Mumbai Court July 1937 Judgments
Babaji Kondaji Mali Vs. Bala Fakira Mahar
Court: Mumbai
Decided on: Jul-30-1937
Reported in: AIR1938Bom159; (1938)40BOMLR104; 173Ind.Cas.808
John Beaumont, Kt., C.J.1. This is an application in revision under Section 115 of the Civil Procedure Code. The applicant made an application to theMamlatdar under the Mamlatdars' Courts Act asking for an injunction to restrain the opponents from obstructing him in the possession of certain immoveable property. The Mamlatdar held that the applicant was in possession of the property, and that the opponent had obstructed him, and granted an injunction. On an application to the Collector under Section 23 of the Mamlatdars' Courts Act the Collector set aside the order of the Mamlatdar, disagreeing with the Mamlatdar's findings of fact. Now it was laid down by a division bench of this Court consisting of Sir Basil Scott and Mr. Justice Rao in Kashiram v.Rajaram : (1911)13BOMLR879 that the Collector exercising powers of revision under Section 23 of the Act is not entitled to exercise the powers of a Court of Appeal, and seeing that under Section 23 (1) there is no right of appeal the Court ...
Tag this Judgment!Bell and Co. Ltd. Vs. Waman Hemraj
Court: Mumbai
Decided on: Jul-30-1937
Reported in: AIR1938Bom223; (1938)40BOMLR125
John Beaumont, Kt., C.J.1. This is a revision application made against an order of the Small Cause Court Judge at Jalgaon. The application purports to be made under Section 25 of the Provincial Small Causes Courts Act, and in my opinion this case affords a good illustration of what I notice frequently when I am taking civil revision applications, and that is that learned Judges, who admit' these applications do not always draw a distinction between appeal and revision. The scheme of the Small Causes Courts Act is to provide a summary remedy for recovering small sums, and it is an essential part of the scheme that the Judge's decision is final. Section 27 of the Act provides : ' Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final,' There is no appeal either on facts or law, but Section 25 provides : ' The High Court, for the purpose of satisfying itself that a decree or order made in any case decided b...
Tag this Judgment!Dullabhbhai Hansji Vs. Gulabbhai Morarji Desai
Court: Mumbai
Decided on: Jul-29-1937
Reported in: AIR1938Bom158; (1938)40BOMLR100; 173Ind.Cas.806
John Beaumont, Kt., C.J.1. This is an appeal from a decision of the First Class Subordinate Judge of Surat. The suit is a suit for mesne profits of certain immoveable property which accrued during the years 1925 to 1928, more than three years before the institution of the suit.2. The material facts are that in 1925 one Gulabchand was adjudicated insolvent and the plaintiff was appointed receiver of his estate under the Provincial Insolvency Act. The insolvent had within two years prior to his insolvency sold the property from which the mesne profits in suit are derived to the defendants, and on an application made by the plaintiff as receiver in the insolvency under Section 53 of the Provincial Insolvency Act the sale was set aside. That was in March, 1929. This suit was instituted in March, 1931, and the question is whether the claim for mesne profits for the years 1925 to 1928 is barred by limitation.3. The learned Judge dealt with that point as a preliminary issue and held that the ...
Tag this Judgment!Ellerman's City and Hall Lines Vs. Asis Thomas
Court: Mumbai
Decided on: Jul-28-1937
Reported in: AIR1938Bom110; (1937)39BOMLR1230; 173Ind.Cas.545
John Beaumont, Kt., C.J.1. This is an appeal against a decision of the Commissioner for Workmen's Compensation making an award of Rs. 1,200 in favour of the representative of the workman. The facts found are that the alleged workman was employed by Killick Nixon & Co. as a carpenter, and his work was to attend at the sheds in the Alexandra Dock when cargoes were being unloaded from steamers and to repair broken boxes. The Commissioner has found that the deceased man was employed by Killick Nixon, and not by a sub-contractor, and that he met with death by drowning, and that the accident arose out of and in the course of his employment. Those are questions of fact which are not under appeal. But two points of law are taken in appeal. First of all it is said that the deceased man was not employed at monthly wages. He was in fact paid Rs. 1-8-0 a day, and it is not suggested that he was employed by the month. Now the definition of 'workman' in Section 2(1), Clause (n), of the Workmen's Com...
Tag this Judgment!Shavaksha Bomanji Balsara Vs. Meherbai Shavaksha Balsara
Court: Mumbai
Decided on: Jul-28-1937
Reported in: AIR1938Bom195; (1938)40BOMLR50
B.J. Wadia, J.1. This is an application for execution under Order XXI,. Rule 11(2), of the Civil Procedure Code, taken out by the defendant against her husband the plaintiff who was ordered to pay Rs. 200 to his wife by the order dated March 12, 1937, and a further sum of Rs. 195 by the order dated April 7, 1937. The mode in which the assistance of the Court is required in execution is by arrest and imprisonment of the plaintiff, as he failed, to pay the amount. The order dated March 12, 1937, has been stayed pending the hearing of Civil Revision Application No. 208 of 1937.2. With regard to the order of April 7, 1937, the plaintiff through his counsel-now contends that the order was without jurisdiction on the ground that it was not passed by the Matrimonial Court constituted of the presiding Matrimonial Judge and the delegates, but by the Judge sitting alone. The order was made under Section 39 of the Parsi Marriage and Divorce Act which provides that if the wife shall not have an in...
