Court : Kolkata
Reported in : (1898)ILR25Cal133
Maclean, C.J.1. The question we have to decide is whether, when an order absolute for the sale of mortgaged property has been made after an ordinary decree in the mortgage suit has been made, and any question arises as to that order absolute for sale, it is a question relating to the execution of the decree within the meaning of Section 244 of the Code. The point is not res nova in this Court. The cases of Ajudhia Pershad v. Baldeo Singh (1894) I.L.R. 21 Cal. 818 (823); Tiluck Singh v. Parsotein Proshad (1895) I.L.R. 22 Cal. 994; Tara Prosad Roy v. Bhobodeb Roy (1895) I.L.R. 22 Cal. 931 (934) and that of Ranbir Singh v. Drigpal (1893) I.L.R. 16 All. 23 are to the effect that this question should be answered in the negative. I agree in that view. Two other cases in the Allahabad High Court, the cases of Kedar Nath v. Lalji Sahai (1890) I.L.R. 12 All. 61 and Oudh Behari Lal v. Nageshar Lal (1891) I. L. R 13 All. 278 are authorities the other way. I prefer, however, to follow the previous...
Tag this Judgment!Court : Kolkata
Reported in : (1898)ILR25Cal90
Rampini and Stevens, JJ.1. This is a suit in which the plaintiffs seek to establish their title to and to recover possession of certain land. The Lower Appellate Court has given them a decree for the northern half of the land in suit, but has dismissed their claim to the southern half of it.2. The plaintiffs now appeal to this Court, and on their behalf it has been urged that the Lower Appellate Court has erroneously excluded from evidence three documents, the first being a plaint, the second, an application for the execution of a decree, and the third, a butwara khasra. The first two of these documents are said to be admissible in evidence under the provisions of Section 32, Clause 7, of the Indian Evidence Act read in connection with Section 13, Clause (a) inasmuch as it is said that they contain statements by one Gulzar, who is dead, to the effect that the plaintiffs' land is to the west of Gulzar's land and is bagar land. It must here be noted that the statement of the land being w...
Tag this Judgment!Court : Kolkata
Reported in : (1898)ILR25Cal250
Francis William Maclean, C.J.1. The point we have to decide is a short one, viz., as to the true construction of Section 98 of the Probate and Administration Act V of 1881. The facts of the case lie within a narrow compass. The testator made a will on the 17th of July 1884, and the two appellants and the respondent, who is represented by Mr. Hill, were appointed executors. The testator died on the 14th September in that year leaving an adopted infant son, and on the 1st of June 1885 probate was granted to the appellants alone. On the 31st of January 1887, the appellants filed, I presume under the section I have referred to, their accounts from 16th September 1884, a day or two after the testator's death, to 30th September 1886. On the 10th of June 1887, by what I may call a somewhat short cut, the respondent's name was inserted into the probate as one of the executors, the other executors not objecting. In 1888, the respondent brought a suit against the appellants for an account of the...
Tag this Judgment!Court : Kolkata
Reported in : (1897)ILR24Cal661
Banerjee, J.1. This appeal arises out of a suit brought by the plaintiffs, appellants, to recover a sum of Rs. 1,004, on the allegation that the plaintiff No. 1 gave to the defendant a currency note for Rs. 1,000 for change, believing, under a mistake, that it was a note for Rs. 100 only; that the defendant shortly afterwards returned to plaintiff No. 1 a note for Rs. 100 making her believe that it was the identical currency note which she had made over to the defendant, and saying that he was unable to change it; that subsequently, upon the mistake being discovered on the return of the husband of plaintiff No. 1, the defendant was asked to give back the currency note for Rs. 1,000, but he denied having received it; that not having had in their hands this note for Rs. 1,000, the plaintiffs, to meet the expense for the construction of their house had to borrow Rs. 800 on interest, and thus had been made liable to pay interest, to the extent of Rs. 104; and that the plaintiffs were, ther...
Tag this Judgment!Court : Kolkata
Reported in : (1897)ILR24Cal563
Trevelyan and Beverley, JJ.1. This suit was brought by the plaintiff, who is a judgment-creditor and bought property in execution of his decree against persons who claim to hold under a mokurari executed by the judgment-debtor after the decree and before the attachment. The suit has been held to be barred by both the lower Courts on the ground that it was brought beyond the three years' period of limitation given by Article 91 of the second schedule to the Limitation Act in cases of suits to set aside an instrument.2. In our opinion it is not necessary to consider that question, as we think the suit is barred by the one year's limitation provided under Article 11 of the second schedule of the same Act.3. The alleged mokuraridar filed a claim. The claim has not been put in, but the order has been put in. The order made recites what was done. It is dated the 12th June 1896. It states that the claimant's witnesses we examined; that the claimant's Vakil declined to call any more witnesses;...
