Kolkata Court May 1891 Judgments
Kabilaso Koer Vs. Raghu Nath Sakan Singh and ors.
Court: Kolkata
Decided on: May-28-1891
Reported in: (1891)ILR18Cal481
W. Comer Petheram, Kt., C.J.1. This is a suit brought by the plaintiff against the defendant to sot aside a sale on the ground that she is entitled to have it set aside under the provisions of Section 174 of the Bengal Tenancy Act, she having made the necessary deposit within the meaning of that section.2. The Subordinate Judge dismissed the suit on two grounds, and we think that he was right in both. He, first of all, has considered that such a suit would not lie, and in that view we think he was right. Section 174 provides a particular means by which sales can be got rid of after they have been concluded and by which the purchaser at the sale can be compensated for loss, but it must be got rid of by order of the Court which made the sale. There is no doubt that if all the provisions of the law have been complied with, and the Court which made the sale refuses to set it aside, that order can be brought up to this Court in revision, but that is a different thing from saying that an ind...
Tag this Judgment!Hurro Doyal Roy Chowdhry Vs. Mahomed Gazi Chowdhry and ors.
Court: Kolkata
Decided on: May-27-1891
Reported in: (1892)ILR19Cal699
Pigot and Macpherson, J.1. In this case the appellant brings a suit to set aside the sale of a putni under Regulation VIII of 1819, on the ground that the sale was invalid, and his case is that the sale was invalid by reason of the notices required by Sub-section 2, Section VIII, not having been proved. The Courts have held that there is no evidence one way or another as to the service of such notices. The plaintiff says that in the absence of such evidence the case must be decided in his favour. The defendant says that it lies on the plaintiff to prove that such notices were not served, and unless that is proved the defendant is entitled to a decision in his favour upon that issue. We think that the decisions of their Lordships of the Privy Council in the case of Maharajah of Burdwan v. Tarasundari Dehi I.L.R. 9 Cal. 619; L. R. 10 I.A. 19 and particularly the passage at p. 624 of that report, and also the case of Mahomed Zamir v. Abdul Hakim (I. L.R. 12 Cal. 67) decided in this Court,...
Tag this Judgment!Radha Pershad Sing Vs. Radha Kishen Lall
Court: Kolkata
Decided on: May-24-1891
Reported in: (1891)ILR18Cal515
Macpherson and Ameer Ali, JJ.1. The decree-holder, the respondent in this appeal, had obtained a decree for possession of a plot of land, for the removal of a hut which stood thereon, and for costs. He first took out execution for costs, and on the amount being realized, the case was struck off on the 5th of June 1889 as disposed of. On the 17th March 1890, he applied to execute the decree for possession and for the removal of the hut, and was met by the objection that the decree could not be executed in parts; that the order of the 5th of June had disposed of the whole case, and that under the provisions of Section 43 of the Civil Procedure Code, read with Section 647, a further application for execution could not be entertained. The Munsif: and the District Judge on appeal overruled the objections, and it is now contended that they were wrong in doing so, having regard to the provisions of Sections 43 and 373 of the Code.2. In our opinion Section 43 does not apply to proceedings in e...
Tag this Judgment!Queen-empress Vs. NayamuddIn and ors.
Court: Kolkata
Decided on: May-19-1891
Reported in: (1891)ILR18Cal484
Pigot, J.1. I am of opinion that the question referred to us should be answered in the negative. I think that, upon the finding cited in the reference, the case does not fall within the 5th exception to Section 300 of the Penal Code.2. The learned Judges referring the case say:It has been found--and we see no reason to question the findings--that they were all guilty of rioting armed with deadly weapons, and that one of the accused, Nayamuddin, in the course of the riot and in prosecution of the common object of the assembly, killed or attempted to kill a man under such circumstances that his act amounted to an attempt to murder, unless that act bears a less grave character by reason of exception 5 to Section 300 of the Penal Code.3. And also:In this case it is found, and we accept the finding: 'The third version of the occurrence is that of certain witnesses for the prosecution, and it is to the effect that the fight was premeditated and pre-arranged, a regular pitched battle or trial...
Tag this Judgment!Ambica Churn Mookerjee and ors. Vs. Suresh Chunder Banerjee Minor by H ...
