Mumbai Court June 1887 Judgments
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Jivan Bhaga, Vs. Hira Bhaiji
Court: Mumbai
Decided on: Jun-28-1887
Reported in: (1888)ILR12Bom363
West, J.1. The appellant in this case having obtained a decree against a bhagdar attached his bhag in execution. As a part of the bhag he attached the gabhan or site whereon stands the respondent's house. The Assistant Judge has held that the house itself is exempted from attachment, as being that of an agriculturist. The site, therefore, he thought, must be equally exempt; and he has decreed that the attachment be raised from the site, even though this should involve the consequence which he foresees that thus the attachment will be defeated altogether through the legally inseparable character of the bhag.2. Bombay Act V of 1862 provides that a bhag shall not be subdivided in execution of a decree, and that a homestead or gabhan appendant or appurtenant to a bhag shall not be attached or sold apart from it. In Section 266(c) of the Code of Civil Procedure, it is provided that the materials of houses belonging to, and occupied by, agriculturists shall not be liable to attachment. In th...
Govind Lakshman Joshi and anr. Vs. Ramkrishna Hari Joshi
Court: Mumbai
Decided on: Jun-28-1887
Reported in: (1888)ILR12Bom366
West, J.1. The appellants obtained a money decree against Ramkrishna, and in execution attached his jotishi vritti on three occasions. In 1380 the profits for the year seem to have been appropriated towards the discharge of the debt. In 1883 the sons of Ramkrishna intervened, and procured the release of three-eighths of the profits from attachment. Then in 1884 the plaintiffs attached the whole right of Ramkrishna as joshi, treating it as a thing in commerce and subject to sale under the execution against him. The District Judge has held it was not subject to sale, and no case exactly opposed to this decision has been cited. Probably the most correct view of vrittis under the Hindu law would be to regard them as generally extra commercium, but it does not seem necessary to resort to that principle. Section 266(f) of the Code of Civil Procedure has been construed by the Courts as meaning that the right to take certain emoluments as the reward for personal service is not liable to attach...
Pedro Antonio De Penha Vs. Jalbhoy Ardeshir Set
Court: Mumbai
Decided on: Jun-28-1887
Reported in: (1888)ILR12Bom368
West, J.1. The proclamation of sale in this case was made without a prior attachment, because the suit had been brought by a mortgagee to enforce payment of the mortgage-debt with which the property was charged. At the request of the mortgagor, the property, which was of an area of between 10 and 11 acres, was divided into 22 small lots as a means of obtaining a better aggregate price. The only objection to the regularity of the proceedings connected with the sale, that has been left in contention at the end of the arguments, is this, that a separate proclamation of the intended sale ought to have been made on each lot into which the property was or was to be divided. Section 289 of the Code of Civil Procedure requires the proclamation to be made where the property is attached. There being here no attachment, we must read the section by analogy as saying 'where the property would or might be attached,' and that is, by Section 274, a spot on or adjacent to the property to be sold. A pro...
Rampratap Vs. Ganesh Rangnath
Court: Mumbai
Decided on: Jun-27-1887
Reported in: (1888)ILR12Bom31
Charles Sargent, C.J.1. We think there is no objection to the Subordinate Judge trying the set-off pleaded by the defendant. He is not the Judge of two Courts, but has two jurisdiction-Malhari v. Narso Krishna I.L.R., 9 Bom., 174and will exercise his Small Cause Court jurisdiction in trying the claim made by the plaint and his ordinary jurisdiction in trying the set-off; and as he is governed by the Code of Civil Procedure in his procedure-Bhagvan Dayalji v. Balu I.L.R., 8 Bom., 231 he will set off the one debt against the other as provided by Section 111....
Mahant Ishwargar Vs. Chudasama Manabhai and ors.
Court: Mumbai
Decided on: Jun-23-1887
Reported in: (1888)ILR12Bom30
Charles Sargent, C.J.1. The question as to the amount of security to be given by the defendant as the condition of the stay of execution of the decree against him was a question now 'relating to execution' within the contemplation of Section 244 of the Civil Procedure Code, and, therefore, an order determining that question would be appealable under Section 2 of the Civil Procedure Code-Ghazidin v. Fakir Bakhsh I.L.R. 7 All. 73; Udeyadeta Deb v. Gregson I.L.R. 12 Cal. 624. No reference, therefore, lies to this Court under Section 617, even assuming that section to apply to a proceeding of this nature under Section 647. Plaintiffs to pay defendant his costs....
