Court : Kolkata
Reported in : (1886)ILR13Cal70
Pigot, J.1. The question in this case which arose before both the lower Courts was, whether, when there is an unregistered mortgage, the registration of which is not compulsory, a purchaser of the property who has registered his deed of sale, but who has bought with notice of the unregistered mortgage, purchases subject to the mortgage: the Courts below held that such notice is immaterial, taking that view in consequence of what they understood to be the effect of the judgment of Mr. Justice Field in Bamasundari Dassi v. Krishna Chundra Dhur I.L.R. 10 Cal. 424. In that case Mr. Field expressed the opinion that the effect of the decisions in the cases of Fuzladdeen Khan v. Fakir Mahomed Khan I.L.R. 5 Cal. 336 and of Narain Chunder Chuckerbutty v. Dataram Roy I.L.R. 8 Cal. 597 was not, in his opinion, to decide the point, the observations in those decisions being no more than obiter dicta; and the case of Denonath Ghose v. Aluck Moni Dabi I.L.R. 7 Cal. 753 not having been decided by both...
Tag this Judgment!Court : Kolkata
Reported in : (1886)ILR13Cal136
Hobhouse, J.1. The plaintiffs below who are the respondents here, and. the defendant who is the appellant, occupy contiguous houses and premises, in Calcutta, with a southern frontage in Pathuria Ghat Street. The plaintiffs' house lies to the eastward of the defendant's. Adjoining the north side of the defendant's premises lies a piece of ground also belonging to him; and fronting northwards to a street called apparently by various names, of which Jorabagan is one. At a point between the two streets the defendant's property juts out a few feet to the eastward, and to that extent overlaps the property of the plaintiffs, and lies to the north of it.2. The following facts are common to the case of both parties: that 'an open drain used to run along the eastward boundary of the defendant's property from the point where it juts eastward into Jorabagan; that at the same point there communicated with this drain one of the drains of the plaintiffs' house leading directly from one of their priv...
Tag this Judgment!Court : Kolkata
Reported in : (1886)ILR13Cal189
Mitter and Agnew, JJ.1. It is contended on behalf of the respondents that no appeal lies against an order passed under Section 442, but we are of opinion that although the Subordinate Judge says 'that the order in question was passed by him under Section 442, it was not really an order under that section. Section 442 is to the following effect: 'If a plaint be filed by or on behalf of a minor without a next friend the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. Notice of such application shall be given to such person by the defendant; and the Court, after hearing his objections, if any, may make such order in the matter as it thinks fit.' That section refers to a case where, on the face of the plaint, it appears that it was filed, by a person who was a minor. It does not contemplate any enquiry into the question of minority as in this case, where it is brought by persons professing them-selves...
Tag this Judgment!Court : Kolkata
Reported in : (1886)ILR13Cal113
Mitter and Agnew, JJ.1. The question raised in this case is whether the zur-i-peshgi lease upon which the plaintiff relied is a lease which required registration. It was executed in September 1866. The Registration Act then in force was Act XX of 1866. Section 17 says: 'Instruments next hereinafter mentioned will be registered.' And the 4th Clause is to this effect: 'Leases of immoveable property for any term exceeding one year.' The question before us is, whether the lease in this case was for any term exceeding one year. The lease was a zur-i-peshgi lease granted on the advance of a loan, and it is stipulated therein that it was in the first place to remain in force for one year; but then it goes on to provide that if the loan is not repaid it will continue in force; and the question therefore for our consideration is, whether a lease of this description comes within the words 'leases of immoveable property for any term exceeding one year.' We think it does. It appears to us that the...
Tag this Judgment!Court : Kolkata
Reported in : (1885)ILR12Cal569
Richard Grath, C.J.1. The question, as I consider, which we have to decide in this reference, is, whether under the circumstances stated the Judge in the first Court was bound to give interest at the rate agreed upon between the parties; or, whether the rate of interest after plaint and before decree is always under such circumstances in the discretion of the Court2. I think that, having regard to Section 209 of the Procedure Code, the rate of interest after plaint is in the discretion of the Court.3. It was, however, suggested during the argument that this case from the first should have been tried in accordance with the law laid down in the Tranfer of Property Act (Sections 86 to 88); and that this being a suit for sale of the mortgaged property, the Court, under Section 86, was bound to make a decree ordering that an account be taken of what would be due to the plaintiff for principal and interest on the mortgage, and for his costs of suit on a day within six months from the date of...
