Court : Kolkata
Reported in : (1906)ILR33Cal283
Pratt and Bodilly, JJ.1. The decree-holder, who was a co-sharer landlord, having obtained a decree for rent, brought to sale the holding of the judgment-debtor, and it was purchased by a third party. The judgment debtor applied to have the sale set aside on the ground that the decree-holder had a subsisting mortgage of a portion of the holding, and was precluded by Section 99 of the Transfer of Property Act from causing the sale of the holding, except by a suit under Section 67 This contention was upheld by both the lower Courts and the sale was set aside. The auction-purchaser appeals, and on his behalf it is contended(1) that a mortgage of only a portion of the property would not have the effect of making void the sale of the whole, especially as the mortgagor did not object when the sale was proclaimed,(2) that the sale could not be set aside in execution proceedings under Section 244 of the Civil Procedure Code.2. It has been held by this Court in Sheodeni Tewari v. Ram Saran Sing ...
Tag this Judgment!Court : Kolkata
Reported in : (1906)ILR33Cal295
Rampini, J.1. This is a Rule to show cause why the conviction and sentence passed on the accused should not be get aside.2. The petitioners are three out of seven accused persons tried for and convicted of the offence of rioting, under Section 147 of the Indian Penal Code, by the Subdivisional Magistrate of Magura.3. The facts are that some time ago there was a Section 145 case about the possession of chur Attock between Asutosh Goswami on the one side and some of the accused on the other. The complainant Arshad supported his landlord. The Magistrate found chur Attock to be in the possession of the accused, but directed that Arshad should continue in possession of his homestead, which he was found to have occupied for more than two months before the date of the institution of the Section 145 case. Arshad, according to the Subdivisional Magistrate of Magura, began to. encroach upon the land adjoining his homestead. He filled up a ditch between his bari and that of his brother Abed, and ...
Tag this Judgment!Court : Kolkata
Reported in : (1906)ILR33Cal1175
Sale, J.1. The question in this application is whether the applicants, who are the attaching creditors of the shares of certain of the co-parceners of the joint estate are entitled to priority over a mortgage executed pending the partition suit under an order made in that suit by this Court dated the 5th May 1902.2. The applicants have in their respective suits obtained decrees for payment of moneys due to them from their judgment-debtors. These decrees were made prior to the order directing the Receiver to borrow money on mortgage of the joint estate, but the attachments effected under these decrees are of a date subsequent to that of the order directing a mortgage by the Receiver. The mortgage was executed on the 11th May 1903, that is to say after the attachments had been made. The attachments were made in the ordinary course by prohibitory order served on the Receiver of the joint estate directing him not to part with the money or property appertaining to the shares of the judgment...
Tag this Judgment!Court : Kolkata
Reported in : (1906)ILR33Cal462
Henderson and Geidt, JJ.1. In 1854 Lakhan Acharjee Goswami granted a putni lease, dated the 30th Falgun, of mauza Alutia consisting of upwards of 500 bighas along with three other mauzas, to the defendant Krishna Kanji, through whom the Malia defendants, the appellants, claim. According to the kabuliyat (for the patta is not forthcoming) the coal and mineral rights and the surface of such of the lands in the mauzas as are coal-bearing were excepted from the grant. The translation in the paper book of the clause in the kabuliyat containing the exception is not quite accurate, but the translation by one of the sworn Interpreters of this Court, which is admitted to be correct, is as follows:Within the said lot such places where there are or shall be in existence coals, coal-pits, minerals, in land or water are reserved under your khas control. The same shall have no concern with me, the lessee.2. Up to that time there had been no working for coal in the mauzaand the existence of coal in t...
Tag this Judgment!Court : Kolkata
Reported in : (1906)ILR33Cal410
Francis W. Maclean, E.C.I.E., C.J.1. These are appeals from the decision of the Subordinate Judge of Murshidabad. The plaintiffs' claim, put shortly, is one to realize an equitable sub-mortgage, which they allege was created in their favour on the 3rd June 1893 (the terms of the agreement appearing in a letter of the 19th June 1893) by one Dhanpat Singh for a sum of Rs. 70,000, of which apparently a considerable amount has been paid off, as the present claim is for a sum of Rs. 27,000 only.2. The facts of the case, which are substantilly are these: the first four defendants, or at any rate their predecessors in title, the original mortgagors, whom I will call the Roys some time before June 1893, mortgaged for a large amount by three mortgages, property of considerable value in favour of Dhanpat Singh.3. On the 3rd June 1893, Dhanpat Singh deposited those mortgages by way, as is, alleged by the plaintiffs, of equitable sub-mortgage to secure the sum I have mentioned, and on the 19th Jun...
