Court : Allahabad
Reported in : (1923)ILR45All378
lindsay, j.1. this is an application for revision of a judgment of the small cause court at agra.2. the suit was brought by the plaintiff for the purpose of recovering a sum of rs. 200 which he had paid as earnest money in the following circumstances:on the 11th of october, 1915, the plaintiff had entered into a contract with the father of the defendants for the sale of certain property. afterwards the plaintiff sued the father of the defendants for specific performance of the contract. that suit was dismissed finally by a judgment of this court. the plaintiff now brings the present suit for recovery, of the earnest money paid. the father having died in the) meantime, the suit was brought against the sons.3. two pleas were raised in the court below in order to defeat) the plaintiff's claim. it was argued, in the first place that the suit was barred by the provisions of order ii, rule 2; of the code of civil procedure. the lower court overruled this) plea and in my opinion rightly.4. the learned counsel for the applicant bases his claim upon the provisions of section 29 of the specific belief act. the lower court in its judgment refers also to the language of section 19 of the same act.5. section 19 enables a person who is claiming specific performance to ask, in addition, for compensation. section 29 bars a subsequent suit for compensation after a suit for specific relief has been dismissed. neither of these sections has anything to do with the present case, where the claim .....
Tag this Judgment!Court : Allahabad
Reported in : (1923)ILR45All380
lindsay, j.1. this is an application for revision of a judgment of the court of small causes at saharanpur awarding the plaintiff firm damages against the secretary of state as proprietor of the oudh and rohilkhand railway.2. the facts found by the court below are as follows: on the 23rd of june, 1920, the plaintiff firm made over to the railway 58 parcels containing mangoes. the goods were consigned to lahore. at the time of sending the goods the plaintiffs executed a risk-note in form b.3. the goods were delayed in transit and did not reach lahore till the 4th of july, and, by that time, the fruit had become rotten. delivery was offered to the consignee on the 5th of july but was refused by him, and under the orders of the station superintendent the goods were then destroyed.4. the judge finds that the delay in the transit of the goods, and the resulting deterioration of the fruit, was due to gross negligence on the part of the railway's servants.5. the present suit was brought by the plaintiff firm to recover the value or part of the value of the consignment. the railway company claimed the protection of the risk-note form b, pleading that as there was no loss of the goods by them, the plaintiffs could not recover.6. the learned judge overruled this plea, holding that the word 'loss' in the risk-note was not equivalent to loss by the railway, that is to say, disappearance of the contents of the parcels, but meant the loss to the plaintiff firm occasioned by the destruction .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1923All426; 71Ind.Cas.609
lindsay, j.1. this is an application for revision of a judgment of the court of small causes at saharanpur awarding the plaintiff firm damages against the secretary of state as proprietor of the oudh and rohilkhand. railway.2. the facts found by the court below are as follows: on the 23rd june 1920, the plaintiff firm made over to the railway 58 parcels containing mangoes. the goods were consigned to lahore. at the time of sending the goods lie plaintiffs executed a risk-note in form b.3. the goods were delayed in transit and did not reach lahore till the 4th july and by that time lie trait had become rotten. delivery was offered to the consignee on 5th july but was refused by him, and, under the orders of the station superintendent, the goods were then destroyed.4. the judge finds that the delay in the transit of the goads and the resulting deterioration of the fruit was one to gross negligence on the part of the railway's servants.5. the present suit was brought by the plaintiff firm to recover the value or part of the value of the consignment. the railway company claimed the protection of the risk-note, form b, pleading that, as there was no loss of the goods by them, the plaintiffs could not recover.6. the learned judge overruled this, plea holding that the word 'loss' in the risk-note was not equivalent to loss by the railway, that is to say, disappearance of the contents of the parcels, but meant the loss to the plaintiff-firm occasioned by the destruction of the fruit .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1923All312; 71Ind.Cas.755