Tag this Judgment!Court : Kolkata
Reported in : (1897)ILR24Cal437
Sale, J.1. This ease was placed in the peremptory list for further directions on the report of the Second Assistant Registrar to whom it had been referred to take an account.2. The report is dated the 1st day of February 1896, and was filed on the 8th day of July 1896. On the 17th of July, on an application by summons, the defendants obtained three weeks' further time to file exceptions to the report. Exceptions were filed on the 10th of August, that is, within the extended period, but no further steps were taken till the 15th of March, when the case was placed on the peremptory list for further directions on the report.3. No notice of motion was given by the defendants to discharge or to vary the report and at the hearing for further directions the plaintiff took the objection that under the terms of Rule 565, which is to be found at page 230 of Belchambers' Rules and Orders, the exceptions could not be heard. Rule 565 is as follows:An application to discharge or vary a certificate or...
Tag this Judgment!Court : Kolkata
Reported in : (1897)ILR24Cal897
Maclean, C.J.1. This is a suit by the purchaser for specific performance of a contract to purchase certain property for Rs. 525. The defendant No. 1 denied the contract in toto, and said that the plaintiff's case was wholly false. That was his defence.2. The matter was tried out by the Munsif, who dismissed the plaintiff's suit. The Subordinate Judge found that there was a contract between the parties, and disbelieved the defendant's case, but refused to grant specific performance on the ground that the plaintiff was in default in not paying the purchase money upon the stipulated day. The agreement was an oral agreement, and there is no finding of fact in the judgment of the Subordinate Judge that the plaintiff ever agreed to pay the purchase money within one month from the date of the contract. The Judge finds as a fact that the defendant agreed to execute a conveyance within a month, and he infers from that, and I dare say the inference is well-founded, that there was an agreement on...
Tag this Judgment!Court : Kolkata
Reported in : (1897)ILR24Cal584
Macpherson and Ameer Ali, JJ.1. The question raised in this appeal is whether the suit could be instituted (sic) notice, or rather before the expiry of the period of notice, prescribed by Section 424 of the Code of Civil Procedure. The case as set out in the plaint, is that the defendant who was the District Magistrate of Rajshahye committed the plaintiff to the Sessions on charges under Sections 386 and 109 of the Indian Penal Code, and that the plaintiff was, under an order of the Magistrate, enlarged on bail. The trial at the Sessions Court did not take place on the date fixed, but was postponed on the application of the plaintiff. Subsequent to the postponement, the plaintiff says that, while he was in Calcutta, the defendant caused him to be arrested under a warrant and had him taken to Rajshahye where he was again enlarged on furnishing fresh security. He charges that this act was illegal and malicious. Then the plaint proceeds to state that, subsequent to the commitment of the p...
Tag this Judgment!Court : Kolkata
Reported in : (1898)ILR25Cal155
Maclean, C.J.1. I am for my own part not satisfied that this case comes within Section 622 of the Code of Civil Procedure; but in the view I take of the construction of Section 108 of that Code, to which I will advert in a moment, it becomes unnecessary for me to decide that question. The question we have to decide arises under these circumstances: A suit was brought against two sets of defendants upon a promissory note which had been made by two persons, one of whom died before the suit was brought. The suit was brought against the surviving maker of the note and the heirs of the other maker of the note who had, as I have said, died in the meantime. Two of these heirs were purdanashin women, and it appears that the necessary summons was not served upon them, and that the decree as against them was made ex parte in these terms: ' In the result a decree for Rs. 468 be passed in plaintiff's favour together with costs at ex parte scale. The liabilities of the defendants 1 to 3 shall be to...
Tag this Judgment!Court : Kolkata
Reported in : (1897)ILR24Cal546
Macpherson and Ameer Ali, JJ.1. This suit has been dismissed without trial on the preliminary issue as to whether it was maintainable having regard to the provisions of Sections 13 and 244 of the Civil Procedure Code, and the fact that the plaintiff's applications for setting aside the decree and the sale under Sections 108 and 311 of the Code were rejected.2. The object of the suit is to set aside an ex-parte decree for rent obtained by the first and second defendants against Ram Krishna Sarkar, seventh defendant, and the plaintiff, and to recover from the third, fourth and fifth defendants possession of a property of the plaintiff's which was sold in execution of that decree and purchased by them in the name of the sixth defendant. The plaint sets out that the plaintiff had nothing to do with the jote in respect of which the rent was decreed, or with Ran Krishna Sarkar; that the suit was fraudulently brought at the instigation of the third, fourth and fifth defendants in order to get...
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