Kolkata Court January 1913 Judgments
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Jadu Nath Dandupat Vs. Hari Kar and ors.
Court: Kolkata
Decided on: Jan-21-1913
Reported in: 18Ind.Cas.253
Lawrence Jenkins C.J.1. This is the third time that this suit has been before an Appeal Bench since it left the District Court and this fact has given rise to a preliminary objection. It is said that inasmuch as this is an appeal from the judgment of the Senior Judge of a Division, Court before whom the case came under Clause 15 of the Letters Patent, no appeal lies here. The facts are shortly these: The appeal came in the first instance before Mr. Justice Geidt. He considered the decision of the District Court erroneous. From his judgment, there was an appeal to a Division Court consisting of Mr. Justice Rampini and Mr. Justice Doss. Those two learned Judges were divided in opinion--Mr. Justice Rampini was for confirming the judgment of Mr. Justice Geidt and Mr. Justice Doss was for restoring the decree of the lower Appellate Court. Under Clause 36 of the Letters Patent, Mr. Justice Rampini's judgment prevailed, he being the Senior Judge. From Mr. Justice Rampini's judgment the presen...
Mrs. Georgiana Major Vs. Maurice Edward Bandmann
Court: Kolkata
Decided on: Jan-20-1913
Reported in: 18Ind.Cas.217
Fletcher, J.1. This is an application for security for costs against the plaintiff who is a married woman. The suit is clearly a said for payment of money and, therefore, falls within Order XXV, Rule 1, Sub-rule 3. The only question is whether this is a case in which the Court ought to order security for costs to be given. The plaintiff is an actress, and the defendant is a theatre Manager and owner, and runs a Company in which the plaintiff was an actress. According to the plaintiff's allegations, she has been improperly dismissed by the defendant and the suit is brought to recover damages for wrongful dismissal. The only question I have got to decide is, is this a case in which on the materials before the Court, the Court ought to order the plaintiff to give security? It has been pointed oat by Mr. Justice Bale in the case of Shima Sundary Dassee v. Rash Behary Dhur 3 C.W.N. 753 that security under this Order ought not to be ordered unless grounds are shown tending to show that the d...
Baroda Kant Karmakar Vs. Sreenath Sil
Court: Kolkata
Decided on: Jan-17-1913
Reported in: 18Ind.Cas.211
1. This second appeal is directed against an appellate order dismissing the appellant's suit for the establishment of a right of way. The lower Appellate Court found that the user proved had been infrequent, especially of late; further that the path over which the right of way was claimed lay through the respondents' homestead and near a tank used by the female members of the latter's family; and finally, that the predecessors of the appellants had, for sometime in the course of the last 20 years, lived in one of the servient tenements. From these facts, the learned Subordinate Judge inferred that the user had been permissive and not as of right; and he further pointed oat that there was no evidence adduced by the appellants to show that they had ever exercised the right of way as of right.2. On behalf of the appellants, it has been argued that the learned Subordinate Judge has made two mistakes of law. In the first place, it is suggested that he ought to have presumed, as soon as he f...
Panchu Mandal Vs. Sheikh Isaf
Court: Kolkata
Decided on: Jan-16-1913
Reported in: 18Ind.Cas.391
1. This appeal and the alternative motion for revision are directed against an appellate order refusing to set aside a sale in execution of a decree.2. As regards the appeal, the learned Vakil for the appellant has frankly admitted that he is unable to press it. In this, we think, he is well advised; for there can be no doubt as to there being no right of second appeal in this case. The appeal is, therefore, dismissed; but in the circumstances we make no order as to costs.3. As regards the Rule, the facts are these: The sale with which we are concerned took place on the 23rd August 1907, and the petitioner's application to have it set aside was made on the 17th November 1903. The time limited by law had, therefore, passed and prima facie the application was barred by limitation. The petitioner, however, both in the Court of first instance and in the lower Appellate Court claimed the benefit of Section 18 of the Indian Limitation Act of 1877, which admittedly governed the case. He was o...
ichhamoyee Debbe, and on Her Death Harihar Mukhopadhya and anr. Vs. Kr ...
Court: Kolkata
Decided on: Jan-16-1913
Reported in: AIR1914Cal734,18Ind.Cas.377
1. This appeal is preferred against the decision of a suit brought by a Hindu widow for recovery of possession of certain plots of land and for declaration of title thereto. The original plaintiff is now dead, and the appellants before us are her sons, who have been substituted in her stead.2. It appears that the defendants were in possession under a permanent lease, which was granted to them in the month of March 1873, by one Bama Sundari, the sister of the original plaintiff. It has been held that Bama Sundari had only a life-interest in the land, and that the permanent lease granted by her to the defendants was invalid; and that decision has not been assailed. The lower Appellate Court, however, found that the defendants had nevertheless acquired an occupancy right, they having been in possession for more than twelve years, and that they were, therefore, not liable to be evicted.3. The principal point taken before us is that, as the defendants claimed to be raiyats holding at fixed ...