1. the facts which have given rise to this appeal are briefly as follows and the following pedigree will make them more clear. bujhawan | |---------------------|----------------------| bhagwan ram agyan= | | musammat sheoamber | rekha, | | defendant no. 2 | |------------------------| | jagdeo, sahdeo. | plaintiff no. 1 plaintiff no. 2. | | |-------------------------| madho' musammat defendant dukhan, no. 3 daughter | | kuber nath defendant no 1.2. the suit was by the plaintiffs to set aside a gift made by musammat rekha of certain property to kuber nath; they pleaded that musammat dukhan was not the daughter of rekha but she was the daughter of sheoamber and, consequently, the transfer by rekha was not justified in any case. they, therefore, prayed for a declaration of the invalidity of the gift in favour of defendant no. 1 and consequential reliefs. the plaintiffs' suit was based on the ground that the three brothers, bhagwan, ram agyan and sheoamber, were members of a joint hindu family, and the plaintiffs being the sole survivors were entitled to the declaration claimed; in the alternative also they claimed the declaration as being the next reversioners after the death of musammat rekha. the first court came to the conclusion that the three brothers, bhagwan, ram agyan and sheoamber, were not joint but separate, that kuber nath was not the daughter's son of musammat rekha and ram agyan but that he was sheoamber's daughter's son, and coming to these findings it decreed the .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1923All519; 74Ind.Cas.824
1. the judgment of the lower appellate court is attacked in this appeal on the ground that the learned judge was wrong in holding that the wajib-ul-arz of the village in question contains a record of custom.2. there can be no doubt that the record is couched in most unusual language. the clause relating to pre-emption begins with the statement that a co-sharer is at liberty to sell his share but that he must first offer it to co-sharers in his own patti, preference being given to near relations. it then goes on to provide that if none of the persons just mentioned are willing to take the property then he is at liberty to sell to co-sharers in any other thok or patti. these words, however, are qualified by the addition of the words 'jisseraziho,' indicating that the person who wishes to sell has some right of selecting the person to whom he will make the offer. after this, it is provided that if no one in the second category is wiling to take the property and it no person in the village is willing to take a sale then a co-sharer can offer the property for sale to an outsider.3. the learned judge of the court below, we think interpreted the words 'jis se razi ho' in the correct sense. it is argued, however; before us that, inasmuch as on the interpretation of these words the person who wishes to sell has the option of offering the property to any person he likes, the record cannot properly be a record of custom. it is argued that in the terms of the clause we have just referred .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1923All430; 75Ind.Cas.612
1. a muhammadan lady, by name khudija-al-kubra, died on the 29th of november 1906, in child birth. the dower-debt owing by her husband was said to be rs. 5,000 and a female member of the family who was present stated that the lady had an apprehension of death. there was apparently some difficulty in reference to the delivery of the child which was then in her womb, and she, it is said, having the fear of death on her, did renounce her dower in favour of her husband after having asked him to forgive her faults and expressing manifestly the opinion that she was about to die. she in fact died shortly after. in 1919, after a lapse of th rteen years, the plaintiffs who were minors in 1906 brought this suit for the recovery of their share of the dower in accordance with their degree of relationship. the defendants pleaded that musammat khudija-al-kubra gi ted her dower-debt before her death according to the practice of the brother ood. no particulars were asked as to when, where and under what circumstances such renouncement was made and the matter got into the court of the subordinate judge. there he framed an issue as to the a mount of the dower-debt of the lady and whether she had remitted her dower-debt at the time of her death. it was, therefore, known to everybody then, when that issue was framed, that it was done very shortly before her death. then was the time when the plaintiffs should nave taken the point that, even conceding this to have happened, the lady was suffering .....
