Kolkata Court February 1899 Judgments
Hira Lal Ghose Minor by His Mother and Next Friend Rai Kamini Dassi Vs ...
Court: Kolkata
Decided on: Feb-28-1899
Reported in: (1899)ILR26Cal539
Maclean, C.J.1. A preliminary objection is taken that no second appeal lies in this case. The appeal arises out of an application by the judgment-debtor against the decree-holder and auction-purchaser, to have the sale, at which the latter purchased the applicant's property, set aside on the ground, not only of the irregularity mentioned in Section 311 of the Code of Civil Procedure, but also of fraud. The application is undoubtedly entitled under Section 244 of the Code; and it is conceded that if the case fall within the provisions of that section, a second appeal will lie, but it is contended for the respondent that the appellant here being the auction-purchaser and so not a party to the suit, the case is not within the section, and that no second appeal lies. It is said that a second appeal will not lie when the appellant is neither the judgment-debtor nor the decree-holder. I do not think that this distinction is well founded.2. A Division Bench of this Court has recently decided ...
Tag this Judgment!Radha Madhub Samonta Vs. Sasti Ram Sen and ors.
Court: Kolkata
Decided on: Feb-22-1899
Reported in: (1899)ILR26Cal826
Francis W. Maclean, K.C.I.E., C.J.1. The principle of the case of Bindubashini Dassi v. Harendra Lal Roy (1897) I.L.R., 25 Cal., 305, which was recently before this Court, governs the present case, though in the facts there is some distinction.2. The defendants are certain putnidars; they defaulted in their rent; the zemindar took proceedings against them; the property was ordered to be sold; it was sold, and the plaintiff, in May 1892, purchased the putni interest at the sale held in pursuance of the order. On the 12th May 1894, the sale was, in a suit instituted for the purpose, set aside; the zemindar alone appealed against that decision, and the plaintiff was a respondent on the appeal. In April 1895, during the pendency of the appeal, the zemindar applied to the plaintiff to pay the rent which had accrued from the 13th April 1894 to November in that year, and in the same month he instituted proceedings against the plaintiff to enforce his rights upon the footing of the non-payment...
Tag this Judgment!Nagendra Nath Basu and anr. Vs. Satadal Basini Basu
Court: Kolkata
Decided on: Feb-21-1899
Reported in: (1899)ILR26Cal536
Francis W. Maclean, K.C.I.E., C.J.1. This case in my opinion does not fall within Section 78 of Bengal Act VII of 1876.2. The facts are these: The father of the present plaintiffs was the registered proprietor of the property in question. He died on the 19th September 1893, and his heirs sold the property on the 4th December in that year. This suit is for the recovery of the rents which accrued between April and the 4th December 1893. As regards the rent accruing between the 19th September 1893 when the father, the registered proprietor, died, and the 4th December 1893, when his heirs sold the property, it cannot be recovered, for the plaintiffs must be regarded as suing as proprietors, and they were not registered as such, and consequently as regards that part of the claim they are successfully met be Section 78 of Bengal Act VII of 1876. But as regards the rent accruing between April and the particular date fixed for payment, which I understand was some day in July, they are entitled...
Tag this Judgment!Kally Dass Mookerjee Vs. the East Indian Railway Company
Court: Kolkata
Decided on: Feb-17-1899
Reported in: (1899)ILR26Cal465
O'Kinealy, J.1. In this case the plaintiff is the father and the administrator of the estate of one Atindra Nath Mookerjee, who was fatally injured on the 27th of April 1896, while travelling as a passenger on the East Indian Railway between the stations of Secundrabad and Dadri. Atindra Nath Mookerjee died on the 5th of May 1896 of the injuries sustained by him, and the plaintiff charges that his death was caused by the neglect of the defendants. The relief claimed is of a two-fold character. The sum of Rs. 7,000 is claimed as damages for the loss resulting to the plaintiff from the death of his son, and a further sum of Rs. 8,000 is claimed by the plaintiff as damages for loss to the estate of Atindra Nath Mookerjee, such loss also having been occasioned by the neglect of the defendants. As to this latter portion of the relief claimed by the plaintiff I may say at once that no evidence has been given to show that any precuniary loss or damage was caused to the estate of Atindra Nath ...
Tag this Judgment!Bujha Roy Vs. Ram Kumar Pershad
Court: Kolkata
Decided on: Feb-16-1899
Reported in: (1899)ILR26Cal529
Ghose and Stevens, JJ.1. This is an appeal against an order of the Subordinate Judge of Shahabad, dated the 2nd September 1897, directing that a sale-certificate granted to the auction-purchaser--the decree-holder at whose instance a certain property was sold--be amended, as prayed for by the said auction-purchaser.2. It appears that the auction-purchaser had previously made an application for delivery of possession in accordance with the boundaries which he set forth as the correct boundaries of the lands which had been sold; but his prayer was refused on the 7th December 1895, upon the ground that the boundaries as set forth by him did not agree with those in the certificate of sale. An application was subsequently made on the 27th February 1896, for amendment of the sale-certificate. It was treated as an application for review under Section 623 of the Code; and a review was granted on the 13th June 1896. An investigation was then ordered, the result of which was that on the 2nd Sept...
