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Saroda Prosad Gangooly and anr. Vs. Prosunno Coomar Sandial and ors.
Court : Kolkata
Reported in : (1882)ILR8Cal290
Prinsep, J.1. In our opinion the Subordinate Judge sitting in appeal is clearly wrong in holding that the plaintiffs were not entitled, under any circumstances, to recover damages on account of arrears of road and public works cesses due from the defendants. The terms of Section 25 of Beng. Act X of 1871 are clear on this point, and permit the zemindar, or the holder of an estate or tenure, to recover such cesses in the same manner and under the same penalties as if the same were arrears of rent in respect of land in respect of which such sums were payable. Under Section 44 of the Rent Law damages would have been payable had the claim been for arrears of rent, and, therefore, the present claim being for cesses, the defendants are liable to pay such damages.2. It has been pressed upon us by the respondents' pleader, that we ought to remand the case to the lower Appellate Court for a finding as to the amount at which damages should be assessed; but the terms of the decision of the first ...
Tag this Judgment!Obhoy Gobind Chowdhry Vs. Hurychurn Chowdhry and ors.
Court : Kolkata
Reported in : (1882)ILR8Cal277
Prinsep, J.1. It is sufficient for the purposes of this appeal to describe the position of the parties briefly, by stating that the defendants are the proprietors of a certain taluq for which they were paying rent to the plaintiff, the plaintiff also being a co-sharer with others in the estate of which the taluq formed a part. A batwara took place of the estate, and it would seem that this taluq ceased to be held exclusively by the plaintiff, and was divided between the plaintiff, Bimola, and others. On the strength of that batwara, the plaintiff has now sued the defendants for arrears of rent of the share stated to have been given to him under that batwara, and he claims rent at a higher rate in consequence of certain agreements said to have been entered into by the defendants with him when the taluq was his sole property.2. The first objection taken in special appeal is, that the lower Appellate Court should not have held that the suit was bad, because Bimola and others, who are co-s...
Tag this Judgment!Miller Vs. Nasmyths Patent Press Company
Court : Kolkata
Reported in : (1882)ILR8Cal312
Wilson, J.1. The question is, what lien are the defendants entitled to. The Official Assignee contends, that they are only entitled to a lien on each bale of jute for costs of baling of that specific bale. The defendants first claim a general lien under Section 171 of the Contract Act, on the ground that they are wharfingers. To me it seems clear that they are not wharfingers. They have a wharf as an accessory to the screw-house. Occasionally jute is brought to the screw-house in carts. All that is purely ancillary to the pressing business, and they are not wharfingers. They are not entitled to a general lien in that sense.2. They further contend that they are entitled to a lien on all jute delivered under the agreement of January 1881 for charges on jute baled and delivered under the agreement. In that contention I think they are right. The case of Chase v. Westmore 5 M. & S. 180 appears to me an express authority for the proposition that where a person does work under an entire contr...
Tag this Judgment!Rajendro Coomar Roy and ors. Vs. Madhub Chunder Ghose and ors.
Court : Kolkata
Reported in : (1882)ILR8Cal343
Field, J.1. In this case there is an appeal by the decree-holders, and a cross-appeal by the judgment-debtors, against an order of the Subordinate Judge of Dacca, passed in certain execution-proceedings, and dealing with the assessment of mesne profits, which, under the terms of the original decree, were left to be settled by the subsequent proceedings in execution. Several grounds have been taken in the petition of appeal; but the learned Counsel for the appellants has only pressed one of these grounds upon us; and that is the first ground, which is, that the lower Court has erred in not giving the decree-holders interest on the yearly amounts of wasilat from the end of the years for which such amounts were allowed respectively up to the date on which such wasilat was ascertained. The question whether interest upon the sums allowed as mesne profits for each year, such interest to be calculated from the close of the years in respect of which such sums have been allowed respectively up ...
Tag this Judgment!Velliyammal and ors. Vs. Kaisha Chetti
Court : Chennai
Reported in : (1882)ILR5Mad61
Innes, J.1. In the Petition 357 of 1879 we were asked to review our decision in Second Appeal 558 of 1878, with reference to the Full. Bench rulings of the High Court in Second Appeals 412 of 1879, and 703, 704, and 705 of 1878, I.L.R. 4 Mad. 1. 73.2. The suit was a partition suit in which plaintiff, while seeking his share in certain family property in possession of the family, also prayed for a share in certain other property that had been purchased in execution of a decree against his father and was in possession of the purchaser.3. As we understand the Full Bench rulings, it was held by the majority of the Court that the decision of the Privy Council in Girdharee Lall v. Kantoo Lall and Girdharee Lall v. Muddun Thakoor L.R. 1 IndAp 321 is binding on this Court, and that, where there has been a decree against the father for debt, and the right, title, and interest of the father in ancestral property has been sold under the decree, and the purchaser has been placed in, possession of ...
