Court : Mumbai
Reported in : (1877)ILR1Bom214
5. There should either be one sentence for both offences in a case of conviction of house-breaking by night in order to commit theft, and theft, not exceeding that which may be given by the law for the graver offence, or separate sentences for each offence, provided that in the aggregate the punishment awarded does not exceed that which may be given for the graver offence....
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal180
Richard Garth, C.J.1. We are of opinion that this rule ought to be discharged, and the appeal against Kemp, J.'s decision allowed. It is one of those cases in which the suit might have been brought in the Small Cause Court, and Section 27 of Act XXIII of 1861 forbids any special appeal to this Court. That being so, the question is, whether the Munsif having entertained the suit and decided it, and the Subordinate Judge having heard it on appeal, we have any right to interfere under Section 15 of the Charter Act, not for the purpose of enquiring whether there was any jurisdiction in the lower Court to entertain the suit (about which there can be no doubt), but for the purpose of rehearing the case upon a point of law, which the Judges in the Courts below had a right and were bound to determine, and which would, if the case had been appealable to this Court, undoubtedly have been a good subject of appeal. This, as the late Chief Justice COUCH very truly observed in Karim Sheikh v. Mokhod...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom237
Green, J.1. Though the right of the plaintiff' to call upon Jivraj Ratansi to execute a legal mortgage of the property, described or referred to in the agreement of 11th August 1865, depended on the plaintiff making a further advance of Rs. 27,000, to complete the Us. 65,000 agreed to be advanced, yet the deposit of the title deeds, though coupled with the expression in the agreement of the purpose of such deposit, as being to enable the plaintiff to get a proper mortgage-deed prepared, would, having regard to the fact that Rs. 38,000 had been already advanced on account of the Rs. 65,000, amount in law to an equitable mortgage to secure the Rs. 38,000, so far as concerned the property comprised in the deeds deposited or any of them: Keys v. Williams 3 Y. & Col. 55, Hockley v. Bantock 1 Russ. 141.2. Upon, or shortly after, 11th August 1865 the plaintiff delivered the agreement and the title-deeds so deposited with him by Jivraj Ratansi to his (the plaintiff's) solicitors. He appears to...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal95
Phear, J.1. It now appears that the object of this suit is not, as I supposed at first, to enforce an equity against the defendant-company in regard to the user and enjoyment of its own land : but, to use the words of the learned Advocate-General, 'the plaintiff asks that the defendant be restrained from passing beyond his boundary and committing a trespass on his, the plaintiff's land,' and the line at which the plaintiff' thus seeks to stop the defendant is not admitted by the latter to be his boundary line. On the contrary the defence is that the defendant's land extends to a second line considerably beyond that specified by the plaintiff. The sole question in dispute between the parties is, whether the margin or strip of land between these two lines belongs to the plaintiff or to the defendant. The suit is substantially brought to have it declared as against the defendant that this strip belongs to the plaintiff, and it is, therefore, I think, a 'suit for land' within the meaning o...
