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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 103 of 155)
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deposition of the Civil Surgeon. The Sessions Judge being of opinion that
Mulua's evidence as to the second robberyandthe murder was false evidence,
revoked the tender of pardon and put Mulua back from the witness-box
into the dock and proceeded with the trial as against him and the other
three accused. Whether or not that proceeding was illegal, it is quite clear
to our minds chat it might most seriously prejudice the defence of a man
who was taken out of the dock in the middle of a trial to give evidence
upon a tender of pardon, to put him back into the dock after his evidence
had been taken and to proceed to try him as if the tender had never been
made. It would be most difficult for a man placed in such circum-
stances to deal with the evidence or to defend himself and put forward any
points which might be in his favour with any effect. It is very doubtful
to our minds whether Mulua having given true evidence with respect to
the charge relating to the first robbery was not entitled to the benefit of the
pardon with respect to that charge. That charge as a criminal charge
was quite distinct from the charges as to which the Sessions Judge consi-
dered Mulua's evidence to be false. In our opinion, where a man has
given evidence upon the tender of pardon, and where that evidence has been
false evidence or evidence in which he has wilfully concealed something
essential, he ought not to be put back into the dock at once and tried, but
the trial against him on the original charge ought to be a subsequent
proceeding. Section 339 is not very clear in its wording, but it says
that such person " may be tried for the offence in respect of which the
pardon was so tendered, &c" and that rather points, in our opinion,
to the trial of such person not being merely a continuation of the
trial at which he gave the false evidence, but a trial, so far as he is
concerned, de novo. We have had great difficulty in making up our
minrls as to what would be the proper course to take with regard
[508] to Mulua, and we think that there being a doubt as to the legality
of the procedure adopted with regard to him we should act on that doubt
and set aside the convictions and sentences in his case and direct him to
be re-tried in the Court of the Sessions Judge according to law. The Sessions
Judge, should Mulua plead his tender of pardon as an answer to the charge
relating to the first robbery, will have carefully to consider such plea. The
convictions and sentences relating to Mulua are accordingly set aside,
and he is directed to be re-tried. As to the other men, they are proved by
evidence whioh leaves no doubt in our mind, to have been present on the
road that night on the occasion of the first robbery, and to have taken parfc

693



14 All. 509 INDIAN DECISIONS, NEW SERIES

1892 in it, and to have been present at and to have taken part in the second
MAY 6. robbery. We believe the evidence for the prosecution that Kamraj, Binda
and Suraj Pal did strike the cbaukidar with their lathis, and that they were
EL " active participators in the murder. We say nothing as to whether Mulua
LATE took a part in that murder or not, as he will have to be re-tried ; but it must
CRIMINAL, not be assumed from our refusing to express an opinion as to the witnesses
11 l~so8- a amsfc Mulua, that we doubt the correctness of their evidence. Those
' ~ men who killed the cbaukidar were engaged in the commission of a very
' ' ' serious offence, viz., the offence of robbery. He was acting in the
8< execution of his duty when he ran up, and they turned on him and brutally
murdered him, In the opinion which we have formed, we have not used
the confession of Mulua before the Magistrate or his evidence at the
Sessions trial against any of these three men, indeed his evidence at the
Sessions trial would not appear to have been admissible against them,
because, as we infer from the record, the tender of the pardon was with-
drawn and be was put into the dock as a prisoner before the other accused
had had an opportunity of cross-examining him. We have, however,
been asked by Mr. Dillon to consider Mulua's evidence relating to the
murder so fas as it is in favour of Binda and Kamraj. No doubt Mulua
did put the whole murder, so to speak, upon the shoulders of Suraj Pal,
but we prefer to follow the evidence of the other witnesses in the case
which shows that Binda, Kamraj and Suraj Pal all took an active part in
the murder. The evidence for the defence proves [509] nothing so far
as Binda, Kamraj and Suraj Pal are concerned.

We dismiss the appeals of Binda, Kamraj and Suraj Pal, and we
confirm in each case the conviction of murder and the sentence of death,
and we direct that in each case the death sentence be carried out.

