Court : Mumbai
Reported in : AIR1949Bom260; (1949)51BOMLR252
M.C. Chagla, C.J.1. This appeal arises out of execution proceedings, and a few facts may be stated in order to appreciate the contentions of the parties before us. It seems that the plaintiff as the decree-holder obtained a decree in Suit No. 264 of 1934 against defendant No. 1 and the suit against defendants Nos. 2 and 3 was dismissed. The plaintiff-Municipality appealed against the order of dismissal. On August 11, 1936, the learned District Judge allowed the appeal and awarded to the Municipality a decree against all the defendants. There was also a provision in the decree for the costs of the appeal and that provision was that the costs of the appeal were to be paid by defendants Nos. 2 and 3. The costs of the trial Court were made payable by all the defendants. On April 8, 1936, while the appeal before the District Court was pending, darkhast No. 298 of 1936 was filed by the Municipality to execute the decree of the trial Court against defendant No. 1, and on August 12, 1936, that...
Tag this Judgment!Court : Mumbai
Reported in : AIR1949Bom173; (1949)51BOMLR129
Weston, J.1. This matter raises a question as to the validity of a part of one of the Rules framed in the year 1929 by this Court under Section 62 of the Indian Divorce Act, 1879. The impugned rule is Rule 928 appearing at page 220 of the printed Rules of this Court, and the material part of it is as follows :-The High Court shall not entertain an application for the modification or discharge of an order 'for alimony, maintenance or the custody of children, unless the person on whose petition the decree was pronounced is at the time the application is made resident in India.2. The facts of the present matter shortly are these. On June 30, 1933, on petition of the present opponent, to whom it will be convenient to refer as the wife, a decree absolute for dissolution of marriage was passed by this Court under the Indian Divorce Act against the present applicant, to whom I will refer as the husband. By later order made on July 14, 1933, the husband was ordered to pay permanent alimony to ...
Tag this Judgment!Court : Mumbai
Reported in : AIR1949Bom154; (1949)51BOMLR47
M.C. Chagla, C.J.1. This is an appeal from a judgment of Mr. Justice Tendolkar. It seems that on February 9, 1943, the plaintiff and the defendant entered into an agreement whereby the defendant agreed to sell to the plaintiff an immoveable property for the price of Rs. 48,000. The amount of earnest money of Rs. 3,000 had already been paid by the plaintiff to the defendant on January 18, 1943. The defendant was the mortgagee of this property and the mortgagor filed a suit to redeem the property and after some contest a redemption decree was passed in favour of the mortgagor, and as the mortgagor redeemed the property, the defendant informed the plaintiff that he was not in a position to complete the contract and convey the property. He sent a cheque for Rs. 3,000 returning the earnest money which had been deposited with him by the plaintiff. The plaintiff, in the first instance, refused to accept the cheque of Rs. 3,000 and claimed damages for breach of contract. Ultimately he accepted...
Tag this Judgment!Court : Mumbai
Reported in : AIR1950Bom247; (1950)52BOMLR104
Bavdekar, J.1. This is an appeal from a suit which was filed by the plaintiff on behalf of himself and other creditors of defendant 6. The plaintiff said that, at the time when the salt was filed, there were two debts due to him from defendant 6. The first was a debt incurred by defendant 6's wife, Mahalaxmi, who died before the present suit was filed. The debt was incurred by Mahalaxmi upon mortgage of property which belonged to her as her absolute property. But on the date upon which the mortgage was executed by Mahalaxmi, defendant 6 executed a surety bond under which he agreed to pay the plaintiff the amount of the debt of the mortgage in case Mahalaxmi did not pay it. The actual bond, which was executed by defendant 6, is not before us because the plaintiff said that he had lost it. But the plaintiff proved another bond executed by defendant 6 in lieu of the lost bond, which supports the contention of she plaintiff. Under this bond, defendant 6 again undertook the liability of pay...
Tag this Judgment!Court : Mumbai
Reported in : 1949CriLJ709
ORDERMangalmurti, J.1. The learned Civil Judge (Class 2), Ellichpur, recorded a finding under Section 476, Criminal P. C, on 17th August 1946 to the effect that it was expedient in the interests of justice that Shri Bam, who is the applicant in this Court, should be prosecuted, and he decided to make a complaint. Shri Barn's appeal from that order was dismissed by the learned Additional District Judge, Ellichpur.2. The contention that has been raised in this revision petition is that the two lower Courts could not take into consideration in the proceedings under Section 476, Criminal P. C, the uncertified or unrecorded adjustment of us. 922-8-0 in view of Sub-rule (3) of Rule 2 of Order 21, Civil P. C.3. Sub-rule (3) is as follows:A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.Section 176, Criminal P. C, lays down the procedure of making a complaint regarding any of fence (referred to in B. 195 S...
