Kolkata Court September 1883 Judgments
Brae Vs. the Queen-empress
Court: Kolkata
Decided on: Sep-22-1883
Reported in: (1884)ILR10Cal338
Mitter, J.1. The appellant in this case has been convicted by the Sub-Divisional Magistrate of Jhenidah under Section 155 of the Indian Penal Code. It is quite clear, and it is not disputed that that is not the right section under which he should have been convicted. The appellant was simply the manager and not the owner of the land respecting which the alleged riot took place. The section under which he should have been charged is Section 156, but it appears to me that on three essential points the evidence that has been adduced is not sufficient to establish an offence under Section 156.2. The first point that is necessary to be established is that a riot was committed, but there is no evidence to prove that a riot, as defined in the Penal Code, was committed. It is necessary to show that there was an assembly of more than five persons, who had a common object in view, but in this case there is no evidence to show that the servants of the factory, who are alleged, to have constituted...
Tag this Judgment!Dukhi Sahu and anr. Vs. Mahomed Bikhu
Court: Kolkata
Decided on: Sep-15-1883
Reported in: (1884)ILR10Cal284
Mitter, J.1. I am of opinion that the question referred in this case is a question of limitation which arises in the case, and has not been decided in the order of reference.2. The plaint in this suit, which was filed on the 30th September 1880, states that there was an adjustment of accounts between the parties on the 18th October 1877.3. In the order of reference, we decided two questions-first, that the suit was not based upon an express contract made between the parties on the 18th October 1877; secondly, that the transaction which took place on that date did not amount to an implied contract. We felt no doubt upon this last mentioned point; and the authorities which are all cited in our judgment are all one way, and fully support the view which we have taken; no conflict of authorities, as far as we are aware, exists on this point. Under these circumstances, we felt that we could not refer this question to the decision of a Full Bench. Our opinion upon the point being clear, and t...
Tag this Judgment!A.B. Miller, Official Assignee of Bengal and of the Estate of Kishen C ...
Court: Kolkata
Decided on: Sep-13-1883
Reported in: (1884)ILR10Cal150
Prinsep, J.1. The question before us is whether a creditor, whose rights depend upon an attachment before judgment, is entitled to execute a decree subsequently obtained, in spite of a vesting order in favour of the Official Assignee of the insolvent debtor's estate passed after the attachment, but before the decree.2. I am of opinion that, having regard to the terms of the present Code, he cannot execute such a decree. An attachment before judgment is obtained when a Court is satisfied that the defendant intends to obstruct or delay the execution of any decree that may be passed against him, by disposing of or removing his property from the jurisdiction of the Court, or quitting such jurisdiction and is unable to furnish proper security. The attachment is to be removed if at any time the security is furnished or the suit is dismissed. It does not affect the rights of third parties already existing, nor does it prevent any decree-holder from applying for the sale of the property in sat...
Tag this Judgment!Moothora Kant Shaw and ors. Vs. the India General Steam Navigation Co.
Court: Kolkata
Decided on: Sep-13-1883
Reported in: (1884)ILR10Cal166
Richard Garth, C.J.1. Whatever doubts may have arisen upon the subject of this reference in consequence of recent legislation, it is at least satisfactory that we are all now agreed upon one very material point, namely, that at the time of the passing of the Indian Carriers Act in 1865, the English law relating to common carriers was in force in this country. My brother WILSON and myself, when we referred this case, had some doubt about that point, but, so far as I am concerned, I am glad to say that my doubts have been entirely removed.2. It is obvious that the Carriers Act itself assumes two things: first, that there were a class of persons here at that time, who were recognized as common carriers; and, secondly, that there was some special law, which regulated the duties and responsibilities of those persons. It is difficult to imagine what that law could have been, unless it were the English common law; and it seems only reasonable to suppose that, as common carriers were introduce...
Tag this Judgment!Beer Chunder Manikya Vs. Ishan Chunder Burdhun and ors.
Court: Kolkata
Decided on: Sep-10-1883
Reported in: (1884)ILR10Cal136
McDonell, J.1. We think that the Court below is wrong in holding that Section 432 of the Code of Civil Procedure prevents the institution of a suit by the Maharajah in his own name, and through a recognized agent other than one appointed under that section. In the present suit the Maharajah has not sued as the independent Rajah of Hill Tipperah, but as Zamindar of Chakla Roshanabad, etc. The judgment to which the Subordinate Judge refers was a suit which was brought against the Maharajah qua Maharajah of Independent Tipperah, in respect of a subject of which our Courts could not take cognizance. The order of the lower Court is therefore reversed, and the suit will be tried by the Subordinate Judge....
Tag this Judgment!Preonath Misree and anr. Vs. Russick Das Bairagy and anr.
