Court : Kolkata
Reported in : (1876)ILR1Cal53
R. Garth, C.J.1. I am of opinion that Markby, J., was perfectly right in refusing this application. It was not made to him in the form in which it is now made to us, to amend the original grant of probate. The application to him, the only one which can properly be made the subject of appeal to us, was for the purpose of obtaining in this Court a limited grant of probate, extending to goods in the presidency of Bombay; and the question is, whether Act XIII of 1875 enabled Markby, J., to make an order of that kind. I am of opinion that it did not. The Act, no doubt, was intended to remedy some of the inconveniences pointed out by Mr. Jackson. The preamble recites the purpose for which it was passed. It says that, 'whereas, under the Indian Succession Act, 1865, the effect of an unlimited grant of probate made by any Court in British India is confined to the Province in which such grant is made; and that it is expedient to extend over British India the effect of such grants, when made by ...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal74
Glover, J.1. Against this order the petitioner has appealed, and in support of his contention Baboo Kalimohun Doss has drawn our attention to certain texts of Hindu law as set out in Menu, to show that betrothal is really a marriage, and that a girl once promised to a particular man could not be given in marriage to another; we have also been referred to 1 Strange's Hindu Law, Macnaghten's Hindu Law, and Colebrooke's Digest.2. The right of the petitioner to have an injunction pendente lite depends on the nature of the remedy which a Civil Court would give in the suit, and if it could be shown that a decree for specific performance would necessarily follow proof of the petitioner's betrothal to the girl, an injunction might properly be granted, as without it the suit might, and very probably would, be infructuous.3. But I agree with the Subordinate Judge that Section 93, Civil Procedure Code, was never meant to apply to cases like this. As a general rule, a decree for specific performan...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal12
Richard Garth, C.J.1. This was a suit brought by the plaintiff, who, for some years previously to March 1874, appears to have been a retail dealer in sidhi and other excisable articles at Calcutta, against the Secretary of State for India in Council; and the object of the suit was to establish certain claims against the Government of India, the nature of which was not very clearly denned either in the plaintiff's statement or in the evidence.2. It is unnecessary, however, in the view which we have taken of the case, to enter into all the circumstances, which have been so carefully considered and commented on by the learned Judge in the Court below. Suffice it to say that, in substance, the plaintiff puts his claim in this way: He says--At the public auction, which was held by the Government officer on the 4th of March 1874, of licenses to sell certain excisable liquors and drugs, I became the highest bidder for the right to sell such liquors and drugs at five different shops at Calcutt...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal183
Richard Garth, C.J.1. The Judge of the Small Cause Court is right in thinking that the Small Cause Court has no jurisdiction, as the suit is clearly one which might and ought to have been brought under Section 98 of Bengal Act VIII of 1869....
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal127
Glover, J.1. In Rajmohini Chowdrain v. Denobundhoo Chowdree it is decided that 'Section 6, which is the only section which refers to the right of appeal, limits it to the question of the grant of the certificate. This Court would be able to decide on appeal whether the Judge had selected the proper person to give the certificate to, but there is no section which gives any appeal with reference to the amount of security which the Judge may think it right to demand from the applicant for a certificate, and there is no general section as there is in the cognate Act XL of 1858 with regard to appeals.' And in Bani Madhub Mooherjee v. Nilambur Banerjee 8 W.R. 376 it is said with reference to Section 6,--'the intention of the section was to enable a person aggrieved by the granting of a certificate to some other person to come before the Sudder Court and appeal against such grant.' And the gist of the decision is that, except with reference to the grant of a certificate, there is no appeal al...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal56
Richard Garth, C.J.1. The plaintiff, therefore, having had then ample warning, must now be considered as having made the allegations in his plaint as strong and precise as was consistent with truth, and we cannot make any presumption in his favour which the language of the plaint does not strictly warrant.2. (His Lordship then stated the allegations made in the plaint and continued): The learned Judge in the Court below considered in the first place that there is nothing on the face of the plaint to show that the proceedings of the Sheriff and also of the execution-oreditor, the present defendant, were not perfectly bond fide; and in this we entirely agree. Whatever illegality or irregularity took place appears to have been the result of mistake; and there is nothing to show that any of the parties had the least notion that they were doing anything but what the law warranted.3. It is stated, however, distinctly in the plaint, and we must assume it as established, that the Sheriff has n...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal101
Glover, J.1. Baboo Moheshchunder Chowdhry, who has appeared for the opposite party, contends that the law does not provide for a review in a case like this, and has quoted in support of his argument the case of Siva v. Chenamma 5 Mad. H.C. Rep. 417 in which it appears to be laid down that the provisions of the Code of Civil Procedure regarding reviews of judgment are not applicable to orders passed under Act XXVII of 1860, but there is another case which has been decided in this Court, namely--that of Hameeda Beebee v. Noor Beebee 9 W.R. 394 in which the contrary has been ruled, and which ruling we think we ought to follow. We see no reason why this Court should not exercise jurisdiction in the matter and consider the merits of the application for demanding security to be taken from Mussamut Khatun Kooer to whom the certificate has been granted....
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal185
Richard Garth, C.J.1. In this case the same question arises as in the last Beni Madhub Ghose v. Kali Churn Singh see post p. 201 note with this difference: 1st, that the Subordinate Judge of Sylhet reviewed his own decision instead of his predecessor's; and 2ndly, that he gives as a reason for the review that he was referred by the pleader to two authorities, decided by the High Court many years ago, one of which he considered to be opposed to his former judgment. He, accordingly, made an order for the review, and reversed his previous decision.2. But the case appears to us to depend upon precisely the same principle as the last, and must be decided in the same way. It is less objectionable, no doubt, in one sense, for a Judge to review his own decision than that of his predecessor's; but he has no more right to do so without sufficient reason in the one case than in the other; and we cannot consider that the production of an authority to which the attention of the Judge was not called...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal202
Richard Garth, C.J.1. The plaintiff brings this suit for the purpose, as she says, of obtaining an abatement of her rent for the future; and she claims in this suit the precise measure of abatement, Rs. 155, which she had claimed in the suit brought against her by the defendant. The defendant's answer is, 'this question which you now seek to raise, has already been decided between us in the former suit. You claimed the same abatement then as you do now. You attempted to establish it upon the same grounds. You went into the question, not as if the abatement were for one particular year, but for the whole remainder of your interest; and from the very nature of the question, you could not have gone into it upon any other basis.' Nature of the question, you could not have gone into it upon any other basis.' The plaintiff's reply to this is--'no. Your claim then was for the rent of one year only: my defence must necessarily have been confined to that one year; and the result could not bind ...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal79
Phear, J.1. The prisoner Omritolall Dey has been brought before this Court in obedience to a writ of habeas corpus ad subjiciendum. The return to the writ is that Omritolall Dey was received into the custody of the Superintendent of the Presidency Jail under and by virtue of a warrant of commitment to the following effect (reads warrant of commitment, ante, p. 79), and that he is detained under the authority of this commitment, and for no other cause.2. The affidavits which have been filed on behalf of Omritolall Dey disclose facts which, if they are true, show that when Omritolall was taken by the bailiff he was privileged from arrest, and that therefore the commitment was illegal. It follows that as the jailor shows no other cause for detaining his prisoner the detention is illegal and he ought to be discharged. The commitment, however, purports to be a commitment made by the Court of Small Causes by way of execution of its own judgment in a civil suit, and therefore a commitment suc...
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