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Kurkut Shah Vs. Shumsher Ally
Court : Kolkata
Reported in : (1881)ILR6Cal236
Richard Garth, C.J.1. As Section 21 of Act XI of 1865 has not been repealed or affected by the Civil Procedure Code, 1877, I am of opinion that the provisions of that section are still in force with regard to applications for a new trial, and that they are not directly controlled in their operation by Section 624 of the Civil Procedure Code.2. That the two procedures (viz., the one for a new trial, and the other for review) are both still in force, has virtually been decided by Mr. Justice JACKSON and Mr. Justice Tottenham in the Small Cause Court Reference, Nos. 69 and 70 of 1879.3. At the same time, I think it right to add that, having regard to the nature of the question referred to us, in my opinion any Small Cause Court Judge, in dealing with applications for a new trial under Section 21, is bound to observe and respect the manifest intention of Section 624 which is indeed only an enactment by the Legislature of the rule which had been previously laid down by this Court as a guide...
Tag this Judgment!Laljee Sahoy Vs. Fakeer Chand and ors.
Court : Kolkata
Reported in : (1881)ILR6Cal135
Pontifex, J.1. This appears to us to be one of those fraudulent cases on the part of a Mitakshara father and son, which have led to the late fluctuating developments of Mitakshara law. The case stood over in consequence of a similar point, at the time it came on, being before a Pull Bench,-Luchmun Dass v. Giridhur Ghowdhry (I. L. R., 5 Cal. 855), and the argument was delayed till the decision of the Full Bench had been given. Now, I was a member of the Pull Bench on that occasion, and as I understand it, the decision given by the Full Bench in that case does not interfere with the opinions expressed in the judgment of myself and Mr. Justice McDonell in the case of Pursid Narain Singh v. Honooman Sahay (I. L. R., 5 Cal., 845) (which was one of the cases mentioned in the Reference to the Pull Bench), except that would seem, in consequence of the rulings of the Privy Council, we are bound to hold that the payment, even in the father's lifetime, of an antecedent debt due by him is a pious ...
Tag this Judgment!Kasheekishore Roy Chowdhry Vs. Alip Mundul and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal149
Prinsep, J.1. Mr. Bose has endeavoured to show that this suit does not fall within the terms of the case referred to the Pull Bench; and he argues, that an expression of opinion which goes beyond that case is an obiter dictum, and is not binding on this Division Bench.2. It appears to me, however, that the judgment of the Full Bench is directly in point, and we are bound to apply it to the present case. The case referred to the Pull Bench was thus stated: 'Whether the ijaradar of a co-sharer of an entire estate, who has for some time realized his rent separately in respect of his share, can sue to enhance the rent of that share separately without joining the other co-sharers of the tenure? 'The judgment of the Full Bench declared, 'that that question should be answered in the negative.' It also declared, that 'the Rent Law does not contemplate the enhancement of a part of the entire rent, and the enhancement of the rent of a separate share is inconsistent with the continuance of the le...
Tag this Judgment!Buldeo Doss Vs. Howe
Court : Kolkata
Reported in : (1881)ILR6Cal64
Richard Garth, C.J.1. I think that, under the circumstances, the defendants were justified in refusing delivery of the goods. It has been contended, that as the goods were ascertained, and the time for their delivery and for payment of the price had been postponed, the property in them had passed to the plaintiff (sections 78 of the Contract Act); and that, consequently, the defendants' only remedy was to resell them after notice to the buyer under Section 107 of the same Act. Now, that section is headed 'Re-sale,' and it provides under what circumstances the vendor of ascertained goods has a right to resell them. But that is not the vendor's only remedy; and I can see no reason why Section 55, which provides for the rescission of contracts in certain events, should not apply to the present case.2. We are bound, I think, to determine questions of this kind, so far as we can, by reference to the Contract Act, and not to English law; and Sections 51 to 58 appear to contain general provis...
Tag this Judgment!Mackillican Vs. the Compagnie Des Messageries Maritimes De France
Court : Kolkata
Reported in : (1881)ILR6Cal227
Richard Garth, C.J. and Pontifex, J.1. We think that the questions referred to us should be answered as follows:(i)-The defendants, being a French company, are certainly not common carriers in the ordinary English sense of the word.(ii)-We consider that the plaintiff was bound by the clauses and conditions on the back of the passage-ticket.2. Although he may not understand French, he was a man of business contracting with a French company, whose tickets he knew very well were written in the French language. He had ample time and means to get the ticket explained and translated to him before he went on board; and it very plainly disclosed upon the face of it that the conditions endorsed were those upon which the defendants agreed to carry him. We think, therefore, that he was bound by those conditions.3. The case of Henderson v. Stevenson (L. E., 2 Sc. App., 470) has been relied upon as showing, that if the plaintiff was not actually aware of the contents of the conditions, he could not...