Tag this Judgment!Court : Kolkata
Reported in : (1906)ILR33Cal329
Ghose and Geidt, JJ.1. This is an appeal by the decree-holder against an order of the Subordinate Judge of Kajshahi determining the amount of mesne profits due by the judgment-debtors with interest thereupon. The facts of this case are set out in the judgment that we delivered on the 8th August 1902, at an earlier stage of the proceedings. It will be found that a decree was pronounced in January 1884, in favour of the decree-holder for recovery of possession of various immoveable properties with mesne profits during the period of dispossession, the amount of such mesno profits being left for determination in execution of the decree. The judgment-debtors were Raja Sasi Sekhareswar Roy, Kumar Kasiswar Roy, Kumar Biseswar Roy and Kumar Tarakeswar Roy. In the course of the suit which came up before this Court in appeal, it appears, upon the record of this case, that there was a compromise between the decree-holder, on the one hand, and Kumar Kasiswar, who was apparently in possession of a ...
Tag this Judgment!Court : Kolkata
Reported in : (1906)ILR33Cal33
Rampini and Mookerjee, JJ.1. This is a Rule issued by this Court under Section 15 of the Charter Act upon an application made by the petitioner, who was the first party to a proceeding under Section 145 of the Criminal Procedure Code, calling upon the District Magistrate of Faridpore to show cause why an order under Section 146 of the Code should not be set aside. It appears that on the 2nd October 1904 the Sub-Inspector of Police of Shibchur submitted a report to the Deputy Magistrate of Madaripur that a dispute likely to cause a breach of the peace existed concerning a large tract of newly-formed chur land lying within his jurisdiction. On the 7th October the Magistrate drew up a proceeding under Section 145 of the Criminal Procedure Code, and as the case appeared to him to be one of emergency, he also directed the attachment of the subject-matter of dispute pending his decision under the section. The procedure laid down in the section was followed, and after a full inquiry into the ...
Tag this Judgment!Court : Kolkata
Reported in : (1906)ILR33Cal68
Francis William Maclean, K.C.I.E., C.J.1. The questions submitted to us is 'whether the omission to publish a notice under Section 145(3) of the Code of Criminal Procedure, at some conspicuous place at or near the subject of dispute, is an illegality which deprives the Magistrate of his jurisdiction.'2. The question has been elaborately dealt with by the Refer-ring Judges in the Reference, and, as we concur in the main in their reasoning and in their conclusion, we do not think it necessary to deal with the matter at any great length. The power of interference, which we possess in relation to cases under Section 145 of the Code of Criminal Procedure is only under Section 15 of the Charter Act, which, in giving this Court a general power of superintendence over the Subordinate Courts, vests in it a power somewhat analogous to that of the King's Bench Division in the Supreme Court in England to interfere by mandamus, and in our opinion the power, which is' discretionary, ought in relatio...
Tag this Judgment!Court : Kolkata
Reported in : 15Ind.Cas.909
1. The suit out of which this appeal arises is one brought to have it, declared that the Municipal tax imposed on a certain building is illegal and also for a refund of the amount realized from the plaintiff as municipal and latrine taxes.2. The facts of the case are these. The plaintiff is the naib of the Maharaja of Mymensingh, and, as such, occupies a small house adjoining, the kacheri of the Maharaja. The Municipality have assessed him with municipal taxes on the ground that the house in which he resides and its site form a separate holding from the kacheri house belonging to the Maharaja, on which a separate assessment has been made.3. The learned Subordinate Judge has come to the conclusion, first, that the house occupied by the plaintiff and the kacheri house are one holding, and secondly, that the plaintiff is not the occupier of the house in which he resides within the meaning of Section 85 of the Municipal Act, but that the occupier is the Maharaja of Mymensinh. For these rea...
Tag this Judgment!Court : Kolkata
Reported in : (1906)ILR33Cal30
Rampini and Mookerjee, JJ.1. This is a Rule calling upon the District Magistrate to show cause why his order sanctioning (ho prosecution of the applicant, under Section 211 of the Indian Tonal Code, and the order of the Deputy Magistrate, committing the applicant to the Court of Sessions for trial, should not be sot aside.2. The facts of the case are those. The applicant made a complaint of arson before the police. His case was reported false by them. The District Magistrate then ordered an inquiry by the Deputy Magistrate. The Deputy Magistrate, after making an inquiry, also considered the complaint to be false. The case then came before the District Magistrate, who passed final orders on the police report, namely, 'Enter false, Section 436 of the Indian Penal Code. Prosecution under Section 211 of the Indian Penal Code sanctioned. To Babu M. N. Mukerjee for trial,' The Deputy Magistrate, after examining the witnesses in support of the prosecution, committed the applicant to the Sessi...
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