Kolkata Court January 1911 Judgments
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Bissonath Rai Vs. Kamaleshwari Prasad Singh
Court: Kolkata
Decided on: Jan-13-1911
Reported in: 9Ind.Cas.135
Woodroffe, J.1. This appeal arises out of an application to set aside a sale under Order XXI, Rule 90 of the Code of Civil Procedure. The application was dismissed. An appeal lay and was taken against this order to the District Judge. Section 104 provides in Clause (i) for an appeal from Orders made under Rules from which an appeal is expressly allowed by Rules; and under Order XLIII, Clause (j), an appeal is given against an order setting aside, or refusing to set aside a sale under Rule 92 of Order XXI. Then Section 104, Clause 2, provides that no appeal shall lie from any order passed in appeal under this section; and a preliminary objection has accordingly been taken, that no appeal lies to this Court.2. It has been admitted, on the other hand, that if the case came within the scope of Order XXI, Rule 90, the argument would be well-founded, but it is contended that as there was an allegation of fraud, the case is one under Section 47 and that a second appeal., therefore, lay. But t...
J.J. Maokay and ors. Vs. R.H. Cave and anr.
Court: Kolkata
Decided on: Jan-13-1911
Reported in: 9Ind.Cas.137
Chatterjee, J.1. The plaintiffs-respondents sued for a declaration of their right to the lands in dispute which Had been attached under orders of the Criminal Court under Section 146 of the Criminal procedure Code and for mesne profits against the defendants 1st party.2. The plaintiffs were owners of a 14 annas share of the lands and the defendants 1st party were owners of the remaining 2 annas, which also were subsequently acquired by the plaintiffs and they are now the owners of the entire 16 annas. It is alleged in the plaint that the defendants 1st party falsely setting up a tenancy claimed possession and made preparations to obtain forcible possession of the lands in dispute, and the Police having come to know this reported to the Magistrate that there was likelihood of a breach of the peace over the question of possession of the said land and proceedings were drawn up under Section 145., Criminal Procedure Code, and the Magistrate after taking evidence in the matter ordered the l...
Lachmi NaraIn Marwari Vs. Sukhraj Rai
Court: Kolkata
Decided on: Jan-13-1911
Reported in: 9Ind.Cas.181
Chatterjee, J.1. This appeal arises out of a suit under Section 106 of the Bengal Tenancy Act. The lands in dispute were recorded as milik and belagan lands of the defendant No. 1 in the record-of-rights, and plaintiff sued for a declaration that the lands were not milik but mal lands and liable to assessment of rent and for the correction of the record-of-rights accordingly.2. The plaintiff alleged that defendant No. 2 had been midata (measurer of lands) and held the lands in lieu of his services and that defendant No. 2 had sold the lands which were not transferable (being a service-tenure) to defendant No. 1.3. The defence was that the lands had been granted as agir to the ancestor of the defendant No. 2 by one Mr. Grant, the mustajir of the mouza, in which the lands were situated, that they were held rent-free by the defendant No. 2 and his ancestors and that they were purchased by the defendant No. 1 from defendant No. 2.4. The Court of first instance held that the lands were mal ...
Kumud Nath Roy Chaudhry Vs. Rai Jatindra Nath Chaudhry
Court: Kolkata
Decided on: Jan-13-1911
Reported in: 9Ind.Cas.189
1. This appeal is directed against an order of refusal of the Court below to set aside an ex parte decree. Oh the 27th September 1907, the present respondent, who had taken an assignment of a mortgage bond, commenced an action to enforce the security against the mortgagors, who formed a family of five brothers. Of these the first three entered appearance in the suit and disputed the claim of the plaintiff. There was no appearance on behalf of the other two defendants. On the 24th July 1908, a decree upon contest was made against the first three defendants, and an ex parte decree against the other two defendants. On the 26th June 1909, two applications were made, one by each of these defendants, to set aside the ex parte decree. On the 20th April 1910, the Subordinate Judge dismissed both the applications. He held that the summons was not duly served, but that as the applicants knew about the suit when it was actively defended by their eldest brother, the applications were barred by lim...
In Re: M. Fazlar Rahaman, Muktear
Court: Kolkata
Decided on: Jan-11-1911
Reported in: 9Ind.Cas.247
1. The several officers concerned in making this reference have entirely failed to observe the procedure prescribed by Section 14 of the Legal Practitioners, Act XVIII of 1879. It appears that the mukhtear Fazlar Rahaman was prosecuted under Sections 419/109 and 420, Indian Penal Code On 1st December 1910, the District Magistrate discharged him under Section 253 of the Criminal Procedure Code, on the charge under Section 420, Indian Penal Code. He said nothing of the other charge under Sections 419/109. In the same order he directed the suspension of the mukhtear 'under Section 14, Act XVIII' (meaning the Legal Practitioners Act XVIII of 1879) 'pending the orders of the High Court.' The District Magistrate then made a report not to this Court hut to the Sessions Judge. In that report he does not find any definite charge established (as a matter of fact none had been framed) nor does he say whether he considers that the mukhtear should be suspended or dismissed in consequence, nor has h...
