Mumbai Court September 1946 Judgments
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Lalchand Hatanchan Marwadi Vs. John Anotone D'souza
Court: Mumbai
Decided on: Sep-30-1946
Reported in: AIR1948Bom112
Macklin, J.1. The execution now under appeal was brought more than three years from the date of the decree; but the decree-holder sought to bring it into time by reason of the provisions of Section 78, Provincial Insolvency Act, there having intervened an adjudication and an annulment. By the terms of the section, the creditor claimed himself to be within time. The section says that the period from the date of the order of adjudication to the date of the order of annulment shall be excluded for the purpose of execution, 'provided that nothing in this section shall apply to a suit or application in respect of a debt provable but not proved under this Act.' The Courts below have noticed that the judgment-debtor filed his debt in the insolvency proceedings and supported it by an affidavit as required by Section 49 and Rule 3 under Section 49 of the Act; but the record of the insolvency proceedings does not suggest that the debt was held by the Insolvency Court to be proved, and on that gr...
Basawa Chambasawraj Vs. Somashekhararaj Shivraj
Court: Mumbai
Decided on: Sep-26-1946
Reported in: (1947)49BOMLR557
Macklin, J.1. This is a decree-holder's appeal against an order in execution dismissing his petition. There had been a previous execution of the decree and that execution came to an end rather more than three years before the decree-holder put in an application for amendment of the decree, so that at the time of the application for amendment execution of the decree was barred under the three years' rule. The amendment, however, was allowed and the present application for execution is the result. It has been dismissed in spite of the provisions of Article 182(4) of the Indian Limitation Act, which dates the three years' period in the case of an amended decree from the date of the amendment. The executing' Court holds that the date of the amendment given in the third column of the schedule under Article 182(4) applies only when the decree amended was still capable of execution at the time of the amendment, and there is judicial authority for that view. Nevertheless in this appeal we thin...
Bhavaniprasad Shaligram Vs. Naranibai
Court: Mumbai
Decided on: Sep-26-1946
Reported in: (1947)49BOMLR554
Lokur, J.1. [His Lordship after setting out the facts of the case proceeded as follows:]- The appellant presented the first darkhast within three years of the date of the decree and every subsequent darkhast within three years of the disposal of its predecessor but, the surety or his sons were not parties to any darkhast prior to darkhast No. 647 of 1930 and that darkhast was presented more than three years after the decree of the trial Court. Relying upon the rulings in Narayan v. Timmaya 8 Bom. L.R. 807 and Yusuf Alli v. Papa Miya 25 Bom. L.R. 810 the executing Court held that the earlier darkhast filed against the judgment-debtor alone did not keep the darkhast in time against the surety or his sons and that, therefore, darkhast No. 647 of 1930 was time-barred as against them. All that is laid down in Narayan v. Timmaya, which was followed without any discussion in Yusuf Alli v. Papa Miya, is that a judgment-debtor and his surety are not joint judgment-debtors and therefore a darkha...
Chimanram Motilal Vs. Shankarmal Sabu
Court: Mumbai
Decided on: Sep-25-1946
Reported in: AIR1947Bom424; (1947)49BOMLR439
Bhagwati, J.1. In accordance with the orders which I passed on September 20, 1946, the plaintiffs amended their plaint by incorporating therein paragraph 36-A and prayer (e1) which referred to the decision of the clearing house sub-committee dated July 31, 1946, and the letter received by the plaintiffs from the Bullion Exchange on September 2, 1946, intimating to the plaintiffs that as the plaintiffs had failed to pay the sums into the clearing house a resolution was passed at the joint meeting of the board and the Mandal of defendant No. 2 company held that day to the effect that if the payment was not made by the plaintiffs by 12 noon on September 19, 1946, then another joint meeting would be convened at 4 p.m. on that day to take adequate steps against the plaintiffs.2. All these grounds were no doubt there in the affidavit which was made by Juthalal Motilal on September 16, 1946, in further support of the notice of motion but were incorporated in the plaint in pursuance of the ord...
Ratilal Manilal Vs. Chandulal Chhotalal
Court: Mumbai
Decided on: Sep-24-1946
Reported in: AIR1947Bom482; (1947)49BOMLR552
Macklin, J.1. The question at issue in this matter coming before us by way of revision is the court-fee payable in a suit for the possession of a house based upon the allegation that the defendant in possession is a licensee of the plaintiff. The trial Court, on the defendant's objection, went into the question of the court-fee and came to the conclusion that the subject matter of the suit was not the house itself but the right to eject the defendant. Suits for possession of immoveable property fall under Section 7(v) of the Court-fees Act and are valued according to the subject matter of the suit. Taking it that the subject matter of the suit was the right to eject the defendant, the learned Judge found that the value of that right was the value at which the defendant's right to remain in the house could be valued; and looked at from that point of view he considered that the value which the plaintiff put upon his claim, namely Rs. 5,000 odd, could be accepted even though the market va...
