Privy Council Cases

Catchick and anr. Vs. Pogose

Court : Kolkata

Reported in : (1878)ILR3Cal709

Markby, J.1. In this case we think that the order of the Subordinate Judge, so far as it makes the present applicant, Mr. P. N. Pogose, a party to these execution proceedings, must be set aside.2. The original judgment-debtor was dead. He was an Armenian, and, therefore, succession to his estate is governed by the Succession Act, and the only person who could be his representative is the person indicated by that Act. The only difficulty at all about the matter is whether there is an appeal against this order of the Subordinate Judge or not. Whatever our own opinion may be, however, it is better that in this particular case we should follow the decision of Mr. Justice Ainslie and Mr. Justice Mc Donell given in a somewhat similar case on the, 28th August 1877, in which it was held that no appeal lies,[1] and for the purposes of this case adopting that decision, we hold that no appeal lies in this case also. But nevertheless, although no appeal lies, we think it clearly a case in which we...

Hajee Esmail Hajee Sidick and anr. Vs. Shamji Poonjani

Court : Mumbai

Reported in : (1878)ILR2Bom550

Michael Westropp, C.J.1. We are of opinion that no total loss of the plaintiffs' goods has been shown; but that to recover in this action it is sufficient, inasmuch as the ship was lost by being stranded upon a rock, to establish a particular average loss. Whether we look to the oral evidence as to the commercial meaning attached in Bombay to the Gujarathi words importing 'without damage,' or to the true construction of the policy itself without the aid of such evidence, we must hold the defendant (respondent) to be responsible for a particular average loss. Except the testimony of the respondent himself (who was strongly biassed by his interest), and that of his one witness who--Mr. Justice Atkinson, it was admitted, said--was wholly undeserving of credit, the evidence was all in one direction, viz., that the ship having been stranded, the underwriters were, under such a policy as that sued upon here, liable for the damage, i.e., the particular average loss incurred. The plaintiffs' w...

Dalpatbhai Bhagubhai Vs. Amarsang Khemabhai and anr.

Court : Mumbai

Reported in : (1878)ILR2Bom553

Melvill, J.1. This is an application of appeal against an order of the First Class Subordinate Judge of Kheda made subsequently to the date on which the new Code of Civil Procedure came into force, by which the Subordinate Judge determined two questions arising between the parties to a suit, viz., first, the amount of mesne profits which the plaintiff had recovered from certain mortgaged property subsequently to decree, and, secondly, the amount payable on account of the costs of execution. The final order of the Subordinate Judge was that, out of a sum of money deposited by the defendant, Rs. 8,476 should be paid to the plaintiff in full satisfaction of his decree, and the balance restored to the defendant.2. Against this order the plaintiff wishes to appeal, and the appeal was admitted provisionally, subject to any objection which the defendant might take to its admissibility under the provisions of the new Code.3. After hearing arguments on both sides, we have come to the conclusion...

Sardar Doyal Singh Vs. Shib Prokash Singh

Court : Kolkata

Reported in : (1878)ILR3Cal545

White, J.1. The result of the release of this portion was, that the description of the property which was advertised to be sold was no longer an accurate description.2. Now Section 249 of the Code, in prescribing what the proclamation is to contain, makes express mention of 'the property to be sold,' and there can be no doubt that that particular, is one of the greatest importance. In a case where, as here, a variation had arisen between the property advertised to be sold and the property actually sold, in consequence of the release obtained by Nursing Roy, it was necessary and proper that a fresh proclamation should have issued in order to comply with the requirement of the section to which I have referred. No such fresh proclamation, however, issued; but on the day of sale, those who had assembled for the purpose of bidding for the property were informed at the time and place of sale that a portion of the advertised property had been released, and that the sale would, therefore, only...

Ramkissen Doss Vs. Luckeynarain

Court : Kolkata

Reported in : (1878)ILR3Cal312

Pontifex, J.1. The mere filing of a, plaint, or the naked fact that a plaint is on the file, will not of itself prevent the operation of the law of limitation. A plaintiff is bound to conduct his suit with proper diligence, otherwise filing a plaint and abstaining from taking further proceedings, would have greater effect in keeping alive a demand than obtaining a decree. By the first of the rules of Court, the 4th of December 1875, which govern the practice of this side of the Court, it is directed that a plaint shall be taken off the file unless within fourteen days after the institution of the suit a summons to the defendant to appear and answer is taken out and delivered to the Sheriff. By the 8th rule of the 9th of February 1875, the times are stated for which the summons is usually made returnable. But in cases where a defendant keeps out of the way to avoid service, or cannot be found after a bond, fide endeavour has been made to serve him, it is the practice of the Court, upon ...

