Court : Mumbai
Reported in : AIR1943Bom461; (1943)45BOMLR831
Lokur, J.1. This second appeal raises an important question of limitation, and the facts of the case are not in dispute. One Manibai obtained a mortgage decree against one Imam Shaikh in suit No. 362 of 1926. After her death, her mother-in-law and heir Narmadabai gave several darkhasts to execute the decree and recover the decretal amount by sale of the mortgaged property. The last darkhast was filed in 1932 and disposed of on July 17, 1933. In the meantime the appellant Fakirchand, who had obtained a money decree against the said judgment-debtor Imam Shaikh, executed it in darkhast No. 3782 of 1932 and sought to recover his decretal amount by sale of the property which had been mortgaged to Manibai, subject to Manibai's mortgage. On August 13, 1935, he applied for permission to bid for the property and therein he stated that he was prepared to purchase it subject to the mortgage liability of Narmadabai. His agent Dagdu purchased it for him on the same day on the distinct understanding...
Tag this Judgment!Court : Mumbai
Reported in : AIR1943Bom453; (1943)45BOMLR816
Lokur, J.1. This application arises out of proceedings in execution of the decree in suit No. 270 of 1936 obtained by the petitioner against one S.D. Cornelius, an employee of the G.I.P. Railway Company, for the recovery of Rs. 2,600 with future interest and costs by monthly instalments of Rs. 40.2. The judgment-debtor Cornelius died on April 20, 1940, and this darkhast was presented by the petitioner against his widow and legal representative, Mrs. Cornelius, for the recovery of Rs. 2,24043-4 by the attachment of Rs. 315 as the arrears of the salary of Mr. Cornelius and Rs. 3,240 in the hands of the Railway Company as the moneys due to him. When a prohibitory order was served on the company, an objection was raised regarding the alleged amount of allowance on the ground that it was really a gratuity payable in the discretion of the Agent of the company by way of a gift and was therefore not liable to attachment, The executing Court made an inquiry into this objection, presumably under...
Tag this Judgment!Court : Mumbai
Reported in : AIR1943Bom419; (1943)45BOMLR825
Lokur, J.1. The suit out of which this appeal arises was filed by the plaintiff Siddappa for the partition of, and possession of his half share in, the family house at Gadag on the ground that it had been excluded from the partition effected by the award decree in suit No. 11 of 1928 by reason of the fraud of his father Nagappa and his elder brother Shidramappa. That suit was filed by the plaintiff Shiddappa against Nagappa and Shidramappa for recovering by partition his one-third share in the joint family property. During the pendency of the suit the dispute was referred to arbitration, and when the arbitrators made the award, a decree was passed in terms of that award. That decree did not include the house in suit, and it is alleged that the plaintiff himself, who is a resident of Hubli, was not aware of the joint family house at Gadag and that his father and brother who gave the necessary information to the arbitrators designedly and fraudulently omitted to give information about th...
Tag this Judgment!Court : Mumbai
Reported in : AIR1943Bom451; (1943)45BOMLR821
John Beaumont, Kt., C.J. 1. This is a second appeal against a decision in first appeal of the Assistant Judge of Dharwar, and it raises a question on which there seems to be a difference of opinion between the Allahabad High Court and the Lahore High Court on one of the propositions laid down by the Privy Council in Brij Narain v. Mangla Prasad 2. The facts are that in 1922 defendant No. 2, the father of the plaintiffs, mortgaged certain family property to defendant No. 1, and on November 7, 1927, there was an award decree for the amount due under the mortgage. The award decree is not a very artistic document. It finds the amount due, and holds that the defendant should pay the amount in seven instalments, and in default of payment of any instalment the plaintiff is to recover the amount of the instalment in default by getting a sufficient portion of the mortgaged property sold, and then it goes on : 'In this way if the entire amount is not satisfied the plaintiff to recover from the d...
Tag this Judgment!Court : Mumbai
Reported in : (1943)45BOMLR314
John Beaumont, Kt., C.J. 1. In this case the bond given by the accused for his appearance in the Court of the Chief Presidency Magistrate has been forfeited by an order of the Eighth Presidency Magistrate, to whose Court the case had been transferred. By the bond the accused binds himself to attend in the Court of the Chief Presidency Magistrate on February 29 next to answer to the charge and to continue so to attend until otherwise directed by the Court. He did attend on February 29, and he continued to attend the Court of the Chief Presidency Magistrate until April 20, when the case was transferred to the Court of the 8th Presidency Magistrate, and thereafter he continued to appear before the 8th Presidency Magistrate until December 5, when he made default.2. The first question is whether the accused has broken the condition of the bond, and I am clearly of opinion that he has not. All that he has undertaken to do is to attend the Court of the Chief Presidency Magistrate, and to cont...
