Kolkata Court December 1909 Judgments
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Mazzem HosseIn Mondal and anr. Vs. Sarat Kumari Debi
Court: Kolkata
Decided on: Dec-14-1909
Reported in: 5Ind.Cas.89
1. The substantial question of law argued in this appeal is, whether or not an application presented on the 11th January 1903 for execution of a mortgage-decree made on the 31st July 1895 is barred by limitation. The Courts below have can currently held that it is not open to the judgment-debtors to take exception to the application on the ground of limitation, inasmuch as they did not urge any such objection to the grant of a previous application in the execution proceedings, made within the immediately preceding three years on the 29th May 1907. To test the validity of this position, it is necessary to refer in detail to the material facts which are not disputed and which are indeed all matters of record.2. The mortgage decree which was made on the 31st July 1895 directed a sale of the mortgaged properties in the first instance, to be followed, if the sum realised proved insufficient to satisfy the judgment-debt, by a sale of the other properties of the debtor; in other words, it emb...
Rowland Hudson Vs. Mahabir Tewari and anr.
Court: Kolkata
Decided on: Dec-14-1909
Reported in: 5Ind.Cas.133
Harington, J.1. This is an appeal on behalf of the plaintiff in a suit which was brought for rent. The point taken on behalf of the appellant is that there is an entry in the record-of-rights made by the Settlement Officer fixing the rents after he had decided a dispute between the parties raider Section 106 of the old Bengal Tenancy Act, that is to say, under Act VIII of 1885 as amended by Act III of 898. The appellant in. support of the proposition that decision by the Revenue Officer amount's to a decree operating as res judicata With respect to the present dispute between the parties relies on the case of Gokhul Sahu v. Jadu Nundun Roy 17 C. 721. In that case the Revenue Officer acting under Section 106 of the Bengal Tenancy Act had decided a dispute and had determined that, a particular land was mal land and liable to pay rent. The respondents have relied upon a Fall Bench decision in the case of the Secretary of State for India v. Nitye Singh 21 C. 38, and two other analogous cas...
Jawala Prasad and ors. Vs. Munna Lal Serowjee
Court: Kolkata
Decided on: Dec-14-1909
Reported in: 5Ind.Cas.1000
Lawrence Jenkins, C.J.1. This appeal arises out of a suit brought by the plaintiff to establish his exclusive right to a mark, with consequential relief. The plaintiff is one Munna Lall Serowjee, who carries on business in Calcutta as a ghee merchant in the name, style and firm of Munna Lall Dwarkadas. The defendants are Jawala Prasad, Mawaram and Copal Das, who carry on business as dealers in ghee under the name and style of Jawala Prasad Mawaram and Buktear Mai Mody, who carries on business in Calcutta as a dealer and commission agent in ghee. Since the institution of this appeal one of the defendants has died, and Mr. Mitter, the appeared on his behalf, has dropped the appeal so far as he is concerned.2. It is alleged in the plaint, and established by the evidence, that for a considerable time, that is to say for twelve years, the plaintiff's ghee has been sold in Calcutta and foreign markets, tinned in canisters bearing his embossed mark, which consists of a flower on a stem with l...
Bhajahari Maiti Vs. Gajendra NaraIn Maiti
Court: Kolkata
Decided on: Dec-10-1909
Reported in: (1910)ILR37Cal282
Brett and Sharfuddin, JJ.1. The present appeal is against an order of the District Judge of Midnapore setting aside on appeal an order passed by the Munsif, first Court, of Contai, on an application made by the present appellants in a proceeding in execution of a decree on a mortgage bond obtained by a second mortgagee. It appears that the respondent, who was the second mortgagee, brought a suit on his mortgage, making the present appellants, who are alleged to be the transferees of the prior mortgagee, parties defendants. A decree was obtained by the respondent, and execution was sought by sale of the mortgaged property. The appellants applied to be allowed to deposit the full amount of the mortgage-debt in payment of the decree and so to save the property from sale. They alleged that they had purchased the entire rights of the mortgagor in the mortgaged property, and they claimed, as such purchasers, to be entitled to pay off the full mortgage-debt due to the decree-holder. The Court...
Kumar Sattya Priya Ghoshal and anr. Vs. Gobinda Mohun Roy Chowdury and ...
Court: Kolkata
Decided on: Dec-10-1909
Reported in: 5Ind.Cas.110
1. This is an appeal by the defendant No. 1, Satya Priya Ghosal, minor son of Satyanga Ghosal, who was one of the five sons of Satya Krishna Ghosal, at whose death, his widow Soudamini became possessed of the one-fifth share of her deceased minor son; Satya Kanti Ghosal. Two of the other sons sold, each a one-fifth share, and Saudamini purchased the same, namely, from Satya Bhusan (defendant No. 2) and Satyeswar Ghosal. The remaining son, Satiyajit Ghosal, is the defendant No. 3 in this litigation. This appeal relates to a five annas fifteen gundas share of pargana Selimabad.2. On the death of Saudamini, which took place in December 1898, her estate came to be represented by the defendant No. 4, Noba Gopal Mukherjee, as executor; but this gentleman was also an agent to manage the entire property, that is, the four annas share, each, of the defendants Nos. 1 and 3, and the 16 gundas share, each of Apoorba Coomari, widow of Satyeswar Ghosal, and Satya Bhusan Ghosal. It is clear, therefor...
