Kolkata Court April 1891 Judgments
Chowdhry Raghu Nath Sarun Singh and ors. Vs. Dhodha Roy and ors.
Court: Kolkata
Decided on: Apr-29-1891
Reported in: (1891)ILR18Cal467
Banerjee, J.1. This appeal arises out of a suit for arrears of rent. The plaintiffs claimed the rent as due under the bhowli system. The point urged in defence, which it is necessary for us to consider now, was that, by an order under Section 40 of the Bengal Tenancy Act, the bhowli rent had been commuted into a money rent.2. The Munsif held that this defence could not be entertained, as the order under Section 40 set up by the defendants did not state the time from which it was to take effect, and accordingly he gave the plaintiffs a decree upon the footing that the rent was still bhowli.3. On appeal by one of the defendants, the Subordinate Judge reversed that decision, holding that the order under Section 40 must be taken to operate from the date thereof.4. In second appeal it is contended that this decision is wrong, and that the provisions of Section 40, Clause 5, are imperative, and should be strictly complied with before an order under that section can have any effect.5. We thin...
Tag this Judgment!GossaIn Dalmar Puri Vs. BepIn Behary Mitter and anr.
Court: Kolkata
Decided on: Apr-24-1891
Reported in: (1891)ILR18Cal520
Tottenham, J.1. In this case the Lower Appellate Court has differed from the first Court in holding that the suit is barred by limitation, and we have to decide whether the District Judge was right or wrong.2. The suit was brought to eject the defendants from a 2 annas, 8 gundahs share of a certain mouzah, and to obtain from them mesne profits in respect thereof. Plaintiff's predecessor in title acquired the share in question of the whole mouzah Rampore Balwa, of which the mouzah now in question is a 'dakhili,' by purchase at a sale held in execution of his own decree against his debtor, Het Narain Singh, and obtained formal possession through the Court on the 30th of September 1874.3. In December 1874, Het Narain Singh, together with all his co-sharers in the mouzah, granted a perpetual mouroosi ticca of their 'dakhili' to the defendant No. 2, reserving the almost nominal rent of Rs. 25 per annum.4. Subsequently the plaintiff's predecessor brought a suit against all the maliks, includ...
Tag this Judgment!Kedar Nath Mullick and ors. Vs. Behary Lal Pundit
Court: Kolkata
Decided on: Apr-23-1891
Reported in: (1891)ILR18Cal469
Trevelyan, J.1. This is an appeal from what has been described as an order of the Subordinate Judge of Cuttack.2. There was an application for execution of a decree of the Privy Council. This decree, it seems, was compromised in March 1886. The judgment-creditor, alleging that the compromise had been obtained by fraud, now seeks to execute the decree as if no compromise had been effected. The learned Subordinate Judge first of all considered whether the proper remedy was by suit or by a proceeding in execution of the decree, and he came to the conclusion that the remedy was not by suit but by a proceeding in execution. He then ordered that the case be tried on its merits. This is the so-called order from which the present appeal is brought. It is an order in one sense and not in another.3. Now it is unnecessary for us, in the view we take, to express any opinion whether this was a right conclusion or not; for we do not think that any appeal lies in this case. It is true that the object...
Tag this Judgment!Ledlie Vs. Ledlie
Court: Kolkata
Decided on: Apr-23-1891
Reported in: (1891)ILR18Cal473
Wilson, J.1. Where the petitioner in a suit for judicial separation desires an order as to the custody of the children of the marriage, it is clear, I think, that Section 42 of the Indian Divorce Act contemplates that, after the decree has been made, the intervention of the Court shall be sought by petition. Generally speaking, the Court will not act ex parte, but the petition must be served, or in some sufficient form notice must be given in order to show the respondent what the Court is to be asked to do. On the other hand, it has been held in England that, if that notice has been given in an earlier stage of the case, then notice of the petition itself need not be given. In the case of Horne v. Horne 30 L.J.P. & M. 200 a decree nisi for dissolution of marriage had been made, and, at the time of applying to have the decree nisi made absolute, counsel for the petitioner asked the Court whether notice ought to be given to the respondent of an intended application to the Court with resp...
Tag this Judgment!Protap Chunder Talukdar and anr. Vs. Kedar Prosunno Lahiri
Court: Kolkata
Decided on: Apr-23-1891
Reported in: (1893)ILR20Cal11
Pigot and Beverley, JJ. 1. We think, after having heard this matter debated with great care by the learned Counsel on both sides, that the view taken by the learned District Judge was erroneous as to the effect of the irregularity in the description of the infant in the sale certificate, Exhibit B, of the 6th of July 1874. It is not necessary to enter upon a minute examination of the authorities which relate to the subject. It is enough to say that the effect of them, and notably of the Privy Council case, Hari Saran Moitra v. Bhubaneswari Debi I.L.R. 16 Cal. 40 : L.R. 15 I.A. 195 and the Full Bench case, Suresh Chunder Wum Chowdhry v. Jugut Chunder Deb I.L.R. 14 Cal. 204 must at least be this, that if we are of opinion that substantially the infant was sued, and that substantially execution was against the infant's share, the proceedings were binding against that share, and having regard to the terms of Exhibit B and to the description under which he appears and his mother appears in ...