Appeals dismissed.



ir A, 509 = 12 A.W.N. (1892) 98.

APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr, Justice Blair.



JHINKA (Defendant) v. BALDEO SAHAI (Plaintiff)* [llth May, 1892.J

Mortgage Suit for tale ty moitgagee against am tioti purchaser t mortgagee having
accepted part of the proceeds, if the former sale Act VIII of 1859, s. 271 Estoppel.

On the 10th of February 1872, one 8, R. mortgaged to the plaintiff an
undefined one biswa share out of three biswas owned by him. On the aOth
of March 1877, J. P. and G. P. brought to sale in execution of money
decree against 8. R. two out of those three biswas, which two biswas were
purchased by the defendant. The sale was confirmed on the 23rd of April 1877.
Out of the proceeds of that, sale, Rs. 1,46414-9 were appropriated by the
plaintiff in part satisfaction of his mortgage. On the 16th of April 1877, the
plaintiff sued the auction-purchaser for sale of one biswa in satisfaction of bis
mortgage. Btld that even if it could be shown (which it could not) that the
particular biewa mortgaged to the plaintiff was one of those which had passed
into the defendant's possession, the plaintiff was estopped by his previous
conduct from suing to bring it to sale under his mortgage.

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

* Second Appeal No. 185 of 1890, from a decree of Maulvi Abdul Qiiyum Khan,
Subordinate Judge of Bareilly, dated the 30th October 1889, confirming a decree of Babu
Madhub Chaudet Eanerji, Munsif of Bareilly, dated the 7th April 1889.

694



YII]



JH1NKA V. BALDEO SAHAI



14 All. 511



Mr. Amir-ud-din, for the appellant.

Babu Jogindro Nath Chaudhri, for the repondent.

JUDGMENT.

EDGE, C. J., and BLAIR, J. This case is a simple one. The suit is
for a declaration that a one-biswa share purchased by the defendant,
Musammat Jhinka, at an auction sale under a decree in 1877 is liable to
be brought to sale and sold under a mortgage held by [510] the plaintiff.
The plaintiff got a decree on his mortgage and sought to bring this share
to sale. The defendant Musammat Jhinka, who is the appellant in this
appeal, tiled objections, and her objections were allowed ; hence this suit.
One Sita Earn, who was a defendant to the suit, but is not a party to the
appeal, was the owner of three biswa shares. On the lObh of February
1872, he mortgaged one biswa share without defining it or indicating it in
any way to the plaintiff. On that mortgage the plaintiff brought a suit on
the 16th of April 1877, and obtained a decree on the 10th of May 1877. It
was a decree for enforcement of his lien. The decree was as indefinite as the
mortgage as to the biswa share against which it might be enforced. Now,
one Jwala Praadand one GangaPrasad obtained each of them a decree, each
decree being apparently a money-decree, against Sifca Ram. These decrees
were put into execution and two biswas out of the three biswas of Sita Ram
were sold at auciion sale under these decrees and purchased by the defend-
ant-appellant forRg. 2,475. That sale took place on the 20bh of March 1877.
It was confirmed on the 23rd of April 1877. The proceeds of that sale
were applied in the first instance to discharging the moneys due to the de-
cree-holders under whose decrees the two biswas were sold, and the balance
was applied in this way ; part of it in payment to one Shib Dat, an exe-
cution creditor, and Rs. 1,464-14-9 in payment of the 13th of June 1877
to the plaintiff. The two biswas which were sold to the defendant-appel-
lant at the auction-sale of the 20uh of March 1877 were specifically ear-
marked and there can be no doubt as to their identity. The plaintiff now
seeks to bring to sale one of those two biswas in execution of his decree,
in default of his demand for Rs. 650 and costs being satisfied. The ques-
tion is whether the biswa in suit is the biswa mortgaged to the plaintiff on
the 10th of February 1872. The late Subordinate Judge of Bareilly found
that it was. He arrived at that conclusion from a consideration of certain
transactions to which the defendant here was no party. He came to the
conclusion that the biswa in question was the biswa mortgaged to the
plaintiff, because under another mortgage one biswa of the three biswas
was mortgaged to Bansidhar. The mortgage in each case was absolutely
indefinite in the sense that it did not define or [511] specify the biswa.
The biswa in suit might just as well, from anything that can be inferred
from that evidence, have been the biswa mortgaged to Bansidhar as the
biswa mortgaged to the plaintiff ; but, indeed, it appears to us that it was
not open to the plaintiff to allege that the biswa in suit was the biswa
which was mortgaged to him. At the time when the plaintiff received
out of the proceeds of the sale to the defendant the Rs. 1,464-14-9, Act
No. VIII of 1859 was in force. S. 271 of that Act is the section which
must be applied to this case. The Munsif apparently thought that s. 295
of the present Code of Civil Procedure was the section which was to be
regarded in ascertaining what where the rights of the parties. He did
not pay attention to the date of the transaction in 1877. Now it appears
to us that if in 1877 the plaintiff desired to assume the position that either
of the two biswas sold to the defendant was sold subject to his mortgage,