Bhojohari Maiti and anr. Vs. Gajendra NaraIn Maiti
Court: Kolkata
Decided on: Dec-10-1909
Reported in: 5Ind.Cas.142
1. The present appeal is against an order of the District Judge of Midnapur, setting aside on appeal an order passed by the Munsif first Court, of Contain in an application made by the present, appellants in a proceeding in execution of a decree on a mortgage bond obtained by a second mortgagee. It appears that the. respondent who was the second mortgagee brought a suit on his mortgage making the present appellants, the are alleged to be the transferees of the prior mortgagee, parties defendants. A decree was obtained by the respondent, and execution was sought by sale of the mortgage property. The appellants applied to be allowed to deposit the full amount of the mortgage debt in payment of the decree and so to save the property from sale. They alleged that they had purchased the entire rights of the mortgagor in the mortgaged property and they claimed as such purchases to be entitled to pay off the full mortgage, debt due to the decree-holder. The Court of first instance held that, t...
Raghunandan Lal and ors. Vs. Rajendra Prosad NaraIn Singh
Court: Kolkata
Decided on: Dec-10-1909
Reported in: 5Ind.Cas.342
1. A suit for the setting aside of a sale was decreed by the first Court and the decree directed that the defendants do pay costs of the plaintiffs amounting to Rs. 909 odd. The ordering part of the decree made no mention of the costs of the defendants who had appeared by separate vakalatnama is and filed separate defences; at the bottom of the ordering part, however, the costs of the several defendants were recorded separately each being credited with the full pleader's fee of Rs. 700; the defendants preferred one appeal to this Court and the decree of the first Court was reversed and the plaintiff-respondent was directed to pay to the defendants-appellants the costs of the appeal, the details and amount of which was given, and 'the costs incurred by them (the defendants) in the lower Court' without stating the amount thereof. The defendants applied for the execution of their decree and prayed for the realization of the costs of the High Court and the sum total of the costs named agai...
Musammat Rani Bisseswari Koer Vs. Ram Protap Singh and ors.
Court: Kolkata
Decided on: Dec-09-1909
Reported in: 4Ind.Cas.547
Harington, J.1. This is an appeal by the plaintiff against a decision of the District Judge of Durbhanga, reversing a decision of the Subordinate Judge. The action was brought for a declaration of title to 27 bighas 2 cottas and 13 dhoors, the boundaries being given in the plaint and for a declaration that the plaintiff is in possession of the same through the defendant, second party, who is a tenant on the land. This suit was decided in favour of the plaintiff by the Court of first instance but on appeal that decision was reversed and the suit was dismissed. The allegation of fact that the plaintiff made was that she was the proprietor of Raspur Patasia, that the land in question was a parcel of the estate of which she was proprietor. The defendant on the other hand was proprietor of Chanpatha and he alleged that the land lay within his estate. There had been a survey under the provisions of Act V of 1875 and by an order made on the 7th January 1901, the boundary line had been maintai...
Gangadhar Sharan Vs. Ram Prosad Sahu
Court: Kolkata
Decided on: Dec-09-1909
Reported in: 5Ind.Cas.26
1. This is an appeal in a mortgage suit in which a decree has been passed in favour of the plaintiff mortgagee. The plaintiff mortgagee was tenant of two rooms of which the mortgagor was the landlord and the Mortgagor let the rooms to him at a rental of Rs. 36 per year. The mortgagee tenant then lent money to the mortgagor landlord on the security of these rooms and charged interest on his loan at the rate of Rs. 18 per year. It was agreed between the parties that the mortgagee, instead of paying, the whole of the amount of Rs. 36 a year, should retain in his hands Rs. 18 a year which the mortgagor was liable to pay in respect of interest on his mortgage. The mortgagor landlord says that for some years the mortgagee retained the whole of the amount of Rs. 36 in his hands and paid no rent at all and when an account is taken as to what is due on the mortgage, he ought to be allowed a set off, as against the debt due to the mortgagee, on account of the rent which the mortgagee would have ...
Sharif-un-nessa Chowdhurani Vs. Sasadhar Moulik and ors.
Court: Kolkata
Decided on: Dec-09-1909
Reported in: 5Ind.Cas.781
1. These are second appeals in suits to recover rents for two periods. Appeals Nos. 1141 to 1158 refer to the years 1309 to 1312, and Appeals Nos. 32 and 119 to 131 refer to the Ashar kist of 1313.2. With reference to the suits out of which these appeals have arisen, the Court of first instance observed that the presumption of Section 103(B) of the Bengal Tenancy Act had been rebutted by the decrees produced by the defendants; and, in dismissing the appeals in these suits, the lower appellate Court states 'the defendants have filed copies of the decrees obtained by the plaintiff in 1901 which is much later than the date on which the said khatian was prepared. The plaintiff has been given decrees according to the decrees obtained by her in 1901'.3. It is a fact that the record-of-rights under the Bengal Tenancy Act, in respect of the lands in suit, was published on the 31st December 1898. Consequently the decrees in the rent suit of 1901, were subsequent to that date, and the khatian ou...
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