Kolkata Court January 1939 Judgments
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Bhola Nath Sen Vs. Jogendra Mohan Das and ors.
Court: Kolkata
Decided on: Jan-17-1939
Reported in: AIR1939Cal601
Derbyshire, C.J.1. This is an appeal from an order of the Subordinate Judge, Fourth Court of 24-Parganas made on 5th October 1936, whereby in Execution Case No. 76 of 1934, the learned Judge dismissed an objection raised by the judgment-debtor against the execution of the decree. The facts in this case are many and rather involved. In 1903 the judgment-creditors or their predecessors-in-title lent a sum of Rs. 7000 on the security of certain land in Entally, a suburb of Calcutta, and the loan was to bear interest at the rate of 12 per cent. The borrower executed a mortgage on the land and subsequently a further charge with which we are not concerned. In 1914 the lenders sued the borrowers and asked for a decree of sale against the land which they said was mortgaged. The borrowers alleged that they had mortgaged the whole 16 annas share of the property whereas they were only entitled to mortgage a four annas share of it and that the mortgage was invalid. The Subordinate Judge upheld thi...
Sundar Das Loghani Vs. Fardun Rustom Irani
Court: Kolkata
Decided on: Jan-16-1939
Reported in: AIR1939Cal329
Henderson, J.1. This is a rule calling upon the Chief Presidency Magistrate, Calcutta, and the opposite party to show cause why an order of discharge passed under Section 253, Sub-section (2), Criminal P.C., should not be set aside. The petitioner made a complaint on 17th October last against the opposite party to the effect that he had committed an offence punishable under Section 420, Penal Code. The Magistrate examined the petitioner upon oath and then directed that a warrant should issue for the arrest of the opposite party. The opposite party duly appeared on 26th October and 28th October was fixed for the hearing. On that day the Magistrate heard both sides and examined some documents; but he did not take the evidence of the petitioner or any of his witnesses. The Magistrate-reached the conclusion that the petitioner had deliberately suppressed several facts in his petition of complaint and that the complaint was a thoroughly dishonest one. He accordingly discharged the opposite-...
Asmat Shek and anr. Vs. Emperor
Court: Kolkata
Decided on: Jan-13-1939
Reported in: AIR1940Cal147
Henderson, J.1. The two appellants were charged with murder for causing the death of a man named Basir Sheik. The jury unanimously acquitted them on this charge but found Asmat Sheik guilty of culpable homicide punishable under Part 1 of Section 304 I.P.C., and Asrat Sheik guilty of culpable homicide punishable under Part 2 of that Section. It was obvious that such a verdict required examination and we accordingly directed the appeal to be heard. The prosecution case was briefly as follows : The two appellants are father and son. The deceased was the son of Bajaraddi, brother of the appellant, Asmafc Sheik. The two families lived in separate huts in the same compound; but in spite of this they had been on bad terms for some time and there had been both civil and criminal litigation between them. The incident which led to this trial took place on the 9th June last. According to the prosecution the deceased and another man was cutting earth in a part of the compound. No objection was rai...
Revati Mohan Roy Vs. Bhik Chand Bhuian
Court: Kolkata
Decided on: Jan-13-1939
Reported in: AIR1939Cal343
ORDEREdgley, J.1. In this case, the petitioner had instituted an account suit against the opposite party. His case was that the opposite party, Bhik Chand Bhuian, had worked as his Naib, that be had failed to render proper accounts of the collections and that a considerable sum of money amounting to about Rs. 1000 was due from him to the petitioner. The opposite party filed a written statement in the suit, in which he contended that there was no relationship of principal and agent between the parties, that he had already rendered proper accounts to the petitioner and that, if accounts were taken, it would be found that money was actually due from the petitioner to the opposite party. After filing the written statement the opposite party made an application to the Nasimpur Debt Settlement Board under Section 8, Bengal Agricultural Debtors Act. The Board thereupon issued a stay order under Section 34 of the Act and on 2nd May 1938, the Munsif, Second Court of Narayanganj, stayed all furt...
Barada Kanta Banerjee Vs. Jitendra Nath Mukherjee
Court: Kolkata
Decided on: Jan-12-1939
Reported in: AIR1939Cal345
ORDEREdgley, J.1. The main point urged in this case is that the Court of Small Causes had no jurisdiction to try this suit which was valued at Rs. 238-5-0. It appears that the suit was first instituted in the Court of a Munsif with Small Cause Court powers up to Rs. 300 but was subsequently transferred by the District Judge under Section 24, Civil P.C., to another Court with Small Cause Court jurisdiction up to Rs. 100 only. In support of the contention, the learned Advocate for the petitioner relies upon a decision of the Madras High Court in Murugesa Mudaliar v. Venakata Kesavalu Chetty : AIR1929Mad513 in which Ayyar J. held that he could notagree with the contention that an order of transfer passed under Sub-clause (4) of Section 24, Civil P.C., could invest a Court not having the Small Cause Court jurisdiction with one; nor could such an order enable a Judge having the Small Cause Court jurisdiction up to a particular limit to try as a Small Cause Court suit, a suit exceeding that ...
