Court : Orissa
Reported in : AIR1952Ori182
..... an order under the code of civil procedure, 1908; (2) that order must have been made against the plaintiff; (3) that order must have been passed in relation to a claim preferred to the property in order to save it from attachment or sale in execution of a decree or on an objection made thereto; (4) that order should have been passed in execution proceeding of a decree; and lastly, the attachment affected by the order must ..... that attachment 'before judgment' never becomes an attachment 'in execution' for the purpose of article 11 and tine provision of the limitation act which governs such a suit, would be article 120, of the indian limitationact, as, according to his opinion, no other article specifically applies ..... 11 reads : 'by a person against whom any of the following orders has been made, to establish the right which he claims to the property comprised in the order: (1) order under the code of civil procedure, 1908 (act 5 of 1908), on the claim preferred to, or an objection made to the attachment of, property attached in execution of the decree;'applying my mind to the language of this article, free of any authorities whatsoever, i would hold ..... favour of the reasoning adopted in the calcutta high court and followed in the patna high court, and i would accordingly hold that article 11 of the limitation act does not apply to the present suit where the plaintiff seeks to get over a claim made to property which was the subject-matter of execution proceedings. 41. ..... in 'bank of .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori378
..... 'the point can be further elucidated by referring to an earlier part of his lordship's judgment, which reads:'in addition to the constitutional points above summarised, a suggestion was made on the construction of the act, that it does not provide for the devolution of any property by survivorship nor confers on the widow a right by survivorship, though it gives her the same interest in the joint property as the deceased husband had. ..... law which, tested in the light of general juristic principles that prevail in the jurisprudence of most of the civilised countries and which constitute the basic spring-board for the various legislations undertaken by the british government up-to-date, may appear anomalous; but to one conversant with the particular features of social and socio-economical framework of the . ..... my lord the chief justice is inclined to think that in that particular case the widow was not given a share in the interest of the husband whodied prior to the act, not because the act was not applicable to such a case, but because the death of the widow's husband left the entire family property in the hands of the sole surviving coparcener and the question of the widow's interest arose ..... such corporate body, with its heritage, is purely a creature of law and cannot be the creation of any act of the parties save in so far that by adoption a stranger may be affiliated as a member of that corporate family. ..... bank of india, ltd. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori105; 16(1950)CLT249
..... its operation was limited to one year from the data of its commencement with a proviso that:'the provincial government may by a notification on a resolution passed by the bihar legislative assembly and agreed to by the bihar legislative council direct that the act shall remain in force for a further period of one year, with such modifications, if any, as may ..... lord macnaughten laid down the two following propositions in this connection; (l) if it was a matter which was more than one relating to procedure, that is if it touched a right in existence at the passing of the act, it could not be deemed to be retrospective in its effect according to a long line of decisions extending from coke; and (2) to deprive a suitor in a pending action of a right of appeal to a superior court which belonged to him, was ..... nor would it render invalid what was valid under the repealed order as the saving clause expressly says that it 'shall continue in force and be deemed to be done under the act ' it is by a legal fiction that anything done under a prior statute is deemed to be done under a later statute; and it is by just another legal fiction that we have to hold that although a provision corresponding to section 13 was not ..... an act to show that it is to have retrospective operation, it cannot be so construed as to lave the effect of altering the law applicable to a claim in litigation at the time when the act is passed, leeds and county bank v. ..... by their lordships in karnani industrial bank ltd. v. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori186
..... mind the important distinguishing features between a permanent tenure and an occupancy holding and the inferences arising from a construction of ss 31a and 31b, it would appear that in cage of transfer of a portion of an occupancy holding governed by schedule 1, orisaa tenancy act, it will not be reasonable to hold that whether the landlord had knowledge of the transfer or not he was still bound to implead the transferee so as to obtain the full effect of a rent decree.41. ..... application from the transferee for registration of the transfer and the payment of the prescribed mutation fee or a nominal fee or no fee at all according to the custom or usage prevalent in the estate (which) was expressly saved by schedule 37) the landlord was bound to recognise the transfer and if he omitted to do so a special provision was made in sub-section (s) of old schedule 1 for such recognition through the medium of the collector. ..... act) would save the plaintiff- ..... about such arrear there is nothing to prevent him from rushing: to the rent court depositing the arrear rent and thereby saving the property from sale. ..... old schedule 83, bengal tenancy act, the usage under which a raiyat was entitled to sell his holding without the consent of the landlord was expressly saved. ..... under schedule 28, he could save the property from sale by depositing the decretal dues within 30 days of ..... to schedule 9 which deals with sub-division of tenures would show that sub-divisions effected by transfers are expressly saved. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori1; 17(1951)CLT10
..... but in considering the purely legal question regarding the implied repeal of an earlier enactment by a later enactment the action of the provincial government in omitting any reference to the earlier enactment in the rules framed by them under the later enactment is not a decisive guide and the whole question has to ..... owner of a motor vehicle plying for hire was made aware of the necessity of obtaining a licence from the district board under section 166 of the madras act in addition to the permit from the appropriate authority under the said rules and no doubt about the necessity of complying with both the statutory provisions could ever ..... to the passing of the central act in 1939, the motor vehicles act, 1914 (act viii [8] of 1914) and the rules framed by the madras government under chat act known as the madras motor vehicles rules ..... material extracts from the two sections are quoted below.section 42 (1) of the central act - 'no owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a regional or provincial transport authority authorising the use of the vehicle in that place in ..... it follows that but for the saving clause provided therein all statutes relating to taxation of motor vehicles would have become invalid after the passing of the central act and that the said sub-section extended their life for a period of nine months only from the commencement of that act. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1950Ori99
..... the consent in writing of) the advocate-general, may institute a suit, whether contentious or not, in the principal civil court of original jurisdiction or in any other court empowered in that behalf by the provincial government within (he local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree: (a) removing any trust; (b) appointing a new trustee; (c) vesting ..... the whole or any part of the trust-property to be let, sold, mortgaged or exchanged; (g) settling a scheme; (h) granting each further or other relief as the nature of the case may require : (2) save as provided by the eeligioua endowments act, 1863 (xx [20] of 1863), no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that ..... reliefs, enumerated in clauses (f) & (g) of sub-section (1) of the code, have, however, though not imported into the section, been provided for in the act otherwise than in section 54, that is, section 58 of the act deals with alienation of immovable trust-properties by way of sale, mortgage, exchange or lease, and section 33 vests the commissioner with the power of framing scheme of ..... i shall, in this connexion, refer to section 61 of the act, which prohibits the provincial government or any of its executive officers from undertaking or assuming the superintendence of any land or any other property ..... governs .....
