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Obhoy Churn Bagchi Vs. Chunder Sikhur Bundopadhyo and ors.
Court : Kolkata
Reported in : (1881)ILR6Cal8
Richard Garth, C.J.1. As the relief which has been decreed in these suits is for the specific recovery of land, irrespective of any damages for the plaintiff's dispossession, we consider that the 87th section of Beng. Act III of 1864 does not apply.2. That section, as it seems to us, is applicable only in those cases where the plaintiff claims damages or compensation for some wrongful act committed by the Commissioners or their officers, in the exercise, or the honestly supposed exercise, of their statutory powers.3. The notice in the earlier part of the section is meant to give the defendant the opportunity of making some pecuniary amends for the wrong, without incurring the cost of litigation.4. We think that it could hardly have been the intention of the legislature to allow the Commissioners (even by mistake) to appropriate the lands of private persons without paying for them, and to hold those lands for ever as against the true owners, unless the latter should happen to be suffici...
Tag this Judgment!Fakera Doobay and ors. Vs. Sheo Churn Singh
Court : Kolkata
Reported in : (1881)ILR6Cal91
Richard Garth, C.J.1. The present appellant says, that these intervening defendants may at some future time make a claim for their shares of the property as against him, and that, as long as there is any uncertainty as to their title, it would not be right for us to confirm the decree of the Court below giving the whole property to the plaintiff's. In support of this argument we are referred to the case of Sivagnana Tevar v. Periasami Tevar (I. L. R., 1 Mad., 312; S. C., L. R., 5 I. A., 61) decided by the Privy Council.That case appears to us to be totally different from the present. There the parties, who were said to be entitled to the property as against the plaintiff, were not made parties to the suit; and the High Court, although there was good reason for supposing that those persons were really entitled, declined to try the question whether they were entitled or not, considering that, as between the plaintiff and those persons, the question of title might be settled in another su...
Tag this Judgment!Mullick Ahmed Zumma, Alias Tetur Vs. Mahomed Syed
Court : Kolkata
Reported in : (1881)ILR6Cal194
Pontifex, J. 1. In this case there seems to have been a decree for possession with costs against three defendants. Inasmuch as possession was claimed by only one of the defendants that defendant alone appealed and was successful before the Judge. But the plaintiff appealed to this Court, and obtained a decree restoring the decision of the first Court. The Judge in the Court below has relied on the case of Hur Proshad Roy v. Enayet Hossein (2 C.L.R., 471), in which it was held that an appeal by one defendant did not prevent time from running for the purpose of executing the decree against the non-appealing defendants. 2. The reason why in that case it was held that limitation would apply, was because the appeal there was on the part only of a ten-pie shareholder of the property, leaving the decree capable of execution against the remainder of the property, which could not be affected by the result of that appeal. But in the present case the appeal of the one defendant related to the who...
Tag this Judgment!Peary Lall Mozoomdar Vs. Komal Kishore Dassia
Court : Kolkata
Reported in : (1881)ILR6Cal30
Morris, J.1. We cannot pass the order asked for, authorizing by District Judge of Rungpore to try the appeal.2. It appears that the suit was tried by the Subordinate Judge of Rungpore. Before the appeal was made, the land which formed the subject-matter of the suit was transferred to the district of Pubna, and the District Court of Pubna, consequently, alone had jurisdiction to hear the appeal. The appeal, however, was inadvertently filed in the District Court of Rungpore, where, no doubt, it can more conveniently ' be tried. But we can, under Section 25 of the Code of Civil Procedure, direct the transfer of an appeal only from a Court having jurisdiction to receive and try it. We have no power to authorize any Court to assume jurisdiction to receive and hear an appeal contrary to the usual course prescribed by the Code. We, therefore, leave the appellant to take the necessary steps to place his appeal in the Pubna Court, and he can then renew his application to us, which is otherwise ...
Tag this Judgment!Ramkant Roy Chowdhry Vs. Kristodass Kundoo and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal142
Prinsep, J.1. (who, after stating the facts as above, continued):-The first objection is, that the suit is barred by limitation under Article 15 or Article 16, sch. ii, Act IX of 1871, because it has not been instituted within one year from the order of the Judge, dated 13th May 1876, or that of the Collector, dated 16th idem, rejecting the mortgagee's applications. We have, however, no doubt that these articles do not apply, inasmuch as in neither case was there any order passed adverse to the mortgagee's right after any adjudication thereof. The orders passed simply amounted to a declaration, that neither the Judge, nor the Collector, considered that he had jurisdiction to act as desired. The general law of limitation for suits to establish a right would, therefore, apply to the present suit, and under that law the suit is not barred.2. The main objection pressed on us by Mr. H. Bell, who appears as counsel for the appellants, is, that this suit is barred by Section 7, Act VIII of 18...
