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Kali Prosad Banerji Vs. Gisborne and Co.
Court : Kolkata
Reported in : (1884)ILR10Cal61
Richard Garth, C.J.1. I think that Clause 17, of Section 19, Act VII of 1870 is applicable to a case of this kind, and consequently that no Court-fee is payable on the appeal....
Tag this Judgment!Tiyagaraja Padyachi Vs. Ramanujam Pillai
Court : Chennai
Reported in : (1883)ILR6Mad422
Kindersley and Hutchins, JJ.1. The only material ground of appeal in this case is that the hypothecation instrument A, on which the suit was brought, was compulsorily registrable, and, being unregistered, could not affect the property. After reciting the hypothecation of the property for Rs. 73-15-9, the obligor proceeds to bind himself to pay the sum with interest within the 15th April 1879. Interest at the stipulated rate up to the 15th April 1879 would raise the whole amount due on the bond to something over Rs. 100, and the question is whether such a bond purports or operates to create an interest in the immoveable property of the value of Rs. 100. We think not. If the whole debt remained unpaid on the 15th April 1879, the obligee's interest would exceed Rs. 100, but it might have been paid in part or in full much earlier. The obligee could not have compelled payment earlier, but obligor might have compelled him to accept the money earlier, and the value of the interest actually cr...
Tag this Judgment!Ammani Ammal Vs. Sellayi Ammal and ors.
Court : Chennai
Reported in : (1883)ILR6Mad426
Charles A. Turner, Kt., C.J.1. As to damages, those incurred in the second year were not the probable result of the wrongful act of the respondents, but were the consequences of a judicial act proceeding from the Magistrate alone : Lock v. Ashton 12 Q.B. 871. They cannot then be recovered from the respondents. We overrule the objection that the respondents may also have suffered damages from the exaggerated claim made by the appellant, and that, consequently, they should not be required to pay damages to the appellant; for, if the respondents have suffered damage, they should bring a cross-suit.2. We dismiss the appeal and overrule the objection with costs....
Tag this Judgment!Bai Kushal and anr. Vs. Lakhma Mana
Court : Mumbai
Reported in : (1883)ILR7Bom452
West, J.1. It appears in this case that Ruda, the separate owner of certain lands, having become old and somewhat incapacitated for ordinary affairs, called in his daughter Kushal, who for some years carried on the cultivation of the fields composing the paternal estate. It is admitted she had physical detention of the lands, though on her father's account. In this state of things Ruda, the father, executed, a deed of gift, by which he bestowed all his land on Kushal and her four sisters. The property being his own absolutely, he had a perfect right to do this, but it is said that he did not complete his gift by delivery of possession. As Kushal, however, already had the physical detention of the lands, it was not possible to do more than convert this into possession and Ruda, in his deed, says: 'I have given you possession.' This was, on its face, an act divesting himself of the possession, and transferring it to Kushal. He could not retain possession against his will, and here was a ...
Tag this Judgment!Sitaram Krishna Vs. Daji Devaji
Court : Mumbai
Reported in : (1883)ILR7Bom418
West, J.1. In this case a document not requiring attestation by law was attested. After it had been delivered to the obligee, he seems to have got another attesting signature added to it by a man who had not, in fact, witnessed the execution of it by the obligor. The alteration was, at any rate, made while the obligee had the bond, and he was primarily liable for its preservation untampered with. With reference to Aldous v. Cornwell L.R. 3 Q.R. 578 however, and cases of that class the question arises, whether the addition was immaterial, and being immaterial had no effect in vitiating the security. Any change in a document varying the liability under it in any way is a material alteration:see Gogun Chunder Ghose v. Dhuronidhur Mundal I.L.R.7 Cal. 616 and Master v. Millar Sm. L. Cas I 871 (1876) and Cases referred to in the commentary in Smith's Leading Cases but we think an alteration in a document stating a falsehood, either expressly or by implication, by way of increasing the appare...
