Mumbai Court July 1887 Judgments
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Hormasji Motabhai Vs. Pestanji Dhanjibhai
Court: Mumbai
Decided on: Jul-27-1887
Reported in: (1888)ILR12Bom422
West, J.1. In this case the plaintiff sued the defendants for an account of partnership transactions. The defence is that the partnership having been entered into in violation of the law, no obligation was constituted by it. The defendants Nos. 3 and 4 took a liquor contract from the Government, and, by the terms of their license, were forbidden to take a partner. By taking the plaintiff as a partner they consequently became liable to a penalty of Rs. 100 under Section 45 of the A'bkari Act (Bombay Act V of 1878). The plaintiff has himself been a licensee, and must be familiar with the terms embodied in the usual form, which was made use of in the present case. In entering into partnership with the defendants, therefore, he was consciously taking part in a breach of the law prohibited by a penalty. The case of Sykes v. Beadon L.R., 11 Ch. Div referred to in argument, shows that a contract entered into for the purpose, or with the necessary effect, of defeating a statute will not be enf...
Rango Jairam Vs. Balkrishna Vithal
Court: Mumbai
Decided on: Jul-21-1887
Reported in: (1888)ILR12Bom44
Charles Sargent, C.J.1. As neither the disbursing officer nor the judgment-debtor himself lives within the local jurisdiction of the Court, the salary of the judgment-debtor can in no sense be said to be within the jurisdiction, and cannot, therefore, be attached. A copy of the decree may be sent to Nagpur for execution, where the disbursing officer resides, and the judgment-debtor has pay available for the satisfaction of the decree....
De Souza and anr. Vs. Vaz and anr.
Court: Mumbai
Decided on: Jul-21-1887
Reported in: (1888)ILR12Bom137
Farran, J.1. This was a suit filed for the purpose of having certain clauses in the will of Louis Maria De Souza construed, and the shares of the beneficiaries under the will paid to them. The plaint also sought to have the accounts of the executors under the will taken. The plaintiff now on the record, in view of saving expense, does not any longer desire the taking of the accounts; and, with one exception, has abandoned his objection to the items in those accounts of which he complained. The only matters I have, therefore, to deal with, are the construction of the will, and the ascertainment whether a payment of Rs. 2,486-3 to Louis Gabriel, a son of the testator, ought to be made good to the estate by the surviving executor J.F. Vaz in his own person and as the surviving executor of his deceased co-executor M.A. Misquita.2. The will to be construed is as follows: (His Lordship read the will as above set forth.)3. The testator died in 1865, leaving him surviving three sons, Louis Gab...
Shri Sidheshwar Pandit Vs. Shri Harihar Pandit
Court: Mumbai
Decided on: Jul-20-1887
Reported in: (1888)ILR12Bom155
Charles Sargent, C.J.1. The plaintiff who presented his darkhast in the Court of the First Class Subordinate Judge, has taken the objection, that the Subordinate Judge of the Second Class had no jurisdiction to adjudicate on the darkhast, the subject-matter both of the suit and of the darkhast being above 5,000 Rs. The Subordinate Judge, it appears; had been appointed, under Section 23 of Act XIV of 1869, to assist the First Class Subordinate Judge in the disposal of the suits on his file, and was directed by the latter to dispose of the darkhast in question. The assistance, however, contemplated by that section could only be afforded within the limits of a Second Class Subordinate Judge's jurisdiction as fixed by Section 24 of Act XIV of 1869, and could not, therefore, be invoked by the Subordinate Judge of the First Class, except in matters within his competence. The execution of the decree by Section 223 of the Civil Procedure Code belongs to the Court which has pronounced it, and a...
Desai Malabhai Bapubhai Vs. Keshavbhai Kuberbhai
Court: Mumbai
Decided on: Jul-20-1887
Reported in: (1888)ILR12Bom419
West, J.1. The plaintiff Keshavbhai had not, so far as the evidence shows, possession of land within the meaning of Section 4, Clause 2, of the Mamlatdars' Act in such wise that he could claim an injunction from the Mamlatdar. When this clause is compared with the first of the same section, we may gather, from the omission from it of the words 'profits of the same' (that is of lands), that only an interruption of physical possession or enjoyment was intended to be removed by the injunction for which the clause provides. Such possession the plaintiff Keshavbhai had not acquired; nor, so far as the evidence shows, is it clear that he had ever acquired a complete constructive possession through an attornment of tenants, who having previously paid rent to Divali and so created a de facto possession as of a land-lord in her would thus complete a transfer from her to Keshavbhai.2. We, therefore, make the rule absolute, and reverse the Mamlatdar's order. Costs of these proceedings to be borne...