Tag this Judgment!Court : Mumbai
Reported in : (1944)46BOMLR228
George Rankin, J.1. This appeal arises out of an application made under Rule 16 of Order XXI of the Civil Procedure Code, 1908.16. Where a decree... is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder.Provided that where the decree... has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.2. On February 19, 1924, F. Friedmann's Diamanthandel Maatschappij (F. Friedraann's Diamond Trading Company, Ltd.), herein called 'the Dutch company,' obtained from the High Court at Madras in its original jurisdiction a decree for Rs. 24,207-4-0 with certain interest and costs against one Ramnath Joshi...
Tag this Judgment!Court : Mumbai
Reported in : AIR1943Bom182; (1943)45BOMLR300
John Beaumont, Kt., C.J.1. This is an appeal by Government against the acquittal of the accused by the Presidency Magistrate, 8th Court, Bombay. The accused were prosecuted under Section 6 of the Indian Merchandise Marks Act (IV of 1889), and that section provides that if a person applies a false trade description to goods, he shall, subject to the provisions of the Act, and unless he proves that he acted without intent to defraud, be punished with imprisonment or fine, and on subsequent conviction with enhanced imprisonment or fine, as therein mentioned.2. The findings of fact of the learned Magistrate are that the accused sold certain bales of piece goods, and that a substantial number of the pieces were stamped with a length mark of twenty-four yards, though in fact they were of less than that length. The variations were not constant; in the case of some of the pieces the shortage was much greater than in the case of other pieces; some pieces were correctly stamped, and some were ev...
Tag this Judgment!Court : Mumbai
Reported in : (1944)46BOMLR220
George Rankin, J.1. This is an appeal by the plaintiffs from a decree of the High Court at Allahabad dated October 3, 1935, affirming a decree of November 7, 1930, by which the Subordinate Judge at Benares dismissed the suit.2. The plaintiffs claim as reversioners of one Parshotam Das who died in 1883, a Hindu governed by the Benares school of law.HARISH CHANDRA (d. August 16, 1856)=Manki Bahu (d. June 1, 1893)|_________________________________________________________________| | | |Hiran Bibi Mukandi Bibi Punno Bibi Adopted in 1860Jagannath Das =Raghunath Das (defendent No. 2) Parshotam Das| | =Mannu Lal (d. December 1883)Krishna Das alias Baijnath Das =Bindeshri BahuChhuttu Lal (defendent No. 3) (d. August 27, 1916)(defendent No. 4) |_________________________|_________________________________| |Mohan Bibi Sohan Bibi(defendent No. 5) (defendent No. 6)=Baldeo Das (d.). =Mukandi Lal|_________________________________________| |Gopal Das Baldeo Das(plaintiff No. 1) (plaintiff No. 2)3. Hari...
Tag this Judgment!Court : Mumbai
Reported in : (1944)46BOMLR212
George Rankin, J.1. This suit was brought in the High Court at Calcutta on August 22, 1933. The plaintiff was Bhabatarini daughter and only child then surviving of one Sital Chandra Banerjee, a Hindu governed by the Dayabhaga, who had died in 1929. He had in his lifetime established certain family idols and had dedicated to them considerable properties movable and immovable/ His only son Panchanan had died in 1932 leaving a widow Asamantara and three daughters.2. By her suit Bhabatarini claimed to have become on the death of Panchanan entitled to the sebaiti of the idols and to the management of the debut-ter property. She impleaded Asamantara and her daughters as persons wrongfully in possession of the debutter properties and falsely claiming to be se-baits : though as between themselves the widow on ordinary principles of succession would of course take before the daughters. Bhabatarini andAsamantara have both died while the present appeal to His Majesty was pending, the former on Fe...
Tag this Judgment!Court : Mumbai
Reported in : (1943)45BOMLR323
John Beaumont, Kt., C.J. 1. The first application (No. 431 of 1942) raises questions, first, as to the validity of the Special Criminal Courts Ordinance (II of 1942), and, secondly, as to 'the applicability of the Ordinance if valid to the case of the petitioners. Cases raising similar points have come before the High Courts of Allahabad, Patna and Nagpur, and we have considered the judgments delivered in those cases, either as reported in the All India Reporter or in manuscript, as the cases have not yet found their way into the official reports.2. The facts in this case are that the petitioners were arrested on September 6, 1942, and on October 5 a charge-sheet was placed against their names; and, some of the charges being exclusively triable by a Court of Session, on October 31, the Magistrate committed the accused for trial in the Court of the Sessions Judge of Thana, where cases are triable with a jury. On December 7 the Government of Bombay made an order, under Section 5 of the S...
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