Kolkata Court January 1886 Judgments
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J. Hippolite Vs. C. Stuart and anr.
Court: Kolkata
Decided on: Jan-29-1886
Reported in: (1885)ILR12Cal522a
Richard Garth, C.J.1. The question which is submitted to us by this reference is, whether Section 8 of Act III of 1874 extends to separate property of a married woman, which is subject to a restraint upon anticipation.2. It seems to me that the view which has been taken of this point by the learned Judge of the Small Cause Court is perfectly correct; and that the reasoning by which he arrives at his conclusion is quite satisfactory.3. Mrs. Stuart, the lady against whom this suit is brought, had a sum of Rs. 50,000 settled upon her by her father and placed in the hands of trustees for her benefit. The interest was to be paid to her from time to time by the trustees, and she was only to have a power of disposing of the property by will.4. Mrs. Stuart, it appears, carried on a sort of millinery business on her own account, and for the purposes of that business borrowed money of the plaintiff. It is found that he lent the money upon the credit of her separate estate; and the question is, w...
Madan Mohun Lal Vs. F. Holloway by His Am-mookhtear L.G. Crowdy and or ...
Court: Kolkata
Decided on: Jan-29-1886
Reported in: (1885)ILR12Cal555
Tottenham, J.1. In this case there is no appearance on behalf of the respondent.2. We are of opinion that the judgment of both the Courts below, refusing to give the plaintiff relief against the defendant No. 2, is erroneous. The ground alleged by the Courts below for dismissing the suit as against the defendant No. 2 was that the claim against him was of a different nature from that against the defendant No. 1, and that it was not clearly set out in the plaint.3. The plaintiff was the purchaser of the property in suit from the defendant No. 2, and on coming into possession he brought this suit against the defendant No. 1 for arrears of rent due partly for a period before his incumbency and partly for a subsequent period. He sued both the tenant and his vendor, because the defendant No. 1, on demand for rent being made, had alleged that he had already paid rent in advance to the defendant No. 2, and the defendant No. 2 omitted to take any notice of the plaintiff's reference to him.4. U...
Rakhal Chandra Rai Chowdhuri and ors. Vs. the Secretary of State for I ...
Court: Kolkata
Decided on: Jan-26-1886
Reported in: (1885)ILR12Cal603
Prinsep and Trevelyan, JJ.1. This is a suit brought to recover money realised under a certificate under Bengal Act VII of 1880.2. It has been dismissed by both Courts as barred by limitation because it has not been instituted within one year of the date of the service of notice required under Section 10 of that Act. The lower Appellate Court has held that service by means of posting the notice on the dwelling-house of the plaintiff No. 1 is sufficient, and that this is proved by the evidence of the peon examined.3. Bengal Act VII of 1880 makes no special provision as to the manner of service. We cannot, however, suppose that the Legislature could have intended that service of a less effective character should be sufficient than it has expressly prescribed for similar processes under the Code of Civil Procedure. We are of opinion that, before a service of the description found in this case can be accepted, it must be shown that some attempt has been made to effect personal service, and ...
Prangour Mozoomdar Vs. Himanta Kumari Debya and ors.
Court: Kolkata
Decided on: Jan-22-1886
Reported in: (1885)ILR12Cal597
McDonell and Beverley, JJ.1. If the suit be regarded as one for setting aside the sale, there can be no doubt that it is barred by Article 12 of the Limitation Act. The lower Court was right in finding that there was no fraud on the part of the principal defendants. 'Defendant No. 1, in the letter relied on by the plaintiff, agreed to postpone the sale for one month, on the condition that the property should remain under attachment, and that no fresh sale-proclamation should be necessary. The plaintiff applied to the Court for two months' time, and said nothing in his application as to the sale-proclamation. Defendant No. 2 accordingly refused to consent to the postponement on behalf of his mistress, defendant No. 1. We fail to see any fraud in this conduct. It was not open to defendant No. 2 to consent to the postponement on terms other than those agreed to by defendant No. 1, and if the plaintiff chose to vary those terms, there was no fraud in their rejection. On the ground of fraud...
Kinoo Ram Dass and anr. Vs. Shibendra NaraIn Chowdhuri
Court: Kolkata
Decided on: Jan-19-1886
Reported in: (1885)ILR12Cal605
McDonell and Beverley, JJ.1. A preliminary objection was taken to the hearing of this appeal on the ground that it should not have been re-admitted under Section 558. It is contended that as the pleader in this case was present, though not prepared to go on with it, the appeal was not dismissed under Section 556; and therefore it could not be re-admitted under Section 558. A similar case is that of Buldeo Misser v. Ahmed Hossein 15 W.R. 143 in which we find that under similar circumstances the appeal was held to have been dismissed for default. And followirig that ruling, we think this case was properly re-admitted under Section 558.2. The appeal was dismissed on the facts which are immaterial to this report....
