Court : Kolkata
Reported in : (1891)ILR18Cal473
..... where the petitioner in a suit for judicial separation desires an order as to the custody of the children of the marriage, it is clear, i think, that section 42 of the indian divorce act contemplates that, after the decree has been made, the intervention of the court shall be sought by petition. ..... generally speaking, the court will not act ex parte, but the petition must be served, or in some sufficient form notice must be given in order to show the respondent what the court is to be asked to do. .....
Tag this Judgment!Court : Kolkata
Reported in : (1891)ILR18Cal500
..... court, no doubt, has complete control over such matters, but its duty is sot forth in the act, and its position seems to be that of a public officer appointed under statute. ..... admittedly, if the decree-holder is entitled to the benefit of section 14 of the limitation act, and allowance is made for the time during which he prosecuted the former application, the present application is not ..... think that the office of manager did not become vacant because the manager obtained leave; and if it is not vacant, section 51 of the wards' act does not enable the collector to appear on behalf of a minor. ..... we think therefore that the word 'suit' in this act covers an application of the nature now before us in which the ward for the first time socks to have the carriage of the ..... can we find anything in the nature of the act itself which militates against this conclusion. ..... (990) sub-divisions under section 52 of the act as a special person to carry on this litigation. ..... the word 'suit' in this act has not the narrow significance attached to the word 'action' in english law; and as sir barnes peacock pointed out in a full bench decision of this court it embraces all contentious proceedings of an ordinary civil kind, ..... , part vii of bengal act ix of 1879, must mean what is usually called a 'regular suit', and cannot refer to proceedings of the nature now before us, in which the ward seeks to have his name substituted for that of his mother, and ..... under bengal act ix of 1879 the board of revenue is the court of .....
Tag this Judgment!Court : Kolkata
Reported in : (1893)ILR20Cal51
..... the decision rested principally on this, that upon the proper construction of the queen's warrants, notwithstanding that the instrument was so worded as 'to give and grant' to the secretary of state in council the booty, the subject-master of the suit, 'intrust for the use of' the persons on whose behalf the suit was brought, the warrant did not create a trust cognizable in a court of ..... the terms on which the residue shall remain in the hands of the collector, and the conditions on which the proprietor or proprietors of the estate sold are to be entitled to receive it, are laid down in section 31 of act xi of 1859, and are as follows: 'holding the residue, if any, in deposit, on account of the late recorded proprietor or proprietors of the estate or share of an estate sold, or their heirs or representatives to be paid to his or their receipt on demand ..... the secretary of state was held bound in that case to repay the money; but it was a liability binding on the company as trustee, and as such binding on the government of india in respect of the indian revenues, and on the secretary of state, as 1 understand, as being bound by the trust as representing the government.40. ..... for the surplus is either a claim which arises upon the statute (section 31, act xi of 1859), or it is an equitable claim for the money in the hands of the collector; but in either case, it seems to me, it could not fall within article 62 (see in this connection the decision of the privy council in gurudas pyne v. .....
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal489
..... court shall have regard to {a) local custom, and (b) the purpose for which the right of tenancy was originally acquired;' and this is what the law was before the bengal tenancy act came into operation; for it was always held, whenever the question arose whether the tenant was a middleman or a raiyat, that it must be enquired into and determined what was ..... counsel, who then appeared for the defendants, that the relationship of landlord and tenant did not exist between the parties, because under section 42 of act x of 1866 (an act for the incorporation, regulation, and winding up of trading companies and other associations), the lease, before it could be a binding transaction, should have been under the common seal of ..... ; that the lands demised to the defendants were not agricultural lands, so as to come within the purview of the bengal tenancy act; and that, therefore, the three years' limitation, provided by article 2 of the 3rd schedule annexed to that act, did not apply, and that under article 116 of the indian limitation act the plaintiff was entitled to claim rent for six years.4. ..... tenancy act the limitation is three years, as provided in article 2 of the third schedule, although the lease might be a registered lease; and in respect of cases not governed by the bengal tenancy act, where there is a registered lease, it has been held, both in this court and also in other high courts, that the limitation is six years as prescribed by article 116 of the indian limitation act, xv .....
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal544
..... however, draw attention (as has been frequently done in deciding difficult questions of construction arising on acts of the indian legislature) to the last report of the special committee to whom the bill was referred during the passing of the act of 1887 through the legislative council (see volume xvi, page 466, of proceedings of the legislative council), which points to the conclusion that the words 'bond fide' were advisedly omitted from the article ..... are:the chapter relating to the recovery of possession of specific property embodies the english rules as to detinue and the useful provisions of the indian act xiv of 1859, section 15, as to the right of persons informally dispossessed of land to recover possession by a summary suit (gazette of ..... clauses act (i of 1868) that any general definition was given of immoveable property, though in other special acts, such as the indian succession act of 1865, a definition of this term was given applicable only to those acts, the definition given of the term in the general clauses act of 1868 is, however, applicable only to the specific relief act of 1877, and not to section 15, act xiv ..... it was introduced, we find in paragraph 4 the following statement: 'the chapter relating to the recovery of possession of specific property embodies the english rules as to detinue, and the useful provision of the indian act xiv of 1859, section 15, as to the right of persons informally dispossessed of land to recover possession by a summary suit. .....
