Court : Mumbai
Reported in : (1939)41BOMLR708
..... if it appears to the court, acting under section 47, that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract. ..... sufficient payments had been made under this arrangement to meet this interest and to repay a certain amount of the principal monies due on the decree, when the judgment-debtor recovered the management of his own affairs in september, 1917, and repudiated the action of the court of wards, maintaining that its intervention in his affairs had been wholly illegal. ..... in their lordships' opinion the recording of the payments made thereunder by the court at mohanlalganj and the application to that court for a retransfer of the decree to fyzabad were consequential upon and are attributable to the circumstance that the execution court at fyzabad had acted as though the execution in that court were at an end. ..... the learned subordinate judge on november 26, 1932, held that the application was a fresh application within the meaning of that section, but that the appellants were entitled under clause 3 of p. ..... judge dated november 26, 1932, restored. ..... (1932) all. .....
Tag this Judgment!Court : Mumbai
Reported in : (1939)41BOMLR428
..... are themselves relevant facts in the following cases :(i) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question ..... the alleged statement was that the deceased had come to his house on the evening of march 21, slept in one of the outhouse rooms for the night and left on the evening of the 22nd by the passenger train ; that on the morning of march 23 the accused went to the station with gangulu (the jetka driver) in his jetka, and went off by the passenger train to chatrapur on some private business with one delhi chiranjivi rao. ..... . this section which in its amended form was substituted for the original section by section 34 of the code of criminal procedure amendment act, 1923 has been the subject of repeated decisions in the high courts of india and has given rise to a distinct cleavage of opinion ..... . sitting in a full bench of the high court of madras rejecting the statement ..... . (1932) mad .....
Tag this Judgment!Court : Mumbai
Reported in : (1939)41BOMLR689
..... brothers are the absolute owners of the (properties of) the said deceased (brother) but as under the sastras, you are entitled to a right of enjoyment of the share left by our said deceased brother, for your life, you made an application to the district judge of dacca for obtaining a certificate under act 27 of 1860 in respect of the said share, and your prayer in that behalf having been rejected up to the hon'ble high court, under the provisions of the said will, all the properties have ..... 150 (one hundred and fifty rupees) in lump per month, from the present month up till the end of your life, out of the share of the said deceased brother-i, under the terms of the will of my deceased father, and on the strength of my position as karta of the estate left by him, of my own accord and in full possession of my senses, execute this ekrarnama and provide that so long as you live, you ..... others, are the real heirs and owners of the share left by the said deceased son, and whereas i am never myself capable of managing the same without (the help of) those appointed to act as karta of the estate left by my husband, namely yourself and others,-i proposed to give up the right of enjoyment which i have and had in respect of the share left by the said deceased son, in the properties, etc. ..... the appeal is brought by the plaintiffs whose suit, instituted on september 20, 1930, in the court of the subordinate judge at dacca, has been dismissed by the trial court (april 20, 1932), and by the high .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom182; (1939)41BOMLR328
..... he gave a judgment pointing out that the question whether or not the value of the property should be ascertained by the court and stated in the proclamation, has given rise to a difference of opinion between the calcutta high court and the madras high court, and he preferred the view of the madras high court.4. ..... i agree with the ruling to the contrary of the madras high court in thiruvmgadaswamy ayyangar v. ..... 581 the calcutta high court reviewed the authorities and came to the conclusion that it was necessary in cases of sales by the court for the court to value the property and state the value in the proclamation. ..... however conditions are different in india and if in any case the court thinks it desirable to value the property and state the value in the proclamation, it ought to state it under order xxi, rule 66(e). ..... in england it is the practice in sales by the court for the court to fix the reserve price, but the amount of the reserve price is not stated in the particulars. ..... that view really involves adding a clause to order xxi, rule 66, which is not to be found within the rule, and 1 do not myself appreciate what benefit is likely to accrue from adopting such a practice. ..... the purchaser has to make up his own mind as to the value of the property, and normally i should suppose that it would not materially help him to know the value which the court or the vendor places on the property. ..... (1932) cal. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom485
..... when, in a cause which the judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit.ultimately on the question as to whether a proper inference of waiver could be drawn they held that the defendant had not waived the objection and that therefore the decree of the district judge could ..... if, as has been held in shankarji's case, those powers are controlled by the provisions of section 24 of the civil procedure code, and are necessarily limited to administrative orders allocating business, then, undoubtedly, the order of transfer purporting to have been made under clause (5) of section 23 of the bombay civil courts act, after another subordinate judge had taken cognizance of the suit, was incompetent. ..... the joint first class subordinate judge framed issues on august 11, 1932, and ordered a commission to issue for the examination of certain witnesses on march 9, 1933. .....
