Court : Kolkata
Reported in : (1898)ILR25Cal371
Jenkins, J.1. On the 14th November 1893 the defendant executed, in favour of Luckhinarain Singh, the original plaintiff in the suit, a mortgage of certain immoveable properties, which had devolved on the defendant under the will of his grandfather, and on the 20th February 1895 this suit was instituted, whereby it is prayed:(a) That the defendant may be decreed by this Honourable Court to pay to the plaintiff the sum of Rs. 5,000, together with the interest due thereon, and the costs of this suit on some day to be fixed by this Honourable Court, and that in default thereof the right to redeem the said mortgaged premises may be foreclosed.(b) That the said premises may be sold, and the sale proceeds applied in and towards the repayment of the said sum of Rs. 5,000, and the interest thereon, and the costs of this suit.(c) That if the sale proceeds be not sufficient for the payment in full of the said amounts, the said defendant be decreed and ordered to pay to the plaintiff the amount of...
Tag this Judgment!Court : Chennai
Reported in : (1898)ILR21Mad326
Arthur J.H. Collins, C.J.1. The question referred to the Full Bench is whether Article 132 or Article 147 of the second schedule to the Limitation Act applies to a suit for sale by a mortgagee holding such a mortgage as that in the present case.2. The Allahabad High Court has held in Shib Lal v. Ganga Prasad I.L.R. 6 All. 551 that Article 147 is applicable to all mortgage instruments.3. The Calcutta High Court has held in Girivar Singh v. Thakur Narain Singh I.L.R., 14 Cal., 730 that Article 147 applies only to a special kind of mortgage known as ' English mortgage, ' and in other cases Article 132 applies.4. The Bombay High Court, in Motiram v. Vitai I.L.R., 13 Bom., 90 differs from Girwar Singh v. Thakur Narain Singh I.L.R., 14 Cal., 730 and holds that Section 147 applies.5. The Madras High Court in Davani v. Ratna I.L.R., 6 Mad., 417 and Aliba v. Nanu I.L.R., 9 Mad., 218 has held that Article 132 governed a suit upon a mortgage bond to recover the mortgage money by sale of the mortg...
Tag this Judgment!Court : Chennai
Reported in : (1901)ILR24Mad96
1. The plaintiffs are the holders of a mortgage for Rs. 10,000 executed on the 24th April 1889. Besides seeking to enforce the ordinary remedies of mortgagees against their mortgagors and against the property comprised in the mortgage, they claim on the principle of contribution to charge any balance which may still remain due to them against certain other property which, with the property comprised in their own mortgage, was included in a prior mortgage executed in favour of Rangayya Goundan, It will be convenient to deal first with this latter claim, as to which it is argued, firstly, that in point of law it cannot be maintained and, secondly, that it cannot properly be joined in a suit by the mortgagee on his own mortgage. The claim arises in this way--2. In execution of the decree on Rangayya Goundan's mortgage, some of the property which is included in the latter mortgage of the plaintiffs was sold and to that extent the plaintiffs' security has been diminished. It was not compete...
Tag this Judgment!Court : Chennai
Reported in : (1900)10MLJ383
1. The plaintiffs are the holders of a mortgage for Rs. 10,000 executed on the 24.th April 1889.Besides seeking to enforce the ordinary remedies of mortgagees against their mortgagors and against the property comprised in the mortgage, they claim on the principle of contribution to charge any balance which may still remain due to them against certain other property which,. with the property comprised in their own mortgage, was included in a prior mortgage executed in favour of Rangayya Gounden. It will be convenient to deal first with this latter claim as to which it is argued firstly, that that point of law it cannot be maintained, and, secondly, that it cannot properly be joined in a Suit by the mortgagee on his own mortgage. The claim arises in this way:2. In execution of the decree on Rangia Gounden's mortgage some of the property which is included in the later mortgage of the plaintiffs was sold, and to that extent the plaintiffs' security has been diminished. It was not compelent...
Tag this Judgment!Court : Kolkata
Reported in : (1902)ILR29Cal128
Prinsep and Stephen, JJ.1. This is a trial held by the District Magistrate under Section 451 of the Code of Criminal Procedure, one of the accused being an European British subject and the others, who were natives of this country, having elected to be tried with him. The District Magistrate has disagreed with the unanimous verdict of the jury on the main points of the case and has referred it to this Court under Section 307 of the Coda of Criminal Procedure.2. The prosecution and the defence have been both represented by learned Counsel, and we have therefore had the advantage of a complete argument on the case. Mr. Pugh who appears for Lyall, a tea planter and an European British subject, contends on the authority of several reported cases that we are bound to act in accordance with the unanimous verdict of the jury, unless it is shown to be perverse or clearly or manifestly wrong. Since those cases, however, the terms of Section 307 of the Code of 1882, under which the most recent of...