Tag this Judgment!The Commissioners for the Port of Calcutta Vs. the Corporation of Calc ...
Court: Mumbai
Decided on: Jul-26-1937
Reported in: (1938)40BOMLR6
Alness, J.1. This is an appeal from a judgment and decree of the High Court of Judicature in Calcutta, dated August 22, 1935, which reversed the judgment and decree of the same Court in its original civil jurisdiction, dated June 8, 1934, and which decreed the respondents' suit to recover from the appellants the sum of Rs. 44,612-9-4 as damages for negligence.2. The questions at issue are whether the appellants are liable for the damage caused by the flooding of the respondents' pumping station, and whether their claim was barred by time in virtue of a provision in the Calcutta Port Act, 1890.3. The principal facts in the case are not in dispute, nor is the amount of damages due by the appellants, if liability is established.4. As their Lordships have formed a clear opinion that the respondents' claim is statute barred, and as their Lordships, in that view, deem it unnecessary to form or express an opinion on the question of negligence, it is possible to abridge the examination of the ...
Tag this Judgment!Appaya Nijlingappa Hattargi Vs. Subrao Babaji Teli
Court: Mumbai
Decided on: Jul-23-1937
Reported in: AIR1938Bom108; (1937)39BOMLR1214; 173Ind.Cas.766
John Beaumont, Kt., C.J.1. This is a revision application which raises a point of law of some general importance. The plaintiffs allege in the plaint that they were partners in a partnership shop, and that the partnership shop closed on October 19, 1933. I think that allegation amounts to an allegation that the partnership was dissolved on October 19, 1933, and that allegation is not traversed in the written statement. That being so, I must take it that on the facts the partnership was dissolved in October, 1933. The learned Subordinate Judge held that that fact was not proved. But if an allegation made in the plaint is not denied in the written statement, it is taken to be admitted, and need not be proved. The further allegation in the plaint is that during the continuance of the partnership, a debt was incurred by the defendants to the partnership, and the plaintiffs, as the persons who were members of the partnership and therefore entitled to the debt, sue after the dissolution of t...
Tag this Judgment!M.P.M. Murugappa Chetti Vs. the Official Assignee of Madras
Court: Mumbai
Decided on: Jul-22-1937
Reported in: (1938)40BOMLR1
George Lowndes, J.1. These consolidated appeals arise out of a petition presented by Murugappa Chetti and his brother Ramaswami Chetti (since deceased and now represented by his widow Minakshi Achi) in certain insolvency proceedings in the Madras High Court. The petitioners will for convenience be referred to as the appellants. The Official Assignee of Madras represents a firm known as Ar. Ar. Sm., trading in British India and having a branch in Rangoon, who were adjudicated insolvent on July 15, 1925, and. against whose assets the claim of the appellants is made. He will be referred to as the respondent and the Ar. Ar. Sm. firm as the insolvents.2. In 1900 one Pethaperumal Chettiar, the grandfather of the appellants and manager of the joint Hindu family of which they were minor members, transferred sums totalling Rs. 76,000 to the insolvents in Rangoon. There is no formal record of the terms upon which this transfer was made and the question is in dispute before the Board. The appella...
Tag this Judgment!Krishnaji Madhavrao Bhonde Vs. Keshav Krishna Bhonde
Court: Mumbai
Decided on: Jul-21-1937
Reported in: (1937)39BOMLR1318
Thakor, J.1. This is an appeal against a decree dismissing the plaintiff's suit No. 347 of 1928, brought in the Court of the First Class Subordinate Judge at Nasik, for a declaration that the property specified in the plaint belonged to the Shri Krishna Mandir, that defendants Nos. 1 and 2 had no private or personal right over it except that of being pujaris of the mandir, that the alienations made by defendants Nos. 1 and 2 privately or through Court of that property were not legal and valid and binding on the mandir, and that the plaintiff was entitled, therefore, to recover possession of that property.2. There were several defendants to this suit, because the properties which were the subject-matter of the suit had been alienated either by defendant No. 2 or by defendant No. 1, or in execution of decrees against either of them, in favour of several persons who are on record as other defendants.3. Defendant No. 2 is the father of the present plaintiff, apparently living with the plai...
Tag this Judgment!Narmadabai Tulsiram Shet Agarwal Vs. Rupsing Bhila
Court: Mumbai
Decided on: Jul-09-1937
Reported in: AIR1938Bom69; (1937)39BOMLR1102; 173Ind.Cas.403
Sen, J.1. These are appeals from the decision of the First Class Subordinate Judge, Jalgaon, in two suits of 1931. In both of them the plaintiff sought a declaration of his exclusive title over the lands mentioned in the plaints. Defendant No. 1 in both the suits is the plaintiff's brother and defendants No. 2 in the two suits are two decree-holders who had in execution proceedings got attached and put up to sale the interest of defendant No. 1 in the plaint lands.2. The learned Subordinate Judge raised several issues and gave a declaration to the plaintiff that he is the sole owner of the lands in suit and that defendant No. 1 has no interest therein whatsoever. Of the issues raised by the learned Subordinate Judge only one has been argued before us, viz. whether plaintiff proves that he is the exclusive owner of the lands in suit. On this point the plaintiff relied on a receipt, exhibit 37, dated January 3, 1913, purporting to have been passed by defendant No. 1 in favour of the plai...
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