Mumbai Court January 1888 Judgments
In Re: Dewcurn Jewraj and Heerjee Dewcurn
Court: Mumbai
Decided on: Jan-25-1888
Reported in: (1888)ILR12Bom342
Bayley, J.1. In this case a rule was obtained, on the 1st October, 1887, by Kalooram Mahanandram, one of the creditors of the insolvents, calling upon the other creditors to appear and show cause why they should not come in and prove their claims against the insolvents, and in default of such appearance why the names of such creditors should not be expunged from the insolvents schedule.2. The petition of the two insolvents was filed so long ago as February, 1868, and in July of that year they filed their schedule as required by the Statute. From the schedule it appears that the creditors are twenty-six in number, twenty of whom are residents in Karachi and six in Multan, and that the debts of the insolvents (all of which are admitted, but some of which are of very trifling sums), amount in the aggregate to Rs. 51,819-13, The insolvents obtained their personal discharge on the 15th March, 1869.3. It appears that since the date of the insolvency only one dividend has been declared, viz.,...
Tag this Judgment!Agarchand Gumanchand Vs. Rakhma Hanmant and anr.
Court: Mumbai
Decided on: Jan-24-1888
Reported in: (1888)ILR12Bom678
Birdwood, J.1. The third defendant (Gangaram) held a money decree against Rakhma and Gajia, the first and second defendants, and also a mortgage on the land in suit. He brought the land to sale on his money decree, but in his application for attachment concealed the fact of his mortgage. The plaintiff was the purchaser, and he now sues to eject the first and second defendants, who, as he says, became his tenants for one year after he had obtained possession under his sale, but refused to vacate at the end of the year. The sale took place in 1870. The plaintiff was put in possession by the Court in February, 1872. The third defendant, however, displaced this possession in. April, 1872, under a decree for possession obtained by him on his mortgage bond against the first and second defendants. The present suit was brought in 1883.2. It has been argued that it is barred under Article 138 of Schedule II of Act XV of 1877; but we cannot apply that article to the claim, for the plaintiff obta...
Tag this Judgment!Muktaji Bhagoji and anr. Vs. Manaji
Court: Mumbai
Decided on: Jan-24-1888
Reported in: (1888)ILR12Bom684
Birdwood, J.1. When the Special Judge appointed under Section 54 of Act XVII of 1879 calls for and examines the record of a suit under Section 53, he can legally do so only for the purpose of satisfying himself of the legality or propriety of any decree or order passed by a Subordinate Judge in any suit or other matter under Chapter II, IV or VI of the Act and as to the regularity of the proceedings therein. In the present case the Subordinate Judge had rejected a suit for redemption, on the ground that the plaintiff had failed to prove the mortgage and was not the owner of the land in suit. Thereupon the plaintiff applied to the Special Judge to review the decree under Section 53 of the Act. While the application was pending, the plaintiff made another application, saying that he had 'committed some error in the matter of bringing the suit,' and asking for permission to withdraw the suit, with liberty to bring a new one, as it was then too late to amend the plaint. The Special Judge g...
Tag this Judgment!Pallonji Shapurji Mistry Vs. Edward Vaughan Jordan
Court: Mumbai
Decided on: Jan-21-1888
Reported in: (1888)ILR12Bom400
Scott, J.1. Does Section 490 enable the holder of an. attachment before judgment to rank under Section 295 as an applicant in execution against the property attached after a decree is given in his favour, or is he still obliged to apply for execution under Section 230 and the sections which follow the chapter of the Code upon execution of decrees?2. Section 490 does not, in express terms, confer the right, but the Advocate General maintained that it is given by implication. The words of the section are 'it shall not be necessary to re-attach the property in execution of such decree.' No application for attachment, therefore, is necessary. The attachment before judgment enures, and becomes an attachment in execution. That is the effect of the section.3. Can a person holding such an attachment in execution proceed to a sale in execution of his decree; or are there other conditions to fulfil? Chapter XIX deals with execution generally, and I turn to it for the answer to this question. Sec...
Tag this Judgment!Ziaulnisa Begam and anr. Vs. Motiram and anr.