Tag this Judgment!Court : Orissa
Reported in : AIR1952Ori223
..... it could never be treated afterwards as having been converted into kambattam land, either by surrender or relinquishment, except in the single case mentioned in the proviso to section 185 of the madras estates land act, namely, except where the landholder has by his own servants or hired labour, with his own or hired stock, cultivated the land as private land for twelve years immediately preceding the commencement of the ..... thus, the technical meaning assigned to 'private' land lies in its reference to land which'was, at the creation of estates by the mohammedan government, in the direct occupation of the landholder and which was freed from all revenues as remuneration or a part of the remuneration of the zamindar or ..... were the remuneration, or rather part of the remuneration, which the zamindar received for collecting the government revenue and maintaining public order in the zamindari and rendering such service as the settlement imposed upon ..... also succeeded in proving that the 'hetta' lands had been specifically let out as such at different times for about thirty years prior to the passing of the madras estates land act, and for forty years subsequent to that date and that the suit lands satisfied the definition of 'private' land in the madras estates land ..... documents relating to the proceedings taken by government under section 166 of the madras estates land act and are of comparatively recent date. ex ..... taken up the cultivation himself and from 1873 let out the lands as kambattam. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1950Ori89
..... it can be held that the high court of orissa while exercising jurisdiction in the states of bamra and kalahandi (which or outside the territorial limits of the province of orissa) is a 'high court' for the purposes of section 206, government of india act, it will not be competent for that high court to grant the certificate, nor will the federal court obtain jurisdiction to bear an appeal from the decision of that high court. ..... apparently, the legislature desired that the definition of the expression 'high court' in the federal court (enlargement of jurisdiction) act, 1947, should be in conformity with the meaning given to that expression in section 206, government of india act so that the appellate jurisdiction conferred by that act may be exercisable by the federal court over all classes of high courts contemplated by section 206. ..... 5 of the states order without any express provision in that order taking away the appellate jurisdiction of the federal court, the right of appeal under section 205, government of india act which attaches to the decisions of the high court of orissa in relation to the province of orissa likewise attaches. ..... so far as the high court of orissa is concerned, the effect of section 219 is that in whatever provision of the government of india act the expression 'high court' may occur, that expression should be construed as referring to the high court of orissa while exercising jurisdiction in respect of matters arising out of the province of orissa. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1952Ori99
..... in its character so as to debar acquisition of joint family right in it or to divest any pre-existing or subsisting right in them enuring to the benefit of the members of the joint family; (iv) section 65a, in saving the pre-existing arrangements with regard to the thikadari tenures, saves not only partition of the tenure, if any, but also joint or separate enjoyment of the 'sir' and 'bhogra' lands appertaining to the tenure, or any other emoluments arising therefrom; (v) the prohibition ..... even in the cases of default in payment of government revenue, section 107 of the act provides that every such defaulter shall be entitled to retain possession and shall be liable to pay rent for such land, as if he were an absolute occupancy tenant, at such rent as may be fixed by the deputy ..... section 109 of the central provinces land revenue act of 1917 expressly saves the right of the members of the thikadar's family who are entitled to be maintained out of the income of the village, to make any arrangement for the joint or divided management and enjoyment of the village or part ..... dispute arose with regard to the purchase of village chipridih from the savings of income derived from the thikadari village of parsathi. ..... it cannot be partitioned and (saving any arrangement to the contrary now actually in force) it devolves on one member only of the gountia's ..... is therefore clear that any partition amongst the co-sharers of a thikadar, which had already taken place is expressly saved by cl. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1949Ori1
..... the land in its original state ' where a man suffers in respect of one and the same right, whether of the person, property, or reputation, as the case may be, then if the act is not a continuing act but one over the consequences of which, when done, the doer has no further control, the cause of action is one and after recovery in an action for damage first accruing, no further ..... a fresh cause of action arises de die in diem--clark and lindsell on torts.where the wrongful act produces a state of affairs, every moment's continuance of which is a new tort, a fresh action for the continuance lies in which recovery can be had for damages caused by the continuance of the tort to the date ..... breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues.if the act complained of creates a continuing source of injury and is of such a nature as to render the doer of it responsible for the continuance thereof in cases in which damage is not of the essence of the action, as in trespass, ..... being a juridical person, the idol is not movable property though it is property for which a suit is governed by article 120, limitation act see 38 cal. ..... minor he is being protected and his property saved so that he can enjoy it to the full .....
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