Court : Kolkata
Reported in : (1883)ILR9Cal150
Mitter, J.1. This is an appeal against the decree of the District Judge of Patna, reversing the decision of the Munsif, by which the plaintiff's suit was dismissed. The decree appealed against is in these words: Defendant must cause registration of the deed and delivery of it, and put the plaintiffs in possession of the thing sold, and then plaintiffs will pay to her, or into Court, the Rs. 20 still due.'2. The plaintiffs brought this suit to compel the defendant to register a mokurari patta alleged to have been executed by her in their favour. It was alleged in the plaint that the defendant agreed to grant a mokurari patta of the property in dispute on a bonus of Rs. 100; that, according to this agreement, a mokurari patta was executed by the defendant on the 27th of January 1880; that, on that date, Rs. 80, out of Rs. 100, were paid, and the mokurari patta was made over to the plaintiff's; that the said document was filed by the plaintiffs in the Sub-Registry Office at Patna on the 3...
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal283
Mitter, J.1. Who after stating the facts as above, continued.2. The main ground urged in appeal by the defendants, appellants, is that the present suit is barred under the provisions of Section 7 of Act VIII of 1859. It is contended that the present suit is based upon the same cause of action upon which the suit for possession during the lifetime of Rutton Dai, and the suit for wassilat after her death, were brought.3. As regards the first of these two suits, it is quite clear that it was not brought upon the same cause of action upon which the present action is based. The succession to the estate of Koonj Behari devolved upon the plaintiff, respondent, and his other co-heirs on the death of Button Dai; therefore, the cause of action of the present suit accrued on the date of her death, viz., 10th May 1870; consequently it is not identical with the cause of action of the suit which the plaintiff, respondent, brought during the lifetime of Rutton Dai. The cause of action in this latter ...
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal230
Field, J.1. The property which forms the subject of this suit was attached in execution of a decree against the defendant No. 3. The plaintiff preferred a claim under Section 246 of Act VIII of 1859 in respect of this property. This claim was disallowed on the 7th of September 1876. The plaintiff now seeks to establish his right to, and obtain possession of the property which formed the subject of that claim. The present suit was instituted on the 9th of October 1879, that is more than three years after the order disallowing the claim, which order was made under Section 246 of Act VIII of 1859.2. The Munsif was of opinion that the limitation law applicable to this case is Act XV of 1877, and he refers to Article 11 of Schedule ii of that Act. Applying that article, he was of opinion that this suit ought to have been brought within one year from the 7th of September 1876, and that, having been brought more than a year after the date of the order disallowing the claim, it was barred by l...
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal53
Norris, J.1. In this case the accused Dhunum Kazee was charged under Section 471 of the Penal Code with having, on or about the 1st of February 1879, at the Jehanabad Munsif's Court, fraudulently and dishonestly used as genuine a certain document, dated the 12th Falgoon 1260, knowing or having reason to believe the same to be a forged document; and the accused Khorshed Kazee was charged under Sections 471/109 of the Penal Code with abetting the fraudulent and dishonest use of the forged document knowing or having reason to believe that the same was forged. The jury unanimously acquitted the accused. The Officiating Sessions Judge of Burdwan, before whom the accused were tried, disagreeing with the verdict of acquittal, has submitted' the case to the High Court under the provisions of Section 263 of the Criminal Procedure Code.2. In arriving at a conclusion as to what principles should guide me in the exercise of the discretion given me by Section 263 of the Criminal Procedure Code, I a...
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal75
Field, J.1. The plaintiff in this case makes the following allegations in her plaint: that her father, the late Gunga Narain Dutt, purchased certain brohmutter land on the bank of the river Hooghly, and during his lifetime built thereon certain mundirs, or temples, dedicated to Ishwar Siva, a bathing-ghat, and a room called gungajatri-ghur, and close thereto another ghat, called an antorjoli-ghat, about six feet in breadth; that, ever since the above ghat was built, sick persons, who have lost all hopes of recovery, have been brought to the aforesaid gungajatri-ghur, and, when on the point of death, have been removed to the said ghat, where the rites of antorjoli have been performed according to practice and the Hindu Shastras; that, the plaintiff is her father's executrix and the manager of his property; that the defendants have recently used the ghat for the purpose of landing goods from their boats; that, in consequence of their doing so, the sick persons brought to the river-side h...