Tag this Judgment!Srinath Sandel Lunatic by His Manager Under the Court of Wards Sarat C ...
Court: Kolkata
Decided on: Apr-17-1891
Reported in: (1892)ILR19Cal641
Pigot and Beverley, JJ.1. We think that the appeal must be allowed; that the proceedings are bad from the beginning; and in dealing with the matter we must make an order in the alternative, that is to say, that the powers which we exercise in respect of those proceedings must be exercised in the alternative. We first declare that, assuming the proceedings to be such as to give us under the law a jurisdiction in second appeal, we must declare that the appeal must succeed; and secondly, under the assumption that the proceedings were absolutely bad and void ab initio, we must set them aside under our powers of supervision, as made in error by an officer who had no power to entertain them or to do any judicial act in regard to them. The Settlement Officer, we are of opinion, had no power under the Bengal Tenancy Act to entertain at least any dispute between the persons interested in the zemindari of the so-called plaintiff, the estate under the Court of Wards, and the persons interested in...
Tag this Judgment!Norendronath Bose Vs. Abinash Chunder Roy
Court: Kolkata
Decided on: Apr-16-1891
Reported in: (1891)ILR18Cal445
Wilson, J.1. This is a petition under Section 38 of the Presidency Small Cause Courts Act. The Section (Clause i) is as follows: 'Any party may, within eight days after the judgment in any suit in the Small Cause Court in which the amount or value of the subject-matter exceeds one thousand rupees, apply to the High Court for an order that such suit may be re-heard in the High Court.' Section 71 of the Act says: 'A fee not exceeding (the scale is given) shall be paid on the plaint in every suit and every application under Section thirty-eight or Section forty-one, and no such plaint or application shall be received until such fee had been paid.'2. According to the practice of this Court petitions are presented in chambers, or by counsel in open Court on days when motions are heard. In urgent cases, however, it is common to allow them to be presented on days other than motion days, and to hear counsel in support of them the next motion day.3. In this case the eighth day from the Small Ca...
Tag this Judgment!Wajihan Alias Alijan Vs. Bishwanath Pershad and anr.
Court: Kolkata
Decided on: Apr-14-1891
Reported in: (1891)ILR18Cal462
Prinsep and Banerjee, JJ.1. A decree was passed for a sum of money under a mortgage, which was made absolute under Section 88 of the Transfer of Property Act on 11th March 1890, but no further order for sale was made under Section 86 of the Act, On the 23rd March application for execution was made by sale of the mortgaged property, and an order was passed on 1st May for putting in affidavits and for the deposit of the necessary fees within one week. This was not done, nor did the case come on for hearing in due course after expiry of the term so fixed or on any other day appointed for that purpose, but it apparently was taken up on 4th July, and the application was dismissed. A fresh application for execution was made on 9th August, and objections taken by the judgment-debtor were overruled.2. The debtor now appeals, contending that execution cannot proceed.3. It is first objected by Mr. Garth, for the appellant-judgment-debtor, that this application is informal and cannot be acted upo...
Tag this Judgment!Mowla Newaz Vs. Sajidunnissa Bibi
Court: Kolkata
Decided on: Apr-13-1891
Reported in: (1891)ILR18Cal378
Prinsep and Banerjee, JJ.1. This is an application for leave to appeal to Her Majesty in Council.2. It is first claimed that the petitioner has a right of appeal, inasmuch as the subject-matter of the suit was of a value exceeding Rs. 10,000. In support of this we have been referred to the amount of the suit as stated in the plaint, and also in the appeal to this Court made by the defendant. We have also been reminded that it was only on a consideration of such value that the suit was tried in the Court of the Subordinate Judge and by this Court in first appeal.3. On these grounds, and especially because the defendant in a way consented to the value stated by the plaintiff by adopting it in her petition of appeal, we have been asked to hold that the subject-matter of the suit is above Rs. 10,000, and therefore appealable as a matter of right to Her Majesty in Council. We think that the action of the parties in this case cannot affect the question of jurisdiction, In respect of the tria...
Tag this Judgment!Wallis and Co. Vs. Bailey
Court: Kolkata
Decided on: Apr-10-1891
Reported in: (1891)ILR18Cal372
Pigot, J.1. In this case the defendant resides outside the local limits of the jurisdiction of the Calcutta Court of Small Causes. Leave to institute the suit was granted under the provisions of Section 18 of the Presidency Small Cause Courts Act.2. The defendant is an officer of the army subject to Military law, and the question is whether, having regard to the provisions of Section 151 of the Army Act, 1881, as amended by Section 7 of the Army Act of 1888, the operation of which Act is by the Army Act of 1889 continued up to December 1890, the Small Cause Court has jurisdiction to entertain this suit against the defendant.3. This question has already been considered in this Court in the case of In the matter of the proposed suit of Watts & Go. v. Blackett I.L.R. 18 Cal. 144 In that case the Chief Judge of the Small Cause Court on being applied to for leave under Section 18 to institute a suit against an officer of the army subject to Military law and resident out of the local limits ...
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