Mumbai Court December 1945 Judgments
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Motilal Shivnarayan Vs. Vishwanath Waman Thakur
Court: Mumbai
Decided on: Dec-14-1945
Reported in: (1946)48BOMLR786
Lokur, J.1. The plaintiff in the three suits out of which these appeals arise was one Vishwanath Vaman Thakur. In the suit out of which second appeal No. 803 of 1943 arises the defendant was Motilal Shivnarayan. and in the other two suits the defendant was Bhikchand Kamkaran, the father of the respondent, who died pending the suits. Bhikchand Bamkaran obtained two money decrees against the plaintiff in the High Court in summary suits Nos. 1741 and 2057 of 1936 and Motilal Shivnarayan obtained a money decree against him in summary suit No. 105 of 1937. All the three decrees were passed on the consent given by the plaintiff Vishwanath Thakur in those suits. He filed these three suits against the decree-holders to have the decrees set aside on the ground of fraud and misrepresentation. Both the Courts below have held that there was no fraud or misrepresentation by the decree-holders in obtaining the consent which was produced in the three summary suits. In all the three suits the document...
Jayarabai Vs. Bindo Ganesh
Court: Mumbai
Decided on: Dec-13-1945
Reported in: (1946)48BOMLR598
Macklin, J.1. The appellate Court has reversed the decision of an executing Court and has held that a certain auction-purchaser is entitled to have a sale set aside under Order XXI, Rule 91, on the ground that the judgment-debtor had no saleable interest in the property. The other side now comes to us in revision, and apart from the merits of the case the question for us to determine is whether this Court has jurisdiction to interfere, since a preliminary objection has been taken that it has no jurisdiction. On behalf of the petitioners reference was made to the decision of the Privy Council in Balkrishna Udayar v. Yasudeva Aiyar (1917) L.R. 44 I. A. 281 : 19 Bom. L.R. 715. The case has been interpreted by the Patna High Court and by other High Courts, and the interpretation adopted has led to these High Courts holding that a Court of revision has power to interfere with a decision on a question which goes to the root of the jurisdiction of the Court. On the other hand, there are decis...
Atmaram Nemchand Gujar Vs. Babagouda Bharma
Court: Mumbai
Decided on: Dec-13-1945
Reported in: (1947)49BOMLR316
Lokur, J.1. This appeal raises an interesting question of limitation for seeking redemption in a suit under Section 15D(3) of the Dekkhan Agriculturists' Relief Act, 1879. The plaintiff filed a suit under that section on July 27, 1940, for an account of a mortgage, dated April 14, 1880. On taking an account the trial Court found that Rs. 800 were due under the mortgage, and before the decree was signed, the plaintiff made an application under Section 15D, Sub-section (3), that he was going to pay the. requisite court-fee and that a decree for redemption of the mortgage should be passed in his favour. The trial Court accepted the court-fee payable for redemption of the mortgage and passed the usual decree for redemption under Section 15B of the Dekkhan Agriculturists' Relief Act, on June 30, 1941. It was contended that when the application under Section 15D, Sub-section (3), was made by the plaintiff, his claim for redemption was time-barred. According to the terms of the mortgage-deed ...
Jayarabai Vs. Bindo Ganesh and anr.
Court: Mumbai
Decided on: Dec-13-1945
Reported in: AIR1947Bom119
ORDERWeston, J.1. This revision application raises a question of the revisional powers of this Court under Section 115, Civil P.C. The question is of importance. The limits of the revisional powers under this section have been defined in general terms in several ca3es which came before the Privy Council, more particularly, in 11 I.A. 237,1 27 I.A. 2162 and 44 I.A. 261,3 and while there is little difficulty in appreciating the general principle, the application of this general principle to particular cases is often a matter of considerable difficulty. There appears to be no reported case of any High Court dealing with facts similar to those in the present case. It is not necessary to give the facts in detail. Very shortly they are that a purchaser at court-sale applied to the executing Court under Order 21, Rule 91, Civil P.C., to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. The executing Court rejected the application, but in ...
Vallabhdas Narandas Vs. Kantilal G. Parekh
Court: Mumbai
Decided on: Dec-12-1945
Reported in: (1947)49BOMLR420
Kania, J.1. The parties have come before the Court on the hearing of a notice under O. XXI, Rule 22. The facts leading to these proceedings are these :2. There were cotton dealings between the applicant and the respondent. Disputes between them were referred to arbitration and on March 23, 1928, an award was made. That was filed on April 19, 1928. An application for execution was made and a notice under O. XXI, Rule 37, was issued on May 20, 1928. When that notice came for hearing on August 30, 1928, a consent order was taken. The respondent agreed to pay the amount by monthly instalments of Rs. 200. It must be remembered that at the time of these proceedings the old Arbitration Act was in force. Under that an award could be executed as if it were a decree, without a decree being passed in terms of the award. On July 22, 1933, a second application for execution was filed which also appears to have been for the arrest of the debtor. Notice under O. XXI, Rule 22, was dispensed with, and ...
