Mumbai Court July 1941 Judgments
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Ganpat Kinushet Sonar Vs. Vithal Bhikan Patil
Court: Mumbai
Decided on: Jul-17-1941
Reported in: (1941)43BOMLR976
Broomfield, J.1. In this second appeal there is a question as to the construction and application of Order XXIII, Rule 1, of the Civil Procedure Code, 1908. The facts are very simple. The defendant executed a promissory note in favour of the plaintiff in June, 1933. In 1935, according to the plaintiff, there was a reference to arbitration without the intervention of the Court and an award. On June 14, 1935, the plaintiff made an application to file the award under para. 20 of the second schedule to the Code, and on September 18, 1936, he applied for permission to withdraw his application. The application was in these terms:--Plaintiff has made an application in order to have filed an award made between plaintiff and defendant. The applicant has not to proceed with the work of the said application. The applicant has to file a separate suit in the matter of the subject of the award in the application. So he has to withdraw this application. Therefore the applicant has not to proceed with...
Vishnu Janardan Salvekar Vs. Mahadev Keshav Kshirsagar
Court: Mumbai
Decided on: Jul-17-1941
Reported in: (1941)43BOMLR971
John Beaumont, C.J.1. This is a second appeal from a decision of the Assistant Judge at Satara. The suit was filed on February 22, 1937, and the plaintiff asked for possession of half survey No. 22 by partition. The trial Court decreed the plaintiff's claim, but in appeal the learned Assistant Judge held that the plaintiff's suit was barred by limitation.2. The property originally belonged to one Balkrishna Umbrani, who died, leaving as his heirs two daughters, Gaya and Durga. Durga married one Janardhan and died in 1914; and Janardhan was her heir, through whom plaintiff claims. The defendants claim under Gaya. In 1924 by suit No. 184 Janardhan as the heir of Durga sued Gaya for partition of the suit survey number and another survey number, which I need not deal with, and a decree was made on October 16, 1924, for partition of survey No. 22. That decree being more than twelve years before the filing of the present suit in February 1937, various points arise.3. The first point relates ...
Muhammad Nawaz Vs. Emperor
Court: Mumbai
Decided on: Jul-16-1941
Reported in: (1942)44BOMLR8
Viscount Simon, L.C.1. The Judicial Committee has before it this morning thirteen petitions for special leave to appeal in criminal cases in forma pauperis. All the proposed appeals are from the High Court of Judicature at Lahore, which in each instance has confirmed the decision of a Sessions Judge sentencing the petitioner to death for murder. In each of these thirteen cases the papers before their Lordships include (as Rule 8 of the Judicial Committee Rules requires) a certificate signed by counsel in India that the petitioner has reasonable grounds of appeal to this Board.2. Their Lordships regret to find that, with the possible exception of the petition in the case of Rehmat v. The King Emperor, there is no basis whatever on which a certificate could, or should, have been given expressing the opinion that there were grounds on which the petition could properly be presented. This is a very serious matter, not only because those who so certify are misusing their professional positio...
Mulraj Virji Vs. Nainmal Pratapchand
Court: Mumbai
Decided on: Jul-15-1941
Reported in: (1941)43BOMLR890
Kania, J.1. This is a suit by a mortgagor against his mortgagees to prevent them from exercising their power of sale. Although in the plaint several averments are made in respect of the sale intended to be held on May 8, 1941, the relief asked for is not in respect of that particular sale. The plaintiff contends that the power of sale contained in the mortgage deed is invalid and inoperative and it should be declared that the defendants are not entitled to exercise the same. These two. prayers are followed by a prayer for injunction. No other relief is sought in the suit.2. The mortgage was executed by the plaintiff on April 18, 1940, and the due date was July 18, 1940. From the pleadings it is clear that the due date has expired and the mortgagor (plaintiff) has failed to pay the mortgage debt. There has been no offer to redeem the mortgage.3. The first contention raised on behalf of the defendants is that the suit as framed is not maintainable. It was argued that a mortgagor must fil...
Hasnumiya Dadamiya Vs. Halimunnisa Hafizulla
Court: Mumbai
Decided on: Jul-14-1941
Reported in: AIR1942Bom128
Broomfield, J.1. These are cross-appeals from a preliminary decree made by the First Class Subordinate Judge at Ahmednagar in a suit for partition and administration. The parties are Mahomedans. The estate to be divided, which consists of houses, cash and some moveable property, belonged to Hafizulla Lalmiya who died intestate at Ahmednagar in 1934. The estate is in the possession of his widow Halimunnisa defendant 1. The plaintiff claims that he and his brother defendant 2 are the sons of Hafizulla's father's brother Dadamiya and are, therefore, entitled to three-fourths between them as residuaries, defendant 1 being entitled to the remaining one-fourth. It is not disputed that these would be the shares if plaintiff and defendant 2 are related to Hafizulla as they contended. Defendant 1 however has denied that they are related in that way or in any way to Hafizulla. She has also contended that in any ease before plaintiff and defendant 2 can recover their shares she is entitled to be ...
