Mumbai Court December 1928 Judgments
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Shriniwas Vithal Pai Vs. Hari Sabaji Kamat
Court: Mumbai
Decided on: Dec-07-1928
Reported in: (1929)31BOMLR652
Baker, J.1. These are companion appeals arising out of two suits in which the point is the same and may be disposed of in one judgment. The plaintiff sued for a declaration that the property in suit was not liable to be sold in execution of the decree in Suit No. 250 of 1903 obtained by defendants against the heirs of one Govind Baghunath Pai. The facts are as follows. Suit No. 250 of 1903 was filed by the father of the present defendants against Govind Raghunath Pai, His immovable property was attached before judgment, and on November 11, 1904), a decree for Rs. 4,000 was passed against him, which was confirmed on appeal on February 28, 1906. In 1907, in execution of the decree in Suit No. 190 of 1905 another decree-holder attached and sold properties Nos. 1, 5, 6, 7, 8, 9, and 12, and they were purchased by one Kamat and sold to plaintiff on January 1, 1914. No objection is raised to this in appeal The remaining properties, Nos. 2, 3,4,10 and 11, were sold to plaintiff by the heir of...
Kashinath Mahadev Mahajan Vs. Gangubai Keshav Nagarkar
Court: Mumbai
Decided on: Dec-05-1928
Reported in: (1929)31BOMLR349; 117Ind.Cas.523
Baker, J.1. [His Lordship, after setting out the facts, continued :] Now so far as concerns the allegation that defendant No. 1 was appointed a trustee by the last surviving trustee Vinayak previous to his death, that is a finding of fact, and the point has not been raised by the learned pleader for the appellant nor indeed could it be raised in the face of the finding on it based on evidence. The position, therefore, in this case is this: There is no living trustee who can administer the property in respect of which the trust was created by the will of Radhabai. The plaintiff is the heir of the founder of the trust, It has been argued by the learned Counsel for the appellants that nobody can be appointed a trustee whose interests are adverse to those of the trust, and that the conduct of the plaintiff, as disclosed by the previous litigations in which she has denied the execution of the will by her mother Radhabai and the validity of the will, is such that she cannot be appointed a tr...
Krishnaji Vinayak Belapurkar Vs. Motilal Magandas Gujarati
Court: Mumbai
Decided on: Dec-05-1928
Reported in: (1929)31BOMLR476
Patkar, J.1. [His Lordship, after staging facts, proceeded:] The first contention on behalf of the defendants-appellants is that the plaintiff had no right to sue at the date of the institution of the suit, and that the learned Subordinate Judge having refused the application of defendant No. 9, Exhibit 122, to be made a plaintiff, erred in making defendant No. 9 a plaintiff at the time when he passed the decree, and reliance is placed on the cases of Parmanand Misr v. Sahib Ali I.L.R. (1889) All 438. Bhanu v. Kashinath I.L.R. (1895) 20 Bom. 537. and Sayad Abdul Hak v. Gulam Jilani I.L.R. (1895) 20 Bom. 677.2. It was held in Bhanu v. Kishinath I.L.R. (1895) 20 Bom. 537. that if the plaintiff at the time he brings his suit has no interest in the subject-matter thereof, the joinder of a person as co-plaintiff who has an interest cannot alter the plaintiff's position or confer on him any right of suit, A similar view was taken in Sayad Abdul Hale v. Gulam Jilani I.L.R. (1895) 20 Bom 677. ...
Pandharinath Kikalal Vs. Thakoredas Shankardas Vani
Court: Mumbai
Decided on: Dec-05-1928
Reported in: (1929)31BOMLR484
Patkar, J.1. This is an appeal against the order of the Joint First Class Subordinate Judge of Dhulia ragcting an Application to restore the suit to the file. The plaintiffs filed suit No. 197 of 1918 to recover possession of the properties in suit. It is alleged that their pleader, Mr. Dev, compromised the suit without their consent and a decree was passed in terms of the compromise. The plaintiffs filed suit No. 25 of 1922 to set aside the compromise decree on the ground the authority to compromise the suit, and, the therefore, the decree was not binding on thim. This suit was not binding on them. This suit was dismissed on January 15, 1923, as their pleader Mr. Shidore was absent, and on the advice of their pleader they filed an appeal agai missal. The appeal was dismissed on June 3C that the order was not appealable. The made an application on June 15, 1925, to vt file, under Order IX, Rule 9, of the Civil P: learned Subordinate Judge held that the a time under Article 164 of the I...