695



1892
MAT 11.

APPEL-
LATE
CIVIL.

14 A. 509 =

12 A.W.N,
(1892) 98.



All. 512



[Yol.



1892
MAY 11.

APPEL-
LATE
OIVIL.

14 A. 509 =
12A.W.N.
(1892) 98,



he was not entitled to obtain from the Court of payment to him of any
portion of the proceeds of the sale. That section provides for distribution
of sale-proceeds, and it contains this proviso: "When any property is sold
subject to a mortgage the mortgagee shall not ba entitled to share in any
surplus arising from such sale." As the law stood then that was an
equitable and just provision, and undoubtedly it was intended to prevent
the occurrence of such a case as this ; if indeed the plaintiff's mortgage
covered either of the biswas sold. Here the plaintiff in 1877 went into
Court and claimed the surplus of the proceeds of the sale of the two biswas,
and, having got the surplus of the sale into his pocket, he now turns round
and says that the defendant whose money has been lying in the plaintiff's
pocket all these years obtained nothing as against him, and that he, the
plaintiff, was entitled to bring this property to sale in discharge of his
mortgage, so that he would get part payment of the mortgage debt out of
the innocent defendant, and if his case be correct, he would the next day
be entitled to sell in satisfaction of his mortgage the property which the
defendant had paid for the day before. In our opinion, the plaintiff
having taken Es. 1, 464-14-9 on the 13th of June 1877, is not now entitled
to say that either of the biswas thus sold was the one undefined and
unear-marked biswa mortgage to him [512] in 1872. Ss. 270 and 271
of Act No. VIII of 1859 were not as wide or as carefully drafted as, is
s. 295 of the present Act. The plaintiff's suit ought to have been dismissed
on two grounds, that he was estopped from alleging that the biswa in
suit was the biswa mortgaged to him, and that even if there had been no
estoppel he had failed to establish the identity of the two biswas. The
suit as against Musammat Jhinka will stand dismissed with costs in all
Courts, this appeal being allowed.

Appeal decreed.



14 A. 512 = 12 A. W.N (1892)80.

APPELLATE CIVIL.
Before Sir John Edge, Kt.< Chief Justice,and Mr. Justice Blair.



MOHAN LAL AND ANOTHER (Defendants) v. BILASO (Plaintiff).*
[16th May, 1892.]

Civil Procedure Code, s. 43 Splitting remedies Suit for declaration of title and for
possession Subsequent sui 1 , for possession.

Where a previous suit for A declaration of title to immoveable property has
been dismissed on the ground that, the plaintiff was not in possession at the time
of filing the suit, a subsequent suit on the same title for recovery of possession of
the land is not barred under e, 43 of tho Code of Oivil Procedure, jibunti Nath
Khan v. Shib Nath Chuckirbutty (I) followed.

