Mumbai Court August 1888 Judgments
Dhunjibhoy Cowasji Umrigargh Vs. Lisboa
Court: Mumbai
Decided on: Aug-31-1888
Reported in: (1889)ILR13Bom241
Charles Sargent, C.J.1. Where a decree orders payment of money and an appeal is lodged against that decree by the party directed to pay, we think that on his application the execution of the decree should be stayed so far as it directs payment on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted. We make an order in this case accordingly. The costs of this application will be costs in the appeal.2. The following order was made:It is ordered that on the respondent giving security for the sum of rupee three thousand, eight hundred and forty-four, annas fourteen and pies three to the satisfaction of the Acting Prothonotary of this Honourable Court Ion or before Friday, the seventh day of September one thousand eight hundred and eighty-eight, the said application be refused ; and it is farther ordered ...
Tag this Judgment!Sayad Jafir Saheb Vs. Sayad Kadir Rahiman and anr.
Court: Mumbai
Decided on: Aug-30-1888
Reported in: (1888)ILR12Bom634
Charles Sargent, C.J.1. The District Judge has found that the privy is a nuisance, but has held that the defendants have established the two propositions laid down by Lord Watson in Metropolitan Asylum District v. Hill 6 H.L. App. Cas. 193 as requisite to justify such a nuisance: firstly, that he was acting under the imperative orders of the Legislature, and secondly, that he could not possibly obey those orders without injuring private rights. The defendant may hare acted under the orders of the Municipality. But the terms of the Statute, Bombay Act VI of 1873, Section 36, under which those orders were given, were not imperative in requiring the Municipality to call on the owner of the particular house inhabited by the defendants or any houses within a particular area in which the defendants' house was situated, to build a privy, but are simply permissive, leaving it to the discretion of the Municipality to determine when the power conferred on them shall be exercised. In such a case ...
Tag this Judgment!Gurpada BIn Irapa Vs. Naro Vithal Kulkarni
Court: Mumbai
Decided on: Aug-28-1888
Reported in: (1889)ILR13Bom493
Birdwood, J.1. The Subordinate Judge admitted in evidence, as duly stamped the memorandum of partition which the plaintiff filed as part of the evidence in support of his claim to the property in suit. It would appear that the Subordinate Judge rightly admitted the document, as under the decision of this Court in Regular Appeal No. 5 of 1866, decided on the 28th April 1868, such a document would not come within the description of deeds given in Section 10 of Regulation XVIII of 1827, and therefore required no stamp at all, But whether that be so or not, it was not, we think, competent to the District Judge, on appeal, to question the admission of the document, and to hold that the decision in the former suit between Gopal, through whom the plaintiff claims, and Govind, through whom the defendant claims, was conclusive between the parties as to the insufficiency of the stamp, it having been decided in that suit that the document was insufficiently stamped. The Judge says that in the pre...
Tag this Judgment!Assur Purshotam Vs. Ratanbai
Court: Mumbai
Decided on: Aug-25-1888
Reported in: (1889)ILR13Bom56
Jardine, J.1. The plaint was filed to-day, and the interim injunction asked for is to restrain an adoption which, it is alleged, is to take place tomorrow. The injury apprehended is that, if the defendant adopts, in breach of her covenant with the plaintiff, the adopted son, having acquired that status, will acquire rights in the family property, and so the intention of the contract will be defeated. No case of an injunction to restrain an adoption hag been shown me, and after consulting my colleague, Mr. Justice Bayley, whose experience is very great, I find he knows of no such case. The serious results, which among Hindus may occur from the prevention of an adoption, ought to incline the Court to proceed with caution. There is no time to hear what the defendant has to say, and the affidavit does not account for the plaint and motion not being made till this day, Saturday. I am of opinion that cause for the delay should have appeared on the affidavit. Following Lord Eldon's decision i...
Tag this Judgment!Hassanbhoy Visram and ors. Vs. the British India Steam Navigation Comp ...
Court: Mumbai
Decided on: Aug-24-1888
Reported in: (1888)ILR12Bom579
Charles Sargent, C.J.1. This was an application for a re-hearing under Section 38 of the Small Cause Courts Act of 1882. The grounds set out in the affidavit, by which it was supported, were that the decision of the Small Cause Court was opposed to the weight of evidence and also contrary to law. The Legislature has not given an appeal to the High Court in all cases in which the value of the subject-matter exceeds one thousand rupees, but by Section 38 It has provided for an application being made ex parte on affidavit 'for a trial of the cause by the High Court, and which the Court is directed to grant (on such terms as it thinks fit) if it' is of opinion that there has been a miscarriage or failure of justice. 'It must be at once conceded that the term' opinion 'does not necessarily imply' conviction.' It can scarcely be better defined than in the words of Hale, to be found in Webster's Dictionary, as' that assent of the understanding which is so far gained by evidence of probability...
Tag this Judgment!Sayad Hashim Saheb Valad Sayad Ahmed Saheb Vs. Huseinsha Valad Karimsh ...
