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Honooman Sahay and ors. Vs. Pursid NaraIn Sing and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal845
Pontifex, J.1. This case is one more instance of the plentiful crop of litigation which has sprung out of the decisions in the reported cases of Gridharee Lall (L.R., 1 I.A., 321; S.C. 14 B.L.R., 187) and Deendyall Lall (L.R., 4 I.A., 247; S.C. I.L.R., 3 Cal., 198).2. The circumstances of the case are as follows:Radhay Kishen, the father of plaintiff's Nos. 1 and 2, and husband of plaintiff No. 3, by two bonds, purported to mortgage that which was in fact ancestral estate. The family was governed by the Mitakshara, and at the dates of the mortgages both the sons were alive; and it has been stated that one at least of them was of age. From the judgment of the Munsif it would appear that the earlier of the two bonds recited, as a necessity for raising the loan secured by it, the performance of the koruj ceremony of Kulu Ram, a deceased member of the family. And from the same judgment it would appear that, on the face of it, the later of the two bonds purported to be executed as security ...
Tag this Judgment!isan Chunder Banerjee Vs. Luchun Gope
Court : Kolkata
Reported in : (1880)ILR5Cal699
Jackson, J.1. We think there can be no doubt upon this question. It appears that, by the second schedule of the Code of Civil Procedure, Chap. xlvii, which deals with review of judgment, is extended absolutely to Courts of Small Causes constituted under Act XI of 1865. It is also true, as the Judge of the Small Cause Court points out, that Section 21 of Act XI of 1865 has not been repealed. What will be the effect of the simultaneous retention of that section with reference to new trials, is a question which we are not at present called upon to determine. The Legislature unequivocally expresses its intention that the procedure in review of judgment shall be applicable to Courts of Small Causes, and if so, the Small Cause Court is of course at liberty to entertain an application of that sort and in so doing must proceed strictly under the rules contained in that chapter, and the procedure relating to new trials under Section 21 of Act XI is not to be mixed up with those rules....
Tag this Judgment!Sham Kishore Mundle Vs. Shoshibhoosun Biswas
Court : Kolkata
Reported in : (1880)ILR5Cal707
Wilson, J.1. There is no doubt that the practice should be settled, because the procedure is new, and it is very important that there should be a settled practice. I do not entertain any doubt as to what practice is most convenient and most in accordance with the Civil Procedure Code.2. The first section of the Code which deals with interrogatories is Section 121, which says: 'Any party may, at any time, by leave of the Court, deliver through the Court interrogatories in writing for the examination of the opposite party.' Now what that section contemplate is, I think, first, leave to interrogate; and secondly, the service of the interrogatories through the Court. Following on that section, we have a rule of Court which makes the matter a little more clear. That rule is as follows: 'When interrogatories are ordered by the Court to be delivered under Section 121 of the Code of Civil Procedure, two copies of each set of interrogatories shall be tendered to the Registrar, who, when the sam...
Tag this Judgment!Juggobundhu Mukerjee and ors. Vs. Ramchunder Bysack
Court : Kolkata
Reported in : (1880)ILR5Cal584
Richard Garth, C.J.1. If we were satisfied that, in the Mundul's case (19 W.R., 101) their Lordships of the Privy Council intended to decide the question which is now referred to us, it would, of course, have been unnecessary to consider the matter further. But, upon a careful perusal of their Lordships' judgment, and on referring to the facts as they appear in the copy of the printed book, we much doubt whether the point was really raised in that case, or whether their Lordships intended to express any opinion upon it.2. We have, therefore, now to decide the matter without reference to their Lordships' judgment; and having considered the sections of the Code which bear upon it, and the somewhat contradictory decisions to which we have been referred during the argument, we have come to the conclusion, that the question of law referred to us should be answered in the affirmative.3. Sections 223 and 224 of the Code point out the mode of executing decrees in suits for immoveable property;...
Tag this Judgment!The Bank of Bengal Vs. Mendes
Court : Kolkata
Reported in : (1880)ILR5Cal654
Richard Garth, C.J.1. This suit is brought by the Bank of Bengal to recover from the defendant the sum of Rs. 14,700 and interest upon his promissory note.2. The defendant's answer is, that the note was given to secure to the Bank the repayment of a loan, which they made to him in October 1878; that, as part of the same transaction, he deposited with the Bank, by way of further security, certain Government notes, one of which was for Rs. 10,000; and that he is not bound to pay them their money, unless they are prepared to give him back these notes.3. The Bank are ready to give up all the securities, except the note for Rs. 10,000, which they say that they are unable to return for the following reason:4. In one branch of their establishment they carry on the ordinary business of bankers; in another, which is called the Public Debt Office, they have the management of the public debt on behalf of the Government, both branches being under the charge of officers who are employed and paid by...
