Kolkata Court April 1909 Judgments
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Kissory Lal Chowdhury Vs. Raja Sewbux Bogla
Court: Kolkata
Decided on: Apr-05-1909
Reported in: 3Ind.Cas.999
Harington, A.C.J.1. The applicant desires the widow and executrix of the deceased defendant to be placed on the record of representing the deceased. The application is resisted on the ground that there is no pending suit-a decree having been made by consent of parties-and further the learned Counsel who opposes contends that the decree cannot be executed and that the parties are bound to have recourse to a suit to enforce his rights.2. It appears from the petition that, by the consent of the defendant, it was ordered that the suit should be withdrawn against the first defendant and that as against the other defendants the terms should be carried out and the property sold in case of default. One of the terms provided for a payment of Rs. 2,000 by the defendant whoop-poses this application to the plaintiff-applicant within 3 weeks of the date of the consent-decree and there is a provision that the same should be declared a charge on certain property mentioned in the decree and in case of...
Thamal Marap Vs. Rani Abhoyessuri Debi
Court: Kolkata
Decided on: Apr-05-1909
Reported in: 4Ind.Cas.12
1. In this case the opposite party obtained a decree against the petitioner under Section 52 of Bengal Act VIII of 1869 for arrears of rent and for ejectment if the arrears were not paid within 15 days. The petitioner appealed to the District Judge, During the pendency of the appeal the amount due under the decree of the Original Court was paid. Subsequently the appeal was dismissed with costs. These costs were not paid within 15 days from the date of the appellate decree, and the Opposite Party obtained an order from the Munsif in execution for the attachment of the petitioner's movable property and for his ejectment from the land in suit.2. The petitioner has obtained a rule from this Court on the opposite party to show cause why this order should not be set aside on the ground that the Munsif had no jurisdiction to pass orders for attachment and for ejectment simultaneously. There is no provision in Act VIII of 1869 which in so many words forbids the issue of these two orders simult...
Gopal Chandra Bhattacharya Vs. Secretary of State for India in Council
Court: Kolkata
Decided on: Apr-05-1909
Reported in: 1Ind.Cas.735
1. In this second appeal the plaintiff is the appellant, and he instituted the suit under the following circumstances:2. He is a contractor under the District Board of Chittagong and for some work done by him for the District Board he was given a cheque for Rs. 1,091-12-9 by the Vice-Chairman, on the 3rd April, 1905. The District Board funds are kept in the Government Treasury at Chittagong. The plaintiff went to the Treasury for the money covered by the cheque. Defendant No. 2 was the head poddar in the Treasury and defendant No. 3 was a mohurrir there. It appears that the cheque was passed by the Accountant on its presentation by the plaintiff and it was then presented by him to the Treasurer who after obtaining the necessary orders of the Treasury Officer made it over to defendant No. 3, who in his turn, took plaintiff's signature in a receipt book in anticipation of payment and told him to apply a little later to defendant No. 2 for the money. The plaintiff says that a little after...
Baranagore Jute Factory Co. Ltd. Vs. Rajkumar Rai
Court: Kolkata
Decided on: Apr-05-1909
Reported in: 1Ind.Cas.785
1. This is a second appeal from an order of the District Judge of the 24-Pergunnahs in a matter of resistance to execution. This appeal was registered on 9th May 1908. As there was a question whether an appeal lay the appellants on 6th April 1908 ex majori cautela applied for and obtained a rule nisi under Section 622 of the C.P.C. of 1882, calling on the opposite party to show cause why the order of the District Judge should not be set aside. It was ordered that the rule should be brought on for disposal along with the appeal. The acts are not in dispute. Raj Kumar Rai, the respondent, had sued Akhoy Kumar Ghosh and Kali Charan Banerjee in ejectment and obtained a decree. On 4th December 1906 he applied for execution by delivery to him of possession of a piece of land. A writ issued and on 2nd January 1907 the peon deputed to serve the writ reported that resistance to execution had been mad on behalf of the Baranagore Jute Factory Co. Ld., the appellants, who claimed the land. The res...
Khatajan Bewa Vs. Aswini Mohan Ghose and ors.
Court: Kolkata
Decided on: Apr-05-1909
Reported in: 2Ind.Cas.72
Mookerjee, J.1. These are appeals on behalf of the defendants in four suits for ejectment, brought by the plaintiffs-respondents upon the allegation that they were the landlords of the disputed lands. The Court of first instance dismissed the suits. Upon appeal the Subordinate Judge has decreed them. It appears that on the 21st December 1886 the pre-decessor-in-interest of the plaintiffs and one Doulatunnesa purchased about 242 bighas of land within which the disputed lands are situate, from the Nathpore Indigo Company. One of the points in controversy between the parties is as to the precise interest in the land which was conveyed by this deed. More than three years afterwards Doulatunnesa took three kabuliats from Pattan Mithu and Pocha, on the 17th June 1890, in respect of 15 cottahs, 12 1/2 pakhis and 19 pakhis of the land. The precise nature of the rights created in the defendant by these kebuliat is another point in controversy between the parties. In suit No. 255 the plaintiffs ...