Bhaskar Wable Vs. Nasik City Municipality
Court: Mumbai
Decided on: Dec-12-1945
Reported in: AIR1947Bom78
Rajadhyaksha, J.1. The appellant in this case Dr. Wable, was Medical Officer of Health of the Nasik City Municipality and was appointed on probation on 31-8-1935. The order of appointment (which is Ex. 42 in this case) stated that 'he was appointed on probation to the post of the Medical Officer of health of the Nasik Municipality on a consolidated salary of Rs. 300 on the scale of 300-20-500, efficiency bar-25-650.' Paragraph 3 of the order of appointment made it clear that his appointment would be subject to the decision of the General Body as regards the questions of his probationary period and the cut to be made applicable to the salary of the post in question. It appears that in point of fact the probationary period was not fixed until on 5-5-1938, the Municipality passed a resolution (EX. 48 in this case) stating that the probationary period of Dr. Wable was fixed up to 31-5-1938, and that on that day he should be relieved of the charge of his office. Thereupon, after writing cer...
Manilal Ratanchand Shah Vs. Nanubhai Jesingbhai
Court: Mumbai
Decided on: Dec-06-1945
Reported in: (1947)49BOMLR84
Lokur, J.1. This appeal arises out of a suit filed by the plaintiffs to obtain various injunctions in respect of a chhindi or lane to the north of defendant No. 1's house. The plaintiffs claimed that the said chhindi was of the joint ownership of themselves and defendants Nos. 1 and 3, whereas defendant No. 1 contended that he was the sole owner of the chhindi. He opened doors and windows in the northern wall of his house abutting on the chhindi and also threatened to put up a balcony projecting 2 feet 9 inches into the chhindi at a height of 14 feet 10 inches from the ground. The plaintiffs prayed for an injunction requiring him to close the openings in his northern wall and restraining him from constructing the said balcony. The trial Court held that the chhindi belonged jointly to the plaintiffs and defendants Nos. 1 to 3 and granted an injunction restraining defendant No. 1 from projecting his balcony on the northern side of his wall beyond two feet into the chhindi. The reliefs in...
Manilal Ratanchand Shah Vs. Nanubhai Jesingbhai and ors.
Court: Mumbai
Decided on: Dec-06-1945
Reported in: AIR1947Bom394
Lokur, J.1. This appeal arises out of a suit filed by the plaintiffs to obtain various injunctions in respect of a chhindi or lane to the north of defendant 1's house. The plaintiffs claimed that the said chhindi was of the joint ownership of themselves and defendants 1 and 3, whereas defendant 1 contended that he was the sole owner of the chhindi. He opened doors and windows in the northern wall of his house abutting on the chhindi and also threatened to put up a balcony projecting 2 feet 9 inches into the chhindi at a height of 14 feet 10 inches from the ground. The plaintiffs prayed for an injunction requiring him to close the openings in his northern wall and restraining him from constructing the said balcony. The trial Court held that the chhindi belonged jointly to the plaintiffs and defendants 1 to 3 and granted an injunction restraining defendant 1 from projecting his balcony on the northern side of his wall beyond two feet into the chhindi. The reliefs in respect of the doors ...
Dattatraya Bhaskar Vs. Ramkrishna Martoba
Court: Mumbai
Decided on: Dec-05-1945
Reported in: (1948)50BOMLR279
Lokur, J.1. This appeal arises out of execution proceedings. The plaintiffs and defendant No. 4 were mortgagors and defendants Nos. 1 to 3 were mortgagees of certain properties. The plaintiffs filed suit No. 144 of 1927 for redeeming the mortgage and as defendant No. 4 did not join them in filing the suit he was impleaded as a defendant, A preliminary decree for redemption was passed on November 28, 1930, which provided that the plaintiffs and defendant No.4 together should pay Rs. 1,600 to defendant No. 1 and Rs. 300 to defendant No. 3 within six months, and that on making the payment they should treat the mortgage as redeemed and take possession of the mortgaged property. If the plaintiffs and defendant No. 4 failed to make the payment within the said period, defendants Nos. 1 and 3 were to apply for such orders as they might be legally entitled to. Defendant No. 1 was ordered to pay the plaintiffs' costs. Defendant No 1 appealed against the decree but his appeal was dismissed and he...
Attar HusseIn Vs. Fazli Brothers, Ltd.
Court: Mumbai
Decided on: Dec-04-1945
Reported in: AIR1946Bom481; (1946)48BOMLR377
Bhagwati, J.1. The plaintiff is a distributor of cinema films. The defendants are producers and distributors of cinema films, this being one of the objects for which they have been incorporated. The plaintiff entered into an agreement with the defendants for the purchase from the defendants of the distribution rights of their social pictures 'Fashion', 'Bhai Behen' and 'College' for certain territories therein mentioned for a period of six years. The suit is filed by the plaintiff to recover damages from the defendants for a breach of this agreement.2. The plaintiff has taken out this summons for a transfer of this suit to the list of commercial causes. This summons is contested by the defendants who have contended before me that the cause of action in this suit does not arise out of the ordinary transactions of merchants and traders and that therefore this suit should not be transferred to the list of commercial causes.3. Counsel for the plaintiff has urged that the business which the...
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