Tag this Judgment!Noor Bux Kazi and ors. Vs. the Empress
Court : Kolkata
Reported in : (1881)ILR6Cal279
Richard Garth, C.J.1. (who, after stating the facts, proceeded to deal with the evidence against each prisoner individually, and with regard to the statement made by Daghu before the Committing Magistrate as affecting Noor Bux observed):2. The Judge also attaches some weight to what he calls the original confession made by one of the prisoners named Daghu (who has been convicted under Section 148, Penal Code) to the Committing Magistrate, in which he mentions Noor Bux Kazi as present. It is our duty to point out to the Judge that this statement of Daghu's, which we have read, is no sort of evidence against Noor Bux even under Section 30 of the Evidence Act, for it is not a confession; it does not amount to any admission by Daghu himself, that he was guilty in any degree of the offence charged; but it is simply an endeavour on his part to explain his own presence on the occasion in such a manner as to exculpate [283] himself. Any mention made by him in such a statement of other persons ...
Tag this Judgment!Samshere Khan and ors. Vs. the Empress
Court : Kolkata
Reported in : (1881)ILR6Cal154
White, J.1. This is an appeal against the conviction of the five appellants, named Samshere Khan, alias Sirdar, Abdul Rohoman Moonshee, Saheb Khan, Uasimuddi Meah, and Fakiroollah Khan, for murder committed in the course of a riot, for which offence they have been severally transported for life.2. The evidence extends to a very great, and in my opinion a very unnecessary, length. It is full of repetitions, and yet the inquiry in some important respects has not been as searching as it might have been. It is clear, however, that a very serious riot took place in a village called Latshailla on the morning of the 17th January of this year, which resulted in the wounding of one man and the death of another. Two of the shareholders of a portion of a share in the village, named Kurreem Sirdar and Dost Mahomed, having quarrelled about their share, sold each of them a fraction of his share to two rival zamindars, Khan Saheb and Dwarkanath Roy, with the object of enlisting two powerful neighbour...
Tag this Judgment!Monindro Bhoosun Biswas Vs. Shosheebhoosun Biswas and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal866
Wilson, J.1. Refused to order the applicant to pay the costs of the commission, or to order her to pay the estimated costs into Court, and ordered the commission to issue. Costs to be costs in the cause....
Tag this Judgment!Nubbi Buksh Vs. Chasni
Court : Kolkata
Reported in : (1881)ILR6Cal168
White, J.1. This is an appeal against an order of the Officiating Judge of Dacca, refusing an application, on behalf of Nubbi Buksh Bepari, to be declared an insolvent under Section 351 of the Code of Civil Procedure.2. A preliminary objection is taken, that the appeal does not lie : first, on the ground that the order being one of refusal is not made under Section 351; and secondly, because, if made under that section, no appeal lies against an order of refusal, but only against an order granting the application.3. Section 588, Clause 17, of the Code gives an appeal against an order under Section 351 in these words---'orders in insolvency matters under Section 351.' Now, as regards the first objection, I think that the order under appeal, although one of refusal, was made under Section 351. This is the only section under which the District Court can deal with an application by an insolvent judgment-debtor to be made an insolvent. Neither that section, nor any other section in the chap...
Tag this Judgment!Gobind Lall Seal and ors. Vs. Debendronath Mullick and ors.
Court : Kolkata
Reported in : (1881)ILR6Cal311
Pontifex, J.1. There are two questions to be considered in this:--1st was the house in dispute an absolute gift from Mutty Lall Seal (who died in 1854) to Shumbhoonath Mullick and 2nd, if it was not an absolute gift, conveying the property, are the plaintiffs barred by limitation from recovering the house ?2. With respect to the first question there is no direct or contemporaneous evidence that can be relied on; and it must, consequently, be determined by the conduct of the parties and the probabilities of the case.3. The title-deeds of the house remained in the possession of the Seals; the property continued to stand in their names; when Beng. Act VIII of 1876 was passed, the Seals were registered as proprietors; the Seals have all along paid the rates, taxes, and assessments payable in respect of the house; the Seals have all along done the repairs when requested by the Mullicks; and when some five or six years ago, the defendants desired a poojah-dalan to be built, on account of the...
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