Tag this Judgment!Almas Banee and ors. Vs. Mahomed Ruja and ors.
Court : Kolkata
Reported in : (1881)ILR6Cal239
Morris, J.1. This is a case referred by the Sudder Munsif of Sudharam, under Section 617 of the Code of Civil Procedure, raising the question of the date of payment fixed in a bond as governing the application of the law of limitation.2. The date for payment of the money due under the bond is entered in it as the 30th Pous 1283. The month of Pous varies, sometimes containing twenty-nine and sometimes thirty days. In the year 1283 the month of Pous contained only twenty-nine days, and the 29th, or the last day of Pous, corresponded with the 12th January.3. The present suit, to realize the money due on this bond, was brought on the 13th of January 1880, and the point submitted to us is, whether the suit has been brought within three years from the date on which the money became payable.4. The Munsif states as his opinion, that 'the parties never intended that the day of repayment should be in the month of Magh. By '30th Pous' the parties, according to the custom of the country, evidently...
Tag this Judgment!Ajoodhya Pershad and ors. Vs. Gunga Pershad and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal249
Pontifex, J.1. We agree with the Court below that the plaint was insufficiently stamped under Article 17 of the Court Fees Act, Clause. 3.2. Preliminary objections were taken to the appeal, on the ground that the order of the lower Court was final under Section 12 of the Court Pees Act, which enacts, that 'every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.'3. But of Section 588 of the Civil Procedure Code, as it originally stood, Clause. (c)t provided that an order under Section 54, Clause. (b)--being such an order as the present is--should be appealable, thereby removing the finality declared by Section 12 of the Court Fees Act.4. A second preliminary objection taken was, that although by Section 588, Clause (b), an app...
Tag this Judgment!In Re: D. Cowie and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal70
Wilson, J.1. The insolvents in this case, Messrs. David Cowie and John Cowie, with Bazette Colvin, were the partners in the firm of Colvin, Cowie, and Co. This case was heard on the 8th, 9th, and 10th instants; and the question for decision is, whether the insolvents are entitled to their personal discharge.2. The firm is one of old standing. From the year 1869, the partners have been the three gentlemen I have named.3. Down to the year 1874, the firm carried on business as merchants, business in goods on commission, and business as bankers and agents.4. Between 1871 and 1874 they sustained heavy losses, in consequence of unsuccessful consignments of goods to Europe. At this time, Mr. David Cowie, the senior partner, was in Europe. In August 1874, he returned to Calcutta. The losses sustained during the period I have mentioned are stated by Mr. David Cowie to have amounted to Rs. 5,00,000. This amount afterwards resolved itself into three heads:-(i) a sum of about Rs. 2,00,000, which s...
Tag this Judgment!Ataoor Rohoman Vs. Joykishen Mookerjee and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal22
White, J.1. This is a second appeal against a decree of the lower Appellate Court, which rejected the appellants' appeal as being put of time.2. It is not disputed that the first appeal was barred, unless a certain order which was made by the Subordinate Judge of the 3rd of February 1879 ought to be treated as the final decree in the suit. On the other hand, if it ought to be so treated, the Full Bench case of Soudaminee Dossee v. Dheraj Mahtab Chahd (B. L. R., Sup. Vol., 585; S.C., 6 W. R., Mis Rule, 102) shows that limitation runs from the date of the order, in which case the appellants would not be barred.3. This order was made under the following circumstances:4. The Subordinate Judge, on the 28th July 1878, pronounced a decree in favour of the respondent (who was the plaintiff in the first Court) in respect of a portion of his claim. The appellants, who are two of the defendants in the first Court, applied to the Subordinate Judge by petition for a review of judgment on several gr...
Tag this Judgment!The Empress Vs. Allen and ors.
Court : Kolkata
Reported in : (1881)ILR6Cal83
Mr. Piffard1. The Provisions of Section 72 point out clearly the officers who are to have jurisdiction over European British subjects. The Magistrate in this case had no jurisdiction. [Jackson, J.-- Your clients have waived their privilege; they cannot now say that the Magistrate had no jurisdiction.] Section 72 does not confer a privilege which can be waived so as to give jurisdiction. Consent cannot give jurisdiction-Foy's case (1 Tay. and Bell, 219). [JACKSON, J.--That case was decided before the Criminal Procedure Code was passed. Does not Section 84 afford a complete answer to your present contention. ?] I submit not. The principle that consent cannot give jurisdiction is one that has governed the Courts for years. The Legislature has not abolished the principle; it has merely said, that if the claim is not made, the person charged ' shall be held to have waived his privilege as such British subject.' It has not denned the consequence of such waiver, nor said that waiver shall cre...
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