Tag this Judgment!Bala Kadar Vs. Gulam Mohidin
Court : Mumbai
Reported in : (1883)ILR7Bom424
West, J.1. It is imperative on a Court, before making an order to set aside a sale under Section 313, to see that notice has been given to the judgment-debtor or his representative. Mr. Wagle contends that the representative not being specified, notice to the representative is needless after the death of the judgment-debtor. But though 'judgment-debtor' is not so defined as to include a representative, yet the reason of the thing here requires that a representative should have the same opportunity of guarding his interests as the judgment-debtor himself,. and we have no doubt that this was the intention.2. Mr. Shivshankar urges that a representative cannot be called forward now when more than sixty days have elapsed from the sale; but Section 313 does not prescribe that the notice is to be served before the application, and Schedule II, Article 172 of, Act XV of 1877 only requires that the application shall be made, not that the notice shall be served, within sixty days from the sale.3...
Tag this Judgment!Bakhir Mohammed Vs. Doorga Churn Shaha and anr.
Court : Kolkata
Reported in : (1884)ILR10Cal39
Richard Garth, C.J.1. It seems to me that in this case the plaintiff had no right of action.2. As a general rule, the defendant (the execution-creditor) would have had a right to sell any moveable property of the plaintiff's for satisfaction of his debt, but amongst the exceptions to this rule are such cattle as, in the 'opinion of the Court, are necessary to enable the execution-debtor to cam his livelihood as an agriculturist.'3. In order, therefore, to exempt from execution any cattle of the execution-debtor, it is necessary, as I take it, that the Court should first express its opinion that such cattle are necessary to enable the execution-debtor to earn his livelihood; and I also think it is clear that the Court which has to decide this point is the Court which issues the execution.4. If this is so, it follows that neither the execution-creditor nor the execution-debtor, nor any Court except that which issues the execution, has any right to determine this point; and in order that ...
Tag this Judgment!Sabhanatha Dikshatar Vs. Subba Lakshmi Ammal
Court : Chennai
Reported in : (1883)ILR7Mad80
Charles A. Turner, Kt., C.J. and Muttusami Ayyar, J.1. We are unable to distinguish this case from the case cited by the appellant's vakil--Raja Rau v. Tolasi Ammal C.M.S.A. 391 of 1879 (not reported).2. As the decree stands, it is a declaratory decree. But the lady can, if need be, sue for the enforcement of the right which has been declared. We decree the appeal and reverse the order for execution but without costs....
Tag this Judgment!Shridharnarayan Vs. Atmaram Govind
Court : Mumbai
Reported in : (1883)ILR7Bom455
West, J.1. The property of the insolvent in this case vested, no doubt, in the receiver under Section 354 of the Code of Civil Procedure. All the right title and interest of the insolvent might thereon have been sold in every part of his estate Each creditor; entered in the schedule, framed by the Court under Section 352, would then have stood in the position of a judgment-creditor against the insolvent for the amount entered opposite Such creditor's name in the schedule. A judgment-creditor however, has not a right to deprive a mortgagee, or other holder, of a charge on the judgment-debtor's property, of his rights under' his security; and the receiver, acting for the judgment-creditors as a body, has no more right than they acting collectively, Would have to annul a mortgage. He must pay off a mortgage-debt in every instance as the equitable condition, of his making the property mortgaged as distinguished, from the equity of redemption available for the general body of the creditors....
Tag this Judgment!Virappa Nayak Vs. Kathana Talavachi
Court : Chennai
Reported in : (1883)ILR6Mad428
Charles A. Turner, Kt., C.J.1. In this case the holding had been mortgaged, and in 1873 the mortgagee brought a suit and obtained a decree for realization of the debt by sale of the holding. In execution of the decree, the holding was sold on the 18th April 1874. On the 14th April the landlord issued a notice of his intention to sell summarily, and on the 16th April this notice was affixed to the house of the tenant with the remark that he was absent. It may be doubted whether this service should have been accepted as sufficient without further proof; but, assuming that it was sufficient and that the sale under the Rent Act was valid, the question arises whether it had not been defeated by the sale of the holding in execution of the decree of the Civil Court. It has recently been held that a landlord has not a lien on the holding for the rent and that a sale of the holding after mortgage conveys the tenant's interest to the purchaser burdened with the mortgage. The validity of the mort...
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