Kameshwar Pershad Vs. Run Bahadur Singh
Court: Kolkata
Decided on: Jan-14-1886
Reported in: (1885)ILR12Cal458
Mitter and Agnew, JJ.1. We are of opinion that this appeal, and the objections taken under Section 561 of the Code of Civil Procedure, must be dismissed, each party paying his own costs.2. The question in the appeal turns upon the construction of Section 244, Clause (c) of the Civil Procedure Code, which runs thus: 'Any other questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree.'3. It is contended that the respondent Run Bahadur is a 'representative' within the meaning of this clause, and that the question that is raised between the decree-holder, and Run Bahadur is a question relating to the execution of the decree.4. It is further contended that, supposing he was not a representative, he was a party to the suit and therefore comes within the purview of that clause. The facts of this case are briefly as follows: The decree-holder Kameshwar Pershad brought a sui...
Lala Jugdeo Sahai Vs. Brij Behari Lal and ors.
Court: Kolkata
Decided on: Jan-14-1886
Reported in: (1885)ILR12Cal505
Mitter and Agnew, JJ.1. The plaintiff in this case sued as the assignee of a bond executed by the first party defendants in favour of the second party defendant. The defence was that there was no legal consideration for the bond, and that the suit was not maintainable as no notice of the assignment had been given to the first party defendants under Section 131 of the Transfer of Property Act (IV of 1882). The Munsif found that there was good consideration for the bond; but he dismissed the suit upon the ground that it was not maintainable as no notice of the transfer had been given. The Subordinate Judge was also of opinion that notice was necessary and dismissed the appeal. Two points have been argued before us. One that, as the bond was executed before the Transfer of Property Act came into force, the Act is not applicable. The assignment, however, was after the Act came into force, and we think, therefore, that the provisions of the Act are applicable to this case. The other point w...
Harapriah Debi Vs. Goluck Chandra Mytee
Court: Kolkata
Decided on: Jan-13-1886
Reported in: (1885)ILR12Cal559
Tottenham, J.1. The point before us in this appeal is as to the proper construction of Section 230 of the Code of Civil Procedure.2. The decree sought to be executed is one for money, and it was passed more than twelve years before the present application was made. It appears that under the late Code of Civil Procedure (Act X of 1877), an application was made to execute it, which application was granted.3. It is contended by the judgment-debtor in the present instance that, by the terms of the last paragraph of Section 230 of the present Code, the application is barred, because, had the present Code not been passed, and had the Code of 1877 as amended by Act XII of 1879 been still in force, the decree in question would have been barred under the provisions of the corresponding section.4. The last paragraph of Section 230 of the present Code allows proceedings to be taken to enforce any decree within three years after the passing of the Code, 'unless when the period prescribed for takin...
Danmull Vs. British India Steam Navigation Company
Court: Kolkata
Decided on: Jan-12-1886
Reported in: (1885)ILR12Cal477
Richard Garth, C.J.1. This was a suit brought by the plaintiff against the defendant Company for damages, for not delivering to him at Rangoon, under the terms of a bill of lading, dated the 3rd December 1881, a bale of piece goods which was shipped from Calcutta.2. The plaintiff's cause of suit; as alleged in the plaint, was for the non delivery of this bale of goods at Rangoon.3. The answer of the defendants was, that they had never received the bale of piece goods at all; and they tried, moreover, to go behind the terms of the bill of lading, in order to prove that what was shipped as a bale of piece goods was in fact a bale of gunnies.4. The plaintiff proved to the satisfaction of the Court that he had actually shipped a bale of piece goods; and the defendants entirely failed to prove their case with regard to the contents of the bale, or that the goods had not been, as they alleged, shipped at all.5. But the learned Judge, although he found the facts entirely in favour of the plai...
Baburam Chattopadhya and anr. Vs. Sribullav Bhattacharjee
Court: Kolkata
Decided on: Jan-07-1886
Reported in: (1885)ILR12Cal511
1. We think that the question referred to us should be answered in the negative.2. It would seem from the earlier cases upon the subject decided by this Court--Rash Beharee Babu 7 W.R. 130 and Hurnath Chatterjee v. Futtick Chunder Sumadar 18 W.R. 512 which have been since followed as binding authorities, that the attention of the learned Judges was not sufficiently directed to the distinction between decrees made under Sections 53, 54 and 55 of Act XX of 1866, and orders made under the Civil Procedure Code in the process of executing those decrees.3. The prohibition against appeals in Section 55 is expressly confined to such decrees or orders as are made under the above sections of the Act; the prohibition does not extend to orders made under the Code in the course of execution proceedings, although the object of those orders may be to enforce decrees, which have been made under Section 53; and there is quite as much reason why an appeal should lie from such orders if they are generall...
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