Suddurtonnessa and anr. Vs. Majada Khaton and anr.

Court : Kolkata

Reported in : (1878)ILR3Cal694

Markby, J.1. It is impossible to Kay that the Judgment of the lower Appellate Court in this case was erroneous in law, unless we go to the length of saying that a Judge is bound, as a matter of law, to apply to a Mahomedan family living jointly all the rules and presumptions which have been held by this Court to apply to a joint Hindu family. Now we are not prepared to go to that length. When a Mahomedan family adopts the customs of Hindus, it may do so subject to any modification of those customs which the members may consider desirable; and it must rest with the Judge who has to decide each particular case how far he should apply the rules of a Hindu joint family to the case of any Mahomedan joint family that comes before him.2. With regard to the case quoted Vellai Mira Ravuttan v. Mira Moidin Ravuttan 2 Mad. H.C. Rep. 414--we have no reason to doubt that it was a perfectly proper decision with reference to the facts then before the Court. The Court does not there say anything contr...

Gopee Mohun Mozoomdar Vs. Hills

Court : Kolkata

Reported in : (1878)ILR3Cal790

Markby, J.1. We think that there must be a remand in this case. There were two questions for consideration: one was whether there had been an uniform payment of rent for twenty years, and, if so, whether the presumption which the law directs to be drawn from an uniform payment of rent for twenty years had been rebutted by 'the plaintiff. The previous decision is not conclusive upon either of these two points. One of these questions was not and could not be gone into in the previous suit. It has nothing whatever to do with the former case whether the landlord received different rates of rent at some earlier period. No doubt the Court in that former case did express an opinion that, for twenty years, rent had been paid at an uniform rate; but even that was not a question in issue in the former suit, and in such a manner as to make the decision in the former suit conclusive upon that point. The District Judge will have to consider the case upon the evidence on the record, and determine wh...

Jogender Nath Paul Vs. Ram Coomar Paul

Court : Kolkata

Reported in : (1879)ILR4Cal56

Markby, J.1. In this case the suit was brought for a partition. The plaintiff alleged that the common ancestor of the parties and his five sons acquired certain properties; that after his death his five sons separated among themselves taking certain land, amounting to 16 high as each, for their own private expenses; that the remaining lands they held in ijmali among themselves; that one of them became the manager, who made the collections of the rents, and from the profits thereof paid the expenses of the Rash, Dole, etc., festivals and the worship of the idols,--all of which are patrimonial; and that the balance of the money they divided among themselves.2. The substance of the defence, so far as we need advert to it now, is that the whole of the land under claim was the property of the idol.3. The Munsif, who went very fully into the matter, came to the conclusion that 94 bighas and 6 cottas of the land were dewutter property and were not partible; and as there is no complaint now in...

The Empress Vs. Kudrutoollah and ors.

Court : Kolkata

L.S. Jackson, J.1. 'Trial,' according to the definition in Section 4 of the Criminal Procedure Code, means 'the proceedings taken in Court after a charge has been drawn up.' It is clear, therefore, that Section 221 of the Criminal Procedure Code, which follows Section 220, authorises a Magistrate, although a charge may have been drawn up, to stop further proceedings and commit for trial: for this purpose Section 221 may be regarded as a proviso to Section 220. It may be added that, though the explanation to Section 220 provides that if a charge is drawn up, the prisoner must be either convicted or acquitted, it does not require that the conviction or acquittal should be by the Magistrate who drew it.2. We see no reason, therefore, to quash the commitment....

Cassum Jooma Vs. Thucker Liladhur Kissowjee

Court : Mumbai

Reported in : (1878)ILR2Bom570

Michael Westropp, C.J.1. We think that this is the case of a tradesman's running account, and, therefore, falls within the authority of Grimbly v. Aykroyd (1 Ex. 479).2. Cassum Jooma, the creditor, appears, indeed, to have kept separate accounts, in the hope of being thereby enabled to split his demand, and to sue on each of them in the Court of Small Causes, and thus to frustrate the law which prohibits the splitting of a cause of action. We must decline to co-operate with him in attaining that object.3. Reverse the judgment of the Small Cause Court, and let a non-suit be entered.4. The plaintiffs must pay the costs of the suit and of this reference....