Tag this Judgment!Sourujmull and ors. Vs. the Ganges Manufacturing Co.
Court : Kolkata
Reported in : (1880)ILR5Cal669
Richard Garth, C.J.1. We think that the lower Court has taken a correct view of this ease. The plaint does not very correctly describe what the true cause of action is against the defendants; but the evidence is conflicting, and the circumstances peculiar; and we think that the learned Judge was fully justified in giving the plaintiffs a decree for what really appears to be their due.2. The facts, as we consider them to be proved, are these:3. Messrs. Cohen Brothers had contracted with the defendants to buy of them a large number of gunny bags in the months of April and May 1878. The time for taking delivery of these bags had been extended at the request of Messrs. Cohen; and on the 22nd July there remained 107,500 bags still undelivered.4. The defendants had been pressing Messrs. Cohen to take delivery of these bags; and on the last-mentioned day Mr. Cohen, a member of the firm, called at the office of Messrs. Macneill and Co., the defendants' agents. He informed them that he had arra...
Tag this Judgment!Kristo Coomar Nag Vs. Mahabat Khan
Court : Kolkata
Reported in : (1880)ILR5Cal595
Morris, J.1. The facts are that an objection on the ground of limitation was taken by the judgment-debtor, which was dismissed by the first Court on the 17th January 1876. The judgment-debtor then appealed, and his appeal, which was opposed by the judgment-creditor, was dismissed on the 2nd October 1877. The judgment-creditor allowed the proceedings in execution to drop, and did not apply to revive them till the 18th March 1879. An objection was taken by the judgment-debtor that more than three years had elapsed since the next preceding application, and that, consequently, execution was barred. This objection was allowed by the first Court, and affirmed on appeal by the lower Appellate Court. A motion has since been made to this Court that this order is opposed to the provisions of Article 179, schedule ii Act. XV of 1877, which is the law which governs this case. This motion raises the question, whether the opposition raised by the judgment-creditor to the appeal of the judgment-debto...
Tag this Judgment!Gocool Chunder Gossamee and ors. Vs. the Administrator General of Beng ...
Court : Kolkata
Reported in : (1880)ILR5Cal726
Richard Garth, C.J.1. The only question in this case is, whether the plaintiffs have taken the proper course in bringing a fresh suit, instead of reviving the former one.2. The former suit was brought on the 4th of June 1869 by Gobind Chund Gossamee, the father of the plaintiffs, and the trustee named in the will of Kassinauth Mullick, against Rungomoney Dossee, the executrix of the will, for the purpose of having the trusts of that will declared and carried into execution.3. A decree was made in that suit, by which the will was established, and directions were given for the purpose of having a scheme settled, by which the trusts were to be carried out. Before this scheme was finally settled and approved, and whilst the proceedings were pending, the case was struck out of the board, upon the ground that the plaintiff was not prosecuting it with due diligence; and he and the defendant, executrix, have since died. The property is in the hands of the Administrator-General, and this suit h...
Tag this Judgment!Saroda Soondury Dossee and anr. Vs. Doyamoyee Dossee and anr.
Court : Kolkata
Reported in : (1880)ILR5Cal938
Jackson, J.1. Now, the plaintiff's, on appeal before us, have relied ultimately upon Article 127 and Article 142 of the Limitation Act (IX of 1871), both of which are referred to in the grounds of special appeal. It appears to me that Article 127 clearly cannot apply. That relates to suits by a Hindu excluded from joint family property to enforce a right to share therein, and in order to bring the suit within that description, it will have to be shown that there had been joint family property, and that the plaintiffs have been excluded from the enjoyment of it, and therefore desire to enforce their right to share therein. I should be inclined to hold that the word 'excluded' implies previous inclusion, and that such a suit as this could not be maintained by a person who had never had any portion of the joint family property; but at any rate it would be necessary to show that there had been joint family property. Now, from the finding of the Judge, it is clear that that is not the state...
Tag this Judgment!Mohun Dass Vs. Lutchman Dass
Court : Kolkata
Reported in : (1881)ILR6Cal11
Jackson, J.1. The petitioner, who is the appellant before us, moved the Judge of the District of Moorshedabad to revoke the probate of a will under which the respondent had been designated as mohunt at the head of a certain religious institution. It was alleged that this mohunt had, since he took charge of the office, taken to a certain course of conduct whereby he has tarnished his name, and in consequence whereof he has been excluded from the community of the mohunts. The Judge considered that this was not a case in which the provisions of Section 234 of the Indian Succession Act authorized him to revoke or annul the grant of probate; and the petitioner, being dissatisfied with this decision, has appealed to this Court, and before us it is contended that the section referred to does apply to such a case, and that the proof of that is to be found in illustration (h) attached to that section. Illustration (h) refers to the case of a 'person to whom probate was, or letters of administra...
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