Kolkata Court May 1915 Judgments
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Mohesh Chandra Mukherjee and ors. Vs. Umesh Chandra Ghosal and ors.
Court: Kolkata
Decided on: May-24-1915
Reported in: 29Ind.Cas.742
1. This is a suit for recovery of possession by the plaintiffs, who allege with truth that being interested in the equity of redemption in the property they were omitted from the suit whereby the appellants-defendants Nos. 1 to 6 enforced their mortgage. Defendants Nos. 1 to 6 have given us an explanation how they came to omit the plaintiffs. Indeed they go so far as to contend that they were entitled to omit them. We are unable to accept that argument. But, on the other hand, we think that the decree which grants the plaintiffs possession without any provision as to payment of what may be due under the mortgage to the defendants, Nos. 1 to 6 cannot be supported. We, therefore, set aside the decree of the lower Appellate Court and send back the case to the Court of first instance in order that it may be there determined what, having regard tc all the circumstances in the case, is a proper gum to be paid by the plaintiffs for the purpose of redeeming their share in the property in suit....
Prasanna Kumari Debi Vs. Sris Chandra Majumdar and ors.
Court: Kolkata
Decided on: May-24-1915
Reported in: 33Ind.Cas.344
Asutosh Mookerjee, J.1. This is an appeal by the judgment debtor against an order made in proceedings in execution of a consent decree dated the 12th January 1901. The respondents sued the appellant for establishment of their alleged right of way over a tract of land towards the west of her tank. During the pendency of the suit the parties came to terms and a decree was made by consent. The substance of the decree was that the respondents were allowed a pathway, two-and-a-half cubits wide, (eighteen inches to the cubit) towards the east of the western most boundary of the land then in possession of the appellant. The decree specified, in the alternative, that if, on a future occasion, the thak map was relayed, the way would lie towards the east of the thak line, that is, the western boundary of the way would coincide with the thak line, which, it was added, was proof of the title and possession of the appellant. But though this decree was made on the 12th January 1901, the decree-holde...
Debendra Nath Das Vs. Bibudhendra Mansingh
Court: Kolkata
Decided on: May-24-1915
Reported in: 33Ind.Cas.745
Lawrence Jenkins, C.J.1. This is an application for a certificate that, as regards amount or value and nature, the case fulfills the requirements of Section 110 of the Code of Civil Procedure, or that it is otherwise a fit one for appeal to His Majesty in Council.2. To ascertain the amount or value, the matter was referred to the Court of first instance (Order XLV, Rule 5). That Court has determined the amount or value and has returned its report, according to which the amount or value exceeds Rs. 10,000. We see no reason to dissent from that determination.3. It only remains to be seen whether as regards nature the requirements of Section 110 are fulfilled. The Court of first instance as well as the lower Appellate Court decided adversely to the present applicant. On appeal to the High Court, a single Judge reversed the decree of the lower Appellate Court. From this judgment of a single Judge there was an appeal to the High Court under Clause 15 of the Charter, with the result that the...
Romesh Chandra Das and ors. Vs. Anthony Penheiro and ors.
Court: Kolkata
Decided on: May-21-1915
Reported in: 29Ind.Cas.470
1. This Rule is based on a petition which comprises two forms of relief. The first is that Durgesh Nandusi Debi, the administratrix to the estate of Rajani Kanta Das, should be made a respondent. Now, this lady is the widow and representative of the deceased plaintiff, Rajani Kanta Das, but through, it is said, inadvertence, she was not made a party to this appeal. An application, however, has been made to us to make her a respondent under the provisions of Order XLI, Rule 20, of the Code of Civil Procedure. I think that the words of that section 'any person who was a party to the suit,' etc., would, on a reasonable construction of the same, include the representative of such a party. But the difficulty in the way of the applicant is as has been pointed out by the learned Pleader on behalf of the opposite party, that the power given to the Court to add parties is a power which is to be exercised at the hearing, and doubtless it is necessary that the Court should have before it all the ...
Harinath Chowdhury Vs. Hara Das Acharja Chowdhury and ors.
Court: Kolkata
Decided on: May-21-1915
Reported in: 29Ind.Cas.580
1. The problem which requires solution in this appeal may be concisely stated. On the 30th June 1909 A sued B for recovery of money. On the same day A obtained an order for 'attachment before judgment under Rule 5 of Order XXXVIII, Civil Procedure Code. The property attached was a debt due obviously from C to D; but the debt was attached on the allegation that B, and not D, was the person beneficially interested in it. The result was that a prohibitory order was issued upon C. On the 13th August 1909 A obtained an ex parte decree in his suit against B. C was then called upon to pay into Court the money due from him ostensibly to D. On the 8th October G applied to the Court and intimated that he was willing to bring the money into Court, provided he was absolved from liability to pay a second time to D and provided also that interest ceased to run upon his debt from that date. The Court thereupon ordered that the money, if deposited, would be retained in Court till the adjudication of t...
