Mumbai Court September 1909 Judgments
Shankar Ramkrishna Cholkar Vs. Krishnaji Ganesh Bade
Court: Mumbai
Decided on: Sep-29-1909
Reported in: 4Ind.Cas.583a
1. It is said the at all events, with regard to one of the mortgages in suit namely that executed in the year 1881 the plaintiff is entitled to maintain this suit because the second clause of Section 2 of the Dekkhan Agriculturists' Relief Act provides that 'the term 'agriculturist' when used with reference to any suit or proceeding shall include a person who, when any part of the liability which forms the subject of that suit or proceeding was incurred, was an agriculturist within the meaning of that word as then defined by law'. 'Then' defined by law relates to the time when' any part of the liability was incurred. We, therefore, have to look to the definition of the word agriculturist in the year 1881, the date of the mortgage in question.2. 'Agriculturist' by Act XXIII of 1881 amending the principal Act was defined to be a 'person who, when or after incurring any liability, the subject of any proceeding under the Act, by himself his servants or tenants earned or earns his livelihoo...
Tag this Judgment!Safurabai Vs. Abdullabhai Readymoney
Court: Mumbai
Decided on: Sep-28-1909
Reported in: 4Ind.Cas.273a
Beaman, J.1. In resisting this application for sanction, two points were raised upon which I think it desirable to make my own view clear. Relying upon some dicta in the books I was told that the principle upon which Judges gave sanction was that they must not only be sure that the offence had been committed, but that it was likely that the accused; would be convicted. The cases, to which I was. referred in support of this principle, are old Calcutta cases and without meaning the least disrespect to the learned Judges responsible for them, I am unable to accept such a principle. I find absolutely no warrant for it in the statute law; it appears to me radically unsound in theory, and likely to prove mischievous in practice. If the principle is sound and universally recognized,then every Judge who sanctions the prosecution of a person under Section 195, Criminal Procedure Code, informs the Court, usually a subordinate Court, which has to try the case that in the opinion of the sanctionin...
Tag this Judgment!Nawlaji Sardarmal Vs. Rama Dhondi Patil
Court: Mumbai
Decided on: Sep-27-1909
Reported in: 4Ind.Cas.583
1. The only point which we are called upon to decide in this appeal is whether the learned Judge of the appellate Court was right in passing a redemption decree for the plaintiff on his application when the case came before him in appeal.2. It is argued on behalf of the appellant that the words of Section 15 D, Clause (3), of the Dekkhan Agriculturists' Relief Act are only susceptible of the interpretation which he contends for, namely, that 'the decree in the suit' means the decree of the original Court and not of the Court of appeal. It would follow that if the Court of appeal reversed the decree of the lower Court and passed an entirely new decree it would not be the decree in the suit' though it would be the only existing decree capable of execution. If the words had been a decree' there would had been more force in the argument. When the decree of the lower Court is reversed in appeal, or varied in appeal, the decree of the lower appellate Court becomes the decree in the suit whic...
Tag this Judgment!Currimbhoy Ebrahim Vs. the Municipal Commissioner of Bombay
Court: Mumbai
Decided on: Sep-23-1909
Reported in: 4Ind.Cas.275
1. This is a case stated for the opinion of the Court under Order XXXVI of the Civil Procedure Code, 1908. The plaintiffs are the lessees of a piece of land situate at Wodehouse Bridge Road, and the defendants are the Municipal Commissioner for the City of Bombay and the Municipal Corporation of the City.2. The plaintiffs, being minded to build residential chambers on their land, notified the defendants of their intention and submitted for approval the requisite plans and specifications. Objection was taken by the Municipality that the construction of some of the water-closets violated the provision of Clause (a) of Section 251-A of the City of Bombay Municipal Act, 1888, as amended by Act V of 1905. That clause runs as follows:No person shall build a privy or water-closet in such a position or manner as to be directly over OF directly under any room or part of a building other than another privy or water-closet or a bathing place, bathroom terrace.3. In order to meet this objection th...
Tag this Judgment!Ganesh Narayan SaThe Vs. Purshottam Gangadhar Karve
Court: Mumbai
Decided on: Sep-23-1909
Reported in: 4Ind.Cas.595
1. In this case the opponent obtained a decree declaring that an attachment upon certain money effected through the Small Cause Court was invalid and decreeing that the defendant should repay the same to the plaintiff. That was a decree which was confirmed by the High Court and would in ordinary course be executed by the First Class Subordinate Judge in whose Court, the suit was filed. Instead, however, of proceeding to execute in that Court the opponent proceeded to the Small Cause Court which prior to the filing of the suit in the First Class Subordinate Judge's Court had finished with the litigation so far as it was concerned. Notwithstanding the fact that the opponent was entitled to execute the decree obtained by him, the Judge of the Small Cause Court, purporting to act under Section 151 of the present Civil Procedure Code, directed the applicant who was the defendant in the First Class Subordinate Judge's Court to refund the money obtained by him in execution from the Small Caus...
