Mumbai Court June 1883 Judgments
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Kashinath Morsheth Vs. Ramchandra Gopinath
Court: Mumbai
Decided on: Jun-29-1883
Reported in: (1883)ILR7Bom408
West, J.1. It appears that when the Subordinate Judge originally disposed of Kashinath's claim to raise Ramchandra's attachment, there was, in fact, no attachment subsisting. The attachment had already been withdrawn by the Court on account of Ramchandra's having failed to pay some court fees. There was thus no object existing on which the adjudication could operate. A decision under such, circumstances, which must of necessity be void of any effect, could not properly be regarded as res judicata at, all. As it could have no real operation, it was as a mere scene in a play, which no one would be seriously interested in having performed in a different way. For res judicata to operate there must be an identity of the cause of action proposed for adjudication in a later suit with the cause disposed of in an earlier one; and this is impossible when in the earlier one there was no really existing cause at all See Savigny Syst., Section 300, and App. XVII.2. Kashinath, however, did bring a s...
Mahadaji V. Karandikar Vs. Hari D. Chikne
Court: Mumbai
Decided on: Jun-28-1883
Reported in: (1883)ILR7Bom332
West, J.1. The decree in the present case was one for sale of property to satisfy a claim on a mortgage. To such cases the provisions of Section 210 of the Code of Civil Procedure, as to the allowance of payment by instalments, do not apply. This has been repeatedly ruled--see Shankarapa Dargo Patel v. Danapa Virantapa I.L.R. 5 Bom. 604; Hardeo Das v. Hukam Singh I.L.R. 2 All. 320; and Bachchu v. Madad Ali I.L.R. 2 All. 649. From these it is plain that the Court itself could not, in this case, have made a decree for payment by instalments. Much less, then, could the officer charged with the duty of executing its decree, vary that decree so as to give it an illegal effect in carrying it into execution. The decree having been one for a sale 'of immoveable property in pursuance of a contract specifically affecting the same,' the Collector's discretion was limited to a choice amongst the three courses specified in Section 321 of the Code of Civil Procedure. Amongst these there is not any p...
Nahanibai Widow of Venkatidas Vs. Nathu Bhau
Court: Mumbai
Decided on: Jun-25-1883
Reported in: (1883)ILR7Bom414
West, J.1. The original debt in this case was contracted eighteen years before the striking of the balance on Which eventually the present suit was instituted. Three years afterwards the debtor paid interest, which he debited in his ledger to the creditor against a credit of the like amount for interest accrued due. Fifteen years afterwards the interest was again computed, and the debtor's successor in title, his brother, carried over the balance to the next year with a written memorandum 'Due for balance of old account'. As an acknowledgment this could not avail to revive the right to sue which had long before been barred by limitation; but it is urged that the transaction was an account stated, and that on such a statement in writing signed a new cause of action arose, which, under Article 64 of Schedule II of Act XV of 1877, could be sued on at any time within three years from its date. Now, there are, no doubt, some cases which assume, and some few which necessarily imply, that an ...
Ruttonsey Lalji and ors. Vs. Pooribai and ors.
Court: Mumbai
Decided on: Jun-15-1883
Reported in: (1883)ILR7Bom304
Scott, J.1. I am asked to give effect to the 375th section of the Civil Procedure Code (Act XIV of 1882), and to record 3,11 agreement by which this suit has been adjusted between the parties. I cannot find in the Reports any instances of the application of this section, but two instances of the application of an analogous section, Section 523, have been brought to my notice.2. It has been argued that Section 374 only applies where the parties are in agreement at the moment of moving the Court; and that, if they are not then in accord, the only remedy on the agreement sought to be enforced is by suit for specific performance. Such a reading of the clause would deprive it of all utility, as parties in agreement can, apart from this section, either come into Court with a consent decree, or put in force Section 152 of the Code. To give the section substantive effect I must interpret it more largely than the plaintiff desires. I think the Legislature introduced this rule to meet the case w...
Chunilal Panalal Vs. Bomanji Manoherji Modi and ors.
Court: Mumbai
Decided on: Jun-14-1883
Reported in: (1883)ILR7Bom310
Birdwood, J.1. The first point for consideration is whether the document on which the suit is brought is one of which the registration was compulsory under Section 17 of Act III of 1877. It is an agreement or 'bargain-paper' as it is styled, to sell a House, and acknowledge the receipt of Rs. 1,000 from the purchaser as earnest-money. The vendors were to make, out a good title and to get approved, through the purchaser's solicitors, as being of good title, a deed of sale of the house, according to law, within a period of two months, and to deliver the same. In the event of a good title not being made out, the bargain-paper was to be null, and the earnest-money was to be returned. In Burjorji Cursetji Panthaki v. Muncherji Kuverji I.L.R. 5 Bom. 143 an unregistered document containing an agreement to sell, acknowledging receipt of earnest-money and providing for the execution of a deed of sale was held by West, J., to be one which, being unregistered, could not create or assign any inter...
Tatya Vithoji Vs. Bapu Balaji
Court: Mumbai
Decided on: Jun-14-1883
Reported in: (1883)ILR7Bom330
West, J.1. The Court in a case like the present is not at liberty to go behind a previous decree between the parties. This was ruled in Apaji Yadav Kulkarni v. Atmaram Daji Kulkarni Printed Judgments for 1882 p. 125.2. Here the decree, it is argued, gives effect to a contract in a mortgage in a particular way, and is, therefore, to be regarded as a contract subject to revision under Section 13 of Act XVII of 1879. But the distinction between a contract and a judgment is so great that the latter extinguishes the former, as Lord Selborne says in Lockyer v. Ferriman L.R. 2 Ca. 519; and that entirely different principles apply to them in case revision should be sought, was shown in Balkrishna Bhalchandra v. Gopal Raghunath I.L.R. 1 Bom. 73. Hence the revision and re-adjustment of the account made by the Courts below were not warranted. We have to look to the precise relation created by the earlier decree, and the extent to which it has been satisfied, and to these alone, to determine the p...
Anandrav Bhikaji Phadke and Three ors. Vs. Shankar Daji Charya and Twe ...
Court: Mumbai
Decided on: Jun-13-1883
Reported in: (1883)ILR7Bom323
West, J.1. The first point taken for the respondents in this case is that the suit was barred by limitation. The acts complained of are intrusions into a sanctuary, and what the plaintiffs seek is a declaration of their right, and an injunction against further intrusions on the part of the defendants. Such a suit is not barred by limitation merely because the first act specified may fall beyond the term of limitation. Intrusions and acts of worship, whether rightful or wrongful, are not continuous like possession, and there is not any provision of the law of limitation which prevents the establishment of a right connected with worship, or a religious institution, merely because the first interference with it may hare occurred more than three, or more than six, or twelve, years before the institution of the suit. If the acts of worship, or other proceedings of the defendants, in such a case have been so often repeated, and so consistent, during a long period that a presumption of a lega...
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