Tag this Judgment!Court : Kolkata
Reported in : (1893)ILR20Cal41
..... 241 (250): 'although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in indian courts, that a wrong stamp is put up on the plaint originally, and the proper stamp is afterwards affixed. ..... 139 and this also is the view that was expressed by the judicial committee of the privy council in the case of skinner v. ..... under these circumstances the suit should be taken to have been instituted on the day that the plaint was presented, that is to say on the 6th may 1890, to the proper officer, as provided by section 4 of the limitation act (act xv of 1377). .....
Tag this Judgment!Court : Kolkata
Reported in : (1893)ILR20Cal665
..... further than the evidence for the prosecution (and this, as has already been mentioned, does not establish the case set up), and that is to the effect that there has been no obstruction to navigation by the acts of the petitioners; that although there may have been the erection of these particular jags, the jags nevertheless did not obstruct the ordinary navigation of the river; and further, that they were on the ..... in these cases the accused were charged under sections 283 and 290, indian penal code, that is to say, with doing an act which caused danger, obstruction or injury to any person in a public way, viz. ..... we may observe that there are circumstances well known to us in connection with large navigable indian rivers which would render it desirable, if not absolutely necessary, to permit some encroachment from the banks for the protection of the property of private parties, such as the erection of spurs to prevent diluvion.4. ..... for the purposes of that case that any encroachment, however slight, on a tidal navigable river would constitute the offence of public nuisance so as to render the person making such encroachment punishable under section 290 of the indian penal code. .....
Tag this Judgment!Court : Kolkata
Reported in : (1893)ILR20Cal676
..... it was contended that because the word forfeit 'occurs in section 35 and the word 'penalty' occurs in other sections of the act, a distinction must be made between 'forfeit' and ''penalty,' and that although under section 252 of the companies act, a presidency magistrate may deal with an offence declared to be punishable by a penalty, he could not do so in a case under section 35. ..... there is no doubt that the omission to stamp a share warrant is an offence under the indian companies act, and it is, as we have shown, an offence declared punishable by a penalty. ..... the defendant is charged under section 35 of the indian companies act, 1882, with having issued certain share warrants without the same having been duly stamped. ..... section 35 of the indian companies act inflicts a penalty of rs. ..... 97), although they had taken from section 127 of that act the words contained in the last portion of section 35 of the indian companies act.4. ..... ' if the contention of the learned counsel here was correct, and if it were that a penalty and a forfeit were not the same thing, section 26 of the stamp act, 1870, would be meaningless and would have nothing to apply to. ..... it was suggested that the remedy was by information under section 144 of act x of 1875, and that, having regard to the fact that there was that remedy, the legislature had omitted to enact a provision similar to section 26 of the stamp act, 1870 (33 and 34 vic., c. .....
Tag this Judgment!Court : Kolkata
Reported in : (1894)ILR21Cal392
..... jackson for the accused wishes us to note that he argued that under section 167 of the indian evidence act we have no power to deal with the case on the evidence apart from the depositions, but we are not prepared to accept this argument.1 confidential communication with legal advisers. ..... the question depends upon the construction of section 132 of the evidence act, which is as follows:a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit, or any civil or criminal proceeding, upon the ground that the answer to such question ..... the question of possession only becomes most material when one has to see whether the acts, if any, of the accused parsons are justified by a right of private defence. ..... we are entitled to look at other sections of the evidence act to see what 'compelling a witness to give an answer' means.25. ..... one does not expect in an affray of this kind to find specific evidence as to the acts of each fighter. .....
Tag this Judgment!Court : Kolkata
Reported in : (1894)ILR21Cal437
..... the decree was passed and relating to the execution of the decree, shall be determined by order of the court executing the decree, and not by a separate suit; but section 206 of act viii of 1859 prevents the court executing the decree from taking any notice of payments not made through the court or certified to the court, and 1 cannot think that it was the intention ..... recover from the decree-holder money paid out of court in satisfaction of a decree and the payment of which was not certified, and it was held that section 11 of act xxiii of 1861, which was the section corresponding to section 244 in the present code, did not prohibit such a suit, which in no way affected the execution of the ..... own that as to the relief by way of injunction grunted in that case it does seem to me not to be consistent with the decision of the privy council as to the scope of the words 'relating to the execution, &c;,' and i think, therefore, that i am bound to conclude that, had that decision been ..... the numerous cases referred to in the judgments of my learned colleagues have decided that, under section 206 of the old code and section 11 of act xxiii of 1861, and under sections 244 and 258 of the later code, a civil court other than a court executing the decree can recognize an uncertified payment or adjustment ..... the decree were defendants, the section could apply; and it was on this question that their lordships reserved judgment in order to examine the decisions in the indian courts upon section 244. .....
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