Nistarini Dassya and ors. Vs. Sarat Chandra Mojumdar
Court: Kolkata
Decided on: May-21-1915
Reported in: 29Ind.Cas.680
1. This appeal arises out of a suit upon a registored mortgage bond. The Munsif decreed the suit. In the Court of first appeal the suit has been dismissed on the ground of limitation. The plaintiffs appeal now to this Court.2. The bond was executed in October 1895, the due date being April 1900. It was executed in favour of one Gopal Chandra De. The suit was brought on the 29th April 1911, shortly before the expiry of 12 years after the due date by the widow of Gopal Chandra De, who had been appointed administratrix to his estate. On the 30th November 1911, the widow presented a petition supported by an affidavit stating that her Pleader had discovered that her powers as administratrix had come to an end before the suit was instituted. It appeared that under the Letters of Administration her appointment as administratrix was to terminate when the eldest son of Gopal Chandra De attained majority and this had occurred some years prior to the institution of the suit. She prayed that the t...
Nilmoney Nag and Vs. Durga Pado Banerjee
Court: Kolkata
Decided on: May-20-1915
Reported in: 30Ind.Cas.1007
1. These are two Rules issued at the instance of the two accused, Jatindra Mohan Pal and Nilmoney Nag, on the ground that the facts found do not constitute an offence under Section 486, Indian Penal Code. Nilmoney Nag was charged with selling goods bearing a counterfeit trade-mark and Jatindra Mohan Pal was charged with abetment of the offence. The matter has been fully argued before us, and we are of opinion that the petitioner's acts bring them within the purview of Section 486. The trade-mark said to be counterfeited is that of F.C. Calvert and Co., manufacturers of carbolic tooth powder. The expression 'trade-mark' as defined in Section 478 must not be confined to the trade-mark of the complainants registered in England, but must include the whole design on the top of the box and the black label pasted round the side. For the name F.C. Calvert has been substituted the name of Paul, and for the registered trade-mark, which consists of four arrows in a circle, has been substituted th...
Govinda Chnadra Basak Vs. Haridas Basak
Court: Kolkata
Decided on: May-20-1915
Reported in: 35Ind.Cas.48
Asutosh Mookerjee, J.1. This is an appeal by the defendant in a suit for dissolution of partnership and adjustment of accounts. The plaintiff and the defendant were partners. Their original idea was that capital should be contributed equally by both of them; but in the events which have happened, the defendant, it is said, has contributed a much larger sum than the plaintiff has done. The defendant prays that in the settlement of accounts he may be allowed interest on the excess sum contributed by him towards the capital. The Courts below have disallowed this claim. In our opinion the view taken by the District Judge cannot be supported.2. On behalf of the respondent, it has been urged that, . as a general rule, interest between partners is not allowed, unless there is an express stipulation, or a particular course of dealing between the parties as shown by the partnership books, or, a trade' custom to the contrary. This may be accepted as a correct statement of the general rule, and i...
Priya Nath Bachher Vs. Mianjan Sardar and ors.
Court: Kolkata
Decided on: May-20-1915
Reported in: 29Ind.Cas.571
Jenkins, C.J.1. This is an appeal from a decision of the Subordinate Judge, first Court, Alipur, affirming the decision of the first Munsif at Sealdah. The suit was for-recovery of money and it was presented in the Small Cause Court at Sealdah on the 18th April 1911. That Court had no jurisdiction, so it was returned on the 19th. On the same date it was presented to the Munsif's Court. On the 29th of April an order was made on the plaintiff to pay the deficit Court-fees within a week. This was followed by several other orders providing for payment on later dates. Ultimately there was an order on the 7th August under which the balance was to be paid within five days. In fact it was paid the next day, the 8th August. Notwithstanding this, it has been held that the suit was not within lime and must be dismissed. This appears to me to be an erroneous reading of Section 149 of the Code, which provides for the power to make up deficiency of Court-fee and for that purpose vests the Court with...
Rajkishore Mondal and ors. Vs. Rajani Kant Chuckerbutty and ors.
Court: Kolkata
Decided on: May-20-1915
Reported in: 37Ind.Cas.249
1. The subject-matter of the litigation which has culminated in this appeal is a portion of a non-transferable occupancy holding. The first three defendants hold this tenancy, which comprises 20 bighas of land, under the plaintiffs-respondents and the other defendants, now appellants, as their landlords. It appears that the tenant-defendants on the 5th January 1911, executed a deed of release in favour of the landlords-defendants, to whom they also relinquished possession of one-tenth of the area of the entire holding. The object of this release was to enable the landlords-defendants to erect structures thereon andto hold a market on the site. This, indeed, is admitted in the written statement of the landlord-defendants, who allege that as the plaintiffs had oppressed the shop-keepers of the neighbouring market, the defendants attempted to set up another market in order to protect the shop-keepers from tyranny and for the convenience of the people of the village. It has also been found...
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