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Ruttonsey Lalji and ors. Vs. Pooribai and ors.
Court : Mumbai
Reported in : (1883)ILR7Bom304
Scott, J.1. I am asked to give effect to the 375th section of the Civil Procedure Code (Act XIV of 1882), and to record 3,11 agreement by which this suit has been adjusted between the parties. I cannot find in the Reports any instances of the application of this section, but two instances of the application of an analogous section, Section 523, have been brought to my notice.2. It has been argued that Section 374 only applies where the parties are in agreement at the moment of moving the Court; and that, if they are not then in accord, the only remedy on the agreement sought to be enforced is by suit for specific performance. Such a reading of the clause would deprive it of all utility, as parties in agreement can, apart from this section, either come into Court with a consent decree, or put in force Section 152 of the Code. To give the section substantive effect I must interpret it more largely than the plaintiff desires. I think the Legislature introduced this rule to meet the case w...
Tag this Judgment!The Land Mortgage Bank of India, Limited Vs. Shyam Chand Koondoo
Court : Kolkata
Reported in : (1883)ILR9Cal695
Field, J.1. The Land Mortgage Bank of India is the plaintiff. The facts of the case are apparently somewhat complicated, but when they are understood, they really present no difficulty. The defendant No. 1, Shyam Chand Koondoo, was the 8-annas proprietor of a patni taluk, lot Buradakundi, arid as the result of certain litigation, to which I shall presently refer, the defendant No. 2, Durga Churn Shaha, was the proprietor of the other moiety of the same patni.2. Durga Churn Shaha, on the 8th of March 1872, mortgaged his 8-annas share to the Bank. The mortgage debt not having been discharged, the Bank took steps upon the mortgage bond, and having obtained a decree was about to bring the 8-annas share belonging to Durga Churn Shaha to sale, when one Shoshi Bhoosan Shaha came in and preferred a claim, alleging a title in himself to half of Durga Churn Shaha's moiety, that is, a 4-annas share of the entire patni.3. This claim was at the time successful, and in consequence the Bank, abstaini...
Tag this Judgment!The Queen Vs. Nachimuttu and ors.
Court : Chennai
Reported in : (1883)ILR7Mad18
Charles A. Turner, Kt., C.J.1. Labourers or menial servants employed to do work or labour on account of the Government are not officers, and do not fall within the definition of public servant in the 21st section of the Indian Penal Code.2. The conviction under Section 353 was improper. They should have been convicted under Section 323 of the Indian Penal Code. The conviction will be amended accordingly....
Tag this Judgment!Nistarini Chowdrani and ors. Vs. Hurronath Chowdhry
Court : Kolkata
Reported in : (1884)ILR10Cal74
Richard Garth, C.J.1. This appeal comes before us under rather peculiar circumstances.2. A dispute arose between the parties to the suit with regard to the boundary of their respective properties. The dispute was referred privately (without the intervention of a suit) to three arbitrators.3. These arbitrators, having taken evidence and made a local investigation, made an award in favour of the plaintiffs on the 7th of Srabun 1286 (22nd July 1879).4. The plaintiffs then petitioned under Section 525 of the Civil Procedure Code that the award should be filed in Court.5. To this petition objections were made on the part of the defendant, stating various reasons why the award should not be filed, and, amongst others, that the arbitrators had been guilty of partiality and other misconduct, which would be grounds for impugning the award under Sections 520 and 521 of the Code.6. Upon these objections being made, the first Court (apparently with the full consent of both parties) fixed an issue ...
Tag this Judgment!Nahanibai Widow of Venkatidas Vs. Nathu Bhau
Court : Mumbai
Reported in : (1883)ILR7Bom414
West, J.1. The original debt in this case was contracted eighteen years before the striking of the balance on Which eventually the present suit was instituted. Three years afterwards the debtor paid interest, which he debited in his ledger to the creditor against a credit of the like amount for interest accrued due. Fifteen years afterwards the interest was again computed, and the debtor's successor in title, his brother, carried over the balance to the next year with a written memorandum 'Due for balance of old account'. As an acknowledgment this could not avail to revive the right to sue which had long before been barred by limitation; but it is urged that the transaction was an account stated, and that on such a statement in writing signed a new cause of action arose, which, under Article 64 of Schedule II of Act XV of 1877, could be sued on at any time within three years from its date. Now, there are, no doubt, some cases which assume, and some few which necessarily imply, that an ...