Tag this Judgment!In Re: Petition of Nasibun and ors. and Vs. Preosunker Ghose
Court : Kolkata
Reported in : (1882)ILR8Cal534
Field, J.1. The question in this case is, whether the Judge of the Small Cause Court at Jessore is wrong in holding that a certain instrument is a promissory note, and requires to be stamped as such. It appears that the plaintiffs, who obtained this rule, had a decree against the defendant; that this decree was being executed; that the parties came to a compromise; and that the instrument with which this rule is concerned was executed thereupon. The instrument, leaving out the immaterial portions, runs as follows.2. Now this instrument recites the fact of the decree having been under execution and the fact of the execution-proceedings having been struck off. It then recites that 'you,' that is the mukhtar, in whose favour the instrument was executed 'having spoken to the decree-holders, will adjust the decree' (for this we take it, is the proper signification of these words) and then the instrument goes on to state that the amount will be paid by instalments on certain dates. The argum...
Tag this Judgment!Chunder Coomar Roy Vs. Gour Chunder Biswas
Court : Kolkata
Reported in : (1882)ILR8Cal291
Field, J.1. In this case the two points which appear to have been raised before the Munsif were: first, that no sale-notification had been published upon the property sold; and secondly, that because the jama had been originally put up to sale and default made in payment of the purchase-money, the Court was bound, having ordered the resale of the jama upon such default, to carry out such resale and to recover the difference between the amount bid upon the sale and the amount bid upon the resale from the defaulter before the decree-holder could proceed to sell the other property, viz., the hat. A third point is now taken before us, viz., that the publication of the sale-notification was insufficient, because such notification was not posted upon any place in the hat itself or adjacent thereto; and it is said that the place where the notification was published was a mile-and-half distant from the hat.2. As to the first ground taken before the Munsif we think that his decision is correct....
Tag this Judgment!Senabutty MisraIn and ors. Vs. Damoodur Misser and anr.
Court : Kolkata
Reported in : (1882)ILR8Cal537
Mitter, J.1. This suit was brought for the partition of the estate left by one Mokoond Lall Misser, who died in Joist 1285 (May 1878), leaving him surviving two widows,--viz., Mussamut Senabutty Misrain and Belashbutty Misrain; Madho, a son; Josoda, a daughter by Senabutty; Damoodur Misser and Keshub Misser, sons; Bhuggobutty, daughter by Belashbutty. At the time when the suit was brought, Madho, Josoda, and Keshub were minors, and they are still minors. Bhuggobutty is not a party to the suit; she is admittedly not entitled to any share in the estate, she having been married during her father's lifetime. The plaintiffs are Senabutty and her minor son and daughter through herself as guardian. The plaintiff's prayer is, that the estate be divided into six equal shares, and three of these shares be allotted to them.2. The defendants, viz., Belashbutty and her sons, contend, (i) that the suit cannot proceed, because no sufficient ground has been stated which would justify a partition on be...
Tag this Judgment!Bhugwat NaraIn Dobey and ors. Vs. Badri Roy and anr.
Court : Kolkata
Reported in : (1882)ILR8Cal649
Mitter, J.1. This is a suit to recover possession of three annas out of four annas of Mouza Bhugwanpore Gidha, a revenue-paying estate, with wasilat. The plaintiff No. 1 is the son of Gondom Dobey, the defendant No. 2; and the plaintiffs Nos. 2 and 3 are mother and grandmother of the plaintiff No. 1. The plaintiff No. 4 is the purchaser of a share of the disputed property from the plaintiffs Nos. 1, 2 and 3.2. It appears that the aforesaid four annas formed one of the properties belonging jointly to the plaintiff No. 1 and Gondom Dobey. In execution of a decree against Gondom Dobey, the right, title, and interest of the debtor in Mouza Bhugwanpore were sold on the 8th September 1873, and purchased by the first defendant. The purchaser took possession of the whole four annas. The plaintiffs contend, that only the father's interest in the property was sold, and that as, on partition of the joint family property, that share would be one anna, the son, the mother, and the grandmother recei...
Tag this Judgment!Luchmun Persad Singh and ors. Vs. Kishun Persad Singh and ors.
Court : Kolkata
Reported in : (1882)ILR8Cal219
Richard Garth, C.J.1. We are of opinion that the application in question is governed by Article 180 of the 2nd schedule of the Limitation Act.2. Although an order of Her Majesty in Council may confirm the decree of the Court below, that order is undoubtedly the paramount decision in the suit, and any application to enforce it is, in point of law, an application to execute the order, and not the decree which it confirmed: see Pitts v. La Fontaine L.R. 6 App. Cas. 482.3. The test of this is, that before the decree-holder can obtain execution, he must apply to the High Court under Section 610 of the Code to transmit the order of Her Majesty to the Court whose duty it is to issue execution, and it is clear from the language of that section, that the Court to which the order is transmitted has to execute, not its own decree, but the order itself. If this were not so there would seem no necessity for applying to the High Court at all.4. As the application, therefore, in this case was to exec...
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