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The Empress Vs. Donnelly
Court : Kolkata
Reported in : (1877)ILR2Cal405
Markby, J.1. The petitioner appealed to the Sessions Judge of Hooghly, who on the 28th of May affirmed the conviction and sentence. The petitioner then applied to this Court to set aside the conviction as illegal: first, because the Magistrate had no power to revive the prosecution against the petitioner after she had been discharged; and, secondly, because the Magistrate could not appear as a witness in a case in which he was the sole judge. On the argument of the case, it was also contended that there was no evidence which would support a conviction.2. As regards the last point, we intimated at the close of the argument for the petitioner, that there was some evidence. Of course we express no opinion whatever as to the sufficiency or otherwise of that evidence; that is a matter into which this Court does not enter upon an application of this kind, nor is it desirable to comment upon this evidence; but I may say with reference to an argument used by Mr. Jackson, that, in my opinion, t...
Tag this Judgment!Empress on the Prosecution of Jodoonath Ghose Vs. Brojonath Dey
Court : Kolkata
Reported in : (1877)ILR2Cal425
Markby, J.1. The question turns on the construction of Bong. Act III of 1864, which was in force when the order of Mr. Jeffery was made. The powers and duties of the Municipal Commissioners are defined in Sections 6 to 23. No power to stop up or divert public highways is anywhere in express terms given by the Act; but public highways not being the property of Government or private property are, by Section 10, vested in the Municipal Commissioners, By s, 9 the Municipal Commissioners are enabled to sue and he sued in their corporate name, to hold parties, moveable and immoveable, and to convey the same, and to enter into all necessary contracts for the purposes of the Act. By Section 12, the Municipal Commissioners are required to apply all property vested in them for the purposes of the Act.2. The argument is, that Shudgoppara Lane was a public highway vested in the Municipal Commissioners, and that, under the Act, the Municipal Commissioners may dispose of their property in any way th...
Tag this Judgment!Kally Prosonno Hazra Vs. Heera Lal Mundle
Court : Kolkata
Reported in : (1877)ILR2Cal468
Markby, J.1. In this case, whilst execution proceedings were going on, the judgment-debtor filed a petition in Court notifying payment of a part of the sum due under the decree, and asking for a stay of execution for four months. The judgment-creditor signified his assent to this application by signing the petition, which was granted. The question we have to determine on special appeal is, whether a new period of limitation runs either from the date of this petition under the provisions of Section 20 or from the date of the part-payment under the provisions of Section 21, Act IX of 1871. Both these sections are applicable to 'debts and legacies' only, and I do not think that the sum due under a decree is a 'debt' within the meaning of these two sections. It seems to me that the proviso to Section 21, which is general, would be unmeaning as applied to sums due under a decree; and the proviso to Article 169, Schedule II would also have been wholly useless if part-payment of money due und...
Tag this Judgment!Grish Chunder Roy and anr. Vs. Boydonath Bag
Court : Kolkata
Reported in : (1878)ILR3Cal26
Markby, J.1. As regards the question of the tenure being protected from enhancement, I do not think that there is any ground for interfering. As regards the other point, the facts seem to be that several persons, members of a joint family, were the owners of this tenure. Some of these persons brought a suit for rent at an enhanced rate. It was objected in the course of the suit that it was wrongly framed, because all the members of the family interested in the tenure were not joined; thereupon the other members of the family came in and expressed their assent to the suit. I take it that what was then done amounts to this,--that although no formal order was then drawn up, still the suit was from that time a suit by all the members of the family. That is how the lower Appellate Court treats it, and that is how we treat it. Now this being a suit for which a very short period of limitation is provided, it turned out that these parties who were subsequently added as plaintiffs were so added...
Tag this Judgment!Walji Karimji Vs. Jaganath Premji Et Ux
Court : Mumbai
Reported in : (1878)ILR2Bom84
Michael Westropp, C.J.1. The plaintiff, as a purchaser at an auction sale, made under a power of sale contained in a deed of mortgage executed by the male defendant Jaganath Premji, of certain land and buildings thereon, brought this suit to obtain (recover) possession of the same premises from the defendants. The Court of Small Causes has made a decree for the plaintiff, subject to the question submitted to this Court: whether the fact that the value of the premises exceeds Rs. 500, but does not exceed Rs. 1,000, deprives the Court of Small Causes of jurisdiction.2. That Court has called our attention to Sreemutty Shibosoondary Dossee v. Taracknath Pandit, (2 Ind. Jur., 145), note decided in the Court of Small Causes at Calcutta, in which case that Court held that its jurisdiction to entertain suits to recover immoveable property, not exceeding Rs. 500 in value, which subsisted under Act IX of 1850, Section 25, was not extended by Act XXVI of 1864, Section 2, to immoveable property no...