Tag this Judgment!Court : Kolkata
Reported in : (1885)ILR12Cal580
1. In our opinion this suit is not barred under Section 13 of the Code of Civil Procedure. No doubt in the former suit the matter now in issue was also in issue and was formally determined, but that suit was not 'between the same parties' as this suit 'or between parties under whom the parties in this suit claim.' The plaintiff is the landlord of the plaintiff in the former suit, and cannot be barred by the decision of that suit, which was between his tenant, a third party, because he was joined as a defendant with that party. It is sufficient to point out that the conduct of the suit was not in his hands; and if it had been abandoned by the plaintiff so as to cause it to be dismissed, it could not reasonably be held that this suit was barred. If this were possible, a person in the position of the plaintiff would be helpless, for he would not be able to re -open the case or to contest the order passed by appeal to a higher Court.2. The judgment of the Pull Bench in the case of Gobind C...
Tag this Judgment!Court : Kolkata
Reported in : (1885)ILR12Cal583
Richard Garth, C.J.1. I confess I entertain considerable doubt whether, as a matter of strict law, the decision of the Allahabad Court was right.2. I cannot help thinking that Sub-section (c) of Section 2 of the Transfer of Property Act was intended to apply to such cases as that with which we are now dealing. But as the majority of the Court think differently, and as the balance of convenience would seem to be in favour of that view, I am not disposed to dissent from their decision.Wilson, J.3. The words with which we have to deal are these: 'Nothing herein contained shall be deemed to affect any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability.' I am unable to agree with my learned colleagues in thinking that there is anything clear about this language. To me it appears so vague and indefinite that I cannot pretend to put any construction upon it with confidence. But on the whole I...
Tag this Judgment!Court : Kolkata
Reported in : (1885)ILR12Cal590
1. We do not think that the word 'defendant' in Article 171B of the Limitation Act includes 'respondent.'2. It has been contended before us that the effect of Section 582 of the Civil Procedure Code (Act XIV of 1882) is to substitute for the word 'defendant' in Articles 171A and 171B of the Limitation Law the words 'defendant or respondent.'3. We do not think that this contention is sound. Section 582 provides that in Chapter XXI, so far as may be, the words 'plaintiff,' 'defendant' and 'suit' shall be held to include 'an appellant,' 'a respondent' and 'an appeal,' respectively, in proceedings arising out of the death, marriage or insolvency of parties to an appeal.4. This provision is in form an innovation, but from the fact that the words 'or appellant' were by Act XII of 1879 added to Section 171 of the Limitation Act, it appears that the Legislature considered that the words 'the provisions hereinbefore contained shall apply to appeals under this chapter so far as such provisions a...
Tag this Judgment!Court : Kolkata
Reported in : (1886)ILR13Cal47
McDonell and Beverley, JJ.1. Now the first point taken in appeal is that this order of the lower Court is wrong. It is contended that under Section 2 of Act XXVII of 1860, no decree should have been made without production of a certificate, especially as the plaintiffs had failed to establish that they were the sole heirs of Sadat Ali.2. In making the order referred to, the Subordinate Judge has relied on the case of Luchmin v. Gunga Pershad I.L.R. 4 All. 485 but that decision only goes so far as to lay down that in certain exceptional cases, provided for by the Statute, a suit may be instituted and decreed without the production of a certificate. In the case of Hati Lall v. Hurdeo I.L.R. 5 All. 212 it was similarly held that a certificate was not imperatively necessary in every case before the execution of a decree could be taken out, but that when the judgment-debtor objects to the title of the person claiming to execute the decree, the Court should consider whether the objection is ...
Tag this Judgment!Court : Kolkata
Reported in : (1885)ILR12Cal642
Wilson, J.1. who after stating the facts, continued as follows: In the Court below it was contended on behalf of the plaintiff Bank that there is no power under any circumstances to add a party defendant on his own application. This content was not pressed before us, and we entertain no doubt that the view liken by the learned Judge on this point is correct.2. And, the Court having this power, the present case is one in Which it is especially desirable to exercise it. The fund is in Court, and by the act of the Court in its order of the 8th February 1882. There is some reason to suspect that at the time then the order of the 8th February 1882 was obtained those who were in charm of the plaintiff Bank knew that bills of lading had been, or were likely to have been, issued in respect of the rice. If so, the suppression of the fact was a very grave matter indeed, and the plaintiff Bank which is trying to get the money out of Court is in liquidation.3. But it was contended before us that t...
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