Kolkata Court February 1889 Judgments
Brae Vs. Modhusudun Shaha Mandul and ors.
Court: Kolkata
Decided on: Feb-27-1889
Reported in: (1889)ILR16Cal300
1. These cases being appeals from appellate decrees, it devolves upon this Bench, according to the practice of the Court in references to a Full Bench, to decide the appeals.2. The questions referred to us relate to the effect to be given to the ex parte decrees for rent mentioned in the reference, and arise by reason of a conflict in the decisions of this Court as to the effect to be given to such decrees. In the present case the ex parte decrees were decrees of a Deputy Collector; but the conflict of cases relates to the effect of decrees of Civil Courts generally, and with this wider question we think it proper to deal.3. In Birchunder Manickya v. Hurrish Chunder Dass I.L.R. 3 Cal. 383, the plaintiff sued the defendant for rents for the year 1279 at the same rate as had been decreed to the plaintiff for the year 1278 in a suit brought against the defendant with respect to the same property. The plaintiff relied upon an ex parte decree obtained by him in that suit as showing the amou...
Tag this Judgment!Durga Charan Mojumdar Vs. Umatara Gupta
Court: Kolkata
Decided on: Feb-21-1889
Reported in: (1889)ILR16Cal465
Prinsep and Ghose, JJ.1. The matter for our decision in this appeal is whether the Munsif was competent to execute a decree transferred to him by the Subordinate Judge who passed it.2. It appears that the appellant obtained a decree from the Munsif which he put into execution. Another decree had been obtained against him, or rather against his assignor, in the Court of the Subordinate Judge, and the decree-holder thereupon obtained an order from the Subordinate Judge to transfer the decree by an order under Section 223 to the Court of the Munsif, in order that it might be set off as a cross-decree. The sole question submitted for our decision is whether such an order can be passed by the Subordinate Judge so as to give the Munsif jurisdiction. The terms of Section 223, standing by themselves, are sufficiently wide to permit this, but we think that they should be read with the other- portions of the Code which restrict their application. Section 6 of the Code declares that 'nothing in t...
Tag this Judgment!Jasoda Koer Vs. Sheo Pershad Singh and ors.
Court: Kolkata
Decided on: Feb-21-1889
Reported in: (1890)ILR17Cal34
W. Comer Petheram, C.J. and Banerjee, J.1. We come now to the third question, viz., whether Kasi Prasad's interest in the property in dispute passed by inheritance to his widow and his daughter, or lapsed by survivorship to his brother Sheo Das. Upon this question also, we think the decision of the Court below is wrong. We are bound to say that the question is not altogether free from doubt or difficulty. But we think from an examination of the authorities the following propositions may be deduced as correct, namely (1) that the principle of survivorship applies only to those descriptions of joint-property in which the right of co-owners arises by birth, or which form the property of re-united co-parceners under special texts of the Mitakshara Law, or which are accretions to either of these two; and (2) that the property inherited by brothers from their maternal grandfather is not of any of these descriptions. According to the rule laid down by the Privy Council in Katama Nachiar v. Th...
Tag this Judgment!Ashghar Reza and anr. Vs. Hyder Reza and ors.
Court: Kolkata
Decided on: Feb-20-1889
Reported in: (1889)ILR16Cal287
Ghose, J.1. This is an application for leave to appeal to Her Majesty in Council. The value of the subject-matter of the suit is far above ten thousand rupees, and the case seems to be an important one.2. The suit out of which this appeal arises wasino brought by Syed Ashghar Reza and Syed Dilawar Beza, as heirs of one Syed Ahmed Reza, to recover possession of their share in two properties, one of the properties being an 11 gundas share of a zamindari, and the other, a certain putni mehal. The claim was made as against Syed Hyder Reza and Syed Sufdar Reza, their step brothers, being the sons of Syed Ahmed Reza by another wife Afzulunnissa, and as against Syed Lutf Ali Khan, who has derived his title under a sale from those two individuals.3. As to the first-mentioned property, namely, 11 gundas of the zamindari, it appears that it was purchased at an execution sale in the year 1851, in the name of one Kasim Ali, and this individual subsequently executed an ikrarnama bearing date, the 2...
Tag this Judgment!Anund Chunder Roy Vs. Nitai Bhoomij
Court: Kolkata
Decided on: Feb-20-1889
Reported in: (1889)ILR16Cal429
Pigot and Beverley, JJ.1. In this case an order under the second paragraph of Section 312 of the Civil Procedure Code, setting aside a sale on the ground of a material irregularity, was made by the Munsif of Purulia.2. The order was made on the 7th June 1888, before Act VII of 1888 came into force; and, therefore, when the order was made, no appeal lay from it to the Court of the Deputy Commissioner.3. Act VII of 1888 came into force on July 1st, 1888. By that enactment an order made under Section 312 is made appealable to the Court, to which an appeal would lie from the decree in the suit in relation to which such order was made. In the present case such Court would be that of the Deputy Commissioner.4. After the 1st July, an appeal was presented to the Deputy Commissioner from the order of June 7th. The Deputy Commissioner rejected it, holding that the new enactment did not apply, as the suit in which the order was made was instituted under the Act of 1882, under which no such appeal...