Tag this Judgment!Mahadaji V. Karandikar Vs. Hari D. Chikne
Court : Mumbai
Reported in : (1883)ILR7Bom332
West, J.1. The decree in the present case was one for sale of property to satisfy a claim on a mortgage. To such cases the provisions of Section 210 of the Code of Civil Procedure, as to the allowance of payment by instalments, do not apply. This has been repeatedly ruled--see Shankarapa Dargo Patel v. Danapa Virantapa I.L.R. 5 Bom. 604; Hardeo Das v. Hukam Singh I.L.R. 2 All. 320; and Bachchu v. Madad Ali I.L.R. 2 All. 649. From these it is plain that the Court itself could not, in this case, have made a decree for payment by instalments. Much less, then, could the officer charged with the duty of executing its decree, vary that decree so as to give it an illegal effect in carrying it into execution. The decree having been one for a sale 'of immoveable property in pursuance of a contract specifically affecting the same,' the Collector's discretion was limited to a choice amongst the three courses specified in Section 321 of the Code of Civil Procedure. Amongst these there is not any p...
Tag this Judgment!Kashinath Morsheth Vs. Ramchandra Gopinath
Court : Mumbai
Reported in : (1883)ILR7Bom408
West, J.1. It appears that when the Subordinate Judge originally disposed of Kashinath's claim to raise Ramchandra's attachment, there was, in fact, no attachment subsisting. The attachment had already been withdrawn by the Court on account of Ramchandra's having failed to pay some court fees. There was thus no object existing on which the adjudication could operate. A decision under such, circumstances, which must of necessity be void of any effect, could not properly be regarded as res judicata at, all. As it could have no real operation, it was as a mere scene in a play, which no one would be seriously interested in having performed in a different way. For res judicata to operate there must be an identity of the cause of action proposed for adjudication in a later suit with the cause disposed of in an earlier one; and this is impossible when in the earlier one there was no really existing cause at all See Savigny Syst., Section 300, and App. XVII.2. Kashinath, however, did bring a s...
Tag this Judgment!Situl Purshad Vs. Luchmi Purshad and ors.
Court : Kolkata
Reported in : (1884)ILR10Cal30
R.P. Collier, J.1. The sole question to be decided in both these appeals is whether the plaintiff, in the first appeal as assignee, in the second appeal as execution-creditor, of one Chuknarain Singh, derived from Chuknarain a right to redeem certain villages which he alleged to have been mortgaged by Chuknarain. On the part of the respondents it is not disputed that if he is correct in his interpretation of these deeds, and the villages were mortgaged, he has the right which he claims. But it is contended that the deeds in question did not create a mortgage, but were a sale of the property with a provision for its re-purchase on certain conditions personal to the mortgagor.2. In order to determine this question it is necessary to consider the circumstances under which the two documents which are relied upon, namely a potta and an ekrarnama of the 15th January 1864, were executed, as well as to examine the documents themselves.3. The circumstances were shortly these: Ramchurn was the e...
Tag this Judgment!Nimai Chand Keyal Vs. Hurry Churn Dass and ors.
Court : Kolkata
Reported in : (1884)ILR10Cal138
Prinsep, J.1. We think that this appeal should be decreed.2. The question in this case is whether a marriage in the Sagai form is valid among the class to which the parties to this suit belong. The Munsiff says: 'It is in vogue among them.' The Subordinate Judge comes to the same conclusion. It appears therefore that the existence of the custom is proved. The only question then for decision is whether a marriage in pursuance of it is legal. The Subordinate Judge has found that 'such a marriage is invalid on the ground that certain fines are paid to the zamindar, and no ceremonies of marriage are performed at Shunga, no priest officiates at it, and no rites take place as are necessary in marriage.' In page 79 of Mr. Mayne's Treatise on Hindu Law it is laid down that a marriage according to the custom of a particular caste or of a particular place is sufficient.3. Here the Subordinate Judge is of opinion that no such marriage, would be valid unless priests officiate, and the usual marria...
Tag this Judgment!Watson and Co. Vs. Rakhal Churn Mundul
Court : Kolkata
Reported in : (1884)ILR10Cal50
Richard Garth, C.J.1. The suit out of which this proceeding arose was commenced some ten years ago. It was brought by the present plaintiffs against Raja Pramatha Nath Roy to recover certain land which they had purchased from Umakant Mozumdar and others.2. The plaintiffs obtained a decree for possession in 1874 and were proceeding, to execute it when they were opposed by one Radharaman Munshee, who claimed it as part of a patni taluq which he held under a potta from Raja Krishna Chund, which was granted in the year 1241 (1834).3. Radharaman's claim was at first rejected; but he appealed, and after two remands this case came on to be tried between the plaintiffs and Radharaman under Section 229 of the Code of 1859.4. It has now been tried by the two lower Courts, and comes up to this Court on second appeal; but meanwhile, pending the proceedings, Radharaman sold his patni to one Radhamadhub, who again sold it to one Brojolal Mundul, who has since died; and his widow Shyama Sundari is th...
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