Copyright
Chas. A. Stevens & Bros.

The Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) online

. (page 10 of 155)
Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 10 of 155)
Font size
QR-code for this ebook


proceeded. S. 206 of the Civil Procedure Code empowers a Court of
its own motion to amend its decree, and the mere fact that one of the
parties has made an application asking the Court to exercise that power,
will not, in my opinion, render the action of the Court subject to the rule
of limitation."

To the rulings which I then cited I may now add the case of manic-
kya Moyeev. Boroda Prosad Mookerjee (8) where McDonell and Field, JJ.,
concurred in holding that the discretionary power of directing a person to
be made a respondent conferred on the appellate Court by s. 559
of the Civil Procedure Code, is not limited by any provision of
the Limitation Act, XV of 1877. The question of principle was
however, more fully discussed by Wilson, J., in The Oriental Bank
Corporation v. J. A. Charriol (9) where that learned [85] Judge made

(1) 8 A.W.N. (1888) 68. (2) 8 A. 519. (3) 4 A. 23. (4) 7 A, 276. (5)70.333
(6) 6 B. 586. (7) 4 M. 172. (8) 9 C. 355, (9) 12 0. 642.

52



YII]



SOHNA V. KHALAK SINGH



13 All. 86



sections upon Courts,
are to be exercised in
so is made apparent
view would, I think,



an analysis drawing a distinction between those provisions of the
Oivil Procedure Code which enable parties, to take action for pur-
poses of the array of parties, and those provisions which enable a Court
to secure that any particular cause is properly arrayed with reference to
the parties concerned. I fully agree in all that was said by Wilson. J., in
that case as to the distinction which led him to the conclusion that no
question of limitation can arise with respect to the Court's power to make
an order adding a party defendant to a suit. The learned Judge, after
showing that such powers vested in the Court as distinguished from the
action of the parties, went on to say :

" For the exercise of these powers and those conferred by other
no period of limitation is provided, and they
my opinion whenever the necessity for doing
so long as the case is sub judice. Any other
lead to disastrous consequences. It was sug-
gested in the present case that though the Court might act at any time
of its own motion, it could not act on the application of any person if tha
right of that person to claim relief was barred. I do not think that is so.
I do not see how the fact of any person making an application, whether
in time or out of time, can take away from the Court s, power given to it
to act at any time either upon or without application."

This view of the law was accepted by Garth, C.J., and I accept it
also, though I cannot help feeling that the ratio so far as it relates to the
matter of principle is opposed to the Division Bench rulings of this Court
in Eanjit Singh v. Sheo Prasad Bam (1), Gaya Prasad v. Sikri Prasad (2)
and Jamna v. Ibrahim (3). I bold therefore that the order passed by me
on the 15th March 1889, directing that Musammat Batasia might be made
a party respondent to this appeal, was not subject to any objection upon
the ground of the rules of limitation, and therefore I disallow the prelimi-
nary objection upon this point.

[86] I now pass on to the third preliminary objection raised by Mr.
Madho Prasad against the appeal. The learned pleader, relying upon a ruling
of my brethren Straight and Tyrrell in Atma Ram v. Balkishen (4), argues
that because in the cause as it stood arrayed in the Court below both
Musammat Sohna, appellant, and Musammat Batasia, were arrayed as
opposite parties to the application of Khalak Singh, therefore, as a matter
of procedure, Musammat Sohna, the appellant, and Musammat Batasia,
the respondent, could not be arrayed on opposite sides in this appeal. So
far as this point is concerned I may say that the ruling of my learned
brethren is not in conformity with the conclusions arrived at by another
Division Bench of this Court in a case which I have already cited, namely,
Eanjit Singh v. Sheo Prasad Ram (1), where the power of the appellate
Court to transpose the appeal on opposite sides was distinctly recognized,
though that ruling took no notice of s. 559 of the Civil Procedure Code.

Under this state of things I think I must arrive at my own conclu-
sions upon the question of law. I have already said enough about the
question of limitation to preclude my being understood to hold that either
s. 5 or s. 22 of the Limitation Act has any application to a case such as this.
The matter really rests solely and entirely upon the interpretation to be
placed upon a specific provision of the statute law, namely, s. 599 of the
Code of Civil Procedure. In interpreting that section as in interpreting
others, where in the Civil Procedure Code general terms are employed,



1889

MAY 20.

APPEL-
LATE

CIVIL.

ISA. 78 =

11 A.W.N.

(1890) 1.



(1) 2 A. 487,



(2) 4 A. 23,



(3) 8 A.W.N. (1888) 58.

53



(4) 5 A. 966.