Tag this Judgment!Soudaminey Dossee Vs. Benode Coomaree Dossee
Court: Kolkata
Decided on: Feb-14-1889
Reported in: (1889)ILR16Cal263
Wilson, J.1. This case, so far as it relates to the granting of a mandatory injunction, is of undoubted importance to suitors in this Court, and it seems to me that the law on the point has been somewhat misapprehended in the Court below. It rather seems to have been assumed that if the cause of action which undoubtedly existed was established, a mandatory injunction to pull down the defendant's building or so much of it as might be necessary, would follow as a matter of course. The principal authorities on the subject have been cited and their effect I think is plain.2. The cases have all fallen under one or other of two classes. The first kind of case is that of a man who has a right to light and air which is obstructed by his neighbour's building, and who brings his suit and applies for an injunction as soon as he can after the commencement of the building, or after it has become apparent that the intended building will interfere with his light and air; a number of cases under that ...
Tag this Judgment!Umasoondury Dassy Vs. Brojonath Bhuttacharjee, Manager of the Estate o ...
Court: Kolkata
Decided on: Feb-14-1889
Reported in: (1889)ILR16Cal347
O'Kinealy and Trevelyan, JJ.1. In this appeal two points have been raised and discussed at some length. It appears that, after the death of the full owner of the property, the mother took out probate of a will in which she was appointed executrix; that, no doubt, vested the property in her. Afterwards probate was revoked; and that, no doubt, took the estate out of her, and then the estate went to the minor heir. While she had the estate she sued and obtained a decree; and the minor now seeks to have that decree executed.2. Against the execution two objections have been raised. First, that the minor can have no interest under the decree. The answer to that, we think, is that the lower Court was correct in holding that he had an interest. Section 232 of the Code of Civil Procedure says: 'If a decree be transferred by assignment in writing or by operation of law from the decree-holder to any other person, the transferee may apply for its execution to the Court which passed it.' We think t...
Tag this Judgment!Jankee Pershad Singh Vs. Bindessuri Perahad Singh and ors.
Court: Kolkata
Decided on: Feb-14-1889
Reported in: (1889)ILR16Cal483
1. Mitter and Beverley, JJ.2. This is an appeal from an order of the Subordinate Judge of Monghyr, directing an award to be filed under the provisions of Section 526 of the Code of Civil Procedure.3. A preliminary objection has been raised on behalf of the respondent that no appeal against such an order will lie, and that, if an appeal be allowed, it will lie to the District Judge and not to this Court.4. We are clearly of opinion that, under the provisions of the Code, no appeal will lie against the order directing the award to be filed.5. But in the present case the award has been followed by a decree, and the question is whether, regarding this as an appeal against that decree, the appeal will lie.6. There has been some conflict of authority in this Court as to the proper construction of Sections 525 and 526 of the Code, and the procedure which they are intended to lay down. On the one hand it has been held in the cases cited in the margin1 that, if upon an application to file an aw...
Tag this Judgment!Jagat Kishore Acharjya Chowdhuri Vs. Khajah Ashanullah Khan Bahadur
Court: Kolkata
Decided on: Feb-13-1889
Reported in: (1889)ILR16Cal281
Mitter and Trevelyan, JJ.1. The Magistrate in this case, following the decision in Ambler v. Pushong I.L.R. 11 Cal. 365, has maintained the second party in possession of, a piece of forest land. It appears not to be disputed that the right of possession upon the forest lands in question is exercised by cutting timber from time to time, and removing that timber, upon a certain price being paid therefor. It further appears that in Falgun last year (or March 1888), a number of trees was cut in the forest by labourers who had authority to do so either from the first party or the second party. It also appears that there was a disturbance of the peace consequent upon attempts being made by the parties respectively to remove the timber. The result was that on the 7th of June last, a lessee of the second party was bound down to keep the peace, and, on the 9th June, the present proceedings were instituted between the parties, the lessee not being made a party to these proceedings. All that the ...
Tag this Judgment!Deb NaraIn Dutt Vs. Narendra Krishna and anr.
Court: Kolkata
Decided on: Feb-09-1889
Reported in: (1889)ILR16Cal267
Wilson, J.1. Section 170 of the Bengal Tenancy Act VIII of 1885 enacts that 'Sections 278--283 (both inclusive) of the Code of Civil Procedure shall not apply to a tenure or holding attached in execution of a decree for arrears due thereon.' This Act became law on the 1st November 1885. Among the sections of the Code thus excluded are those under which claims to property attached in execution are made. Before the Bengal Tenancy Act came into operation, a decree for rent was obtained under the Rent Act then in force (Bengal Act VIII of 1869), which Act embodied the provisions of the Code of Civil Procedure, After the Bengal Tenancy Act became law, the tenancy in respect of which the rent decreed had become due was attached in execution of the decree. The present applicant filed a claim to the property attached, but the Munsif, in whose Court the proceedings took place, rejected the claim as being forbidden by Section 170 of the Bengal Tenancy Act. The question that we have to consider i...
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