Tag this Judgment!Court : Allahabad
Reported in : (1923)ILR45All401
piggott and walsh, jj.1. this is an execution first appeal arising out of an unfortunate litigation which has already occupied our attention in connection with regular first appeal no. 89 of 1920. the point which we are now called upon to decide is, however, distinct from any of the questions raised in the connected appeal above referred to. the suit was one for partition. there were fifteen plaintiffs in the case, and, in the preliminary decree as drawn up, these plaintiffs were awarded their costs against the defendant. there was an appeal lo this court and also petition of cross-objections on the part of the plaintiffs, with the result that the preliminary decree passed by the trial court was modified in favour of the plaintiffs and the defendant was made liable to a further sum on account of costs. the application with which we have to deal is an application by fourteen of the plaintiffs. nos. 2-15, asking that the entire decree for costs may be executed, subject to such orders as the court may see fit to pass for the preservation of the rights of the first plaintiff, musammat faiyazi begam, who had declined to join the application for execution. the attention of the execution court was, therefore, distinctly drawn to the provisions of order xxi, rule 15, of the code of civil procedure, but it is by no means clear from the order passed whether that court applied its mind to these provisions. the point of the matter is that the first plaintiff, musammat faiyazi begam, is .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1923All494; 74Ind.Cas.687
1. this is an execution first appeal arising out of an unfortunate litigation which has already occupied our attention in connection with regular first appeal no. 39 of 1920. the point which we are now called upon to decide is, however, distinct from any of the questions raised in the connected appeal above referred to. the suit was one for partition. there, were fifteen plaintifts in the case, and in the preliminary decree as drawn up these plaintiffs were awarded their costs against the defendant. there was an appeal to this court and also a petition of cross-objections on the part of the plaintiffs, with the result that the preliminary decree passed by the trial court was further modified in favour of the plaintiffs and the defendant was made liable to a further sum on account of costs. the application with which we have to deal is an application by fourteen of the plain tiffs, nos. 2-15, asking that the entire decree for costs may be executed, subject to such orders as the court, may see fit to pass for the preservation of the rights of the first plaintiff, musammat baiyazi begam, who had declined to join in the application for execution. the attention of the execution court was, therefore, distinctly drawn to the provisions of order xxi, rule 15 of the civil procedure code, but it is by no means; clear from the order passed whether that; court applied its mind to these provisions. the point of the matter is, that the first plaintiff, musammat faiyazi begam, is the own .....
Tag this Judgment!Court : Allahabad
Reported in : (1923)ILR45All425
pramada charan banerji, j.1. a preliminary objection has been taken to the hearing of this application for revision, on the ground that a revision does not lie under the provision of section 115 of the code of civil procedure. the circumstances out of which the case arose are these. there was a decree for sale against one yad ram, and in execution of that decree the mortgaged property was sold by auction. subsequently to the auction sale, yad ram sold his interests in the property already sold by auction, and after this sale he presented an application to the court under order xxi, rule 89, of the code of civil procedure, depositing the amount of the decree and the 5 per cent. penalty mentioned in the section, and prayed that the sale might be set aside. the court of first instance set aside the sale. an appeal was preferred from the judgment of that court to the lower appellate court under order xliii, rule 1, clause (j). the appellate court set aside the order of the court of first instance, being of opinion that the judgment-debtor, yad ram, was not entitled to make the application for setting aside the sale. in so holding the lower appellate court followed the ruling of this court in ishar das v. asaf ali khan (1911) i.l.r. 34 all. 186. from this decision of the lower appellate court the present application for revision has been presented.2. in my judgment, in view of the provisions of section 115 of the code of civil procedure, as interpreted by their lordships of the .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1923All392; 74Ind.Cas.778
1. a preliminary objection has been taken to the hearing of this application for revision, on the ground that a revision does not lie under the provisions of section 115 of the code of civil procedure. the circumstances out of which the case arose are these. there was a decree for sale against one yad ram, and in execution of that decree the mortgage property was sold by auction. subsequently to the auction sale, yad ram sold his interests in the property already sold by auction, and after this sale he presented an application to the court under order xxi, rule 89 of the cose of civil procedure, depositing the amount of the decree and the 5 per cent, penalty mentioned in the section and prayed that the sale might be set aside. the court of first instance set aside the sale. an appeal was preferred from the judgment of that court to the lower appellate court under order xliii, rule 1, clause (j). the appellate court set aside the order of the court of first instance, being of opinion that the judgment-debtor, yad ram, was not entitled to make the application for setting aside the sale. in so holding the lower appellate court followed the ruling of this court in ishar das v. asaf ali khan 13 ind. cas. 134 : 34 a. 186 : 9 a.l.j. 19. from this decision of the lower appellate court the present application for revision has been presented.2. in my judgment, in the view of the provisions of section 115 of the code of civil procedure, as interpreted by their lordships of the privy .....
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