Kolkata Court March 1910 Judgments
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Sheikh Ekhar Ali Vs. Anu Manjhi and ors.
Court: Kolkata
Decided on: Mar-09-1910
Reported in: 6Ind.Cas.46
Chatterjee, J.1. Upon a close reading of the plaint in this case, there does not seem to be any doubt that the plaintiff had a cause of action. The plaintiff says that contiguous to his land, or rather between his land and that of Arjan Bibi, there is a piece of land which is his own private land, that upon this the defendants in common with other people are asserting the existence of a public right of way, that the defendants initiated proceedings under Section 133, Criminal Procedure Code, and, that there was an inspection by a jury of this land and that in consequence of the assertion of this right, there has been an order of the Magistrate upon him to remove certain structure which the Magistrate found to be obstruction upon the alleged public right of way, claiming, as the plaintiff does, a private right upon the land over which a public right of way is claimed and thinking that a cloud has been thrown upon his title by the proceedings under Section 133, Criminal Procedure Code, t...
Mrinalini Chowdhurani Vs. Benode Chandra Mitra
Court: Kolkata
Decided on: Mar-09-1910
Reported in: 6Ind.Cas.148
1. This appeal, which has been preferred by the judgment-debtors, is directed against two orders made by the Court below, one under Section 312 of the Code of 1882, confirming an execution sale and the other under Section 103 read with Section 647 refusing to vacate an ex parte order of dismissal of an application to set aside that sale under Section 311 of the Code.2. The learned Vakil for the respondent, decree-holder auction-purchaser, has taken a preliminary objection to the hearing of the appeal on the ground that it is incompetent. In so far as the appeal is directed against the order confirming the sale under Section 312, it has been argued that as the application to set aside the sale was dismissed for default, it cannot be said to have been disallowed within the meaning of Section 312, and consequently the order of confirmation is not appealable under Clause 16 of Section 588. In our opinion this contention is not well-founded. Clause 16 of Section 588 provides that an order f...
Madhab Chandra Bara Vs. Rani Sarat Kumari Debi and ors.
Court: Kolkata
Decided on: Mar-09-1910
Reported in: 6Ind.Cas.26
1. The suit out of which this appeal arises was brought by the plaintiff-appellant for a declaration of his right to 1,451 bighas of land being a (sic) of 3,000 less 98 bighas covered by mourn Krishnanagar.2. The plaintiff originally brought a suit against Raja Bhupendra Narain Chowdhury, the husband of the defendant No. 1, Rani Sarat Kumari Debi, to recover a debt. On the 28th July 1898, a decree was given by consent and, on the 16th December 1902, amongst others the property in suit, namely, a half share of Raja Bhupendra Narain Chowdhury in the 3,000 less 98 bighas of land included in mouza Krishnanagar. was sold, after attachment, in execution of the decree and purchased by the plaintiff. On the 7th January 1903, Bhupendra Narain Chowdhury made an application under Sections 311 and 244, Civil Procedure Code, to have the sale set aside pn the ground of irregularity and consequential loss. On the 7th March 1903, that application was rejected and on the same day, the sale was confirme...
Hari Charan De Vs. Hari Charan Datta Poddar
Court: Kolkata
Decided on: Mar-09-1910
Reported in: 6Ind.Cas.43
1. Two points have been urged in this appeal, first that the application for execution of the decree is barred by limitation; and secondly, that the judgment-debtor is entitled to credit for various payments made from time to time. The decree which is now sought to be executed was made in a mortgage-suit on the 21st September 1901 and was subsequently made absolute on the 21st February 1902. On the 11th August 1902, the decree-holder made an application in which he acknowledged the payment of two sums of money and alleged that as the judgment-debtor had agreed to pay this amount under an arrangement, it was not necessary to proceed with the execution. Upon his prayer, execution was dismissed on the day following. The second application for execution was made on the 19th July 1905. This was dismissed on the 10th August inasmuch as service of notice upon the judgment-debtor was not proved. A third application for execution was made on the 20th November 1907 and notice was served upon the...
Radhika Mohun Shaha and ors. Vs. Gyan Chandra Shaha
Court: Kolkata
Decided on: Mar-09-1910
Reported in: 6Ind.Cas.120
1. We are invited in this Rule to set aside an order made by the Court below by which execution has been directed to proceed on the basis of a decree in a suit for partition of joint property. The opposite party before us obtained a decree in a suit for partition. When he attempted to obtain delivery of possession of his allotment, he was resisted by the petitioners. The result was that he made an application to the Court under Order 21, Rule 97, on the allegation that resistance was offered by the petitioners in collusion with the judgment-debtor and substantially at his instigation. This was denied by the persons who had offered the obstruction. There was an investigation and the Court came to the conclusion upon the evidence that resistance was not offered by the judgment-debtor, nor by any person at his instigation. The Subordinate Judge, however, found on the evidence that the persons who had caused the obstruction had not been in possession of the property and that consequently t...