Tag this Judgment!Pundlick Rowji Vs. Vasantrao Madhavrao
Court: Mumbai
Decided on: Sep-20-1909
Reported in: 4Ind.Cas.586
Davar, J.1. I am satisfied that the summons in this case was not duly or properly served and that the defendant had no knowledge whatever of the institution or the hearing of this suit when the ex-parte decree was passed against him. The defendant was not in Bombay. The plaintiff's brother going three times to the house of the defendant with the bailiff to serve the defendant personally as mentioned in their affidavit of the 7th of June 1909, were mere pretences for the purpose of obtaining an order for substituted service. Laxman Jairam must certainly have known where the defendant was and I believe that the plaintiff also knew where he was'. The affidavit on which the order for substituted service was obtained is most unsatisfactory. It makes important allegations on information and belief without disclosing the source of information and the grounds of belief. I am satisfied that the summons in this suit was not duly or properly served on the defendant.2. On the merits I am clearly o...
Tag this Judgment!Haroon Haji Vahedina and ors. Vs. Haji Adam Haji Oosman Nurani and anr ...
Court: Mumbai
Decided on: Sep-16-1909
Reported in: 4Ind.Cas.569
Davar, J.1. While the cases was at; hearing before me, the Appeal Court consisting of my learned brothers Batchelor and Macleod, was also hearing arguments in Jethabhoy Nursey v. Champsey Cooverji 11 Bom. L.R. 1014; 4 Ind Cas. 108 in which was involved a question of the right to inspection of certain documents between two members of the Cutchi Dassa Oswal caste. On the 13th of August the Appeal Court pronounced judgment wherein differing from the learned Judge who heard the suit originally the Court held amongst other things that the questions involved in the suit were purely caste-questions and that, therefore, the Court had no jurisdiction to entertain the suit. Mr. Setalvad has placed strong reliance on the judgment and I hasten to say I have always felt and feel now that, I would be bound to follow both the reasoning and the conclusions of the Appeal Court if I could find that there was any similarity between the facts of that case and of this one, I have more than once perused tha...
Tag this Judgment!Vinayak Vaman Paranjap Vs. Ananda Ramji
Court: Mumbai
Decided on: Sep-14-1909
Reported in: 4Ind.Cas.582
1. The facts material for the purposes of the points of law raised in this second appeal are shortly these. A decree was obtained on the 12th October 1894, by the assignor of the present appellant. On the 16th August 1897 the first darkhast for its execution was presented by the decree-holder himself. But as the process-fee was not paid, it was struck off. The Second darkhast was presented on the 16th August 1900 by the present appellant, but it was struck off on the 27th October 1900 on the ground, that the assignment, not having been produced, was not proved. On the 11th August 1903, a person calling himself the Mukhtyar of the assignee presented the third darkhast. But as neither the Mukhtyarnama nor the deed of assignment was produced it was struck off on the 9th October 1903. The fourth darkhast was presented by the same Mukhtyar on the 19th December 1905. A notice was issued to the judgment-debtor under Section 248 of the Civil Procedure Code then in force. He not having appeared...
Tag this Judgment!Parasharam Vishnu Dabke and ors. Vs. Putlajirao Kalbarao Salvi
Court: Mumbai
Decided on: Sep-14-1909
Reported in: 4Ind.Cas.595a
1. The lower appellate Court has reversed a decree for sale obtained by the plaintiffs as mortgagees. The ground assigned for this decision is that where in the case of a usufructuary mortgage the mortgagor agrees to redeem by payment of the principal after a stated period the mortgagee has no higher or better rights than he has under a simple usufructuary mortgage.2. The mortgage in question was effected in the year 1869.3. At that date the right of sale by mortgagees in the mofussil was governed by Regulation V of 1827, Section XV, Clause 3, which provides that in the absence of any special agreement or recognised law or usage to the contrary either party may at any time by the institution of a civil suit cause the property to be applied to the liquidation of the debt; the surplus if any being restored to the owner.4. In the case of mortgages prior in date to the time when the Transfer of Property Act was extended to this Presidency, the then existing rights of the parties remain una...
Tag this Judgment!Ahmed Sooleman Juvani and ors. Vs. Bhagvandas Visram and Co.
Court: Mumbai
Decided on: Sep-14-1909
Reported in: 4Ind.Cas.837
Beaman, J.1. I think one of the preliminary objections taken by the defendants proves fatal to the plaintiffs' present claim. Mr. Desai, who has argued the case for the plaintiffs, admits that he is not in a position to call any further evidence upon the question of fact, when the partnership was dissolved. The Court must, therefore, come to its conclusion on that point upon the papers which Mr. Wadia for the defendants has put in. The Court has the agreement, an advertisement, and a letter (Exts. 1, 2 and 3). According to the agreement it would appear that the intention of the parties, when the partnership was formed in 1903, was that it should last till 7th November 1904 with a month over in which to collect outstandings and settle all accounts. The advertisement to which the first plaintiff is himself a party and the letter of April 1907, written on behalf of the second plaintiff, prove conclusively that as a matter of fact, the partnership was dissolved at the latest by the 19th Oc...
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