Girish Chandra Das Vs. Sm. Annadamoni W/O Nannilal Mondal and anr.
Court: Kolkata
Decided on: Jan-10-1939
Reported in: AIR1939Cal309
ORDEREdgley, J.1. This rule is not opposed. It appears that on 28th February 1938, the learned Munsif of Diamond Harbour directed that an application to set aside a sale under Section 174, Ben. Ten. Act, should be allowed, provided the applicant deposited in Court the amount recoverable from her in execution of the decree within seven days from the date of the order. In default the application would stand rejected. The applicant failed to comply with the conditions mentioned in the order dated 28th February 1938; and it appears from the record that, on 7th March 1938, she filed a petition asking for an extension of time to make the deposit. The petition was granted on 8th March 1938.2. In my opinion the order dated 28th February 1938, was a final order of the Court, and this order should not have been modified except in the manner provided by Order 20, Rule 3, Civil P.C., A similar point was decided by me in Civil Revn. Case No. 1136 of 1938 in which I held that in a case such as this,...
Sm. Sarada Sundari Das W/O Madan Mohan Das and anr. Vs. Jabbar Ali and ...
Court: Kolkata
Decided on: Jan-10-1939
Reported in: AIR1939Cal331
1. This is an appeal by the decree-holders whose application for execution has been dismissed by both the Courts below on the ground that at the date of the application the decree under execution was dead and gone. The application for execution with which we are concerned in this appeal was filed on 18th September 1936, and was numbered as Execution Case No. 333 of 1936. For the purposes of following the controversies between the parties, the following facts are material. The decree under execution is a mortgage-decree passed against the respondents so far back as 28th February 1925. The first application for execution, numbered 198 of 1925, was filed on 27th May 1925. The decree-holders did not proceed on with this application and allowed it to be dismissed for default on 8th September 1925. Between 1925 and 1927 there were certain proceedings taken by the mortgagors to set aside the final decree which was passed on 28th February 1925. These proceedings terminated in favour of the dec...
Kedar Nath Tushnial and ors. Vs. Raj Kumar Das and ors.
Court: Kolkata
Decided on: Jan-10-1939
Reported in: AIR1939Cal674
S.K. Ghose, J.1. The appellants before us were the petitioners in the lower Court and they are the heirs of one Damodar Das Tushnial who was a creditor to the estate of Joyram Das, deceased. In these' proceedings, they seek to establish that Joyram validly executed a will bearing: date 31st Bhadra 1334 corresponding to 17th September 1927. It is not disputed that prior to that date, that is to say, on 9th Falgoon 1318 corresponding to 21st-February 1912 Joyram had validly executed another will which was registered. At that time, Joyaram had two wives, two daughters and four sons. At the time of the disputed second will, one of the wives and one of the daughters had died and three of the sons had attained majority. The main difference between the two wills may be stated as follows: By the first will Joyram dedicated all his immovable-properties to an idol and bequeathed his moveable properties to his sons. He appointed his sons as shebaits and named two executors who were to administer ...
Anath Nath Bose Vs. Monmotha Nath Bose and ors.
Court: Kolkata
Decided on: Jan-09-1939
Reported in: AIR1939Cal482
ORDERMcNair, J.1. This is an application for execution of an award dated 27th May 1929 which was filed in this Court on 30th May 1929. The plaintiff seeks to execute the award by attachment and sale of the properties belonging to the opposite parties and set out in the schedule annexed to the tabular statement. By the award it was found that after adjustment of all accounts a sum of Rs. 42,000 was due and owing to the applicant. There was a direction for payment of that sum with interest at 6 per cent, per annum by instalments. The first instalment of Rupees 5000 was to be paid within two years. In 1931 there was a partition suit in which a consent decree was passed on 22nd May. By the preliminary decree the shares of the parties were declared, the applicant being entitled to 1/3rd share, and the opposite parties to the remaining 2/3rd. The arbitrator responsible for the award was appointed Receiver in the suit. There was default in payment of the first instalment payable under the awa...
Emperor Vs. Sm. Sarojini De Chowdhury
Court: Kolkata
Decided on: Jan-08-1939
Reported in: AIR1939Cal337
ORDER1. The material facts are as follows : One Mohanto Lal De Chowdhury was convicted and sentenced under Section 420, I.P.C., to undergo rigorous imprisonment for one year and in addition to pay a fine of Rs. 200. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for a further period of six months. The fine was not paid. The prisoner surrendered on 22nd January 1938 and was released on 29th August 1938, after serving the full sentence including the period of imprisonment in default. On 2nd July 1938, an order was passed for realisation of the fine by distress warrant. In execution of that warrant certain items of moveable property were seized. On 29th August 1938 the wife of the prisoner made a claim to these properties. The matter was referred to a Sub-Inspector of police for report. The Sub-Inspector reported against the claimant. Without further enquiry the Magistrate rejected the claim and sold the property attached. The learned Sessions Judge has t...
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