Rajendra Nath Das Vs. Mukta Rani Dasi
Court: Kolkata
Decided on: Mar-09-1910
Reported in: 6Ind.Cas.367
1. We are invited in this Rule to set aside an order made by the Subordinate Judge of 24-Pergannahs, under Section 195, Criminal Procedure Code, which has been confirmed by the learned District Judge under Clause (c) of that section. The circumstances under which the order has been made are not disputed.2. The petitioner before us obtained a certificate under the Succession Certificate Act in respect of the estate of his deceased brother. An application was subsequently made by the widow of his brother, Muktarani Dasi, an infant represented by her father Hari Mohan Das for revocation of the certificate on the ground that it had been obtained by fraud. This application was allowed and the certificate was revoked. The learned Subordinate Judge in his judgment in that erise held that the . certificate had been obtained by fraud and observed that the petitioner Rajendra Nath Das ought to be prosecuted for perjury and forgery. On the 8th February 1909, on which date the revocation case was ...
Bhoneshwar Ram and ors. Vs. Ram Khelawan Sahoo and ors.
Court: Kolkata
Decided on: Mar-08-1910
Reported in: 5Ind.Cas.654
1. The case out of which this appeal arises is a suit on a mortgage, dated the 17th June 1901, whereby the defendants-appellants or their representatives pledged a quantity of kobalas and rehan deeds for a loan of Rs. 19,501. The suit has been decreed by the lower Court against all the appellants exonerating the shares of defendants Nos. 5 and 10, the widows of cousins who are alleged to have been co-sharers in the property but who are not parties to the mortgage-deed. Various points have been raised before us, the first of which is that the subject-matter of the mortgage is too indefinite for the document being capable registration under Section 21 of the Registration Act, and that as registration was necessary the document cannot be admitted on the record as a mortgage. As regards this, cases have been quoted before us Co prove what cannot be doubted that the mortgage must define its subject-matter with distinctness. In the present case the mortgaged property-consists with one except...
Srimati Khyanta Kali Dasi Vs. Kedar Nath Kaji and ors.
Court: Kolkata
Decided on: Mar-08-1910
Reported in: 5Ind.Cas.652
Chatterjee, J.1. The judgment of the lower appellate Court in this case is not as satisfactory or full as it ought to have been. In the first place while writing the judgment, the learned Subordinate Judge used the word plaintiff when he meant the defendant No. 1. This, however, has been treated as a clerical error and corrected as such. It has not been argued on the basis of this mistake that the learned Subordinate Judge was writing his judgment upon some other case and not upon the case before him as the facts of this case do not coincide with the statements of facts in the judgment. The case has, however, been argued on the basis of its being a clerical mistake only and in that view of the case it is to be seen whether there are any grounds for this second appeal.2. The defendant No. 1 created a mourasi lease in favour of one Braja Mohan. Braja Mohan created a der-mourasi in favour of the plaintiffs. In execution of a decree for arrears of rent the defendant No. 1 brought to sale t...
Hara Krishna Mitter and anr. Vs. Ram Gopal Mitter
Court: Kolkata
Decided on: Mar-08-1910
Reported in: 6Ind.Cas.170
1. We are invited in this Rule to set aside a decree based on an award made by an arbitrator appointed by the Court in a proceeding under Section 523 of the Code of 1882. Tt appears that on the 24th January 1908, two persons Brojobashi Mitter and Ram Gopal Mitter entered into an agreement to refer the matters in dispute between them to the arbitration of these persons named in the instrument. The matter was referred to arbitration accordingly, but for some reason not material for our present purpose, the arbitrators did not submit their award. Thereupon, as provided in the agreement, an application was made on the 21st July 1908, by Earn Gopal Mitter, imder Section 523 of the Code of 1882, to have the agreement filed in Court, and for the appointment of an arbitrator, in accordance with its terms. On the 9th December 1908, the Court appointed Krishna Kumar Sarkar as the arbitrator, and the matters in dispute were referred to him for decision. The parties appeared before him, and gave e...
Makbul Ali and ors. Vs. Jogesh Chandra Ray
Court: Kolkata
Decided on: Mar-08-1910
Reported in: 38Ind.Cas.595
IN M. A. NOS. 537, 557 AND 558 OF 1907.1. These are appeals by the tenants in suits instituted by the Noabad Talukdar to recover arrears of rent in respect of the khila lands which became hasila during the years 1264 to 1267 of the Maghi era which is prevalent in the District of Chittagong where the lands are situated. The word khila signifies 'waste'; hasila on the other hand means cultivated'. It is admitted that the talukdar has realised his rent dues for the years in suit, in accordance with the rentals fixed as fair by the Settlement Officer. The question for determination is whether the fair rate of rent is to be applied to the khila lauds as soon as they became hasila (as contended for by the talukdar) or whether the assessment should be made after fifteen years (the period mentioned in the written statements of the tenants).2. The first Court dismissed the suits. On appeal, the District Judge of Chittagong has remanded the cases under Section 562 of the old Code of Civil Proced...
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