Kolkata Court August 1900 Judgments
Harish Chandra Shaha and anr. Vs. Chandra Mohan Dass
Court: Kolkata
Decided on: Aug-30-1900
Reported in: (1901)ILR28Cal113
1. An ex parte decree for rent; was obtained against the present appellants and they succeeded in having that decree set aside. On the rehearing of the case the suit against them was dismissed with costs. They applied to the Court of First Instance by one application for execution of the final decree for costs and for restitution of the amount of the ex parte decree which had been satisfied by them before it was set aside.2. The Lower Appellate Court has held that although the application was in time as regards costs, it was not in time as regards the refund, because the appellants were entitled to apply for the refund immediately on the setting aside of the ex parte decree. The date on which the ex parte decree was set aside has not been stated; but, as the Lower Appellate Court says, it must have been more than three years before the date on which the application in question was made. The learned Judge has accordingly held, applying Article 178 of the second schedule of the Limitatio...
Tag this Judgment!Bholanath Dass and anr. Vs. Prafulla Nath Kundu Chowdhry
Court: Kolkata
Decided on: Aug-29-1900
Reported in: (1901)ILR28Cal122
Banerjee, J.1. The question for determination in this case is whether the present application for execution of the decree obtained by the respondent is barred by limitation.2. The first Court held that the application was barred by limitation. On appeal the Lower Appellate Court has reversed that decision, and hence this appeal by the judgment-debtors.3. The contention on behalf of the appellants is, that the present application is barred, because the application preceding it was barred; and when once an application for execution is barred by limitation, no subsequent application, though made within three years after it, can be held to be in time. In answer to this contention, the learned Counsel for the respondent says, as the Court of Appeal below has said in its judgment, that though the last preceding application for execution might have been barred by limitation, yet the appellants are precluded by an order of the Court from urging that it was so barred.4. Now this is how the fact...
Tag this Judgment!Prokash Chunder Sarkar Vs. Ram Prasad Pattak
Court: Kolkata
Decided on: Aug-29-1900
Reported in: (1901)ILR28Cal302
Prinsep, J.1. The rule is made absolute as the Magistrate admits that he passed the order under Section 148, Code of Criminal Procedure, making the petitioner liable for a certain sum as costs without notice to him, so that he might have an opportunity of contesting the same. The Magistrate is now at liberty to proceed after due notice to the parties concerned....
Tag this Judgment!Troylokhyanath Bose and ors. Vs. V.M.N. Macleod and ors.
Court: Kolkata
Decided on: Aug-27-1900
Reported in: (1901)ILR28Cal28
Stevens, J.1. The facts out of which this appeal arises, so far as it is necessary to state them for the purposes of the appeal, are as follows: The plaintiffs are purchasers of the proprietary right in three villages. They sue the defendants for direct possession of certain plots of land in those villages and for mesne profits. The Case of the defendants is that they have a tenant-right in those lands, and that their right was recognized by the predecessors in title of the plaintiffs. It is an admitted fact that at the time when the present suit was instituted an order had been made, under Section 101, oh. X of the Bengal Tenancy Act, for a survey and a record-of-rights in respect of the villages in question; that the defendants had been recorded as tenants of the lands in suit; that the plaintiffs had objected, and that their objections were pending before the Revenue Officer.2. A preliminary objection was raised by the defendants that the suit was not maintainable according to law. ...
Tag this Judgment!Rahiman Vs. Elahi Baksh
Court: Kolkata
Decided on: Aug-24-1900
Reported in: (1901)ILR28Cal70
Rampini, J.1. We are of opinion that under the provisions of Section 92 of the Evidence Act no oral evidence is admissible to show that these deeds of sale are not deeds of sale but deeds of gift.2. The Subordinate Judge, whose judgment on this point is affirmed by the District Judge, has relied on certain cases in which it has been held that ostensible deeds of sale may be shown, by evidence of the circumstances of their execution and the conduct of the parties, to be really deeds of mortgage. Such cases, no doubt, from an apparent' exception to the general rule embodied in Section 92 of the Evidence Act, but the object of making this exception apparently was to prevent the commission of fraud by one of the parties to the contract. But we are not aware of any ruling, nor has any been cited to us, in which it had been; ruled that oral evidence is admissible to prove that a deed of sale is really a deed of gift, and that not between the parties to the deed but between third parties Sect...