Raghunath Singh Vs. Abdhut Singh
Court: Kolkata
Decided on: Jan-09-1911
Reported in: (1911)ILR38Cal391,9Ind.Cas.202
Woodroffe, J.1. The law in force at the institution of these proceedings was the Central Provinces Land Revenue Act (XVIII of 1881) and the Bengal Civil Courts Act of 1887, inasmuch as Act II of 1904 was repealed by Act IV of 1906, so far as it referred to Sambalpur. No doubt Section 22(b) of Act XVIII of 1881 provides that, when a decision or order is passed by the Deputy Commissioner, an appeal lies to the Commissioner. But, by an amendment introduced in that Act by Section 136H(1), 'All decrees and orders passed by the Deputy Commissioner...shall be held to be decrees and orders of a Court of Civil Judicature, and shall be open to appeal as if passed by the Court of the Deputy Commissioner, acting as a Court of Civil Judicature of first instance, under the 'Central Provinces Civil Courts Act of 1885,' and to that extent that Section 136H(1), now qualifies Section 22, Clause (b), whatever may have been the case when that Section 136H(1), was first enacted. For we must construe the wo...
Munshi Mahomed Ali Mia Vs. Srimati Kiberia Khatun
Court: Kolkata
Decided on: Jan-06-1911
Reported in: 9Ind.Cas.66
1. The parties to this appeal may be described as Mahomed Ali Meah defendant-appellant and Kiberia Khatun the plaintiff-respondent. The suit was for establishment of plaintiff's taluka right on setting aside the sale held in execution of the decree in contribution Suit No. 31 of 1906, the defendant being the purchaser of the property in suit. The plaintiff is a subsequent purchaser of the same property. In another litigation (Suit No. 485 of 1906,) between the same parties, a solenama or compromise was filed on the 15th December 1906, where in the ownership by purchase of the defendant was admitted by the plaintiff's predecessor, Kala Meah.2. Both the lower Courts have given the plaintiff a decree declaring his title. In the turn that this case has taken, we are now Concerned with one property only, namely property No. 29.3. On behalf of the defendant, it has been contended, first, that the lower appellate Court has misinterpreted the solenama, and, secondly, that the sale at which the...
Surendra Nath Roy and ors. Vs. Krishna Sakhi Dasi and ors.
Court: Kolkata
Decided on: Jan-06-1911
Reported in: 9Ind.Cas.110
1. This is an appeal in a suit brought by the plaintiffs-appellants to eject the principal defendant as being a tenant-at-will in respect of a durjote under the superior jote interest purchased by the plaintiffs from three brothers. The Munsif decreed the suit. On appeal, the Subordinate Judge has reversed that decision, and the plaintiffs appeal.2. It is urged, first, that the notice to quit was a good notice in point of law, and, secondly, that the conveyance to the plaintiffs binds all the vendors (including Bejoy Gobinda), and the defendant, by way of estoppel.3. The central fact upon which the case turns is that Bejoy was a minor, under the age of twenty-one years, at the time when he executed the conveyance. He was then over eighteen, but his period of minority had been extended by reason of a certificate of guardianship having been taken under the provisions of Act VIII of 1890. Bejoy is not a party to this litigation, but he has deposed in plaintiff's favour and has rati fled a...
Bhabhikan Singh and ors. Vs. Babu Chakradhar Pershad Singh and anr.
Court: Kolkata
Decided on: Jan-06-1911
Reported in: 9Ind.Cas.227
Woodroffe, J.1. In this case the respondents applied to the lower Court for an order of injunction restraining the appellants, who were decree holders, from executing the mortgage decree which they had obtained. The respondents also asked that the sale of the mortgaged property might be stayed pending the decision of the suit which has been instituted by them, on the ground that the decree which is sought to be executed was a fraudulent decree. The application was one for an injunction against the alleged wrongful sale in execution of a decree; and it has been held (and in this decision I entirely agree) that in interpreting this portion of the Code, a Judge cannot be too careful as to the mode in which he permits the machinery of the Court to be used for the purpose of enabling the plaintiff' in one suit to delay the decree-holder in another from obtaining the fruits of his judgment by executing his decree in the ordinary course against the property of the judgment-debtor.2. The learn...
Ram Newaz Acharjee Vs. Shashi Bushan Misser and ors.
Court: Kolkata
Decided on: Jan-05-1911
Reported in: 9Ind.Cas.119
1. This appeal arises out of a suit for establishment of plaintiff's mokarari right to the land in suit and for a declaration of his right to receive the rent thereof from the defendants Nos. 4 to 7 and for a further declaration that the decree for rent obtained by the defendants Nos. 1 to 3 against defendants Nos. 4 to 7 was inoperative.2. Plaintiff alleged that the rights of the defendants Nos. 1-3 had passed to his lessors (defendants Nos. 8, 9) at a sale held in execution of a money-decree and that plaintiff had obtained a lease from defendants Nos, 8, 9 on the 5th Aghran 1310.3. The defendants Nos. 1 to 8 denied that their rights had passed at the said sale and pleaded limitation.4. The Court of first instance decided both the question of title and possession in favour of the plaintiff and decreed the suit. On appeal the learned Subordinate Judge did not try the question of title but has held that the suit was barred by limitation.5. In second appeal, it is contended on behalf of ...
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