Kamla Sahai Vs. Babu Nandan Mian and anr.
Court: Kolkata
Decided on: Apr-05-1909
Reported in: 2Ind.Cas.13
1. This is an appeal on behalf of the plaintiff in an action to enforce a mortgage bond which was executed by the first defendant in favour of the second defendant on the 18th June 1897. On the 25th September 1905 the second defendant transferred to the plaintiff his rights under-the mortgage security. The first defendant resisted the claim on the ground that there was nothing due on the bond, as after the. execution of the mortgage he had placed the mortgagee in possession of the mortgaged premises under an agreement by which the mortgagee was to continue in possession for seven years and to receive the profits in full satisfaction of his dues under the mortgage. The Courts below have concurrently found in favour of the reality of this transaction.. But it has been contended before us on behalf of the appellant that the subsequent arrangement by which the mortgagee was placed in possession and was authorised to receive the profits in satisfaction of his dues under the mortgage cannot ...
Bhola Nath Saha Vs. Krishna Lal Saha
Court: Kolkata
Decided on: Apr-04-1909
Reported in: 1Ind.Cas.592
1. This appeal is preferred against the decision of the Sub-Judge of Hooghly reversing the decision of the Munsif who had dismissed the suit and passing a decree in favour of the plaintiff for Rs. 100 and costs. A preliminary objection is taken that no second appeal lies, the suit being cognizable by a Small Cause Court. The plaintiff sued to recover the sum of Rs. 500 and so far as the amount is conceived there is no doubt that the Small Cause Court would have jurisdiction to entertain the suit. It was argued for the appellant that the nature of the claim excluded the jurisdiction. Section 15 of the Provincial Small Cause Courts Act 1887 empowers a Small Cause Court to try all suits of a civil nature, of which the value does not exceed Rs. 500, except those specified in Second Schedule. It is necessary, therefore, in order to oust the jurisdiction of the Small Cause Court that the suit should fall within that category. The real nature of the suit must be ascertained from the plaint. W...
Kanai Prosad Bose Vs. Jotindra Kumar Roy Chowdhury
Court: Kolkata
Decided on: Apr-02-1909
Reported in: (1909)ILR36Cal626
Sharfuddin and Coxe, JJ.1. This was a suit for accounts by the zemindar against his tehsildar and one Kanai Prosad Bose, who stood surety for the due performance of the tehsildars' duties. The Courts below have decreed the suit and the surety appeals. The ground of the appeal is that, as the contract between the zemindars and the tehsildar was varied, the surety was discharged from liability by Section 133 of the Con tract Act. The terms of the contract to which reference has been made are as follows: 'As long as I do not make over the tehsil in my jimba on clearing my nikash of any year to your satisfaction, I will not be able to take up the work of realizations and collections from the said mehals for the following year.' It is said that the tehsildar did not render accounts for the year 1308, but notwithstanding that omission continued to realize rent for 1309. We do not think that this amounted to a variation of the contract. The breach of a contract is not a variation of it. Under...
Indian General Navigation and Ry. Co. Ld. Vs. Nanda Lal Banik and ors.
Court: Kolkata
Decided on: Apr-02-1909
Reported in: 3Ind.Cas.469
1. This is an application under Section 25 of the Provincial Small. Cause Courts Act. Two points have been taken before us by the learned pleader for the petitioners bat the only point that we need consider is whether the suit is barred by the law of limitation. The suit was for compensation for the failure to deliver certain bags of flour and suji. The bill of lading for the goods was dated the 12th November 1906 and it is contended that, in ordinary course, the goods would have arrived at their destination within a month or six weeks after that date. The suit was filed on the 14th July 1908, considerably more than a year from the date when the goods ought to have been delivered. The question is whether Article 31 or Article 115 of second schedule of the Limitation Act applies to this case. There were decisions regarding Articles 30 and 31 which held that these articles applied only to questions of tort and Article 31 as originally worded applied only to a suit for compensation for de...
Kanai Prosad Basu Vs. Jatindra Kumar Roy Chowdhury and anr.
Court: Kolkata
Decided on: Apr-02-1909
Reported in: 1Ind.Cas.715
1. This was a suit for accounts by the zamindar against the Tahsildar and one Kanai Prosad Basu, who stood surety for the due performance of the Tahsildar's duties. The Courts below have decreed the suit and the surety appeals The ground of the appeal is that as the contract between the zamindar and the Tahsildar was varied, the surety was discharged from liability by Section 133 of the Contract Act. The terms of the contract to which reference has been made are as follows:'As long as 1 do not make over the tahsil in my jimba on clearing my nikash of any year to your satisfaction, I will not be able to take up the work of realizations and collections from the said mahals for the following year.' It is said that the Tahsildar did not render accounts for the year 1308; but notwithstanding that omission continued to realize rent for 1309. We do not think that this amounted to a variation of the contract. The breach of a contract is not a variation of it. Under the contract it was stipulat...
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