Court : Kolkata
Reported in : AIR1931Cal779a
1. This is a rule calling upon the opposite party to show cause why a suit in which the same question involved as the question to be decided in the second appeal preferred to this Court, in which this application has been made, should not be stayed till the disposal of the second appeal. We think that the procedure followed in this case, though common, is irregular. By an 'application made in the second appeal pending here the appellant cannot pray that some other suit pending in another Court should be stayed. The power of staying suits pending in the Courts below is exercised by this Court sometimes in the interest of justice under the general power of supervision given to it under the law. But for that purpose a substantive application should be made. The application for stay of subsequent suits, because a previous suit in its appellate stage is pending is made on the principle of Section 10, Civil P.C. Attempt should first be made in the Court below to have the suit stayed and fail...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal49
Suhrawardy, J.1. The suit out of which this appeal arises was brought to recover malikana for the years 1320 to 1331 in respect of the resumed estate No. 4798 of the Bakarganj Collectorate. There were 29 persons interested as co-sharers in the mahal. By certain proceedings, shown by Ex. 7, gross assets of the estate were fixed at Rs. 5,214 odd out of which deduction on account of collection and malikana charges was made to the extent of Rs. 2,003 odd, the net revenue payable to the Government being Rs. 3,200. This mahal, it appears, has been let out from time to time on temporary leases by the Collector, the last of them being from 1st April 1910 to 31st March 1925. The plaintiff claims a 3 annas 11 gandas odd share in the mahal up till 1325 and thereafter another share of 2 annas. It has been found by the lower appellate Court and that finding cannot be challenged here that notice was served upon all the proprietors under Section 10 (4), Regn. 7 of 1822 that on the date fixed none of ...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal241,137Ind.Cas.139
Suhrawardy, J.1. This revision case arises out of an execution proceeding following upon a decree in ejectment. The property in suit is a house in Kidderpur in the suburbs of Calcutta. The plaintiff decree-holder obtained a decree in ejectment against his tenant by serving a notice upon him to quit. When he attempted to take possession of this property in execution of the decree it was found that there were several subtenants under the defendant. All the other tenants vacated but the petitioner who has a biri shop in a small room on the premises refused to vacate. Thereupon the decree holder applied to the Court for police help for delivery of khas possession by ejecting the petitioner. The petitioner thereupon made an application to the executing Court under Section 151, Civil P. C, in which he urged that he could not be evicted in execution of the decree against his lessor but that the proper procedure to be followed by the decree-holder was that under Order 21, Rule 97, Civil P.C. O...
Tag this Judgment!Court : Kolkata
Reported in : AIR1931Cal696
Rankin, C.J. 1. In these four appeals, sight appellants are before us, and they wore tried, with two other accused persons who have been acquitted, by a Special Tribunal appointed under the Bengal Criminal Law Amendment Act (Supplementary), 1925. The trial took place in November last and apart from certain connected charges to which I will refer as necessary the main charge against all the appellants was a charge of conspiracy. The charge was that at various places mentioned they were parties to a conspiracy to make and possess explosive substance, to collect arms and ammunition, and to kill Europeans and police officers; in other words, it was a charge of conspiracy which embraced offences under the Explosive Substances Act, the Arms Act and the Indian Penal Code, Section 302. The time during which the conspiracy wag alleged in the charge to have subsisted was between December 1929 and October 1930.2. I propose to begin by stating what, according to the case for the Crown, is the dire...
