Kolkata Court July 1895 Judgments
Tara Prosad Roy Vs. Bhobodeb Roy
Court: Kolkata
Decided on: Jul-31-1895
Reported in: (1895)ILR22Cal931
Norris and Gordon, JJ.1. This is an appeal from an order of the District Judge of Nuddia, reversing an order of the Munsif of that District. It appears that the appellant sued the respondent to enforce a mortgage security. The case was referred to arbitration, and a decree was passed declaring that the mortgagor's share was liable on the mortgage. Execution was taken out, and a proclamation of sale was issued. Thereupon the judgment-debtor objected that the properties could not be sold,, because the decree had not been made absolute. The Munsif was of opinion that in the case of a simple mortgage no decree absolute is necessary. On appeal, the District Judge held that a decree absolute is necessary, and accordingly he allowed the objection of the judgment-debtor, and set aside the execution proceedings as premature. On second appeal by the decree-holder it is contended (1) that under the provisions of the Transfer of Property Act a decree absolute is unnecessary in the case of a simple...
Tag this Judgment!Kajimuddy and ors. Vs. the Secretary of State for India in Council
Court: Kolkata
Decided on: Jul-31-1895
Reported in: (1896)ILR23Cal257
Norris and Gordon, JJ.1. This is an appeal from an order of remand passed by the Subordinate Judge of Tipperah under Section 562, Code of Civil Procedure. The plaintiffs are tenants of a Government estate situated in Pergunnah Singargaon in the District of Tipperah, and the defendant is the Secretary of State for India in Council. By a notification, dated the 6th November 1888 (see Part I, page 943, of the Calcutta Gazette of the 7th November 1888), the Local Government made an order under Section 101 (1) of the Bengal Tenancy Act, directing that a survey be made and a record of rights be prepared in respect of all lands included in the estate in question, and specifying therein the particulars to be recorded as required by Section 102 of the Act; and by another notification of the same date, Babu Kali Sankar Sen, Deputy Collector, was appointed Settlement Officer of that estate. After the order had been made and the record of rights prepared, the Settlement Officer, of his own motion,...
Tag this Judgment!Keshab Chunder Roy Vs. Akhil Metey
Court: Kolkata
Decided on: Jul-30-1895
Reported in: (1895)ILR22Cal998
Macpherson and Banerjee, JJ.1. The petitioner Keshab Chunder Roy has been convicted by the Deputy Magistrate of Burdwan of the offence of causing grievous hurt to one Akhil Metey by a dangerous weapon and sentenced to rigorous imprisonment for four months, and the learned Sessions Judge having dismissed his appeal, he now asks us, under Section 439 of the Code of Criminal Procedure, to set aside the conviction and sentence on two grounds:2. First, that the learned Sessions Judge, in dismissing the petitioner's appeal, was greatly influenced by his judgment in the counter-case which was no evidence in this case; and that this error has caused a failure of justice.3. Second, that the finding of the Courts below is so completely against the weight of evidence that it ought to be set aside.4. As both these two grounds depend for their success upon its being shown that the conviction is not warranted by the evidence, and as there was some discussion during the argument as to the propriety o...
Tag this Judgment!Jagarnath Singh Vs. Budhan and ors.
Court: Kolkata
Decided on: Jul-29-1895
Reported in: (1896)ILR23Cal115
Prinsep and Ghose, JJ.1. This is a second appeal against an order passed by the Lower Appellate Court under Section 556 of the Code of Civil Procedure in consequence of the default of the appellant.2. Objection is taken by the respondents that no appeal lies.3. As an authority for the appeal the pleader for the appellant cites the case of Ramchandra Pandurang Naik v. Madhav Purushottam Naik I.L.R. 16 Bom. 23. That case is, however, different from the case before us, inasmuch as the appellant in this case was not represented, and this appeal was dismissed under Section 556. We cannot, however, agree with the learned Judge of the Bombay High Court that an order dismissing an appeal on default properly falls within the definition of a decree as contained in Section 2 of the Code. The law enables an appellant to apply for there-admission of his appeal (section 558), and it gives him the right of appeal against the order refusing such an application. Similar provision is made in regard to a...
Tag this Judgment!Chhotay Lal and anr. Vs. Puran Mull and anr.
Court: Kolkata
Decided on: Jul-26-1895
Reported in: (1896)ILR23Cal39
Prinsep and Ghose, JJ.1. This is an appeal relating to an application to execute a decree. The decree was passed on the 21st July 1886 by the Munsif of Patna on a compromise between the parties, and under its terms the sum of Rs. 70 was to be paid on the 14th August 1886 and the balance in sums of Rs. 10 monthly commencing from Bhadro 1943, and it was declared that in default to pay three instalments the whole decree was capable of being executed. It was found by the Munsif that no money was paid by the judgment-debtor, although the decree-holder alleged that certain payments had been made. He accordingly held that execution under the terms of the decree could have been taken out after the 11th November 1886, that being the last date on which the three instalments; became due. This judgment was delivered by the Munsif of Behar to whom the decree had been transferred for execution by the Munsif of Patna who passed the decree, on an application made to him on the 30th November 1889. It i...
