Kolkata Court December 1896 Judgments
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Sitab Chand Nahar Vs. Hyder Malla and ors.
Court: Kolkata
Decided on: Dec-22-1896
Reported in: (1897)ILR24Cal281
Banerjee and Rampini, JJ.1. This appeal arises out of a suit brought by the plaintiff-appellant to recover money due on a mortgage bond payable by instalments. The plaintiff alleged that the defendants had after repeated demands paid two small sums, and the suit was for the balance that remained unpaid. The defence in substance was that the suit was barred by limitation, that the terms of the mortgage bond had been subsequently modified by a verbal contract, and that the defendants having performed their part of that contract, the bond was satisfied.2. The first Court found that the part payments alleged in the plaint were not proved, that all the instalments under the bond except the last two were in consequence barred by limitation, and that the subsequent oral contract set up was not established; and it accordingly decreed the suit in part.3. On appeal the Lower Appellate Court has dismissed the whole suit on the ground that it is barred by limitation.4. In second appeal it is conte...
Priag Nath Sah Deo Vs. Mura Munda and ors.
Court: Kolkata
Decided on: Dec-21-1896
Reported in: (1897)ILR24Cal249
O'Kinealy and Hill, JJ.1. This is an appeal from the decision of the Judicial Commissioner of Chutia Nagpur, dated the 7th January 1895.2. It was first objected that no second appeal lay to this Court; but this objection was overruled some years ago. We think, therefore, that the objection fails.3. Then it was argued, and that is the point upon which the appeal turns, that the appeal lay not to the Judicial Commissioner but to the Deputy Commissioner. The suit is of the nature mentioned in Clause (4), Section 37, and by Section 39 several claims of that kind may be joined in one suit. It would appear, therefore, that the several claims as mentioned in the second Clause of Section 39 form one suit and one suit only.4. We now come to determine to what Court the appeal lay. Section 137 says that in suits under Clause (4) and certain other Clauses of Section 37, if tried and decided by a Deputy Commissioner, if the amount sued for, or the value of the property claimed does not exceed one h...
Gouri Sunker Panday Vs. Abhoyeswari Dabee
Court: Kolkata
Decided on: Dec-21-1896
Reported in: (1897)ILR25Cal262
Maclean, C.J.1. This case has been very elaborately argued, and many cases have been cited, and various sections of the Code and Acts of the Legislature referred to; but in my opinion the case is reduced to a short, and I do not think a really difficult, point.2. The plaintiff is a judgment-creditor of the defendant, and the decree directing payment also gave him a charge upon certain property of the defendant I purposely refrain from expressing any opinion as to whether the plaintiff is a mortgagee within the meaning of Section 99 of the Transfer of Property Act; in the view I take of this case it is immaterial to say anything as to that. Having obtained his judgment he not unnaturally wishes to obtain the fruits of it. He has made two unsuccessful attempts to do this. On the 22nd September 1893 he obtained an order from this Court for the sale of the property, but that order was reversed on appeal. On the 7th August 1894 he obtained an order to send a certified copy of the decree to ...
Sundar Bewa and ors. Vs. Karim Chowkidar and anr.
Court: Kolkata
Decided on: Dec-11-1896
Reported in: (1897)ILR24Cal207
Banerjee, J.1. The suit, out of which this appeal arises, was brought by the plaintiffs-respondents to recover possession of some land on the allegation that it constituted the jota of one Nilu Nasya; that the plaintiff's as his heirs are entitled to the same, and that the second defendant, their zemindar, has wrongfully dispossessed them and settled the land with defendant No. 1. The defence was a denial of the plaintiffs' right.2. The first Court found that Nilu held the land as a non-occupancy raiyat, that he relinquished the holding in his life-time, and that a non-occupancy holding was not heritable; and it accordingly dismissed the suit.3. On appeal, the Lower Appellate Court has reversed that decision and given the plaintiff's a decree on the ground that the land was not shewn to have been relinquished by Nilu, and that a non-occupancy holding is heritable under the law.4. In second appeal the only question raised is, whether the right of a non-occupancy raiyat (who does not hol...
Kalihur Ghose and ors. Vs. Umae Patwari and ors.
Court: Kolkata
Decided on: Dec-11-1896
Reported in: (1897)ILR24Cal241
Banerjee and Rampini, JJ.1. In this appeal, which arises out of a suit for arrears of rent, the question raised on behalf of the plaintiffs-appellants is whether the Courts below are right in disallowing a part of the claim on the ground that the notice required by Section 16 of the Bengal Tenancy Act has not been given to the Collector. The learned Vakil for the appellants contends that, upon a proper construction of that section, the Courts below ought to have held that the suit was maintainable, and that the plaintiffs were entitled to a decree in full, notwithstanding the absence of the notice in question; and that all that the section was intended to bar was the actual recovery of any rent by execution of the decree; and in support of this contention he relies upon the decision of the majority of the Full Bench in the case of Alimuddin Khan v. Hira Lall Sen I.L.R. 23 Cal. 87. Now Section 16 runs in these words: 'A person becoming entitled to a permanent tenure by succession shall ...