Tag this Judgment!Jadobram Dey Vs. Bulloram Dey
Court: Kolkata
Decided on: Feb-09-1899
Reported in: (1899)ILR26Cal281
Jenkins, J.1. As the plaintiff does not allege any specific agreement, but contends that the business had been carried on without anything being said as to the amount of the shares, and as the defendant on the other hand alleged a specific agreement that the shares were to be unequal, the presumption which exists as to the equality of partner's shares casts the burden of proof upon the defendant, who must therefore begin.2. (2) A further question then arose as to the production of certain Income Tax returns made by the firm of Day and Cousin. It was alleged that it would appear from these returns that the firm had stated the shares of the partners to be as alleged by the defendant. Application had been made to the Registrar for the issue of a subpoena upon the Income Tax Collector to produce all returns made by the firm from the year 1886. The Registrar refused to issue the subpoena without the order of the Court by reason of Rule 16 issued under Section 38 of the Income Tax Act (II of...
Tag this Judgment!Babar Ali Vs. Krishnamanini Dassi and anr.
Court: Kolkata
Decided on: Feb-07-1899
Reported in: (1899)ILR26Cal607
Hill and Rampini, JJ.1. The suit out of which this appeal arises was brought by the plaintiff, the holder of a darputni tenure against a seputnidar for arrears of rent for the period between Kartik 1302 and Jaista 1303 B.S. (October 1895 to May 1896).2. It appears that in execution of a decree other than a decree for arrears of rent the seputni tenure had been put up for sale on the 9th December 1895 and purchased by one Babu Ram Mitter. That sale was confirmed on the 16th January 1896, but the purchaser did not, before the confirmation of the sale, pay into Court, as required by Section 13 of the Bengal Tenancy Act, either the landlord's fee or the fee for service of notice of the sale on the landlord, nor has either of these fees been since paid.3. The defendant's answer to the suit was that under the sale of the 9th December 1895 her interest in the tenure had passed to Babu Ram Mitter, and that she was therefore not liable for any rent which became due after that date. As to the pe...
Tag this Judgment!Ananga Mohan Bhandari and ors. Vs. Raj NaraIn Purkait
Court: Kolkata
Decided on: Feb-06-1899
Reported in: (1899)ILR26Cal598
Banerjee and Rampini, JJ.1. These two appeals arise out of a suit for partition of certain joint property, Appeal No. 775 being a second appeal from the preliminary decree for partition, and Appeal No. 840 being a second appeal from the final decree made in the suit.2. The questions raised by the learned Vakil for the defendant-appellant are, first, whether the application for review of judgment made after the dismissal of the suit for default was not barred by limitation, and whether the subsequent proceedings in the suit were not therefore altogether null and void; second, whether, on the pleadings, the learned Judge below should have gone into the question as to whether Arannagore was joint property; and, third, whether on the facts found, the tank referred to in the judgment ought not to have been kept joint.3. Upon the first question it is argued that as the suit was originally dismissed under Section 102 of the Code of Civil Procedure for default on the part of the plaintiff, his...
Tag this Judgment!Raj NaraIn Purkait Vs. Ananga Mohan Bhandari and ors.
Court: Kolkata
Decided on: Feb-06-1899
Reported in: (1899)ILR26Cal603
Banerjee and Rampini, JJ.1. These two appeals arise out of a suit for partition of certain joint property, Appeal No. 775 being a second appeal from the preliminary decree for partition, and Appeal No. 840 being a second appeal from the final decree made in the suit.2. The questions raised by the learned Vakil for the defendant-appellant are, first, whether the application for review of judgment made after the dismissal of the suit for default was not barred by limitation, and whether the subsequent proceedings in the suit were not therefore altogether null and void; second, whether, on the pleadings, the learned Judge below should have gone into the question as to whether Arannagore was joint property; and, third, whether on the facts found, the tank referred to in the judgment ought not to have been kept joint.3. Upon the first question it is argued that as the suit was originally dismissed under Section 102 of the Code of Civil Procedure for default on the part of the plaintiff, his...
Tag this Judgment!Chundi Charan Mandal Vs. Banke Behary Lal Mandal
Court: Kolkata
Decided on: Feb-03-1899
Reported in: (1899)ILR26Cal449
Maclean, C.J.1. This appeal must succeed. I stated my reasons so fully when the matter was before me as a member of the referring Bench, that, on the present occasion, I only propose to add one or two very brief observations. I do not wish it to be understood, from the terms of my previous judgment, nor do I think my language is susceptible of that construction, that I intended to lay down, as an absolutely hard and fast rule that, if the 5 per cent, on the purchase-money and the amount specified in the proclamation of sale were not paid within the thirty days, the Court was powerless to set aside the sale. There may be circumstances in a particular case which would render such a rule quite inequitable. Nor am I prepared to say that, if the judgment-debtor has been misled by a mistake of the Court, the consequences of that mistake ought to fall upon him. I do not propose to lay down what constitutes a mistake of the Court. I confine myself to saying that there was certainly none in the...
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