which damages should be assessed; but the terms of the decision of the first ...

Obhoy Gobind Chowdhry Vs. Hurychurn Chowdhry and ors.

Court: Kolkata

Reported in: (1882)ILR8Cal277

Prinsep, J.1. It is sufficient for the purposes of this appeal to describe the position of the parties briefly, by stating that the defendants are the proprietors of a certain taluq for which they were paying rent to the plaintiff, the plaintiff also being a co-sharer with others in the estate of which the taluq formed a part. A batwara took place of the estate, and it would seem that this taluq ceased to be held exclusively by the plaintiff, and was divided between the plaintiff, Bimola, and others. On the strength of that batwara, the plaintiff has now sued the defendants for arrears of rent of the share stated to have been given to him under that batwara, and he claims rent at a higher rate in consequence of certain agreements said to have been entered into by the defendants with him when the taluq was his sole property.2. The first objection taken in special appeal is, that the lower Appellate Court should not have held that the suit was bad, because Bimola and others, who are co-s...

Gopal Sahoo Vs. Gunga Pershad Sahoo and ors.

Court: Kolkata

Reported in: (1882)ILR8Cal530

Mitter, J.1. We think that the decisions of the lower Courts in this case are not correct, and must be set aside. The plaintiff brought this suit against the defendants Nos. 1 and 2, upon a mortgage-bond executed on the 30th Kartick 1282 (corresponding to the 15th of November 1874). The mortgage-bond was executed by the defendant No. 1, who is a purdanasheen lady, through the defendant No. 2. In that bond a sixteen-ganda share of Mouza Futtehpore was hypothecated as security for the loan. The plaintiff brought the suit to recover the money due by enforcing his mortgage lien. The suit was brought against the executants of the bond and Gunga Pershad Sahoo, who became the auction-purchaser of the property, mortgaged after the execution of the bond. In the written statement of Gunga Pershad, who alone defended the suit, it is alleged that, on the 2nd of September 1875, the property mortgaged, viz., the sixteen-ganda share of Futtehpore, was sold by the mortgagors to the plaintiff, and the ...

Joogulkishore Vs. Jotendro Mohun Tagore

Court: Kolkata

Reported in: (1882)ILR8Cal210

Pontifex, J.1. I have already given my opinion in several cases as to the construction of the second Clause of Section 596 of Act X of 1877, which relates to a decree indirectly involving some claim or question to property of like amount or value, when the same title applies to other property as to which litigation might arise. In this case the plaintiff purchased two properties for a certain value, deriving his title from the reversionary heir of one N.C. Roy. The Tagore defendant purchased exactly the same properties, deriving their title through the widow of N.C. Roy. The question between the plaintiff and the Tagore defendant is, which has the better title to these two properties under the circumstances. The Tagore defendant has put in an affidavit, from which it appears that the value of the two properties with mesne profits would be over Rs. 10,000. The predecessors of the Tagores gave one of the properties in patni to one set of persons, and gave a patni of the other property to...