13 All. 87 INDIAN DECISIONS, NEW SERIES [Vol.

' 1889 I have uniformly adhered to the view that the words of the statute
MAY 20. when perfectly clear and devoid of qualifications, should not be subject
to any qualifications which the Legislature itself has not thought fit to
APPEL- express. In s. 559 of the Code there is no qualification rendering
LATE it illegal for an appellate Court to make any party to the " suit" a
CIVIL, pa^y to the appeal as respondent. If there is any restriction, it con-
sists of not being able to exercise the power of making a party
13 A. 78=- to the " suit" an appellant as distinguished from a respondent. An-
il A.W.N- alogical reason for such a restriction is to be found in the second
(1890) 1. [87] paragraph of s. 32 of the Code, which lays down that no person
shall be added as a plaintiff without his consent.

The case here is not one of making a person a party appellent, but
only one in which Musammat Batasia has been made party respondent and
I hold that s. 559 of the Civil Procedure Code gave ample power to justify
an order whereby Musammat Batasia was made respondent to this appeal
where her interests are opposed to those of the appellant.

The result of these views is that all the three preliminary objections
raised in this appeal by Mr. Madho Prasad on behalf of the respondent
Musammat Batasia fail, and I have now to consider the merits of the case.

Upon the merits of the case I am of opinion that the learned
Judge of the lower Court has not fully gone into the facts and cir-
cumstances of the case, and has limited his adjudication as to the
rights of Musammat Batasia, the respondent, before me, to the cir-
cumstance of her relative position with reference to the minor Musammat
Bakhtawari. I do not say that the circumstance of propinquity of rela-
tionship is not a circumstance to be taken into account for the purpose of
deciding disputes, any more than I would say that the rules of Hindu law
which indicate the relative position of the parties with reference to the
rights as to property should not be taken 'into account. But I think the
learned Judge of the Court below has dealt with the matter entirely
with reference to the pedigree which his judgment contains, and with re-
ference entirely to the question of propinquity of relationship, and he has
not dealt with any other matter as to fitness which requires consideration
under s. 7 of Act XL of 1858.

It seems to me that although the enactment is far from being com-
plete so as to indicate the policy of the Legislature in framing the enact-
ment, it contains enough to indicate that the grant of certificate of
guardianship should not proceed upon mere questions of relationship and
that the Court is in each case required to consider the circumstances thereof
and to consult the interests of [88] the minor in connection with the
appointment of guardians, and issue of certificates under the enactment.
It does not necessarily follow that the nearest relative is the best
guardian to the minor, and mere propinquity of relationship would not
therefore entitle the person ipso facto to be entitled to hold the certificate
under the Act. This view I think is apparent from the whole enactment,
buc the case has not been regarded by the lower Court in this light at all.
It misunderstood my judgment whereby the case was remanded on the
former occasion by interpreting it to mean that I laid down the rule that
mere propinquity of relationship was quite enough to satisfy the require-
ments of the statute

In the present case there is a further difficulty than the one which
I have already indicated, arising from the argument addressed to me
by Mr. Moti Lai on behalf of the appellant. The difficulty is that



11] ABDUL MAJID V. MUHAMMAD FAIZULLAH 13 All. 89

the learned Judge of the lower Courb has mixed up two duties which 1889

he had to perform under the statute, one being the appointment of MAY 20.

the guardian of the person of the minor Musammat Bakhtawari under

s. 11 of the Act, read with s. 27, and the other being the duty of appointing APPEL-

some one under s. 7 to manage the property of which she, the minor, was LATE

the owner. These two aspects of the case have not been clearly kept in CIVIL.

view by the lower Court, and I think Mr. Moti Lai is entirely within his

right when he contends that the appellant Musammat Sohna migho *3 A. 78 =

possibly be a batter guardian of both the person and property of the 1J A.W.H.

minor Bakhtawari. (1890) 1.

I regret therefore that I find it necessary again to remand the case by
setting aside the order of the lower Court, and to require that Court to
deal with the questions raised with reference to the observations which
I have made.

I decree the appeal, and sotting aside the decree of the lower Court,
remand the case under s. 562 of the Civil Procedure Code, read with
s. 647 of the Code, and direct that costs will abide the result.

Cause remanded.



13 A. 89=10 A.W.N. (1890) 186.

[89] APPELLATE CIVIL.

Before Sir John Edge, Kt. t Chief Justice, and Mr. Justice Brodhurst.



ABUL MAJID (Decree-holder) v. MUHAMMAD FAIZULLAH AND
ANOTHER (Judgment-debtors).* [4th June, 1890.]