Munshi Misser Vs. Bhimraj Ram
Court: Kolkata
Decided on: Jan-14-1913
Reported in: (1913)ILR40Cal458
Jenkins, C.J.1. But there is no finding as to your enjoyment of right two years before suit.2. Yes, there is none. The point was discussed before the referring Judges.Jenkins C.J.3. But there must be a finding as to enjoyment within two years before suit, and you must also show a lost grant or the origin of your right.4. But we may suppose that the case was under the common law, and not under Section 26 of the Limitation Act.5. All decided cases are in my favour, the only exception being Bidhoo Bhusan Palit v. Beny Madhab Muzumdar (3) (1903) 8 C. W.N. 244.6. Babu Umakali Mukherji, for the respondents, admitted that he could not resist the point of law, and referred to Peacock on Easements, pp. 118 and 119, and Bidhoo Bhusan's case (1). He submitted that, even if the point were decided against him, the case should be remanded for findings of fact as to the period of enjoyment of the alleged right.7. The judgment of the Court (Jenkins C.J., Harington, Stephen, Mookerjee and Holmwood JJ.)...
Shambhu Nath Singh Vs. Sheo Pershad Singh
Court: Kolkata
Decided on: Jan-14-1913
Reported in: (1913)ILR40Cal462
Holmwood, J.1. Whose tenant is he then? Section 148 (h) is clear. In this case, only he decree was assigned.Jenkins C.J.2. But his interest also expired.3. The judgment of the Court (Jenkins C.J., Haring-ton, Stephen, Mookerjee and Holmwood JJ.) was delivered byJenkins C.J.4. We are of opinion that by the term 'landlord's interest' in Section 148, Clause (h) of the Bengal Tenancy Act is meant the interest of the person entitled to receive the rent from the tenant at the date of the application for the execution of the decree. The result is that the appeal is allowed, and the execution will proceed in the usual way....
Shashtri Das Dutt Vs. Ujir Ali Khan and ors.
Court: Kolkata
Decided on: Jan-14-1913
Reported in: 18Ind.Cas.357
1. The appellant was the purchaser at a sale in execution of a mortgage-decree. He sued the respondent for possession of the property and, in the alternative, he asked for the refund of the purchase money, if possession was not delivered to him. He obtained a decree for possession in the Munsif's Court. On appeal, the District Judge modified that decree. He directed that the respondent should have an opportunity to redeem the mortgage, one month being given for that purpose and that, in default, the appellant was to recover possession.2. The date of this decree was the 23rd January 1908. On the 4th December 1909, the appellant prayed for execution of his decree and for possession of the property. Thereupon, the respondent offered to redeem and tendered the money. The Munsif rejected the tender and declared that the appellant was entitled to possession. There was an appeal to the District Judge and, in that appeal, the District Judge held that the decree was a mortgage decree and that t...
Shambhu Nath Singh Vs. Sheo Proshad Singh and ors.
Court: Kolkata
Decided on: Jan-14-1913
Reported in: 18Ind.Cas.689
ORDER1. This second appeal arises out of an application under Section 47 of the Code. The judgment-debtor objected to execution which was disallowed. The appellant is the admitted landlord of a village. He granted a ticca of it to certain persons which expired on the 15th June 1908. During the pendency of the lease, the ticcadars obtained a rent decree. This they assigned to the appellant on the 12th June 1908. three days before the expiration of their ticca. On the 22nd September 1903, the assignee appellant took out execution. The respondents judgment-debtors contended that the appellant was not entitled to execute the decree by reason of the provisions of Section 148(h) of the Bengal Tenancy Act which runs as follows: 'Notwithstanding anything contained in Section 232 of the Code of Civil Procedure, an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord's interest in the land has become and i...
Baij Nath Goenka Vs. Mohant Sia Ram Das
Court: Kolkata
Decided on: Jan-14-1913
Reported in: 18Ind.Cas.900
1. It is conceded and is obvious that the attachment was not by a mortgagee, that is to say, when the attachment was made there was no mortgagee in existence as such. That being so, Section 99 of the Transfer of Property Act has no application, and the sale can be carried out in execution proceedings consequent on that attachment. With these observations, the case is sent back to the Division Bench for disposal.2. The costs of this reference will be costs in the appeal; hearing fee, three gold mohurs....
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