Court: Mumbai
Decided on: Aug-17-1888
Reported in: (1889)ILR13Bom429
Parsons, J.1. The plaintiff in this case, alleging that he is the vatandar kazi and the khatib of Gadag, and that the defendant obstructs him in the exercise of the latter office, sues for a declaration of his sole right to hold the office of khatib and for an injunction to restrain the defendant from obstructing him in the enjoyment of that office. The lower Courts have dismissed the suit: the Court of first instance--on the ground that the suit was barred by Section 21 of Regulation II of 1827, the point at issue being a caste question; the appellate Court--on the ground that the suit would not lie, as it was one regarding the right to perform a merely religious duty to which no fees are attached as of right. We accept the finding that no fixed fees are attached to the office as one of fact (indeed the correctness of the finding is not disputed on behalf of the plaintiff); still we think that both the Courts are wrong in the view they have taken of their want of jurisdiction. No case...
Tag this Judgment!Anupchand Hemchand Vs. Champsi Ugerchand
Court: Mumbai
Decided on: Aug-17-1888
Reported in: (1888)ILR12Bom585
Charles Sargent, C.J.1. The first question referred to us is whether oral evidence is admissible to prove that a contract for the purchase and sale of goods deliverable on a certain day was in reality a gaming transaction, on the ground that neither party intended there should be an actual buyer and seller, but only that the difference between the price when the bargain was made and the price at the time fixed for delivery should be paid by one or other of the parties. By Bombay Act III of 1865 Act III of 1865, Section 1. 'All contracts, whether by speaking, writing or otherwise, knowingly made to further or assist the entering into, effecting or carrying out agreements by way of gaining or wagering, and all contracts by way of security or guarantee for the performance of such agreements or contracts shall be null and void; and no suit shall be allowed in any Court of Justice for recovering any sum of money paid or payable in respect of any such contract or contracts, or any such agree...
Tag this Judgment!Dulari Vs. Vallabdas Pragji
Court: Mumbai
Decided on: Aug-15-1888
Reported in: (1889)ILR13Bom126
Jardine, J.1. I am satisfied, by the evidence of the moneylender Matapadan and his book, that the petitioner Dulari has this year pledged with him the gold ornaments of the value of about Rs. 275 which he produced, on which he advanced Rs. 260 to petitioner. I do not believe her denial of these facts. Without taking the other evidence which Mr. Davar, for the respondent, was willing to give, I find that Dulari is not a pauper, and I refuse her leave to sue as such.2. Mr. Davar has also argued that the application should be rejected under Section 407, Clause (c), of the Code of Civil Procedure, on the ground that petitioner's allegations do not show a right to sue. He relies on the passage in the judgmeat of a Fall Bench in Chatterpal Singh v. Raja Ram I.L.R. 7 All. 661 which is as follows: 'We cannot read these words of Section 407 as binding the Court's discretion to merely ascertaining whether 'the right to sue' arose within its jurisdiction, but they have in our opinion a more exten...
Tag this Judgment!Kagal Ganpaya Vs. Manjappa and ors.
Court: Mumbai
Decided on: Aug-14-1888
Reported in: (1888)ILR12Bom691
Charles Sargent, C.J.1. The District Judge held that only the share of Manjappa, the second defendant, passed to the plaintiffs vendor under the Court sale in execution of the decree against the second defendant, on the ground that the decree was a mere money decree as distinguished from one passed in a suit for the realization of a mortgage security directing the property to be sold. This distinction is doubtless much relied on by the Privy Council in Baboo Hurdey Narain Sahu v. Pundit Baboo Rooder Perkash Misser 11 Ind. Ap., 26 as explaining the apparent inconsistency between the decision in Girdharee Lall v. Kantoo Lall 1 Ind. Ap., 321 and that in Deendyal Lal v. Jugdeep Narain Singh 4 Ind. Ap., 247 ; and was acted upon by this Court in Trimbak v. Narayan I.L.R., 8 Bom., 481 . However, that the above distinction is not a complete test of whether the entire family property or only the father's interest in it passes to the auction-purchaser, and that Deendyal's Case does not bind the ...
Tag this Judgment!Umersey Premji and anr. Vs. Shamji Kanji and Bhanji Kanji
Court: Mumbai
Decided on: Aug-13-1888
Reported in: (1889)ILR13Bom119
Jardine, J.1. On reading the correspondence I find that Mr. Anderson's client, defendant No. 2, has not waived his right to object to the validity of the award, on the ground that it was not delivered within the time allowed under the order of the Court, although it was made and signed within that period.2. Mr. Andarson relies on the interpretation placed by the Court at Allahabad in Behari Das v. Kalian Das I.L.R. 8 All. 543 on the last clause of Section 521 of the Code of Civil Procedure, viz. 'and no award shall he valid unless made within the period allowed by the Court.' On considering the clause along with Sections 508 and 514 the learned Judges held it to be equivalent to a rule that the award must be delivered within that period. No other reported case dealing with the clause has been shown me. The clause appears in the same words in Section 521 of the Code of 1877, and a similar enactment is found in Act VIII of 1859 in the proviso to Section 318. At the hearing I noticed that...
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