Court: Kolkata
Decided on: Sep-06-1883
Reported in: (1884)ILR10Cal102
Richard Garth, C.J.1. The plaintiff describing herself as 'elder sister and guardian of the minors Preonath Misree and Uma Churn Misree,' brought this suit to recover possession of certain land, the property of the minors, from which she, while acting as their guardian and in possession on their account, had been dispossessed.2. The defendants, apart from the merits of the case, contended that Preonath Misree had attained majority, and further, that, even if he and his brother were minors, the plaintiff had no right to sue on their behalf, as she held no certificate under Act XL of 1858, and had no permission from the Court to bring the suit.3. It certainly does not appear that any permission, such as that contemplated by Section 3, Act XL of 1858, was asked for or given; but the Munsif, in disposing of the latter objection, says in his judgment: 'Managers of small properties are competent to bring cases without obtaining a certificate; * * * * thus the plaintiff is in no way debarred....
Tag this Judgment!Nilmoney Dass and ors. Vs. Durga Churn Shaha and anr.
Court: Kolkata
Decided on: Sep-06-1883
Reported in: (1884)ILR10Cal134
Richard Garth, C.J.1. We have great doubt whether we ought not to reverse the judgments of both Courts, and to dismiss the plaintiff's suit upon the ground that it is not properly brought.2. It is in form a suit by 'Gour Monee Dassee, widow of Sumbho Nath Dass, deceased, and manager on behalf of her minor son Nilmoney Dass.' But the real claimant is Nilmoney Dass, the minor, and the suit has been dealt with from first to last by the lower Courts upon that footing.3. The suit, therefore, in point of form, is brought in the name of the wrong person.4. We have had other cases before us, in which the same mistake has been made, and Courts of First Instance are very much to blame for not obliging plaintiffs to put their claims in proper shape, before they allow such suits to proceed.5. The fact of the Munsiff having omitted to do this in the present case has been the means of causing the parties great delay and expense, and very nearly of defeating the plaintiff's claim altogether, although...
Tag this Judgment!Jagat Sattani Bibee and ors. Vs. Mina Kumari Bibee
Court: Kolkata
Decided on: Sep-06-1883
Reported in: (1884)ILR10Cal220
Richard Garth, Kt., C.J.1. We think that the Court below was quite right.2. It is not necessary for us to deal with any other than that which is the principal question in the case, namely, whether the sale, which took place under the execution proceedings in the former suit, can be set aside by the plaintiff in this suit.3. She (the present plaintiff) was the judgment-debtor in the former suit, and before the execution issued under which the sale took place, she took the objection that the right to issue execution was barred by limitation.4. The Court held that execution was not barred, and consequently the sale took place, and was confirmed to the present defendant.5. The plaintiff, the execution-debtor, then appealed to the High Court. The High Court held that the Court below was wrong, and that the right to issue execution was barred. The decision has been since approved by the Privy Council.6. The plaintiff then brought this suit for the purpose of having it declared that the sale ...
Tag this Judgment!Govinda Dass Vs. Dulall Dass and ors.
Court: Kolkata
Decided on: Sep-04-1883
Reported in: (1884)ILR10Cal67
Prinsep and O'Kinealy, JJ.1. We think that the Magistrate was not competent in this case--a warrant case not compoundable--to dismiss it because the complainant was absent.2. It appears that on the day first fixed for the trial the complainant attended with his witnesses, but in consequence of the inability of the accused, a Police officer, to attend, it was postponed, the complainant and witnesses being bound over to attend on the day to which the trial had been postponed. On that day the accused alone appeared, and the Magistrate dismissed the case. Having regard to the terms of Section 259 we are of opinion that in warrant cases not coming within that section, except under the last clause of Section 253, which is not applicable, a Magistrate is not competent to pass an order of dismissal, or discharge in consequence of the absence of the complainant. The Magistrate should, in the case before us, have admitted the accused to bail, and as the complainant and his witnesses had given re...
Tag this Judgment!Empress Vs. Paramananda and ors.
Court: Kolkata
Decided on: Sep-04-1883
Reported in: (1884)ILR10Cal85
Prinsep and O'Kinealy, JJ.1. The prisoner has been convicted under Section 304 of the Code of Criminal Procedure by an officer invested with the special powers described in Sections 30 and 34, of the Code of Criminal Procedure.2. The Sessions Judge, to whom the sentence has been submitted for confirmation, has referred the case to this Court, as a Court of Revision, to have these proceedings set aside, and the Deputy Commissioner directed to commit the case for trial in this Court.3. Section 209 empowers a Magistrate holding an enquiry to try the case himself if he thinks that only an offence within his jurisdiction has been committed. This is the course which we understand the Deputy Commissioner has taken, and we cannot, therefore, hold that it is not authorised by law, or that he has acted without jurisdiction merely because there is some evidence which, if believed, would substantiate the charge of murder an offence beyond his jurisdiction. At the same time we think that this cours...
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