Tag this Judgment!Rajendro NaraIn Roy Vs. Chunder Mohun Misser
Court: Kolkata
Decided on: Jul-26-1895
Reported in: (1896)ILR23Cal128
Norris and Gordon, JJ.1. We think that this appeal must be allowed. The cases of The Secretary of State for India in Council v. Judah I.L.R. 12 Cal. 652 and In the matter of Bolye Chund Dutt I.L.R. 20 Cal. 876 are clearly distinguishable from the facts of the present case. In both those cases the judgment-debtor had been arrested and imprisoned. In this case he had been arrested but not imprisoned, and we think that under Section 341 of the Code of Civil Procedure his immunity from a second arrest depends, not only upon his having been arrested, but upon his having been imprisoned under the arrest. In this view we are supported by the case of Chengalraya Chetti v. Subhiah 6 Mad. IT. C. 84 and Subba v. Venkata I.L.R. 8 Mad. 21.2. We therefore think that the judgment appealed from must be set aside and a second warrant of arrest allowed to issue. The appellant is entitled to his costs....
Tag this Judgment!Karimunnissa Khatoon Vs. Aizunnissa Khatoon
Court: Kolkata
Decided on: Jul-23-1895
Reported in: (1896)ILR23Cal130
W. Comer Petheram, C.J. and Beverley, J.1. This was an administration suit in respect of the estate of one Golam Ali Chowdhry, a wealthy Mahomedan landholder of the Sunni sect resident in Furridpore. Golam Ali left three widows, Aizunnissa, Izzatunnissa and Jamedunnissa, the two former being uterine sisters. By Aizunnissa he left a son, Ali Ahmed (who died during the pendency of this appeal and who is now represented by his legal heirs), and two daughters. By Izzatunnissa he left two sons and six daughters, and by Jamedunnissa he left two daughters. The plaintiffs in the suit, as originally brought, were three daughters of Izzatunnissa, one daughter of Aizunnissa and the widow Jamedunnissa. They prayed to set aside a certain will alleged to have been made by Golam Ali as being invalid according to Mahomedan Law, to have it ascertained and declared what properties Golam Ali left as his estate, and what right and what share each of the parties had in such estate, and for possession and m...
Tag this Judgment!Nasir Ali Fakir Vs. Meher Ali Alias Chutai Fakir
Court: Kolkata
Decided on: Jul-22-1895
Reported in: (1895)ILR22Cal830
Gordon, J.1. The plaintiff in this suit obtained a decree for possession of certain land under Section 9 of the Specific Belief Act. When he went to take possession in execution, he was obstructed by the defendant. Thereupon the decree-holder complained to the Court, and his complaint was registered as a suit, he being the plaintiff and the person who obstructed him in execution, the defendant. The Munsif gave the plaintiff a decree. On appeal the Subordinate Judge reversed it. One of the points taken before the Subordinate Judge was that no appeal lay from the Munsif's order under Section 331, on the ground that this was merely a proceeding in continuation of the original suit under Section 9 of the Specific Relief Act, and as no appeal lay against a decision passed under that section, no appeal lay in this case to the Subordinate Judge. This point has also been urged before us in second appeal.2. We think that the view contended for cannot be accepted. The wording of Section 331 of t...
Tag this Judgment!Premanundo Shaha and anr. Vs. Brindabun Chung
Court: Kolkata
Decided on: Jul-22-1895
Reported in: (1895)ILR22Cal994
Pigot and Banerjee, JJ.1. The prisoner has been convicted under Section 456 of the Indian Penal Code, and we are asked, in revision, to set aside the conviction as bad in law.2. The complainant Brindabun is a labourer living at Musdail. The accused is a shopkeeper belonging to the same place. Brindabun's bari consists of two rooms, a north and south house or room. On the night of the 17th April 1895, Brindabun, his nephew and his brother slept in the south house. His mother, Bidya his wife [or who passes as such], his nephew's wife and his sister-in-law slept in the north house. About 10 or 11 the complainant heard cries from his mother from the women's room; the other women also screamed out. Complainant came out and saw the prisoner jump down from the inside of the north house, ran up, and seized him.3. It is not necessary to recite the other facts upon which it has been found that the prisoner had got into the women's room on this occasion. His defence was that he had not gone there...
Tag this Judgment!Nistarini Debi Vs. A.C. Ghose, Overseer, Howrah Municipality
Court: Kolkata
Decided on: Jul-18-1895
Reported in: (1896)ILR23Cal44
Banerjee, J.1. The petitioner, who has preferred an appeal to the Magistrate of Howrah against a conviction and sentence under Section 217, Clause 5, of the Bengal Act III of 1884, asks us to transfer the appeal from the Court of the Magistrate of Bowrah to that of the Magistrate of the 24-Pergunnahs, on two grounds : First, that, under Section 555 of the Criminal Procedure Code, the District Magistrate of Howrah is not competent to try the appeal, as he is personally interested in the case by reason of his being the Chairman of the Howrah Municipality, at whose instance and under whose sanction the prosecution was instituted; and, second, that even if it be held that the Magistrate is not incompetent to hear the appeal, still, under Section 526 of the Criminal Procedure Code, Clause (e), the transfer applied for is expedient for the ends of justice.2. In support of the first ground, the learned Vakil for the petitioner contends that though, by the explanation to Section 555 of the Cri...
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