Doona Tewary and ors. Vs. Banoo Tewary
Court: Kolkata
Decided on: Dec-10-1896
Reported in: (1897)ILR24Cal309
Beverley and Ameer Ali, JJ.1.These appeals arise out of a suit brought by the plaintiff's under the following circumstances: The plaintiffs and defendants were at one time members of a joint Hindu family subject to the Mitakshara law. According to the plaintiffs' case a separation took place between them in the year 1293 (1886), and the bulk of the immoveable property, together with ornaments, etc., was divided among the different members; but it is alleged by the plaintiffs that two elephants, together with debts payable to the joint family upon bonds and decrees standing in the names of the different members, and certain pieces of land, were left joint. The principal defendant in the case (defendant No. 1) was to realize the major portion of these bond and decretal debts. The plaintiffs allege in their plaint that he has realized the amounts covered by the bonds and decrees which stood in his name, but has refused to give them their shares in the same; that as regards the elephants h...
Jogomaya Dassi Vs. Thackomoni Dassi
Court: Kolkata
Decided on: Dec-10-1896
Reported in: (1897)ILR24Cal473
Sale, J.1. The plaintiff, who sues as widow and representative of her late husband, Radhajeebun Mustaba, claims administration and other relief in respect of the estate of one Brojo Nauth Dey, deceased.2. The defendant Thackomoni Dassi is the widow and representative of Brojo Nauth.3. The facts upon which the plaintiff bases her claim for administration are set out in her plaint, and as to these allocations there is in substance now no dispute By consent the case was heard on settlement of issues, and the question really resolves itself into this: Whether the plaintiff, on the facts she alleges in her plaint, is entitled to a decree for administration of Brojo Nauth's estate.4. The material facts relating to that issue are, I think, as follows:5. Brojo Nauth Dey, on the 6th April. 1880, executed a mortgage in the Bengalee language and character in favour of Radhajeebun Mustafi, whereby ho mortgaged his undivided 2 annas 2 gundahs and 10 cowries shares in three zemindary properties whic...
S. J. Leslie Vs. Ismail Ariff
Court: Kolkata
Decided on: Dec-10-1896
Reported in: (1897)ILR24Cal399
Maclean, C.J.1. The only question to be decided on this appeal is whether the plaintiffs are entitled to their costs of the suit.2. The suit is one by a firm of attorneys against their client to recover the balance of their bill of costs. The amount recovered is under Rs. 2,000 but over Rs. 1,000. It is contended for the appellant, having regard to Section 22 of the Small Cause Courts Act (No. XV of 1882), that the plaintiff's costs ought not to be allowed. That section, so far as is material, was as follows:If any suit cognizable by the Small Cause Court other than a suit to which Section 21 applies, is instituted in the High Court, and if in such suit the plaintiff obtains, in the case of a suit founded on contract, a decree for any matter of an amount of value less than Rs. 2,000, and in the case of any other suit a decree for any matter of an amount or value of less than Rs. 300, no costs shall be allowed to the plaintiff. The foregoing rules shall not apply to any suit in which th...
Suja HosseIn Alias Rehamut Dowlab Vs. Monohur Das
Court: Kolkata
Decided on: Dec-09-1896
Reported in: (1897)ILR24Cal244
O'Kinealy and Hill, JJ.1. This is an appeal from the decision of the Subordinate Judge of the 24-Pergunnahs, dated the 24th August 1894.2. The facts out of which the litigation has arisen may be shortly stated as follows: On the 11th December 1893 an application was made purporting to be one in execution of a decree by transmitting a certified copy of the decree to the Court of the District Judge of the 24-Pergunnahs, with a certificate that no portion of the decree bad been satisfied within the jurisdiction of the High Court on its Original Side. On that the following order was passed: Leave granted to verify and let notice issue (returnable four days after service) under Section 248 (a), Civil Procedure Code. This notice was issued under the Rules of Court. Section 248 (a) enacts that if more than one year elapses between the date of the decree and the application for its execution a notice shall issue to the party against whom execution is applied for, requiring him to show cause wh...
Dip Chand Poddar and ors. Vs. the Secretary of State for India in Coun ...
Court: Kolkata
Decided on: Dec-08-1896
Reported in: (1897)ILR24Cal306
Banerjee and Rampini, JJ.1. This appeal arises out of a suit brought by the plaintiff's (respondents) against the Secretary of State for India and the Bengal Central Flotilla Company for compensation for the loss of goods delivered for carriage to the Eastern Bengal State Railway and the Flotilla Company. The plaintiffs allege that they sent notices of demand to the Traffic Superintendent and to the District Collector before the institution of the suit. The defence was denial of liability on the ground that there was no negligence on the part of the defendants. A further objection, not taken in the written statement, was urged on behalf of the Secretary of State at the time of argument, that the claim for compensation was untenable under Section 77 of the Indian Railway Act (IX of 1890) for want of notice to the Railway Administration.2. The first Court overruled the objection in bar and found for the plaintiff's on the merits, and gave them a decree for a certain amount, and that decr...
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