Kolkata Court April 1906 Judgments
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Janokey Nath Guha Vs. Brojo Lal Guha
Court: Kolkata
Decided on: Apr-07-1906
Reported in: (1906)ILR33Cal757
Francis W. Maclean, K.C.I.E., C.J.1. The question submitted is 'Does an appeal lie from an order passed under Section 526 of the Code directing the filing of an award made on a submission to arbitration without the intervention of a Court of Justice?2. The answer depends upon the construction of Sections 526 and 522 of the Code of Civil Procedure.3. It is clear upon the authorities that prima facie an appeal does lie from such an order: see the Full Bench case in this Court of Mahomed Wahiduddin v. Hakiman (1898) I.L.R. 25 Calc. 757, the Full Bench case in the Madras High Court of Ponnusami Mudali v. Mandi Sundara Mudali (1903) I.L.R. 27 Mad. 255, and the following observations of the Judicial Committee in the case of Ghulam Khan v. Muhammad Hassan (1901) I.L.R, 29 Cale. 167, 183: 'In cases falling under Heads II and III, the provisions relating to cases under Head I are to be observed so far as applicable. But there is this difference, which does not seem to have been always kept in v...
Mathewson Vs. Shyam Sunder Sinha
Court: Kolkata
Decided on: Apr-06-1906
Reported in: (1906)ILR33Cal786
Francis W. Maclean, K.C.I.E., C.J.1. Defendant No. 2 was the hikim of Pergunnah Barabhum. Defendant No. 1, H. Mathewson, held certain mauzas as a mortgagee in possession under defendant No. 2. The latter ceased to be the hikim from the 7th of Sraban 1307, and the plaintiff became the hikim from that date and took possession of the mauzas by ousting Mr. Mathewson.2. The plaintiffs case is that before the 7th of Sraban 1307 defendant No. 1 collected from the tenants of the entire rent for the Fusli year 1307, and he brought this suit for a refund of the rent of 55 days from. the 7th of Sraban to he end of the Fusli year 1307. The question is whether he can recover it. The First Court held that he could not. The Lower Appellate Court has held that he could.3. The Lower Appellate Court has proceeded upon the principle that the rent could be apportioned. But having regard to sub section(d)of Section 2 of the Transfer of Property Act, Section 36 of that Act, which is the only statutory provi...
Jamini Nath Roy Vs. Dharma Das Sur
Court: Kolkata
Decided on: Apr-06-1906
Reported in: (1906)ILR33Cal857
Francis W. Maclean, K.C.I.E., C.J.1. This suit has already entered upon its tenth, year, and has not yet been decided- So for as is material for the purpose of our decision today, I may usefully take the facts as appear in the judgment of this Court, dated the 9th of May 1902. It appears from that statement that one Jamini Nath Roy brought 'a suit against Dharma Das Sur and others for money, and before judgment attached a sum of money belonging to the defendants, which was in the hands of the Executive Engineer. The plaintiff obtained a decree, and in execution, withdrew a sum of about Rs. 2,300 of the attached money. Subsequently that decree was reversed with costs, on appeal to the High Court. The original defendants, the Surs, assigned that decree to the present respondent, Debi Prasad Agarwalla, who applied to the Subordinate Judge of the 24-Parganas for execution of the same, and for restitution of the said sum of Rs. 2,300. In that state of facts the only question for our conside...
Shibu Bera Vs. Chandra Mohan Jana
Court: Kolkata
Decided on: Apr-05-1906
Reported in: (1906)ILR33Cal849
Francis W. Maclean, K.C.I.E., C.J.1. This is a suit to realize a mortgage.2. It appears that the same plaintiff instituted a previous suit to realize the tame mortgage. It is clear that he sought by that previous suit to recover his mortgage debt by the sale of the mortgaged property : that is found as a fact by both Courts. A decree was made in that suit on the 30th of July 1902. Apparently it was a consent decree. By that decree, the defendant, the mortgagor, was to pay the mortgage money by certain instalments, and, if he failed to pay one instalment, the whole amount remaining due was at once recoverable. Nothing was said about selling the property in the event of default of payment. The plaintiff apparently has not been paid. He now institutes this suit to have the property sold. The question is whether, in the face of the decree in the previous suit, he can do so. The Munsif held that he cannot, and the Subordinate Judge has held that he can.3. Apart from authority, I should have...
Gobind Sahai Vs. Sibdut Ram
Court: Kolkata
Decided on: Apr-04-1906
Reported in: (1906)ILR33Cal878
Francis William Maclean, K.C.I.E., C.J.1. This seems to me to be a very simple case. The suit is one to enforce a mortgage. The property mortgaged was property No. 2. That was sold under a decree in a rent rait. After paying off the arrears or rent there was a surplus of sale proceeds amounting to 400 to 500 rupees. The mortgagee says that his security covers those proceeds of sale, which now stand in the place of property No. 2, which has been sold, and that he is entitled to treat that as part of his security, and he relies upon Section 78 of the Transfer of Property Act.2. It is not apparent, and I do not see that it makes any difference, whether under the decree in the rent suit the property was put up for sale with power to the purchaser to avoid encumbrances or not. Under the provisions of Section 73 of the Transfer of Property Act, the plaintiff has a charge on the surplus sale proceeds, and I do not think that Sections 159, 161 to 167 of the Bengal Tenancy Act can in any way pr...
Rasik Lal Datta Vs. Bidhumukhi Dasi
Court: Kolkata
Decided on: Apr-03-1906
Reported in: (1906)ILR33Cal1094
Rampini, J.1. The plaintiff is a lunatic and is represented by her husband as her next friend. She has obtained a decree for khas possession against the defendants.2. The defendants 2 to 4 appeal.3. The pleas taken on their behalf are--(1) That as the plaintiff has not been adjudged a lunatic under any law she cannot sue by her husband as next friend; (2) that the Lower Court has not decided the question whether the lands of the appellants constitute a tenure or a holding; and (3) that as they are mortgagees in possession, the plaintiff cannot eject them.4. In support of the first plea, reliance is placed on the terms of Section 463. But the rulings of the Allahabad, Bombay, and Madras High Courts in Nabbu Khan v. Sita(1897) I.L.R. 20 All. 2, Pran Sukhram Dinanath v. Bai Ladkor (1809) I.L.R. 23 Bom. 653 and Kadala Reddi v. Naris (1901) I.L.R. 24 Mad. 504, show that the provisions of Section 463 are not exhaustive and that a lunatic may sue through a next friend, even though not adjudge...
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