Execution of decree Act XV of 1877 (Limitation Act),sch.ii. art. 179 (4) "Step-in-
aid of execution" Application by transieree of decree for sale of hypothecated pro-
perty Non-registralim of deed of assignment Civil Procedure Code. s. 232 Act
III of 1877 (Registration Act), ss. 3, 17, 47, 49 Effest of subsequent registration.

On the 13th November 1386, the assignee of a decree for sale of hypothecated
properly applied, under s. 232 of the Civil Procedure Code, for execution of the
decree, bat, objection being raised, that the deed of assignment had not been
registered, subsequently applied for the return of the deed that it might be
registered, and it was returned accordingly. The deed was afterwards duly regis-
tered. The next application for execution of tha decree was made on the 25th
April 1888.

Held (i) that the deed of assignment was not a document which, comprised
immoveable property within the meaning of s. 49 of the Registration Act (III of
1877), a decree for sale not being immoveable property as defined in a. 3 ;

(ii) that consequently, although the assignee might not, under the latter
portion of e. 49, use the deed for the purpose of proving his title, there was
no provision in the Act saying that ho should not take title, under the deed ;

(iii; that the position of the assignee when he made his application on the 13th
November 1886, was that be was unable to prove that there was a title by assign-
ment in himself ;

(iv) that the subsequent registration cured the absence of registration on the
13th November 1R36, and, under B. 47 of the Registration Act, the document
thereupon had full effect, and related back to its execution ; .



* Second Appeal No. 1136 of 1889 from a decree of A. M. Markham, Esq.,
District Judge of Aligarb, dated 2nd August 1889, confirming a decree of Baboo Sheo
Bahai, Hunsif of Kasganj, dated the 15th March 1889.

55



13 All. 90



INDIAN DECISIONS, NEW SERIES



[Vol.



1890

JUNE 4.

APPEL-
LATE
CIVIL.

13 A. 189 =

10 A.W.N.
(1800) 186.



(v) that the application of the 13th November 1886 was a step-in-aid of exe-
cution of the decree within the meaning of art. 179 (4) of sch. ii of the Limitation
Act (XV of 1877), and that the application of the 25tb April 1888, was within time.

[F., 34 B. 68 (71) = 11 Bom. L.R. 1281 (12841 = 4 Ind. Gas. 582 ; Appl., 1 Tnd Gas. 57
(60) ;R., 26 A, 603 = 24 A.W.N. 148 ; 30 A. 233 (240)= A.W.N. (1908) 99 = 5
A.L.J. 607 ; 13 C.W.N. 533 = 9 C.L.J. 443 ; 18 Ind. Gas. 492 (493); 190
P.L.E. (19051 = 1 P.R. (1906).]

THE facts of this case appear from the judgment of the Court.

Babu Jogindro Nath Ghaudhri for the appellant.

Munshi Madho Prasad and Bahu Raj endro Nath for the respondents.

JUDGMENT.

EDGE, C.J., and BRODEURST, J. This appeal arose out of proceed-
ings in execution. The question here is, whether an application [90]
which was made on the 25th April, 1888, was made within time having
regard to art. 179, sch. ii of the Limitation Act. That application was
made by an assignee of a decree-bolder, to whom the original decree-holder
has assigned the decree and all benefits arising thereunder. That assign-
ment was made on the 16th September 1886, and on the 13bb November
1886, the assignee, appellant here, applied under s. 232 of the Code of
Civil Procedure to have bis name substituted and for execution. Notices
were issued, and on the 30th November 1886, the original decree-holder
appearned and admitted that he had assigned the decree to Abdul Majid, the
assignee. On the 10th January 1887, the judgment-debtor raised objec-
tions on the ground that the deed of assignment had not been registered, and
on the llth February 1887, Abdul Majid, the assignee, through his vakil,
applied to the Court for an adjournment of his application, that it might
stand over for a fortnight, and that the deed of assignment which was on the
file might be returned to him in order that it might be registered. On the
same day the Munsif ordered the deed to be returned, and passed an order
to the effect that the case may be struck off for the present. The deed of
Abdul Majid was duly registered after it had been returned by the Munsif.
Now, if the application of the 13th November 1886, was a step-in- aid of
execution or can be treated as such, the present application of the 25th
April 1888, has been made within time. Mr. Rajendro Nath, for the
respondents, here judgment-debtors, has contended that Abdul Majid had no
title on the 13th November 1886, aa assignee, and that the application which
was made on that day could not be treated as made by an assignee of the
decree-holder, and, as it was not by the original decree-holder himself, he
contends there was no step-in-paid of execution on the 13th Novemberl886,
within the meaning of art. 179, sch. ii of the Limitation Act. He has
cited several authorities. Those authorities are as follow: Gopal Narayan v.
Trimbak Sadashiv (1), Koob-Lal Chotvdhry v' Nitty unand Singh (2), Ulfa-
tunnisa v. Hosain Khan (3), Eaju Balu v. Krishnaray Ram Chandra (4),
Mattongeney Dossee [91] v. Ram Naraian Sadkhan (5),Martin v. Sheo Ram
Lai (6). It appears to us that those authorities are wide of the question we
have got to decide here. Those authorities show that a document which
must be registered under the Registration Act cannot, until it is registered,
be given in evidence so as to affect immoveable property. Being carefully
looked at, those authorities appear to decide no more. Now it appears to us
that in order to support Mr. Rajendro Nath'a contention, that is, that the
assignee on the 13th November 1886 had no title in fact as assignee, it would