Nawalmal Chaturbhuj Vs. Dagaduram Ramnarayan
Court: Mumbai
Decided on: Sep-23-1946
Reported in: (1948)50BOMLR602
Macklin, J.1. This execution appeal raises the question of the right of a person who is an agriculturist at the date of the execution but was not an agriculturist at the date of the decree to have his property sold by the Collector rather than by the Court. The decree under execution was a decree for the payment of a mortgage debt by instalments; and it directed that, in the event of the defendant failing to pay any two instalments in time, the plaintiff, if he so wished, should sell the mortgaged property in suit and recover the whole amount then due in one sum. The executing Court has presumed that the defendant is entitled to plead his agricultural status at the time of the execution, and it has held that he has in fact proved it; and on that ground the Court has ordered that the mortgaged property be sold and the sale be held by the Collector. But the point taken by the decree-holder in this appeal, apart from the merits of the decision that the defendant was an agriculturist at th...
Bai Lakshmi Vs. Jaswantlal Tribhuvandas
Court: Mumbai
Decided on: Sep-20-1946
Reported in: AIR1947Bom369; (1947)49BOMLR183
Macklin, J.1. The question in this appeal is whether the effect of an assignment of an insurance policy was to create an estate in the assignee or to leave the money due under the policy as part of the estate of the assured. The parties to the appeal are the widow of the assured, in whose favour the assignment was made, and a creditor of the assured who obtained a decree against the assured and is now trying to execute it. The trial Court has held that on the wording of the assignment the effect was to leave the ownership of the policy money as part of the estate of the assured. Against that decision the assured's widow has come in appeal.2. The assignment is in these words:I, Lakhaji Khodaji, the assured withinnamed, do hereby assign all my right, title and interest in and under the within policy on my life and all moneys and benefits thereby secured to my wife Lakshmi aged about 47 years. Provided, however, that should the said my wife Lakhmi predecease me before the policy matures o...
Emperor Vs. Pokka Kuslappa Bant
Court: Mumbai
Decided on: Sep-18-1946
Reported in: AIR1947Bom329; (1947)49BOMLR150
Lokur, J.1. This is a reference by the learned Sessions Judge at Karwar recommending that the conviction of the six accused by the Sub-Divisional Magistrate, First Class, Karwar Town, under Section 5 of the Bombay Prevention of Gambling Act, should be set aside and the accused acquitted and discharged. The charge against the accused was that accused No. 3 had kept a common gaming house at Keni, a suburb of Ankola, and that all the accused were found there engaged in playing cards for stakes. The Police Sub-Inspector of Ankola received information that three cottages in survey No. 166/A belonging to Dani, Yeshwant and Janaki were used as common gaming houses, and on August 20, 1945, he obtained a warrant from the First Class Magistrate, Ankola, to search these houses and seize the instruments of gaming found there. On August 23, 1945, the Police Sub-Inspector got information that gambling was going on in Dani's house. It was then about 11 p.m. and he proceeded to that house with a party...
Jivaji Keshav Bapat Vs. Vishnu Rangnath Bapat
Court: Mumbai
Decided on: Sep-16-1946
Reported in: AIR1947Bom380; (1947)49BOMLR182
Macklin, J.1. During the pendency of a darkhast which was then under appeal at an interlocutory stage to this High Court, the decree-holder transferred the decree to an assignee. In due course the assignee applied to be taken onto the record of the darkhast and he was added as a party. That was after the appeal to the High Court had been decided. Objection was taken by the judgment debtors to the application by the assignee to be brought on the record on the ground that the application was out of time. We do not quite know the arguments which they used to show that it was out of time; but their contention was at any rate rejected, the darkhast was allowed to continue with the assignee as the darkhastdar, and the judgment debtors have again come in appeal to this Court.2. The argument put to us is that by O. XXI, Rule 16, it is not open to an assignee to apply to be brought on the record of a pending darkhast; all he can do is to ask leave to execute the decree on his own account after ...
Chimanram Motilal Vs. Vandravandas Gordhandas
Court: Mumbai
Decided on: Sep-16-1946
Reported in: (1947)49BOMLR431
Bhagwati, J.1. This is a notice of motion taken out by the first defendants that the suit and all proceedings therein be stayed. The notice of motion is addressed not only to the plaintiffs but also to defendants Nos. 2, 3, 4 and 5 herein. The plaintiffs are the only persons who have appeared on this notice of motion, contesting the same. Defendants Nos. 2, 3, 4 and 5 have chosen not to appear.2. The plaintiffs as well as the first defendants are members of the Bombay Bullion Exchange, Ltd. For the delivery No. 18 of February 28, 1946, the plaintiffs had entered into a large number of transactions for the purchase and sale of silver with the first defendants and other merchants as a result of which transactions the plaintiffs were on the whole to take delivery of 4378 silver bars of the said delivery. In accordance with Rule 54(4) of the Rules of Business of the Bullion Exchange a clearance sheet was submitted by the plaintiffs to the clearing house and delivery orders for the 4378 sil...
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