F., 34 A. 172 (183) = 9 A.L.J. 111 = 13 Ind. Gas. 154 ; 6 Ind. Gas. 926 (927) = 6 N.L.R.
81 (82) = 8 Ind. Gas. 9 (11) ; R., 17 A, 174 (177) J 7 C,P L.R. 63 ; 14 Ind.
Gas. 55.]

THE facts of this case are as follows : On the 13th of September
1878, one Dodraj made a disposition of his property by way of a deed of



Second Appeal, No 223 of 1890, from a decree of T.R. Redtern, Esq.. District
Judge of Bareilly, dated the 27th November 1889, confirming a decree of Maulvi Abdul
Qaiyum Khan, Subordinate Judge of Bareilly, dated the 12th June 1889.

(1) 80. 819.

696



YII]



MOHAN LAL V. BILASO



All. 513



gift, or deed of partition, in favour of his daughter-in-law, the plaintiff,
Musammat Bilaso, and of Mohan Lai, his grandson, and Vidya Earn, his
great-grandson, who were defendants in the suit. Under this deed the
plaintiff became entitled to a share in certain property known as the
" White Mahal " of mauza Barkhera, and certain other land known as
" Talayawali " land. On the 8th of September 1888, the plaintiff institut-
ed a suit in the Court of the Subordinate Judge in which she claimed a
declaration of her rights in respect of mauza Barkhera, but that suit was
dismissed on the ground that her possession over the land in question
was not proved. On the 5th of March 1889 the plaintiff instituted a
second suit, on this occasion for partition and separate possession of her
share in mauza Barkhera and also in the " Talayawali " land. The suit
was resisted [513] by the defendants, the grandson and great-grandson of
the donor, on the ground, amongst others, that the claim was barred by
s. 43 of the Code of Civil Procedure. They also impugned the validity of
the deed of gift upon which the claim was based. The Subordinate Judge
decreed the plaintiff's claim in full. The defendants then appealed to the
District Judge, who agreeing with the lower Court that the deed of gift
was proved, and that there was no bar to the suit by reason of s. 43 of the
Code of Civil Procedure, dismissed the appeal. The defendants thereupon
appealed to the High Court.

Mr. D. Banerji and Babu Jogindra Nath Chaudhri, for the appel-
lants.

Mr. Roshan Lai, for the respondent.

JUDGMENT.

EDGE, C. J., and BLAIR, J. The short question is whether s. 43 of
the Code of Civil Procedure is a bar to a suit for possession of land in rela-
tion to which the plaintiff had brought a previous suit under s. 42 of the
Specific Eelief Act for a declaration of title, which suit had been dismissed
on the ground that the plaintiff was not in possession. We are not aware
of any authorities in this Court. We have not been referred to any case
in this Court in which it was even suggested that s 43 of the Code of
Civil Procedure was applicable to such a case. The point has been decided
by the High Court ab Calcutta in Jibunti Nath Khan v. Shib Nath Chucker-
butty (1), and, we think, rightly. In our opinion s. 43 does not apply to
such a case as this. The appeal is dismissed with costs.

Appeal dismissed.



1892

MAY 16.

APPEL-
LATE
CIVIL.

14 A. 512 =
12 &.W.N.
(1892) 80,



A VII 88



(1)80. 819.

697



1892
MAT SO.

APPEL-
LATE
OIVIL.

1* A. 513 =

12 A.W.N,
(1892) 80.



14 All. 514 ^^ INDIAlTDECISIONS, NEW SERIES
li A. 313 = 12 A.W.N. (1892) 80.

APPELLATE CIVIL.
Before Sir John Edge, Kt,,' Chief Justice, and Mr. Justice Blair.



MUSAHEB?ZAMAN KHAN (Judgment- debtor] v. INAYAT-UL-LAH
(Decree-holder).* [20th May, 1892.]

Mortgage Svit for sale en a mortgage Rights of mortgagee in respect of non-hypothe-
cated property of the mortgagor Res judicata Act IV of 1882, ss. 68, 88, 89 and 90
Civil Procedure Code, sch. IV, forms Ncs. 109 and 128.