Ziulnissa Ladli Begam Saheb Vs. Motidev Ratandev
Court: Mumbai
Decided on: Jun-20-1887
Reported in: (1888)ILR12Bom268
West, J.1. In this case an acknowledgment, dated 3rd November 1880, is relied on by the plaintiff as having, as the last of an annual series, kept alive his right to sue for a debt contracted and due on the 22nd October, 1876. The intermediate acknowledgments, it is said, were given back, and it is contended that, on proof of this, they can be proved by oral evidence so as to bridge over the interval of four years between the original obligation and the acknowledgment actually produced. But Section 19 of the Limitation Act, XV of 1877, says clearly that oral evidence of the contents of an acknowledgment may not be received, nor is there any saving of acknowledgments received or given back before the Act came into operation. We are constrained, therefore, to apply the enactment to which we have referred, and the true sense of which cannot be doubted after a comparison with the corresponding Section 20 of Act IX of 1871. It excludes the intermediate acknowledgments as resting on oral pro...
Sitaram Paraji Vs. Nimba Valad Harishet
Court: Mumbai
Decided on: Jun-20-1887
Reported in: (1888)ILR12Bom320
West, J.1. Decree confirmed with costs. The time spent in the actual proceedings in the suit to set aside the order in execution might properly be deducted in computing the delay that occurred before the present appeal was filed. Such a deduction would follow the analogy of the rule prescribed by Section 14 of the Limitation Act (XV of 1877) for ordinary suits. But a deduction of the time that passed before the suit was filed would not follow that analogy. Mere ignorance of the law cannot be recognized as a sufficient reason for delay under Section 5 of the Act, for that would be a premium on ignorance....
Mulji Bhulabhai and ors. Vs. Manohar Ganesh
Court: Mumbai
Decided on: Jun-20-1887
Reported in: (1888)ILR12Bom322
West, J.1. The contention that the shevaks, the defendants in this case, though they acquired possession or detention of the land in dispute as servants and representatives of the deity Ranchhod Raiji, have yet by long occupation and user acquired a quasi-proprietary title as against the manager of the temple estate, the plaintiff Manohar, is not one that can be admitted. It is opposed to the principle Nemo potest possessionis suae naturam mutare. Having come in as servants or representatives of the deity, they could not by a wish or a volition change the nature of their possession, if possession it was to be called. They held for the deity, however; Manohar held for the same deity. In that ideal personage the two rights concurred, and one could not therefore really be adverse to the other, so as to give rise to a title by prescription. The only question is as to the proper representative of the deity for this particular interest; and on the former decisions no doubt can be entertained...
Haji Fakir Mahomed Vs. Shaik Abdulla
Court: Mumbai
Decided on: Jun-14-1887
Reported in: (1888)ILR12Bom658
Farran, J.1. The plaintiff in. this case seeks to enforce against the defendant specific performance of a contract dated the 23rd June, 1886, by which the defendant agreed to sell to the plaintiff a house, No. 8, in Masjid Cross Lane which the defendant had contracted to purchase from Jamilabibi, the representative of the Chimkar family. The defence is that the defendant is entitled to rescind and did rescind this contract, and that the plaintiff is, therefore, not now entitled to have the same enforced. There is a subsidiary question whether, assuming the plaintiff to be entitled to enforce the contract, he can do so without allowing to the defendant the sums expended by the latter on the repairs of the house.2. The main issues raised were:1. Whether the plaintiff was ready and willing to carry out the agreement in the plaint mentioned within the time fixed by the parties for the completion thereof.2. Whether the defendant was entitled to rescind the said agreement, and whether he law...
Pallonji Merwanji Vs. Kallabhai Lallubhai and anr.
Court: Mumbai
Decided on: Jun-13-1887
Reported in: (1888)ILR12Bom85
West, J.1. This is an application made by Pallonji for restraining Mr. Kallabhai Lallubhai, a pleader engaged by him and his co-defendant Nassarvanji in a certain suit brought against them both by one Jamsedji in the Court of the First Class Subordinate Judge of Surat, from appearing and acting for Nassarvanji alone, since he, Mr. Kallabhai, had with the permission of the Court withdrawn from the conduct of that case for them both. The applicant also prayed that this Court should take such further notice of the conduct of Mr. Kallabhai as a pleader as to it might seem proper.2. A rule nisi was granted by us on the 9th December last, calling upon both the opponents to show cause why Mr. Kallabhai should not be prohibited from further acting on behalf of Nassarvanji.3. We have heard Messrs. Shantaram Narayan and Shivram v. Bhandarkar, who appear to show cause, and Mr. Manekshah Jehangirshah in support of the rule, and we do not think there is good ground shown for making the rule absolut...
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