Krishnaji Vinayak Belapurkar and ors. Vs. Motilal Magandas Gujarati an ...
Court: Mumbai
Decided on: Dec-05-1928
Reported in: 122Ind.Cas.66
Patkar, J.1. [His Lordship stated the facts and proceeded as follows:] The first contention on behalf of the defendants-appellants is that the plaintiff had no right to sue at the date of the institution of the suit, and that the learned Subordinate Judge having refused the application of defendant No. 9, Ex. 122, to be made a plaintiff, erred in making defendant No. 9 a plaintiff at the time when he passed the decree, and reliance is placed on the cases of Parmanand Misr v. Sahib Ali 11 A. 438 Bhanu Tukaram Shet v. Kanshinath Pandshetty and Sayad Abdul Hak v. Gulam Jilani 20 B. 677 .2. It was held in Bhanu Tukaram Shet v. Kanshinath Pandshet 20 B. 537 that if the plaintiff at the time he brings his suit has no interest in the subject-matter thereof, the joinder of a person as co-plaintiff who has an interest cannot alter the plaintiffs position or confer on him. any right of suit. A similar view was taken in Sayad Abdul Hak v. Gulam Jilani 20 B. 677. This view is not accepted by the M...
Pandharinath Kikalal Vs. Thakoredas Shankardas Vani and ors.
Court: Mumbai
Decided on: Dec-05-1928
Reported in: 122Ind.Cas.76
ORDERFawcett, J.1. We do not think that in view of the case of Mahadeo Govind v. Lakshminarayan Ramnath 90 Ind. Cas. 610 A.I.R. 1925 Bom. 52 the grounds urged by Mr. Thakor suffice for our interference with the order summarily dismissing the appeal, but undoubtedly a hardship can arise from Section 5 of the Indian Limitation Act not being applicable to an application made under Order IX, Rule 9, of the Civil Procedure Code, and we think that the question should be considered administratively by this Court whether action should not be taken to make Section 5 applicable in such a case by a rule under the Civil Procedure Code or otherwise, as may be necessary. In view of this proposal we admit the appeal, so that should any such alteration be made, the appellant may have the benefit of it.2. The Registrar should submit papers accordingly.3. On December 21, 1927, the Bombay High Court, in virtue of powers under Section 122 of the Code of Civil Procedure, added the following Sub-rule (3) to...
Shankar Kondappa Shahgadkar Vs. Ganpat Shankarshet Agarkar
Court: Mumbai
Decided on: Dec-04-1928
Reported in: (1929)31BOMLR439
Patkar, J.1. The plaintiff in this casa brought a suit for specific performance of an agreement to obtain a mortgage bond. The suit ended in a compromise decree under which the plaintiff was to recover the amount from the defendant within six months by sale of the property which was intended to have been mortgaged. The plaintiff in execution sought to recover the amount by sale of the property.2. It is urged in this second appeal, first, that the charge was created under the compromise decree, and the plaintiff ought to bring a separate suit to enforce the charge, and that the decree in the form in which it was passed could not be executed. Secondly, it is argued that the judgment-debtor had no disposing power as was held in the case of Gyanoba Govindshet Urune v. Shankar Kondappa Shahagadkar (1918) S.A. No. 632 of 1917. decided on October 17 1918, by Shah J. (Unrep.), and therefore, the property could not be attached under Section 60 of the Civil Procedure Code, and sold in execution ...
Haji Dada Nurmahomed and Bros. Vs. Ismail Karim
Court: Mumbai
Decided on: Dec-04-1928
Reported in: (1929)31BOMLR420; 118Ind.Cas.794
Davar, J.1. This is a notice of motion dated November 28, 1928, taken out by the applicant, calling upon the opposing creditors Haji Dada Nur Mahomed & Bros, to show cause why the order dated October 31, 1928, made under Section 36 of the Presidency-towns Insolvency Act obtained by the Official Assignee from the Commissioner in Insolvency at the instance of the opposing creditors in so far as it directs the applicant to appear before the learned Chief Clerk on December 6, 1928, for being examined and to produce at that time all his books of account, papers, vouchers, etc., in any way relating to the insolvent's dealings and transactions and property in his possession or subject to his control, should not be vacated, and for costs.2. In this instance the Official Assignee applied tome in chambers for an order under Article 36, Clause (1), for the examination of the applicant. Following general directions given to the Official Assignee, the Official Assignee is careful, when presenting t...
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