Tag this Judgment!Court : Mumbai
Reported in : 1Ind.Cas.1
Michael Westropp, C.J.1. It seems to us that in this case the Commissioner took the right view of the decree, the important part of which is that which directs the taking' of the account. (His Lordship, after reading the portion of the decree set out above, proceeded.) We do not perceive upon what principle the account decreed could properly have been limited to six years as it was. However, we are not now re-hearing the cause or reviewing the decree, and, taking it with that limit, we have only to say what is the true construction of that portion of the decree as to credits which I have now read. It is contended on behalf of the defendants that moneys which, assuming the defendants to have been silent at the time of payment as to appropriation, would by law have been appropriated to the satisfaction of the earlier claims of the plaintiff, ought, notwithstanding the general rule of law, under the special language of the decree in this particular case, to be applied in satisfaction of t...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom7
West, J.1. The decision of this case turns upon the construction of Section 309 of the Code of Civil Procedure. Its direction that the amount of fees, which would have been paid by the pauper plaintiff, shall, on decision of the suit, be recoverable by Government from any party ordered by the decree to pay the same in the same manner as costs of suit are recoverable, does not preclude the Crown or its representative from urging its prerogative and insisting upon its right to precedence. The circumstance of its being placed in the position of judgment-creditor does not reduce its rights of necessity to those of a private judgment-creditor in case of a contest as to prior satisfaction out of moneys realized in execution. It is a universal rule that prerogative and the advantages it affords cannot be taken away except by the consent of the Crown embodied in a Statute. This rule of interpretation is well established, and applies not only to the Statutes passed by the British, but also to t...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR2Bom1
Michael Westropp, C.J.1. Pitamber Narayendas described, in the mortgage to which we shall next refer, as a Hindu inhabitant of Bombay, by indenture of mortgage of the 25th October 1871, made in the ordinary English form, in consideration of Rs. 15,000 duly advanced to him by the Land Mortgage Bank of India, Limited, an English Joint Stock Company, having its head office in London, and a branch office in Bombay, where the mortgage transaction was arranged, mortgaged (with the usual proviso for redemption) to that Bank in fee, certain lands in the villages of Girya and Bassein in the Taluka of Bas sein and Collectorate of Thana, and a bungalow and stable in the same village of Bassein, to secure that sum, which, by that indenture, he covenanted to repay to the Bank in three instalments, viz., Rs. 2,500 on the 25th October 1872, a further sum of Rs. 2,500 on the 25th October 1873, and the balance of Rs. 10,000 on the 25th October 1874, with interest on the sum advanced, or so much thereof...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom10
West, J.1. The seven prisoners were committed to the Poona Court of Session for trial on the charges of voluntarily causing grievous hurt by means of a cutting instrument (Section 326 of the Indian Penal Code) and of house-breaking by night with intent to commit an offence punishable with imprisonment (Section 457). To this the Sessions Judge added the charge of dacoity under Section 395. The jury unanimously brought in a verdict of not guilty on all these charges; but the Sessions Judge, being of a different opinion, referred the case to the High Court under Section 263 of the Code of Criminal Procedure.2. The portion of Section 263, under which we have to deal with this case, runs thus: 'The High Court shall deal with the case so submitted as it would deal with an appeal, but it may acquit or convict the accused person on the facts, as well as law, without reference to the particular charges as to which the Court of Session may have disagreed with the verdict, and if it convict him, ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom15
West, J.1. After commenting on the evidence and expressing the opinion of the Court against the acquittal of Narayan and Sitabai and in favour of that of Maruti, proceeded thus:2. The acquittal of this prisoner (Maruti) makes it necessary to consider a point of law arising from it, and urged by Mr. Pandurang Balibhadra for the prisoners Narayan and Sitabai. He contended that the principal offender having been acquitted, his clients could not be convicted of abetment, and referred us to the case of Reg. v. Chaman Bapaji, noted under Section 108 of the Indian Penal Code in West's Edition of the Acts and Regulations. It was there held by Sir Richard Couch, late Chief Justice of this Court, and another Judge, on the 22nd of January 1864, that the principal offender being acquitted, a second prisoner could not, in the same trial, be convicted of abetment of the same offence. This ruling was in accordance with the state of the English law as it existed when an accessory could refuse to plead...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom19
Michael Westropp, C.J.1. The Court is of opinion that the District Judge was in error in holding the present application to fall within Article 166 of Schedule II of Act IX of 1871, from which a decree or order on appeal is expressly excepted. That exception is not limited to any particular species of appeal, and this being a Limitation Act, and, as such, restrictive of the ordinary right to take legal proceedings, it must, where its language is ambiguous, be construed strictly, i.e., in favour of the right to proceed 9 Bom. H.C. Rep. 111. This case falls rather within Article 167 of the same schedule, which allows a period of three years for the execution of a decree or order of any Civil Court not provided for by Article 169 which latter is applicable only to judgments, decrees, or orders at the Original Jurisdiction Side of Courts established by royal Charters or any order of Her Majesty in Council (see Act VI of 1874, Section 21). The third column to Article 167 shows that decrees ...
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