Emperor Vs. Gordhan Kalidas
Court: Mumbai
Decided on: Jul-11-1941
Reported in: (1941)43BOMLR847
John Beaumont, C.J.1. This is an application by the Government of Bombay to enhance the sentence passed upon the accused. The accused was convicted under Section 373 of the Indian Penal Code, and sentenced to fifteen days' rigorous imprisonment and a fine of Rs. 100.2. Mr. Mahale for the accused has exercised his right of challenging the propriety of his conviction, and contends that the conviction was wrong in law, and that the case could not be brought within Section 373, because the possession, which the accused is said to have obtained over the girl in question in the present case, was not obtained from a third party. The girl, who was seventeen and a half years of age, went with the accused voluntarily. Mr. Mahale has referred to a recent decision of a bench of the Calcutta High Court in Jateendra Mohan Das v. Emperor [1937] 2 Cal. 187, in which the bench held that Sub-section 372 and 373 of the Indian Penal Code are correlative of each other, and that the phrase 'otherwise obtain...
In Re: Framroz Dadabhoy Madon
Court: Mumbai
Decided on: Jul-11-1941
Reported in: (1941)43BOMLR943
Kania, J.1. This petition is submitted to the Court to decide whether probate duty is payable in respect of a membership card of the Native Share & Stock Brokers' Association.2. The nature of the right of a member in a card came to be considered by the Judicial Committee of the Privy Council in Official Assignee, Bombay v. Shroff : (1932)34BOMLR1178 , p.c. Their Lordships held that it was a personal right which did not pass to the Official Assignee on insolvency of the member. That was under the old rules of the Association.3. The question of interest of the widow and children in such a card came to be considered by me in suit No. 386 of 1936. The matter went in appeal and the Appeal Court confirmed the decision in suit: Tribhowandas v. Bhikhubhai : AIR1937Bom477 . In that suit it was held that the widow was entitled to the sale proceeds of the card held by her deceased husband in her own right and the sale proceeds did not form part of the estate of the deceased, whether he left a wil...
K.U. Kulkarni Vs. Ganpat Hiraji Tell
Court: Mumbai
Decided on: Jul-09-1941
Reported in: (1942)44BOMLR264
Wassoodew, J.1. These are two second appeals from a decision of the District Judge of Jalgaon reversing the order of the Joint First Class Subordinate Judge of that District directing that the earnings of the insolvent-respondent No, 1 vested in the receiver in insolvency inasmuch as they were not 'wages of a labourer ' within the protective provisions of Clause (h) of Section 60 of the Civil Procedure Code, 1908. The learned District Judge held that the earnings were protected as the respondent was a labourer. The receiver and one of the creditors of the insolvent have filed separate appeals against that decision.2. A preliminary objection has been taken on behalf of the insolvent that no second appeal lies against the District Judge's order. That objection is untenable because the question whether the earnings of an insolvent would or would not vest in the receiver under Section 28, Clause (5), of the Provincial Insolvency Act, has to be decided by the Insolvency Court under the prov...
Shankar Hari Deshpande Vs. Damodar Vyankoji Kulkarni
Court: Mumbai
Decided on: Jul-07-1941
Reported in: (1941)43BOMLR883
Divatia, J.1. This appeal arises in execution of a decree obtained by one Meghraj against the predecessor-in-title of the present appellants. Meghraj filed a darkhast in 1926 to execute the decree against all the defendants and prayed for recovery of Rs. 2,000 and odd. Rs. 400 were recovered and thereafter the darkhast was disposed of as there were negotiations for compromise. On April 15, 1926, Meghraj assigned the decree to two persons Damodar and Maruti. On July 7, 1926, the present appellants, who are two of the judgment-debtors, paid Rs. 814 to one of the assignees, Maruti. In 1929 the other assignee Damodar alone filed darkhast No. 160 of 1929 against defendants Nos. 1 and 5 only. He prayed for execution of the remaining part of the decree after giving credit for Rs. 400 received by Meghraj and Rs. 814 received by Maruti. That darkhast was disposed of on April 15, 1929. A third darkhast was filed in 1932 by Damodar alone against defendant No. 2 only, and it was disposed of also o...
Krishnaji Bharmalji and Co. Vs. Abdulrazak Ahmedbhoy
Court: Mumbai
Decided on: Jul-07-1941
Reported in: (1941)43BOMLR888
Kania, J.1. This is an application by the assignee of a decree under Order XXI, Rule 16, Civil Procedure Code, 1908. The suit was filed by the plaintiffs who were moneylenders against the defendants. They obtained a decree for Rs. 4,519-9-0, interest and costs, on January 24, 1936. It is alleged that the plaintiff firm has assigned this decree by a writing dated May 7, 1941. The consideration therein recited is Rs. 2,000. The defendants' objections are two: (1) that the assignment is executed only by Seremal Krishnaji and under Section 19, Sub-section (2), Clause (c), of the Indian Partnership Act, 1932, one partner in the plaintiff firm had no authority to do so; and (2) that there was an agreement between the plaintiff firm and the defendants which prevented the enforcement of the claim against defendant No. 1. This second contention need not be gone into at this stage as the application is only under Order XXI, Rule 16.2. The assignee contends that a partner in a firm has implied au...
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