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal167
Richard Garth, C.J.1. The facts of this case are briefly these: Two persons, Ram Nath and Hem Nath, took a loan of Rs. 192 from the plaintiffs, under a chitti dated the 17th Falgoon 1280 (March 1873). Hem Nath sold his share in Mauza Rizapore Damudur to Gokoola Persad, defendant No. 2, on the 24th July 1874. On the same date Hem Nath, as the guardian of his nephew Mothoora Persad, son of his deceased brother, the aforesaid Ram Nath, granted a zurpeshgi lease of Ram Nath's share in the same property also to Gokoola Persad, defendant No. 2. Out of the consideration-moneys of these two transactions, by an arrangement between the parties, Rs. 192 was left with the defendant No. 2 to be paid over to the plaintiffs in liquidation of the debt due under the chitti of the 17th Falgoon 1280 (March 1873), but this money was not paid by the defendant No. 2 to the plaintiffs, who brought a suit for its recovery; and, on the 13th September 1876, obtained a money-decree against the defendant No. 2.2....
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal290
Richard Garth, C.J.1. We think that under Section 326, it is in the discretion of the Court to authorize the Collector or not, as it thinks fit, to provide for the satisfaction of the decree in the manner which the Collector recommends, and for the purpose of effectually exercising that discretion we consider that the Court is bound to hear any objections which may be made by the decree-holder to the feasibility of the proposed scheme, and any evidence that may be offered in support of those objections.2. It is clear that under Section 320, the word 'may' is used in a discretionary sense only, and it would appear to be used in the same sense in the intervening sections; and there certainly seems good reason why the Court should enquire closely into the feasibility of the Collector's proposal, seeing that its effect would be to deprive the decree-holder of the right, which the law gives him, of executing his decree, and not only so, but to protect the debtor's property during all that t...
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal355
Field, J.1. In this case one Kali Dass Roy mortgaged certain property to Boroda Prosad Mookerjee by an instrument, dated the 17th June 1878. This instrument was not a formal deed of mortgage; it was an agreement for mortgage only, but it was the intention of the parties that a formal mortgage deed should be subsequently executed. The agreement of the 17th June 1878 contained a provision that, until the formal mortgage deed should be executed containing all such covenants, provisions, stipulations, and agreements as are usually or properly introduced into mortgages of estates of a similar nature, the mortgage-property should remain charged with the amount of the loan, and the mortgage agreement (which was correctly stamped under Act XVIII of 1869) should be considered as a deed of mortgage. Under the agreement the money lent on mortgage, together with interest at 18 per cent., was to be paid within one year from the 17th June 1878, and the agreement further provided that this interest w...
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal14
Richard Garth, C.J.1. The question raised in this appeal is, whether Dr. Kernot is entitled to any larger portion of his claim against the Media Tea Company than has been allowed by the Court below, and to enforce that claim under a mortgage of the 22nd of December 1879, executed in his favour by three of the Directors of the Company in accordance with a special resolution passed on the 4th of October 1879, at an extraordinary general meeting, and confirmed on the 16th of October 1879.2. The mortgage recites that the Media Tea Company, being in want of funds for and towards enabling them to work and carry on the tea gardens, Dr. Kernot had advanced various sums of money, and had received from and on their account various sums of money, leaving a sum of Rs. 87,353, including interest up to date, due to him; 'that they had asked Dr. Kernot to lend and advance from time to time such further sums as might be necessary for carrying on the gardens; that the mortgagee had consented on the exp...
Tag this Judgment!Court : Kolkata
Reported in : (1883)ILR9Cal33
Richard Garth, C.J.1. We have had some difficulty in determining what is the true meaning of the decree in this case.2. It may be that it was the intention of the learned Judge who made it to allow the plaintiff to pay his mortgage-money and interest when he chose; but we are bound to put a construction upon the language of the decree itself, and we think that the words 'up to the time of payment hereinafter mentioned' can refer to no other time of payment than that which is mentioned later on in that part of the decree which relates to the reconveyance of the property; and the time of payment there mentioned seems, according to the best construction that we can put upon the sentence, a time after the Registrar has made his report, because the sum to be paid is to be a sum reported to be due by the Registrar.3. After the able arguments which have been addressed to us in this case, and the difficulty which we feel even now in saying what the decree really means, it is impossible to avoi...
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