Court: Mumbai
Decided on: Jan-12-1888
Reported in: (1888)ILR12Bom496
1. The contention raised in the present case is as to the meaning of the expression 'sued forth' in Section 1 of Act XVIII of 1848. That section provides that no 'writ or process shall be sued forth or prosecuted * * * unless with the consent of the Governor of Bombay in Council first obtained.' The expression 'sued forth', it is contended, means 'to sue for and to obtain', and that, therefore, the institution of the suit in its inception was void, and the consent subsequently obtained did not cure the defect. The construction thus sought to be put upon the expression 'sued forth ', so as to make the consent a condition precedent to filing a suit, is, in our opinion, not correct. In similar enactments where such a condition is made precedent, the Legislature has clearly expressed their intention. Act XVII of 1873 (Nawab Nazim's Debts) bars by Section 11' suits 'and' process' against the person or property of persons for whose benefit it has been made, unless with the consent of the Gov...
Tag this Judgment!Cowasji Ruttonji Limboowalla Vs. Burjorji Rustomji Limboowalla and ors ...
Court: Mumbai
Decided on: Jan-10-1888
Reported in: (1888)ILR12Bom335
Scott, J.1. The plaintiff in this case claims, as assignee of the executrix and executor of Ruttonji Nowroji, deceased, to be entitled to a one-anna share in the business carried on by the defendants under the name of Nowroji Cursetji & Co., of which firm the deceased Ruttonji was a partner.2. The facts on which the plaintiff relies are set out in the fourth paragraph of the plaint, as follows: 'The accounts of the said partnership had remained unadjusted for many years prior to the death of the said Ruttonji * * * The defendants were anxious to obtain the signature of the said Ruttonji to some release or adjustment. After his said death the said defendants were anxious to obtain such release from the said executor and executrix * * * Ultimately it was agreed between them as follows:that the said executor and executrix should accept a lump sum offered by the defendants as the amount due to the estate of the said Ruttonji, without further examination of the past accounts of the firm, an...
Tag this Judgment!Vishnu Hari Kulkarni Vs. Ganu Trimbak
Court: Mumbai
Decided on: Jan-09-1888
Reported in: (1888)ILR12Bom278
Nanabhai Haridas, J.1. Where the question between a vatandar kulkarni and a rayat is whether the former is entitled to receive any perquisites at all from the latter, we do not think the jurisdiction of the Civil Court to try that question is taken away by any provision of Bombay Act III of 1874. We, therefore, reverse the District Judge's decree, and remand the case, in order that he may determine, as the Subordinate Judge has done, upon the evidence in the case, what amount, if any, is due to the plaintiff for the year 1881-82, and pass, a fresh decree accordingly, awarding costs, the Collector not having yet exercised his powers under Section 17 of that Act. But neither this decree nor any the District Judge may make is to affect the Collector's powers under that section when he chooses to exercise them. Respondent to pay the costs of this appeal....
Tag this Judgment!Khushalchand Mulchand and ors. Vs. Nagindas Motichand and anr.
Court: Mumbai
Decided on: Jan-09-1888
Reported in: (1888)ILR12Bom675
Birdwood, J.1. In this suit the plaintiffs prayed that accounts might be taken of all business done by the defendants on their behalf from 1854-55 to 1866-67, and that whatever was found due, might be decreed with interest.2. The Subordinate Judge dismissed the suit, and the plaintiffs have appealed to this Court; and the question is whether this Court has jurisdiction to hear the appeal. The plaintiffs first valued the relief sought by them at Rs. 130. They afterwards raised this valuation to Rs. 510, to prevent the suit from being treated as one cognizable by a Court of Small Causes. Under Act VII of 1870, Section 7, Clause iv (f), a plaintiff can, in a suit for accounts value the relief he seeks at any amount he chooses; and he pays court-fees only on such amount: see Govandas Kasandas v. Dayabhai Savaichand I.L.R., 9 Bom., 22 . It is argued, however, that such a valuation is a valuation only for the purposes of court-fees and not a valuation for the purposes of jurisdiction. Of cou...
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