(1) 1 B. 267.
(4) 2 B. 273.



(2) 9 C. 839.
(5)4 G. 83.



(3) 9 0. 520.
(6) 4 A. 232.



56



ABDUL MAJ1D 1). MUHAMMAD PAIZULLAH



13 All. 92



be necessary to hold that this deed of assignment was a document which
comprised immoveable property. If it did comprise immoveable property,
there is no doubt that being unregistered on the 13th November, 1886, it
came within the earlier part of s. 49 of the Registration Act, which says
" No document required by s. 17 to be registered shall affect immoveable
property comprised therein." What was comprised in the document in
question was an assignment of a decree which had been passed on an
hypothecation bond, which decree could have been enforced by bringing
an immoveable property which was comprised in the bond to sale. It
would in our opinion be straining the language to hold that a decree for
sale on a hypothecation bond was immoveable property ; certainly it would
not appear to be immoveable property as immoveable property is defined
in s. 3 of the Registration Act. If this document was not a document
which comprised immoveable property within the meaning of s. 49
of the Registration Act, we cannot see any provision in that Act
which says that the assignee should not take title under it. It is quite
another question whether he could use it for the purpose of proving his
title. The distinction may appear a fine one, but we must remember that
the Registration Act prescribes a penalty for non-registration and cuts down
the free action of the parties ; therefore we ought not to construe it so as
to cut down the action of the parties further than the wording of the Act
compels us to do. The provision in the latter portion of s. 49, namely, that
a document such as this which requires to be registered under s. 17 shall not
[92] be received as evidence of a transaction affecting immoveable pro-
perty, appears to us to apply. In effect the object which the Legislature
had in view in passing the Act was to make registration' a condition
precedent in a case like this, not to the existence of the title in an
assignee, but to the proof that such title existed. In our opinion the
document having been subsequently duly registered, it had full affect and
related back to its execution : that appears to be the effect of s. 47, and
the mere fact that it was not registered on the 13th November, 1886, was
cured by the subsequent registration. As we regard the position of the
parties, it was this ; the assignee, in fact, of the decree when he made his
application on the 13th November, 1886, was unable to prove that there
was a title by assignment in himself. It was a case of failure of evidence,
and we consider that the application he made on the llth February, 1887,
was a reasonable one, and was not an application in any sense to with-
draw bis application of the 13th November, 1886. We think that the
Munsif on the llth February, 1887, did not treat Abdul Majid's applica-
tion of that date an application to withdraw. The fair meaning of his
order was that the case might stand over for the present, and not thafc
.be dismissed the application. In the case of Ganapat Pandurang v. Adarji
Dadabhai (1) an adjournment was allowed to a party to obtain registra-
tion of a deed under which that party claimed. In conclusion we are
of opinion that the application of the 13th November, 1886, was a
step-in-aid of execution, and that the application of 25th April, 1888,
was within time. The decrees in the Court below will be set aside, and
the case will be remanded to the first Court, which will reinstate the
application of the 25th April, 1888, and proceed to dispose of ib accord-
ing to law. The appellant here will have the costs here and hitherto
below.

Cause remanded.



1890

JUMB 4.

APPEL-
LATE
CIVIL.

13 A.89 =
10 A-.N.
(1890) 186,



A VII-8



(1) 3 8. 312.
57



13 All. 93 INDIAN DECISIONS, NEW SERIES [Yol,

18go 13 A, 93 (P.G ) = 5 Bar. F.G.J. 638 = 7 I.A. 199.

JULY 5. [93] PRIVY COUNCIL.

PRIVF. PRESENT :

COUNCIL. Lord Watson, Sir B. Peacock and Sir B. Couch.

