Court : Kolkata
Reported in : (1888)ILR15Cal762
W. Comer Petheram, C.J.1. This is a reference from the Judge of the Small Cause Court at Darjeeling, and the question is, whether the plaintiff is entitled to proceed with the execution proceedings under a decree which he has obtained. The plaintiff in the suit is a person called Badal Singh and the defendant is a Mr. Birch.2. The facts of the case are these, that in the month of October or November 1887 Mr. Birch had filed an application to be declared an insolvent in the proper Court at Darjeeling and filed his schedule. That having been done, Mr. Birch was declared an insolvent, but nothing further was done in the matter, because, so far as we are told, there were no assets to divide, and no receiver was ever appointed. After that, in the month of May last the plaintiff Badal Singh having brought a suit in the Small Cause Court at Darjeeling against Mr. Birch to recover a sum of money in respect of which his name had been scheduled in Mr. Birch's schedule, the case came on for trial...
Tag this Judgment!Court : Kolkata
Reported in : (1888)ILR15Cal833
1. In this case we think that the suit, as one for compensation-for breach of contract of marriage, comes within Clause (g) of Article 35 of the second schedule to the Small Cause Court Act. We must take the terms of the Act with reference to the conditions of society in this country--conditions perfectly well known. In the immense majority of instances these contracts are made and broken, not by the acts of the persons about whose marriages they are entered into, but by their parents or guardians. 'We think that this case being one of these must be contemplated as included under that portion of the Small Cause Court Act above referred to. Of course where the special conditions of native life do not apply, as, for instance, in the case of persons sui juris, the argument of the pleader that the English mode of looking at these contracts should be followed may apply.2. In the present case we think the matter must be regarded as one excluded from the jurisdiction of the Small Cause Court....
Tag this Judgment!Court : Kolkata
Reported in : (1889)ILR16Cal189
W. Comer Petheram, C.J.1. This is a suit brought under the provisions of Section 77 of the Registration Act, to compel registration of a deed. 'The deed was executed on the 18th September 1886. It was presented for registration on the 12th January 1887 by the claimant, who applied for a summons against the executant. He was unable to serve the summons, and on the 30th August 1887, the Registrar refused registration, on the ground that more than eight months had elapsed.'2. So much I have taken from the judgment of Mr. Justice Trevelyan. The suit was commenced on October 28th, 1887, and the only defence has been that it is barred by limitation.3. The statement by the learned Judge in his judgment, of the ground of refusal is incomplete; because the statement on the face of the document of the ground for the refusal given by the Registrar is this: 'Summons and warrant were issued, but could not be served on the party, as his whereabouts were not known to the claimant. As more than eight ...
Tag this Judgment!Court : Kolkata
Reported in : (1888)ILR15Cal775
O'Kinealy, J.1. This was an application made by Srimati Din Tarini Debi asking that she might be examined by commission and not examined on oath in Court under Section 503 of the Code. In her application she sets forth that she was a purdah-nashin and a Brahmini, connected with a family of acknowledge! respectability and possessed of considerable property, and she prayed that what had been done in some previous cases might be done in her case, namely, that she might not be compelled to appear in Court. On that application a rule was issued to show cause, and cause has been shown by the Presidency Magistrate of Calcutta and by the Crown. The Crown objects, because the lady in her petition said that it was a degradation for her to appear in a public Court, and the learned Advocate-General argued that it would be intolerable to allow such a principle to receive the sanction of this Court. No doubt the phrase is objectionable, and it would be impossible, as the learned Advocate-General say...
Tag this Judgment!Court : Kolkata
Reported in : (1889)ILR16Cal20
Tottenham and Ghose, JJ.1. This is an appeal against a decree of the District Judge of Rungpore, refusing probate of a will alleged to have been executed by Rudramani Debya. The judgment of the Court below is very short; and it is not quite clear from that judgment whether the Court below disbelieved the factum of the will or refused probate merely because the requirements of the law, as stated in Section 50 of the Indian Succession Act, made applicable to Hindus by the Hindu Wills Act, had not been fulfilled in the matter of attestation.2. The learned Counsel, who argued the appeal on behalf of the appellant-petitioner for probate, assumed in opening that the factum of the will was undisputed, and that it was left to him to argue only the point as to due attestation.3. The learned vakil, however, who appeared for the respondents, strenuously contended that the will was not genuine, in addition to the defect in attestation. Section 50 of the Indian Succession Act requires, for the due ...