Vinayak Amrit, Deshpande Vs. Abaji Haibatrav
Court: Mumbai
Decided on: Jul-19-1887
Reported in: (1888)ILR12Bom416
West, J.1. The plaintiff in this case no doubt sought a decree which should award payment to him by the defendant in perpetuity of a certain part of the produce of the village of Bichukli. But what was decreed by the Court of first instance was that the plaintiff had a right to an annual payment from the defendant of produce to be estimated in the way therein prescribed. On appeal to this Court, the decree was modified as to the determination of the relative proportional rights of the parties, and payment was ordered of mesne profits computed according to the principles thus laid down. This adjudication took place in 1878. It appears to have been used by the parties as a standard for the division of profits for some time afterwards, but as to the years 1882-84 a dispute arose, and the plaintiff sought to enforce his right under the decree by execution proceeding against the defendant. The Subordinate Judge has adjudged in favour of the plaintiff as judgment-creditor, but it does not se...
Venkapa Naik Vs. Baslingapa BIn Kotrabasapa
Court: Mumbai
Decided on: Jul-18-1887
Reported in: (1888)ILR12Bom411
West, J.1. The cases cited in argument make it clear that under Act VIII of 1859 and the supplemental Act XXIII of 1861 the ordinary mode of enforcing payment by a surety was by summary process in execution, not by means of a separate suit. This was so equally whether the security had been taken in the course of the original suit or of the appeal. In the case of security taken after decree, and when no litigation between the parties was actually pending, a difference seems to have been recognized in some instances, but it is not necessary to discuss those cases at present. In the new law embodied in Act XIV of 1882, Section 253 says that execution of a decree in an original suit may proceed against one who has become surety for its satisfaction pending the suit, in the same manner as against the defendant. Section 583 again says that the Court shall on due application execute a decree in appeal 'according to the rules hereinbefore prescribed for the execution of decrees in suits.' This...
Queen-empress Vs. Tulja and ors.
Court: Mumbai
Decided on: Jul-14-1887
Reported in: (1888)ILR12Bom36
West, J.1. This is a reference by the Sessions Judge of Sholapur under Section 215 of the Criminal, procedure Code (Act X of 1882). 2. The question for decision is, whether a Sub-Registrar for the purposes of the present case is to be regarded as a Judge, and the proceedings held before him as judicial proceedings,in a Court, so that no prosecution for forgery can proceed without his sanction in respect of a forged document presented for registration in his office?3. It might have materially assisted the Court if the Sessions Judge, instead of adopting the somewhat superficial reasoning of the Assistant Sessions Judge, had entered on an independent investigation of the question from the standpoint of his own wider knowledge and riper experience.4. The expression forgery is used as a general term in Section 463 of the Indian Penal Code, and that section is referred to in a comprehensive sense in Section 195 of the Criminal Procedure Code, so as to embrace all the species of forgery afte...
Fulchand Vs. Bai Ichha
Court: Mumbai
Decided on: Jul-13-1887
Reported in: (1888)ILR12Bom98
Charles Sargent, C.J.1. This appeal raises a question as to the proper construction of Section 11 of Act VII of 1870. It has been contended that, as the plaintiff has not paid the proper fee on the sum of Rs. 3,349-14-3, the amount of the mesne profits as found in his favour, he cannot execute the rest of the decree, which relates to the delivery of the documents lodged in Court and of possession of the house, It is said that the 'decree,' the execution of which is prohibited by the section until the proper Court fee is paid, is the whole decree, and not such part of it as relates merely to the mesne profits. The language of Section 17, which deals with multifarious suits, shows that, for the purposes of the stamp revenue, such suits are deemed to be a collection of distinct suits relating to the several causes of action combined in them. And we think that in applying Section 11 to such suits, we ought, in order to give an harmonious construction to the Act as a whole, to construe the ...
Dev Gopal Savant Vs. Vasudev Vithal Savant
Court: Mumbai
Decided on: Jul-11-1887
Reported in: (1888)ILR12Bom371
West, J.1. In this case the appellant, as represented by his brother, now deceased, presented to the Subordinate Judge certain objections to the partition which the Collector was about to make of an estate under a decree. The Subordinate Judge entertained the application, obtained a report from a surveyor, and thereupon made an order for superseding the distribution ordered by the Collector.2. An appeal was made to the District Court, where the District Judge reversed the Subordinate Judge's order; and on a further appeal to this Court this decision of the District Court was confirmed. But the present appellant was not a party to either of those appeals. Several applications for execution of several decrees had been consolidated in the Court of first instance; the parties concerned were numerous; and in naming the respondents in the District Court the appellants then omitted the present appellant and his brother, who thus dropped out of the further proceedings.3. The effect of the High...
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