Where there is nothing to show a contrary intention of the parties, every
mortgage carries with it a personal liability to pay the money advanced ; but a
mortgagee [514] must sue for his remedy against the property first. In so doing
it is immaterial whether or not he prays in his plaint for relief over against non-
hypothecated property. Unless in exceptional cases he can obtain such relief only
under the provisions of s. 90 of the Transfer of Property Act, and if such relief is
refused the refusal will not bar a subsequent application under s. 90. Bafz-ud-
din Ahmad v. Damodar Das (1) approved : BataTt Nath v. Pitambar Das (2),
distinguished : Sutton v. Button (3), Raj Singh v. Parmanand (4), Miller v.
Digamtari Debya (5) and Durga Dai v. Bhagwat Prasad (6), referred to.

Observations on the meaning and application of ss. 88, 89, and 90 of the Transfer
of Property Act. Explanation of the term "legally recoverable" in s. 9Q. Sona-
tun Shah v. Alie Newaz Khan (1), discussed.

[Diss., 15 A. 334 ; 28 A. 365 = 3 A.L.J. 171=A.W.N (1906), 44 ; F., 15 A. 331 ; 20 A.
512 (514) ; 21 A. 453 ; Appr., 20 A. 386 ; 2 A.L.J. 37Q = A.W.N. (1905), 144 ; R.,
330. 867 = 4 C.L.J. 141 ; 32 M. 534 = 4 Ind. Cas. 1120 = 5 M.L.T. 246 ; 19 A.W.
N. 72 ; 19 A.W.N. 208 ; 4 C.L.J. 246 (252) ; 4 G.L J. 510 (517) ; 9 C.L.J. 5 =
13 C.W.N. 138 ; 1 Ind. Cae. 442 (443) ; 1 N.L.R. 143 (145) 5 6 O.C. 30 (32).]

THE facts of this case are as follows :

On the 26th of January 1885, Inayat-ul-lah obtained a decree for sale
of certain mortgaged property under a mortgage-deed, dated the 26fch of
August 1879. The decree was framed under s. 88 of the Transfer of Pro-
perty Act (Act No. IV of 1882), and was executed under s. 89 of the same
Act ; but on the mortgaged property being sold it was found that the
proceeds fell short of the money due under the mortgage by Es. 428-15.
On this the decree-holder at first applied to execute his decree under s. 88
against the other property of the judgment-debtor, but that application
was rejected on the 21sfc August 1889. The decree-holder accordingly
applied for a decree under s. 90 of the Transfer of Property Act for the
abovementioned sum with interest. To this application the judgment-debt-
ors (representatives of the original mortgagor) objected that inasmuch as
the decree-holder in his plaint in the suit had asked for relief over against
non-hypothecated property and that prayer had been disallowed, his claim
for a decree under s. 90 was res judicata. They pleaded aluo that the
decree-holder's application was barred by reason of the rejection of his
previous application. Both these objections were disallowed and a decree
under s. 90 was given to the applicant. The judgment-debtors then
appealed to,the Subordinate Judge relying on the objections which they had
urged before the Munsif. This appeal was dismissed and the judgment-
[515] debtors the appealed to the High Court, pleading, in addition to



* Appeal No. 38 of 1891 under s. 10 of the Letters Patent.

(1) 9 A.W.N. (1889) 149. (2) 13 A. 360. (3) 22 Oh. D. 511 (515).

(4) 11 A. 486. (5) 10 A.W.N. (1890) 142.

(6) 13 A. 356. (7) 16 C. 423.

698



YII]



MUSAHBB ZAMAN KHAN V. INAYAT-UL-LAH 14 All, 816



the pleas taken in the lower appellate Court;, that the balance claimed was
not legally recoverable from them under the deed of the 26bh of August
1879, and that the application was barred by limitation. This second
appeal was dismissed by Knox, J., on the 30bh of July 1891, and thereupon
the judgment-debtors again appealed under s. 10 of the Letters Patent, on
this occasion relying on an additional ground, viz., that the mortgage not
having provided for relief over against the non-hypothecated property of
the mortgagor no such relief could be granted.