Tag this Judgment!Court : Mumbai
Reported in : AIR1949Bom4104; (1948)50BOMLR747
M.C. Chagla, C.J.1. This appeal raises a very short point of limitation. On May 4, 1945, an order was passed by the Small Cause Court in proceedings instituted by the defendant against A.A. Patil and this was an order for ejectment against Patil. Time was given to Patil to vacate by May 14, 1945, and a warrant of possession was issued on May 18, 1945, and when the defendant attempted to execute the warrant of possession, he was obstructed by the plaintiff. On May 22, 1945, the defendant took out an obstructionists notice, and on December 10, 1945, the notice was made absolute in favour of the defendant. From that order the plaintiff came to this Court in revision, and this Court dismissed the revisional application on February 17, 1947. The plaintiff then filed this suit on March 29, 1947, for a declaration that he was the tenant of the defendant and that as such tenant he was entitled to remain in possession of the shop. He also sought for a declaration that the defendant was not enti...
Tag this Judgment!Court : Mumbai
Reported in : AIR1949Bom266; (1949)51BOMLR245
M.C. Chagla, C.J.1. This appeal arises out of a suit filed by the plaintiffs for possession of certain properties, and in order to appreciate the contentions of the parties it is necessary to set out a pedigree which will explain the relationship of the parties necessary to understand the material questions.2. One Shivram had three sons : Narayan, Hari and Ramkrishna. Narayan had a son Madhav who died in 1936 and his sons are Murlidhar and Vasudev. Hari was married to Gangabai and Hari died on March 22, 1927. Gangabai died on July 22, 1941. Hari and Gangabai had one issue, a daughter Narmadabai who died in 1935. She was married to Natu, who is defendant No. 1 in the suit. Ramkrishna died in 1939 and his widow is Gitabai, and Ramkrishna had three sons : Vishnu, Laxman and Ramchandra, who are plaintiffs Nos. 1, 2 and 3. Narayan, Hari and Ramkrishna separated a long time ago. Gangabai made a will on July 14, 1941, and by that will she disposed of the property in suit by giving a part of i...
Tag this Judgment!Court : Mumbai
Reported in : AIR1950Bom230; (1950)52BOMLR231
Bhagwati J1. I have heard the parties at length on the question of the admissibility of this document. The objection is really sought to be sustained by the Advocate-General on the construction of Section 123, Evidence Act. Before, however, I consider the provisions of that section it is necessary for me to define the scope of the enquiry before me as it has been laid down in the judgment of the appeal Court. The learned Chief Justice in the course of his judgment has observed in Parpia v. Chajmarbagwalla 50 Bom. L. R. 728 : A. I. R 1949 Bom. 109:'Now, the whole question which arises is whether the discretion exercised by the Collector was big own discretion or was it a discretion that was fettered by anything the Government has done or said. In our opinion, it would not be wrong or improper for the Collector in exercising his discretion to give full weight to the general policy of Government, provided that policy is within the ambit of the Act. If the Government takes a particular vie...
Tag this Judgment!Court : Mumbai
Reported in : (1948)50BOMLR744
M.C. Chagla, C.J.1. This is an application by the petitioner for leave to appeal to the Federal Court. An insolvency notice was taken out against the appellant for adjudicating him insolvent and the appellant took out a notice of motion to set aside that insolvency notice. Mr. Justice Tendolkar dismissed the notice of motion holding that the insolvency notice was a valid notice. From the judgment of Mr. Justice Tendolkar an appeal was preferred to the bench consisting of myself and Mr. Justice Bhagwati and we affirmed the judgment of Mr. Justice Tendolkar and dismissed the appeal (July 22, 1948). The petitioner seeks to go to the Federal Court on the ground that the question involves a substantial question of law.2. Now, in order to determine this question, one or two very fundamental principles have to be borne in mind. The first is that the Court of Appeal in this Province is the final Court; it is the final Court normally and ordinarily. The other principle is that law favours a fin...
Tag this Judgment!Court : Mumbai
Reported in : (1950)52BOMLR636
Tendolkar, J.1. This is a suit by a purchaser against the vendor of an immoveable property for recovery of the amount deposited as earnest under the agreement of sale and also for the costs of the abortive sale. The property agreed to be sold was house No. 739, under scheme No. 3 at Khar. The vendor by the agreement declared that the tenure of the land contracted to be sold was freehold. The title was rejected by the purchaser on the ground that the vendor had failed to prove that the tenure was freehold.2. It was contended on behalf of the defendant that the term that the tenure was freehold had been inserted in the agreement by the common solicitor of both the parties, although the defendant had made plain to him that she did not know what the term meant and had only told the solicitor that she was the owner of this property. Two issues were raised on this plea, being issues Nos. 1 and 2; but after some evidence had been led on these issues, namely the evidence of the defendant herse...
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