Tag this Judgment!Court : Mumbai
Reported in : (1939)41BOMLR485
..... reading the two parts of the answer together in the light of the observations in the judgments, it seems that what was held was that in the case of a reference invalid by reason of failure to obtain the court's sanction, the order of reference itself was open to revision but not the decision of the court overruling the objection. ..... no doubt the answer then went on to say that the order made by the court, where it acted illegally or with material irregularity in the exercise of its jurisdiction, can be challenged by way of revision, though not by way of appeal, whether the illegality or irregularity was committed before the reference to arbitration or after the receipt of the award. ..... there does not appear to be anything in the papers on record to show that the court was asked to apply its mind to the interests of the minors or did in fact apply its mind to that aspect of the case, although no doubt the pleadings of the parties would have disclosed the fact that there were minors concerned. ..... 1 was their guardian ad titem, there is nothing to show that the leave of the court was obtained for the reference of the disputes to arbitration, and certainly the leave of the court was not expressly recorded in the proceedings as required by the rule. ..... morarji imlubhai desai (1932) c.r.a. no. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom347; (1939)41BOMLR530
..... it may be that when the music was relayed on the particular date in the defendants' restaurant the defendants were not aware that the relaying was an infringement of the plaintiffs' copyright, but it is provided by section 8(1) of the english copyright act of 1911 which has been incorporated in the indian copyright act, iii of 1914, that where proceedings are taken in respect of the infringement of the copyright in any work and the defendant in his defence alleges that he was not aware of the existence of the copyright, the plaintiffs shall not be entitled to any remedy ..... the power is given under the seal of the company which is affixed at the end, but defendants' counsel argued that under article 48 of the articles of association of the company the seal of the company could not be affixed to any instrument except by the authority of a resolution of the directors and in the presence of at least two directors and the secretary or such other person as the board of directors may appoint for the purpose, and that such resolution had not been produced. ..... the power-of-attorney under which the suit is filed is dated march 10, 1932, and is given in favour of the members of the firm of messrs. ..... he said that he had visited these premises before, that he had written to the plaintiffs' agents in madras, messrs. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom266; (1939)41BOMLR223
..... can be decided, except this, that when a sole surviving coparcener contracts debts but does not alienate the family property to pay them or create any charge on the property in respect of them, the question whether the debts are binding on a coparcener who subsequently comes into the family (he not being a son of the sole surviving coparcener and not therefore under a pious obligation to pay them) must depend simply on whether they would have bound him if he had ..... subsequently he adopted a son with whom he lived in the house, a creditor of the son claimed a share in the house, but it was held that the father was solely entitled to the superstructure and to a half of the site and the son's creditor was entitled to attach and sell the son's half share only in the site and not the superstructure. ..... jathar said in fact that there is no basis for any distinction between personal debts and individual debts in the case of a sole surviving coparcener and that a business started by a sole surviving coparcener must be regarded as a family business in which a subsequent adoptee becomes a partner.10. ..... but the trial judge apparently doubted whether there was any intention to make a gift at all, and learned counsel for the plaintiff, who naturally supports this view, argues that the case is governed by section 81 of the indian trusts act. ..... gurunathgouda khandappagouda (1932) l.r. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom129; (1939)41BOMLR98
..... scope of connotation may be included in the words 'the same transaction,' it is enough for the present case to say that, if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. ..... the objection taken by the accused in the sessions court to the jurisdiction of the magistrate to enquire and commit the accused in view of the specifications of the offences under the penal enactment in the complaint was rejected as illegitimate, the argument underlying the objection being that the offence under section 120b relating to conspiracy to commit non-cognizable offences could not be taken cognizance of by the magistrate without proper sanction as indicated in the provisions of section 196a, sub-section (2), of the criminal procedure ..... 8, the manager of the dharwar bank, in the year 1922-23 'to help themselves, their friends and relatives freely with the bank's money and to utilise the resources of the bank for the promoting and financing their private enterprises to the advantage of themselves and to the detriment of the vital interests of the bank,' that till 1932 they took loans for themselves and their friends to the extent of ..... 814):the real question which we have to decide is whether, contrary to the view taken in the madras case choragudi .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom225; (1939)41BOMLR308
..... course of dealings between the parties which raised an implied agreement between the parties to the effect that the appellants were bound, as the agents of the respondents, to exercise the option on the sahi day in a manner which would be to the benefit of their constituents, the respondents, and as they had failed to do so they were liable in damages on the footing of the difference between the unit price in the teji mandi contract and the rate prevailing on the day on which the appellants ought to have put through the intervening transaction of december ..... a constituent a double option for a particular vaida and before the date for exercise of that option that constituent tells the defendants to purchase against the option, the defendants are not bound to carry out those instructions.the reason why, according to me, the defendants would not be bound to accept those instructions is that the date for the exercise of the option is yet to come, and if the market went up the liability of the constituent would be increased and he would have to declare himself ..... if the appellants chose to carry out the three new purchases, that was another matter, but it was their option to do so or not, and short of any evidence as to custom, of which there is none in the case, it is difficult to hold that they were under any legal liability to act on the telegram of the 30th, nor am i able to see any evidence of any course of dealings between the parties raising an implied agreement by which they ..... 1932 .....
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