Court : Kolkata
Reported in : (1904)ILR31Cal203
Ghose and Pratt, JJ.1. This appeal arises out of an application made under Section 525, Code of Civil Procedure, for the purpose of a private arbitration-award being filed in Court. The application was presented to the Munsif of Mozafferpore. That officer granted it; but his order has been set aside on appeal by the District Judge, on the ground that the Munsif had no jurisdiction to entertain the application in question. It appears that there were monetary dealings between the plaintiffs and the defendant; and the matter of the account between the parties was referred to the arbitration of one Rai Parmeshwar Narain Mahta Bahadur. He investigated the said matter of account, and it would appear that the plaintiff Narsingh Das claimed as due from the defendant Rs. 2,047-13-9, while, on the other hand, the defendant Ajodhya, Prosad Sukul claimed against Narsingh Das Rs. 4,774-15-6. The defendant, however, did not produce his own account books, but relied upon the accounts produced by the ...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal210
Ghose and Pratt, JJ.1. The short point which arises in this appeal is whether the District Judge was justified in passing various orders which culminated in the deal order of the 11th. October 1901 and which is in these terms: 'The nearest relatives on the lists filed will be requested in their order of propinquity to take charge of the property. It will be first offered to Ajodhya Prosad Singh, who is the nearest relative admitted by both sides who has refer yet been objected to.' It appears dearly from the proceedings on the record and also from what has been stated by the Judge himself on the 18th January 1902, that Nageshwar Prosad Singh, has never yet been adjudged a lunatic, under Section 7 of Act XXXV of 1858, It is necessary for the Court to adjudge a person to be a lunatic within the meaning of Section 23 of that Act, before an order can be passed as to the management of his property and for the guardianship of his person. In the present case, such an adjudication, has not bee...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal214
Brett and Mitra, JJ.1. Harinath and Pranhari were two brothers joint in food, worship and estate, and governed by the Dayabhaga Sohool of Hindu Law. They were joint owners of various immoveable and moveable properties and had an ancestral money-lending business at Nattore. Harinath died first and the defendant Durganath is his only son. Durganath remained joint with his uncle Pranhari. The latter died on the 8th December 1901 sonless, leaving him surviving his widow, the plaintiff, and his nephew, the defendant. Under the Dayabhaga School of Law the widow succeeded as his sole heiress and legal representative.2. Shortly after the death of Pranhari there was a dispute between the parties with reference to an application to collect the debts due in respect of his share of the family property. This was in February 1902, and it was followed by the present suit for partition which was instituted on the 29th May 1902.3. The plaintiff originally claimed partition of some of the family propert...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal207
Ghose and Pratt, JJ.1. We think that the preliminary objection raised on behalf of the respondent, in this case must prevail, namely, that no appeal lies against the order of the Court below, rejecting the application of the judgment-debtor purporting to be one under Section 103, Code of Civil Procedure, for the purpose of reviving an application made under Section 311 of the Code which had been dismissed for non-appearance of the judgment-debtor. The Code does not provide an appeal against such an order. The question of the right of appeal in such a ease seems to have been considered in the cases of Ningappa v. Gangawa (1885) I.L.R. 10 Bom. 433 and Raja v. Sriniwasa (1888) I.L.R. 11 Mad. 319. In the first mentioned case, the principle underlying a decision of this Court in the case of Hurreenath Koondoo v. Modhoo Soodun Saha (1873) 19 W.R. 122 seems to have been approved of; and, following the views expressed in these cases, we hold that no appeal lies in this case. The appeal is acco...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal397
Brett and Pargiten, JJ.1. The plaintiff in the action out of which this appeal arises, claims to be the tenant under the Maharaja of Tipperah of 40 drones and odd of land in mouzah Sydabad which was originally bil land, and some of which is now under cultivation, but the rest is waste. The kabuliat executed by the plaintiff bears date the 9th Assar 1306 (Tipperah) which is equivalent to 1896-97. The defendants are the holders of several taluks in the Village, and it is said that they tried to obtain a settlement of the bil lands from the Maharaja and to have them included in their taluk, but failing to do so they commenced to cultivate the lands from Kartick to Poush 1306 (Tipperah), and resisted the plaintiff, when he attempted to obtain possession under his lease. He accordingly brought this suit to recover possession of these lands after declaration of his title.2. According to the plaintiff's case the lands in suit formed originally a part of the lakhiraj property of Mir Buddhan an...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal155