13 A. 93 [Oft appeal from the High Court for the North-Western Provinces,]
(P.O.)-

5 Sap. P.C.J. J N TnE MATTBR O F F. W. QUARRY. [5fch July, 1890.]

638 = 17 I.A. ActXVIIl of 1879, Legal Practitioners Act, s. I'd,

199

A pleader's professional misconduct having amounted to " reasonable cause,"

within the meaning of s. 13 of the Legal Practitioners Act, XVIII of 1879, for
suspending him from practice, their Lordships declined to interfere with the
decision of the High Court as to the punishment, it not being clearly shown
that the quantum awarded was unreasonable and excessive,

[R., 29 C. 890 (F.B.) = 6C.W.N. 556 : 34 M. 29 (37) = 8 M.L.J. 22 (27) = 6 Ind.
Gas. 313 = M.W.N. (1910) 163 = 11 Cr.LJ. 310 = 20 M.L J. 500 (509).]

APPEAL from an order (3rd December 1889) of the High Court.

The appellant, who in August, 1871, had obtained a certificate under
the Pleaders Act, XX of 1865 and had practised as a pleader at Mussorie
for some years, had been professionally concerned on behalf of the Delhi
and London Bank, through their agent at that place, until the latter had
ceased to employ him. After his employment by the Bank had ceased, a
correspondence commenced between him and a suitor against whom the
Bank had taken proceedings to recover a debt. It was alleged in the
Court below that this correspondence showed unprofessional conduct on
his part. The result was his suspension from practice for twelve months
under s. 13 of the Legal Practitioners' Act, XVIII of 1879.

Mr. J. H. A. Branson, for the appellant, argued that the correspond-
ence was open to a construction more favourable to him than that which
the High Court had placed upon it. Even if that construction was correct,
the sentence of suspension was in excess of what the circumstances
required.

Their Lordships' judgment was delivered by LORD WATSON.

JUDGMENT.

LORD WATSON. The appellant, Mr. F. W. Quarry, was heard last
Saturday on an application to stay the execution of an order of the High
Court of the North- Western Provinces pending an appeal at his instance,
and their Lordships on that occasion directed the petition to stand
over, and allowed the appellant to be heard to-day on the merits of his
appeal.

[94] The letters produced appear to their Lordships to afford ample
evidence, 'under the hand of the appellant, that, in his professional capacity,
he was guilty of grave improprieties which the Court could not overlook
when the matter was regularly brought under its notice. Such conduct,
in the opinion of their Lordships, amounts to "reasonable cause" for
suspending a certificated pleader within the meaning of s. 13 of the Act
XVIII of 1879.

That being so, the only question which remains for consideration is,
whether the learned Judges of the High Court have erred in visiting the
offence with twelve months' suspension from office. It must be borne in
mind that the Court which awarded that penalty were in a much better

58



YII] PIEBHU NABAIN SINGH V. SITA RAM 13 All. 95

position than this Board to estimate the degree of punishment which, in 1890
the whole -circumstances of the case, and in the interests of the profes- JULYS.
sion and of the public, ought to follow such misconduct on the part of one
of its pleaders. Their Lordships cannot, in a case like the present, PRIVY
interfere with the decision of the Court below unless it is clearly shown COUNCIL,
that the quantum of punishment was unreasonable and excessive. Not-
withstanding the able and temperate argument of Mr. Branson, they l8 A< *
are unable to come to that conclusion, and they will accordingly humbly (".)=
advise Her Majesty that the appeal ought to be dismissed.

Solicitors for the appellant : Messrs. W. Carpenter and Son. 688 = 17 I. A.

199
Appeal dismissed.



13 A. 94 = 10 A.W.N. (1890) 231.

CIVIL BEFEBENCE.
Before Sir John Edge, Kt., Chief Justice.



PIRBHU NAKAIN SINGH (Plaintiff) v. SITA BAM AND OTHERS
(Defendants)* [10th July, 1890.]

Court-fee Mortgagee Redemption Decree for redemption conditional on payment of a
certain sum Appeal by mortgagor Court- fee payable on memorandum of appeal
Act VII of 1870 (Court Fees Act), s. 7, ch. ix.

Where a mortgagor sues for redemption on the allegation that the mortgage
debt ha* been satisfied, and a decree for redemption is passed on payment of a
certain [95] amount and the mortgagor appeals against the amount he is ordered
to pay, the court-fee payable on the memorandum of appeal must, under a. 7,
ol. ix of Act VII of 1870, (Court-fees Act), be computed according to the princi-
pal money expressed to be secured by the instrument or mortgage, and not
according to the balance which the mortgagor alleges U> be due.

Semble. If the decree had allowed redemption on payment of a certain sum,
and the defendant mortgagee was appealing on the ground that the amount due
was greater than that sum, the court-fee should be calculated on the difference



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 10 of 155)