Tag this Judgment!Court : Kolkata
Reported in : AIR1933Cal271
1. These two appeals have arisen out of two Suits No. 422 of 1922 and No. 293 of 1924, instituted by one Sitaram Das and one Haribhajan Das, respectively, for succession to the Mahantship of an Akhra known as the Bara, Digambar Akhra, situate at village Debipur in the district of Murshidabad. Mahant Bhagwan Das was its last mahant. He died on 19th Baisakh 1329 (2nd March 1922). No successor to the mahantship being apparent, the police appeared on the scene and took charge of the moveables and eventually an intestacy and escheat case was started in the Court of the District Judge. One Lakshmi Narain Das, amongst others, put in a claim alleging that he was entitled to succeed to the deceased mahant and that he had lent money to him shortly before he died, and further that since his death he had been performing the sheba and puja of the idols in the Akhra and was in possession of all its properties. He also applied to the Magistrate praying that the properties might remain in his possessi...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal370,137Ind.Cas.434
Suhrawardy, J.1. A preliminary objection has been taken to the hearing of this Reference on the ground that the learned District Judge of Murshilabad has not made any definite recommendation as to the mode of punishment to be inflicted upon the pleaders. It is argued that the Reference is not in order and that therefore it should be returned to the learned Judge as we are not competent to hear it at this stage. The argument is based upon the reading of Section 14, Legal Practitioners Act, and it is to the effect that the learned Judge in making the Reference should have indicated the nature of the sentence that would be imposed upon the pleaders in case they are found guilty of the charge made against them. We do not think that this objection ought to prevail. Section 14 of the Act has provided the procedure to be followed in the case of a reference by a Court to the High Court for its orders under that Act.2. Clause 1 of that section says that if any pleader or muktear is charged with...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal383,137Ind.Cas.849
1. This rule is directed against an order passed by the Sub-Divisional Magistrate of Serampore summoning the petitioner under Sections 211 and 182, I.P.C. What happened in the case was this. The petitioner Lachmi Shaw lodged an ejahar before the police bringing a charge of theft against one Babaji Naik. The police enquired into the matter and submitted their report. The petitioner filed before the Magistrate what is called a naraji petition, whereupon the learned Magistrate sent the matter to an Honorary Magistrate for enquiry and report; and when the Honorary Magistrate submitted his report, the learned Subdivisional Magistrate passed the order complained of.2. The order complained of cannot in our opinion, be allowed to stand. The learned Magistrate, in our judgment, was wrong in law when he issued a process against the petitioner under Sections 211 and 182, I.P.C. without having dismissed the naraji petition of the petitioner which was to be treated as a complaint. This naraji petit...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal689
Mukerji, J.1. This is an appeal by the plaintiffs from a decree of the Subordinate Judge of Jessore, dated 23rd July 1929- The plaintiffs' suit, out of which this appeal has arisen, was instituted to enforce two mortgage bonds, dated 7th December 1921 and 21st June 1925, respectively. The suit was instituted on 12th April 1929. No contest having been entered on behalf of the mortgagors, the defendants, the Subordinate Judge, on 23rd July 1929, made a decree in plaintiffs' favour. The ordering portion of the judgment runs in these words:Claim proved and suit decreed ex parte with costs and interest at the contract rates on the respective principal moneys from the date of the institution of the suit until expiration of three months from date or until the date of realization, whichever is earlier. On the defendants' default to pay the decretal money within three months from date the said money with costs of sale shall be realised by sale of the mortgaged properties.2. The decretal amount ...
Tag this Judgment!Court : Kolkata
Reported in : AIR1931Cal710
1. This rule must be discharged on the ground that the application on which it was issued cannot be entertained. The application was one under Section 526, Criminal P.C., for the transfer of a criminal appeal which is now pending before the Sessions Judge of Chittagong to some other Court. Under Clause (4), Section 52(3, every such application, except when the applicant is the Advocate-General, shall be supported by an affidavit and Section 539 lays down that this affidavit is to be sworn before the High Court, or the clerk of the Crown, or any Commissioner, or other person appointed by the High Court for that purpose. An affidavit was filed along with the application for transfer under Section 526; but that affidavit purports to have been sworn before an officer of the District Judge's Court at Chittagong. That being so, the affidavit that has been tiled in the present case is not sufficient for the purpose of Section 526. Sub-section (4) and that being the case, the application under...
Tag this Judgment!Court : Kolkata
Reported in : AIR1933Cal81
1. This is an appeal by defendants 3 and 5 from a decree by which the plaintiffs' claim for recovery of arrears of rent for a certain ferry alleged to have been leased out to their father by the plaintiffs has been decreed against them and some others. One of the contentions which was attempted to be urged on behalf of the appellants was that no lease was taken and so no money was due; but in view of the evidence, oral and documentary that there is on the record and which amply establishes the fact that such a lease was taken and that the amount claimed was due under it, this contention was not eventually pressed. The other contention, which is of considerable substance, is that the decree, such as it is, is not supportable. The appellants' father Tamizuddin died leaving his mother, a widow, three sons and three daughters. All these heirs were impleaded in the suit as defendants. Two of these heirs, namely, defendants 6 and 8, were minors and as they were not properly represented, the ...
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