Munshi Govind Prasad, for the appellants.

Mr. Abdul Maiid, for the respondent.

JUDGMENT.

EDGE, C. J., and BLAIR, J. This is an appeal from a decree made
under s. 90 of the Transfer of Property Acfc. The appeal is on behalf
of the defendants to the suit. The suit was brought on a mortgage
of the 26th of August 1879. The defendants are the heirs of the
mortgagor. In the plaint in the suit, in addition to a decree for sale
being asked for, there was a prayer for relief against non-hypothecated
property. A decree for sale was made under s. 88 of the Transfer
of Property Act ; it was executed under s. 89 of the Transfer of
Property Act, and after it had been executed it was ascertained that
the nett proceeds of the sale under s. 89 were insufficient to pay the
amount due for the time being on the mortgage. Upon that a decree
under s. 90 was applied for. In the decree under s. 88 no relief over
against non-hypothecated property was granted, and the first point taken
here is that the relief over against non-hypothecated property not having
been granted when the decree under s 88 was made, s. 13 of the Code of
Civil Porcedure barred the mortgagee's claim for a decree under s. 90
of the Transfer of Property Act. On that point several authorities,
some of them having very little to do with the question, were cited.
Amongst other cases that were relied on for the appellant was the
case of Batak Nath v. Pitambar Das (I), That case was referred to as
deciding that a Court in a suit for sale under a mortgage [516] under
the Transfer of Property Act could in the first instance give a decree
under s. 88 of that Act coupled with a decree for sale of non-hypo-
thecated property. Now with regard to that case it is only necessary
to observe that the decision was given, not in an appeal from the decree,
but in an appeal which arose in the execution of a decree male against
the hypothecated property and non-hypothecated property. The original
decree which was in execution had not been appealed from and was final,
and the Court executing that decrea was bound to execute it according to ita
terms. It is consequently not an authority on this point. Another case
to which we have been referred is the case of Hafiz-ud-diu Ahmad v.
Damodar Das (2). In that case Mr. Justice Straight said : " I do not
myself see how it is possible to hold that anything in the terms of the
original decree passed on the mortgage can be said to make any question
that could arise under s. 90 of the Transfer of Property Act as res judicata.
Taking s. 88 and reading it in conjunction with s. 90 it is clear that there
are two distinct decrees to be passed, the decree under s. 88 in the suit for
sale, and the decree under s. 90 upon the application of the decree-holder in
accordance with the terms of that particular saction. " That, in our opinion,
is a perfectly correct view of the law. In Eaj Singh v. Parmanand (3) it
was held by this Court that a decree under s. 90 is a decree to be made ins



1892

MAT 20.

-
APPEL-

LATE

CIVIL.
- *
1* A. 513-
121.W.N.

(1892) 80.



7l) 13 A. 360.



(2) 9 A.W.N. (1889) 119.
699



(3) 11 A. 486.



All. 517



[Yol.



1892 the original suit and not in a fresh suit. In the case of Miller v. Digam-
MAY 20. fori Debya (1) this Court held that the plaintiff was entitled to join with

his claim for enforcement of the mortgage a further claim for a declaration

APPEL- that if the sale proceeds should prove insufficient to discharge the debt its

LATE discharge might be enforced against the person and other property of

CIVIL. ^ ne defendant. There is nothing to prevent the plaintiff asking for

such a relief ; the only question is at what period of the suit has the

11 A. 313= Court power to grant relief against non- hypothecated property. In

12 A.W.N. Durga Dai v. Bhagwat Prasad (2) it was considered that the appli-
(1892) 80, cation for a decree under s. 90 was an application in execution, and

so an application for a decree under s. 90 is in one sense an application
[517] in execution, but we do not think that it can be regarded as an
application in the execution of a decree made under s. 88 of the Transfer
of Property Act. The time for making an application under s. 90 and for



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 103 of 155)