Court : Kolkata
Reported in : (1887)ILR14Cal234
1. The appellant obtained a decree for possession of certain property, and in execution proceeded against a family dwelling-house said to have been occupied by Jugodishwari Dabi, who was not the judgment-debtor in the suit in which the decree was obtained. Obstruction was made, and, upon this matter coming before the District Judge, he dismissed the application for execution against this property on the ground that the lady was no party to the suit or decree. Against this order the decree-holder has appealed, A preliminary objection is taken that no appeal lies against this order of the District Judge. The matter, as represented to us, comes under Section 331 of the Code, and the order of the District Judge is practically a refusal to number and register the claim as a suit between the decree-holder as plaintiff and the claimant as defendant. The decree-holder complains that by this proceeding he has lost the opportunity of proving that the claimant is not entitled to protection under ...
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal169
ORDERW. Comer Petheeam, C.J.1. This was a rule which was obtained to set aside an order dated the 21st September in this year, declaring the possession of a particular person to some property under Section 145 of the Code of Criminal Procedure.2. The Magistrate appears to have been set in motion by a police enquiry which was held in consequence of there being a likelihood of a breach of the peace in the neighbourhood, and having been so set in motion, he proceeded to enquire, as it was his duty to do under the section, who was in possession of this property, for the purpose of maintaining him in possession until the parties could get their rights decided by Civil Court.3. This rule was obtained, so far as I recollect, upon the ground argued to-day by Mr. Woodroffe, that the Magistrate had failed to try the question of possession at all, and that he had confined his attention to the question of title; and no doubt upon the face of his judgment, it appears that, to a great extent, he con...
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal64
W. Comer Pethekam, C.J.1. The questions which are proposed for us in this Reference from the Small Cause Court are, first, whether the suit as laid by the plaintiff is legally maintainable; and, secondly, whether, upon the facts stated in the reference, the trustees are entitled to judgment.2. The facts of the case appear to be these : The plaintiff is a Municipal Commissioner of Howrah and one of the trustees of the Howrah Town Hall Fund. Some time ago, it was in contemplation to build a Town Hall in Howrah, provided the necessary funds could be raised, and upon that state of things being existent, the persons interested set to work to see what subscriptions they could get. When the subscription list had reached a certain point, the Commissioners, including the plaintiff, entered into a contract with a contractor for the purpose of building the Town Hall, and plans of the building were submitted and passed, but as the subscription list increased, the plans increased too, and the origi...
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal241
1. It appears in this case that a person of the name of Shib Perkash Misser, in the year 1873, executed a deed of gift in favour of the first defendant, who was then his only minor son, with a reservation of certain benefits in favour of any afterborn son. The second defendant is a son who was afterwards born. The grantor retained for himself an interest in these terms : 'From this date the guardian and manager for the time being shall pay me a monthly allowance of Rs. 400 for my maintenance and necessary expenses out of the profits of the gifted property, and besides that 150 bighas of land of Mouzah Phulbaria or any other mouzah, shall, on measurement, be held by me for the purpose of cultivation, and the measurement and thakbust (fixing boundaries) of the same shall be made as soon as possible, and such land shall be held and cultivated by me free of all rents.'2. Some years after the execution of this deed of gift, the present plaintiff obtained a decree against the grantor, Shib P...
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal122
W. Comer Petheram, C.J.1. Another question that arises is, whether a suit of this kind must be dismissed because it appears that the plaintiff has sought to partition only a portion of the joint property. It is a point upon which I should have thought there was room for doubt, but looking at the authorities I find that the authorities are in favour of such a suit being absolutely dismissed because it cannot be brought in that form, and therefore it seems to me we are bound to follow those authorities and to dismiss this appeal; but in dismissing it we make this addition that we reserve to the plaintiff liberty to bring a fresh suit for the partition of this property bringing in the whole of the family property. The appeal is dismissed with costs....
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal128
ORDERW. Comer Petheram, C.J.1. In this case the prisoner, who was a clerk in the Post Office Savings Bank, has been charged and tried for embezzling various sums of money which were deposited by various depositors in the same Bank, and the present application is really an application upon a rule which has been obtained to quash the whole proceedings on the ground that the trial is illegal, because the prisoner has been tried for four offences of the same kind at the same trial, whereas under Section 234 of the Code of Criminal Procedure he could only be tried for three such offences.2. It is clear from the terms of that section that a man can only be tried for three separate offences of the same kind at the same trial, and, speaking for myself, I think that if a man were tried for four specific offences at one trial, it would not be merely an irregularity which could be cured by Section 537 of the Code, but a defect in the trial which would render the whole trial inoperative, unless it...
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal236
1. The parties to this suit are joint proprietors in some land. The defendant, in spite of the protest of the plaintiff, has dug a tank in a portion thereof. The plaintiff now sues to have his title declared in the land so occupied, and he asks for an order directing the defendant to fill up the tank that has been dug, so as to restore the land to its former condition.2. The plaintiff has obtained a decree in both the lower Courts.3. It has been contended before us, as it has been found by the lower Courts, that the conduct of the defendant in proceeding to excavate the tank in spite of the protest in itself justifies the order passed. The learned pleaders who have argued this case with great care have cited a great number of cases bearing on the subject commencing from Gurudas Dhar v. Bijoy Gobind Bural 1 B.L.R.A.C. 108 : 10 W.R. 171 and Lala Biswambhar Lal v. Rajaram 3 B.L.R. App. 67; down to that of Nocury Lal Chuckerbutty v. Bindabun Chunder Chuckerbutty 8 C. 708. We are also refer...
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