Tag this Judgment!Nowlaooma Vs. Bala Dhurmaji
Court : Mumbai
Reported in : (1878)ILR2Bom91
Michael Westropp, C.J.1. It is admitted that the defendant, by deed of the 8th November 1869, mortgaged a house at Mazagon to certain Marvadis That mortgage contained a power of sale in the event of the mortgage money not being duly repaid at the time fixed. The defendant alleges that he was drunk when he executed that mortgage, and that it was obtained from him by fraud, but he does not appear to have added that it was without consideration. He admits that, on the 10th of January 1872, he executed, in favour of the same Marvadis, a deed of further charge on the same house. This deed the defendant alleges to have been obtained from him by fraud and without consideration.2. The Marvadis sold the house, on the 4th November 1873, to the plaintiff under the power of sale contained in the first mortgage, that of the 8th November 1869. The learned Chief Judge of the Court of Small Causes does not state whether the vendors executed to the plaintiff a deed of sale; but, in the absence of any s...
Tag this Judgment!Bheeka Lall Vs. Bhuggoo Lall
Court : Kolkata
Reported in : (1878)ILR3Cal24
Markby, J.1. At first I was inclined to think that the decision of the Court below was not correct; but, after hearing the argument, I think that decision was right. The plaintiff having been in partnership with the defendant brought this suit upon the ground that there was partition in the year 1870, under which it was arranged that each should be entitled to a moiety of any decree which should be recovered, and he alleges that the moiety of a certain decree was recovered on the 4th September, 1871, and that, therefore under that partition he was entitled to a moiety of the sum so recovered.2. The defendant answers that the plaintiff had already brought a suit in the year 1872 after this decree was recovered, in which he claimed, together with a number of other items, this very sum for which the present suit is brought. The plaintiff replies to that, that the former suit was not based upon any right which he had under the partition, but upon a general right to an account, alleging tha...
Tag this Judgment!Subhabhat BIn Babanbhat Vs. Vasudevbhat BIn Subhabhat and ors.
Court : Mumbai
Reported in : (1878)ILR2Bom113
Michael Westropp, C.J.1. Although the deed of the 12th March 1832 (Exhibit 21) is on the face of it described as a mortgage, it is necessary to see whether its contents warrant that description. The grantee was already in possession under a mortgage of the 7th November 1820, and was under the new deed to receive the profits in liquidation of interest so far as they would go--and, as it appears to us, the grantor was not to be liable, to repay the principal money, or such balance of interest (if any) as might accrue upon it, unless he adopted a son. We do not perceive how, so long as he remained without making such an adoption, the grantee could have maintained any suit against him either for principal or interest--(vide Goodman v. Grierson, 2 B., and B. 274, 279, and per Cottenham L.C. in Williams v. Owen, 5 My. and Cr. 303, 308). In Howard v. Harris 1 Vern. 190 there was a covenant by the mortgagor to pay, upon which he might be sued by the mortgagee--a circumstance which distinguishe...
Tag this Judgment!Moreshwar Bapuji Phatak Vs. Kushaba Shankroji and anr.
Court : Mumbai
Reported in : (1878)ILR2Bom248
West, J.1. The question in this case is whether Moreshwar, a purchaser, subsequent to the decree against Pitambardhari in regular appeal, can now, when Pitambardhari has died, maintain a special appeal filed by Pitambardhari for the reversal of the decree. It is contended by Mr. Shantaram that the purchaser under such circumstances is a representative of the deceased, entitled in that character to carry on the litigation through the several stages allowed by the Code of Civil Procedure, and he relies on the oases disposed of under Section 11 of Act XXIII of 1861 as furnishing an analogy by which the Court should be guided in disposing of Moreshwar's application in the present instance. Those cases, however, proceed always on the assumption that the points brought under adjudication in the judgment sought to be executed, have been finally disposed of. It is only questions arising in execution, and not thus previously disposed of, that have been allowed to be contested under Section 11 o...
Tag this Judgment!JoynaraIn Hazrah Vs. Doorga Prosad Mytee and ors.
Court : Kolkata
Reported in : (1877)ILR2Cal475
Prinsep, J.1. The plaintiff, as ijaradar of a third share, sues for rent at an enhanced rate. After the determination of the rate to which he is entitled, the rent has been decreed by the Lower Appellate Court. In special appeal two objections are taken to this decision: first, that inasmuch as the plaintiff was only an ijaradar, He had no right to enhance the rent; and secondly, that as be held only a share in the rent, he could not enhance without making all his co-sharers parties to the suit. Another objection is taken that the defendants bold under a mokururee patta. But the finding of the Lower Appellate Court, that there is a total absence of satisfactory evidence with regard to the alleged mokururee tenure completely disposes of this point. The law as laid down by Lower Appellate Court that, unless there is an express stipulation against the enhancement of rent by an ijaradar, he can exercise that power, is in accordance with the law as laid down in the case of Rushton v. Girdha...
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