Tag this Judgment!Court : Chennai
Reported in : (1902)12MLJ37
1. In the plaint, the plaintiff claims as owner three items of property, each, of which he describes as a plot of certain dimensions with the granite pial built thereon, immediately to the east of his dwelling house and to the west of the street and prays that a permanent injunction may be issued restraining the defendant (the Municipal Council of Madura) 'from interfering with or from causing obstruction to the plaint sites, from removing the granite pials built on the plaint sites or from taking any steps to remove the same.'2. The defendant in his written statement states that the slab-stones which the plaintiff was required to remove, have been only recently put up, that as the defendant has all along been using the drain below the slab-stone, the plaintiff cannot acquire any prescriptive right against the defendant, that the construction in question being admittedly a projection over the drain in front of plaintiff's house, the defendant has every right to remove the same under Se...
Tag this Judgment!Court : Chennai
Reported in : (1902)ILR25Mad635
Bhashyam Ayyangar, J.1. In the plaint, the plaintiff claims as owner three items of property, each of which he describes as a plot of certain dimensions with the granite pial built thereon, immediately to the east of his dwelling house and to the west of the street and prays that a permanent injunction may be issued restraining the defendant (the Municipal Council of Madura) 'from interfering with or from causing obstruction to the plaint sites, from removing the granite pials built on the plaint sites or from taking any steps to remove the same.'2. The defendant, in his written statement, states that the slab-stones, which the plaintiff was required to remove, have been only recently put up, that as the defendant has all along been using the drain below the slab-stone the plaintiff cannot acquire any prescriptive right against the defendant, that the construction in question, being admittedly a projection over the drain in front of plaintiff's house, the defendant has every right to r...
Tag this Judgment!Court : Chennai
Reported in : (1902)12MLJ208
Benson, J.1. Major Bell, the accused in this case, is the Superintendent of the Government Gun Carriage Factory in the City of Madras. He caused certain timber to be brought into the City on account of Government without Obtaining a license and paying the fees prescribed by Section 341 of the City of Madras Municipal Act I of 1884, and for this act he has been prosecuted at the instance of the Municipal Commissioners and has been fined the nominal sum of one rupee.2. The learned Advocate-General asks us, in the exercise of our powers of revision, to set aside the conviction and sentence as contrary to law. The object of the prosecution and of this revision petition is to obtain an authoritative decision of this Court as to the applicability of Section 341 to Government timber and firewood. The section enacts that no timber or firewood shall be brought within the City without a license specifying the place and conditions of storing, to be issued by the President under the bye-laws, on p...
Tag this Judgment!Court : Chennai
Reported in : (1902)ILR25Mad457
Benson, J.1. Major Bell, the accused in this case, is the Superintendent of the Government Gun Carriage Factory in the City of Madras. He caused certain timber to be brought into the city on account of Government without obtaining a license and paying the fees prescribed by Section 841 of the City of Madras Municipal Act I of 1884, and for this act he has been prosecuted at the instance of the Municipal Commissioners and has been fined the nominal sum of one rupee.2. The learned Advocate-General asks us, in the exercise of our powers of revision, to set aside the conviction and sentence as contrary to law. The object of the prosecution and of this revision petition is to obtain an authoritative decision of this Court as to the applicability of Section 341 to Government timber and firewood. The section enacts that 'no timber or firewood shall be brought within the city without a license specifying the place and conditions of storing, to be issued by the President under the bye-laws, on ...
Tag this Judgment!Court : Chennai
Reported in : (1902)ILR25Mad244
Davies, J.1. In Appeal against Appellate Order No. 35 of 1901 and Appeal against Order No. 48 of 1900.--There can be no doubt that the provisions of the Code of Civil Procedure are applicable to cases tried under special Acts, if the trials are in a Court of Civil Judicature and if there are no rules in the special Acts inconsistent with, or substituted for, the general rules of the Code of Civil Procedure. Now, in the Transfer of Property Act, after an order for sale in a mortgage suit has been made, no further rules are laid down as to the subsequent steps to be taken for the conduct of the sale and other incidents attaching to it. These matters must therefore be governed by the Civil Procedure Code as the Transfer of Property Act is silent in regard to them. The rules for the conduct of sales by a Civil Court are to be found in Chapter XIX (G) of the Civil Procedure Code and there is nothing in that chapter excluding from its operation sales in pursuance of mortgage decrees under th...
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