Court: Kolkata
Decided on: May-19-1891
Reported in: (1891)ILR18Cal507
Banerjee, J.1. It appears from the record that this case was referred to arbitration in the Lower Appellate Court, and a certain time was fixed within which the arbitrators were required to submit their award. The next order that we find on the order sheet is that 'a decree be drawn up in terms of compromise by the pleaders'; and it appears from a note at the foot of the decree that the pleader of one of the parties objected to sign the decree on the ground that he had no authority from his client to compromise the appeal. We further find on the record an award signed by the arbitrators; but we do not find any petition of compromise put in by the parties after that. The award, however, bears on the back of it the following order: 'Decree in terms of the compromise as agreed to by both parties.' The decree that is drawn up is in terms of the award submitted by the arbitrators; but the order 'that the decree be drawn up in terms of the compromise' was passed without giving the parties an...
Tag this Judgment!Gopal Sarun NaraIn Singh, Minor, Through His Next Friend, Mr. A. Ogilv ...
Court: Kolkata
Decided on: May-19-1891
Reported in: (1891)ILR18Cal506
Trevelyan and Banerjee, JJ.1. The question before us is whether the term of limitation for a suit upon a registered instalment bond is six years or three years.2. The decision of that question would depend upon the determination of the question whether Article 116, Schedule II of the Limitation Act, governs an instalment bond. It is argued that it does not, because Article 74 in express terms makes provision for an instalment bond.3. We think that Article 116 is intended to apply to all contracts in writing registered, whether there is or is not an express provision in the Limitation Act for similar contracts not registered, and this view seems confirmed by the distinction between the terms of this article and of Article 115 in which the words 'not herein specially provided for' occur. In this view we think that the provisions of Article 116 govern this case, and that this appeal must, therefore, be dismissed with costs....
Tag this Judgment!Baroda Prosad Roy Chowdhry Vs. Bhoopendro NaraIn Dutt and ors.
Court: Kolkata
Decided on: May-15-1891
Reported in: (1891)ILR18Cal500
O' Kinealy and Ameer Ali, JJ.1. This appeal arises out of an application for the execution of a decree passed by the Subordinate Judge of the 24-Pergunnahs on the 18th August 1890.2. Haro Prosad Roy Chowdhry obtained a decree against the appellant and others. He died, and his mother, claiming under a will, took out probate and got her name registered under Section 232 of the Civil Procedure Code as the Representative of Haro Prosad. Subsequently, the will was set aside, and the estate then passed to Baroda Prosad Roy Chowdhry, the son of Haro Prosad, and who is now a minor under the Court of Wards. The minor, through the manager under the Court of Wards, applied to have his name entered in the execution proceedings, and to have the proceedings revived in the Court of the First Subordinate Judge of Alipur. That application was allowed, but on appeal to this Court it was rejected on the ground that the application should have been made to the Court which passed the decree, and not to the...
Tag this Judgment!Rameshur Mundul and ors. Vs. Bagal Chunder Mookerjee
Court: Kolkata
Decided on: May-14-1891
Reported in: (1891)ILR18Cal496
Tottenham and Trevelyan, JJ.1. This is a rule obtained by one of two judgment-debtors to show cause why a sale held in execution of a decree against him should not be set aside, as being null and void for default in the issue of a fresh proclamation under a. 291 of the Code of Civil Procedure, upon an adjournment being granted at the instance of the other judgment-debtor, who had waived any fresh proclamation.2. The present petitioner was no party to the petition for adjournment.3. The Courts below held, that the omission to issue a fresh proclamation amounted only to an irregularity, and that no substantial injury had thereby been caused to the petitioner.4. Another ground, urged for setting aside the decree of the Lower Appellate Court, is that that Court had no jurisdiction to hear the appeal, inasmuch as the execution proceedings were commenced before the 1st of July 1888, and when an appeal from the Munsif's order confirming the sale would lie to the High Court and not the Distric...
Tag this Judgment!J.C. Macgregor Receiver High Court and Receiver to the Estate of Raj C ...
Court: Kolkata
Decided on: May-08-1891
Reported in: (1891)ILR18Cal477
Prinsep and Banerjee, JJ.1. This is a suit for ejectment brought by a Receiver appointed on the Original Side of this Court against the defendant whose tenancy is found to have been terminated by a notice to quit.2. The only question raised for our decision--and this point was raised in both the lower Courts--is whether the suit has been brought by the Receiver under proper authority, We have been referred to the case of Drobomoyi Gupta v. Davis I.L.R. 1.4 Cal. 1323 as a precedent for holding that this same Receiver was found incompetent, without permission of the Court, to sue for the ejectment of a tenant under the terms of his appointment. We are not disposed to disagree with the rule laid down in that judgment, but we think that it is inapplicable to the present case. That was a suit for the determination of a tenancy of a permanent character. In the present case it has been found that the interest of the tenant was merely temporary and determinable by a notice to quit, which has b...
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