Tag this Judgment!Court : Kolkata
Reported in : (1888)ILR15Cal828
Tottenham, J.1. In this case we reserved judgment because it appeared to us that the case was of some difficulty in connection with a Full Bench judgment of this Court upon which the District Judge relied in his decision.2. The suit was brought to recover arrears of rent, including certain sums on account of what are called tehwari and salami due in respect of a mokurari tenure. There was also a question with regard to interest payable; the plaintiffs claimed interest in monthly instalments, the defendants denied their liability to pay monthly ,they also denied their liability for tehwari and salami.3. The first Court decided the suit in favour of the plaintiffs; but on appeal the District Judge modified the decree by disallowing the items of tehwari and salami, and reducing the claim to interest by making it payable quarterly instead of monthly. The District Judge, as regards the items of tehwari and salami relied upon a Full Bench decision of this Court--Ghultan Mahton v. Tilukdari S...
Tag this Judgment!Court : Kolkata
Reported in : (1889)ILR16Cal9
Wilson, J.1. The conviction in this case is under Section 188 of the Indian Penal Code, which says that whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, disobeys such direction, shall be liable to certain punishment. Now, the order which the accused in the present case was charged with disobeying was an order by the District Magistrate under Section 144 of the Code of Criminal Procedure. It was an order made with relation to a hat It appears that there was an old-established hat, and that certain persons, acting for, or with, one Gobinda Charan Sahu opened a new hat in the vicinity of the old one, and held it on the same days. This action, in the opinion of the Magistrate, made a serious breach of the peace imminent; and therefore having made the necessary inquiries he passed this order. [After reading the order (Ante, p. 10), His Lordship continued]:2. It has been found that no...
Tag this Judgment!Court : Kolkata
Reported in : (1889)ILR16Cal33
Norris, J.1. The defendant and one Kashi Nath Parley had each obtained a money-decree against the plaintiff; either one or both of the judgment-creditors attached 8 annas of mouzah Manamath, the property of the plaintiff, the judgment-debtor. After the attachment, the Court executing the decree made an order under Section 295 of the Code of Civil Procedure for the rateable distribution of the sale proceeds between the two decree-holders. The attached property was sold and purchased by the defendant, who however did not make the deposit required by Section 306 of the Code.2. The plaintiff and Kashi Nath each brought a suit to have the sale set aside. The two suits were tried together by the Munsif, who set aside the sale.3. The defendant appealed to the Judicial Commissioner against the decree setting aside the sale passed in the suit brought against him by the plaintiff. The plaintiff-respondent did not appear at the hearing of the appeal, and the Judicial Commissioner decided the case...
Tag this Judgment!Court : Kolkata
Reported in : (1889)ILR16Cal32
Pigot and Gordon, JJ.1. As to the preliminary objection taken, we hold that an Additional Judge appointed to sit to hear cases under the Land Acquisition Act is a District Judge within the meaning of Section 39, and we think that, having regard to the provisions of Section 647, Code of Civil Procedure, an appeal lies to this Court.2. As to the appeal itself, we think that there is no ground on which it can be sustained, and we therefore dismiss the appeal with costs to the respondent, who appears, other than the Secretary of State. We give no costs to the Secretary of State, who appeared, but stated that he had no interest in the matter....
Tag this Judgment!Court : Kolkata
Reported in : (1889)ILR16Cal17
Wilson, J.1. In this case we think that the Lower Appellate Court is in error in the view it has taken of the law.2. The application was one for execution, and was made more than twelve years after the date of the decree. In the first Court the Munsif dismissed the application on that ground, the application being in his opinion, too late under Section 230 of the Code of Civil Procedure. The Lower Appellate Court has considered that the application is saved from the bar of limitation by reason of Sub-section (b) of Section 230, which says: 'Where the decree or any subsequent order directs any payment of money, or the delivery of any property, to be made at a certain date, 'the twelve years is to run from the date of the default in making the payment or delivering the property in respeet of which the applicant seeks to enforce the decree.''3. Now, it is sought to show that there was a subsequent order directing payment to be made on a certain date by reason of these circumstances: A pri...
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