Francies W. Maclean, C.J.1. I rest my decision upon one circumstance, namely, that no objection having been taken in the first Court to the reception of the certified copy of the lease in question by the present respondent, the lower Appellate Court ought not to have allowed it to be taken in that Court. The first Court was satisfied that a case had been made out for the admission of this document as secondary evidence, and admitted it without objection by the present appellant, and the suit proceeded, the authorities in this court establish that, if no objection has been taken in the Court below, under such circumstances as the present the objection should not be allowed in the Appellate Court. If the case just cited to us, Kameshwar Pershad v. Amanutulla (1898) I.L.R. 26 Calc. 53, lays down an opposite view, with every respect I dissent.2. The case must go back with the intimation of our opinion that, under the circumstances, the certified copy of the Jesse in question was properly a...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal159
Francis W. Maclean, C.J.1. The Court below was right in holding that the Secretary of State for India in Council was a necessary party to the suit. It is a suit to set aside a sale effected under the provisions of the Public Demands Recovery Act (B.C.I. of 1895). under Section 8 of that Act, the Secretary of State for India in Council shall be deemed to be the decree holder, and in all cases therein mentioned, the person named in the certificate as debtor shall be deemed to be the judgment-debtor. The judgment-debtor brings this suit to set aside the. sale effected under that statute. It is the, long established practice of this Court in suits of this class to make the decree higher, who is deeply interested in the matter, a party to the suit. In the present case, as has been pointed out, the Secretary of State for India in Council must be regarded as the decree-holder, and I, therefore, think that he is a necessary party to the suit. In the case of Bal Mokoond Lall v. Jirjudhun Roy (1...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal183
Francis W. Maclean, C.J.1. I am afraid the defendant was ill advised in depositing the money in Court. There is no power enabling him to do so and no obligation on the plaintiff to take it out. There has been no valid tender to the plaintiff to take which the defendant owed to him, nor can I see under what authority the money was deposited in the Court of the Munsif of Diamond Harbour, or what power the Munsif had to issue through his officer a notice to the plaintiff of the payment in. The plaintiff in point of law was entitled to disregard such notice. I should have been glad to help the defendant if we could legally have done so, for if is a hard case, but I cannot find any principle upon which we can say that the plaintiff is not entitled to the money he claims.2. The appeal must be allowed, and the plaintiff must have a decree for his principal and interest at the stipulated rate up to the date of the suit. We allow no interest after the date of the suit.3. Under the circumstances...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal162
Francis W. Maclean, C.J.1. This is a suit upon a bond dated the 25th of February 1898 given to the District Judge of Dacca By that bond the defendant as surety undertook to produce a certain gentleman who had Med a petition for insolvency in that Court and we find these words in the bond: 'Accordingly I stand surety by executing this security bond do agree to produce the said judgment-debtor, Dwarka Nath Roy, when demanded by your Honour on the disposal of the said insolvency case, or before or after the same. If I fail to produce him upon demand by your Honour then I shall pay to the Empress of India a fine of Rs. 3,500.' Then there is added: 'Let it be stated that if upon demand by the Court I fail to produce the said Dwarka Nath Roy in Court, I shall pay the whole of the said amount of rupees three thousand and five hundred mentioned in this security bond. If I fail to pay the same, then the amount shall be realized from my moveable and immoveable properties and from my person.'2. T...
Tag this Judgment!Court : Kolkata
Reported in : (1904)ILR31Cal83
Rampini and Pargiter, JJ.1. The defendants in this case executed a mortgage bond in favour of the plaintiff on the 29th Magh, 1291 (10th February 1885) for a sum of Rs. 17,000 payable in 34 yearly instalments of Rs. 500 each. The terms of the bond were that if any instalment remained unpaid, then 'all the instalments were to be ineffectual' and 'the whole amount was to become due with interest at the rate of 1 per cent, per month after the first default of payment of the instalments.' It is admitted that the instalments were paid up to the Bengali year 1295. Then, a default took place. Only Rs. 300 were paid that year. Constant defaults were subsequently made. According to the plaintiff no further instalment was ever paid in full, but the defendants made payments to them partly on account of parts of the instalments and partly on account of the interest accruing at the rate of Rs. 1,764 per annum on the whole balance then due. These payments continued up to 1305, after which no payment...
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