Tag this Judgment!Parameshwar Nomosudsa Vs. Kali Mohun Nomosudba
Court: Kolkata
Decided on: Aug-24-1900
Reported in: (1901)ILR28Cal127
Rampini, J.1. This is an appeal against a decision of the Subordinate. Judge of Mymensingh dated the 21st January 1898.2. The suit was one for recovery of possession of a jote after establishing the plaintiff's right to the same. The plaintiff alleged that the jote belonged to his father, that, after his father's death, he lot it out in burga to one Feda Changa, and that the defendants had forcibly dispossessed his burgadar. The defendant No. 3 alone contested the suit; and he urged that the suit was barred by the two years' rule of limitation, and also by the twelve years rule of limitation, and that the plaintiff abandoned the jote on the death of his father.3. The Courts below have held that the plea of abandonment has not been established. But the lower Appellate Court has found that the suit is not barred by the twelve years rule of limitation, and that the two years' rule has no application.3. The defendant No. 3 appeals; and his contention is that the two years' rule of limitati...
Tag this Judgment!Janakdeary Sukul Vs. Janki Koer and ors.
Court: Kolkata
Decided on: Aug-23-1900
Reported in: (1901)ILR28Cal427
Maclean, C.J.1. To my mind this case is covered by the decision of the Judicial Committee of the Privy Council in the case of Skinner v. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126. I dissent from the view taken by the Allahabad High Court in the case of Abbasi Begam v. Nanhi Begam (1896) I.L.R. 18 All. 206 and I do not think that the grounds upon which that Court distinguished the case before it from the case of Skinner v. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126 are well founded. It is true that Skinner v. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126 was decided under a Procedure Code other than the present, viz., under Act VIII of 1859, but the language of Section 310 of that Code is, in substance, the same as Section 413 of the present Code, except that the words 'unless precluded by the rules for the limitation of suits' are excluded from Section 413 of the present Code. The exclusion of those words in the present Code does not appear to me to strengthen the argument upon which the Allahabad d...
Tag this Judgment!Peary Mohun Mookerjee Vs. Badul Chandra Bagdi and ors.
Court: Kolkata
Decided on: Aug-21-1900
Reported in: (1901)ILR28Cal205
JudgmentBanerjee, J.1. This is an appeal under Clause 15 of the Letters Patent against a decision of Mr. Justice Hill confirming the judgment of the Courts below, by which the plaintiff's suit; for khas possession of some land has been dismissed. The plaintiff sued for khas possession of the land in dispute, on the allegation that it formed part of the occupancy holding of one Mohesh Chandra Ghose under the plaintiff, that that holding having been sold in execution of a decree for arrears of rent was purchased by the plaintiff, and that the plaintiff was entitled to khas possession of the land as the defendant had no right to the same.2. The defence so far as it is necessary to consider it now, was that the land was held by the defendant as an under raiyat under Mohesh, and that the defendant had acquired a right of occupancy in the same.3. Both the First Court, and the learned Subordinate Judge on appeal, held that the suit was liable to dismissal, as the plaintiff even if he was enti...
Tag this Judgment!Sunder Dasadh Vs. Sital Mahto and ors.
Court: Kolkata
Decided on: Aug-20-1900
Reported in: (1901)ILR28Cal217
Prinsep, J.1. The petitioners have been convicted and sentenced to fine under Section 206, Penal Code, for having cut and carried off crops which they knew to be. under attachment in execution of a certificate under Bengal Act I of 1895. The Sessions Judge has referred this order to be set aside, (1) because there was no offence committed under Section 206, Penal Code, because property attached for the realization of a demand under a certificate is not taken as a forfeiture or in satisfaction of a fine, and (2) if the petitioners prevented the crop from being taken in execution of a decree or order made by a Court of Justice and the Court of the Certificate Officer was such a Court no sanction under Section 195 of the Code of Criminal Procedure to the prosecution had been given.2. We are of opinion that the offence is under the latter part of Section 206, Penal Code, for the amount due under the certificate cannot be regarded as a forfeiture or fine. It was money due under a decree, fo...
Tag this Judgment!J.C. Stalkartt Vs. W. Stalkartt
Court: Kolkata
Decided on: Aug-17-1900
Reported in: (1901)ILR28Cal250
Stanley, J.1. This is not Chambers application.2. Mr. Edwards.--An application, which is not an original application, bu is only an application to supply the place of a retiring Receiver, may be mad in Chambers. The application is moreover consented to. Belchambers' Practice, P. 99, citing Grote v. Bing 9 Hare 50 Blackborough v. Ravenhill 16 Jur. 1085.3. An application for the appointment of a Receiver on the retirement of another Receiver should be made in Court and not in Chambers.Stanley, J.4. An application for the appointment of a Receiver in place of the retiring Receiver is not an application which should be made before the Judge sitting in Chambers, but should be in Court. I accordingly direct that this application be renewed in Court.5. The application was subsequently made by Counsel in Court and granted....
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