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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 104 of 155)
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the Court making a decree under that section does not arrive until the
remedies under ss. 88 and 89 have been exhausted. When the decree
passed under ss. 88 which is ordered to be executed under s. 89 has failed
to discharge the money due at the time under the mortgage, then for the
first time in the suit for sale under the Transfer of Property Act the
Court has power to decree the sale of non-hypothecated property. The
decree for sale under s. 88 is limited to the hypothecated property.

We have been referred to forms Nos. 109 and 128 in the 4th Schedule
of the Code of Civil Procedure. It is true that the form No. 109, which
is a general form of plaint for a suit for sale under a mortgage, does include
in its prayers for relief a prayer that if the proceeds of the sale of the
mortgaged property shall not be sufficient for payment in full of the
amount to be ascertained the defendant should pay to the plaintiff the
amount of the deficiency. .It may be inferred from that form, that it would
not be improper to claim originally in the suit the subsequent relief ;
but when we turn to form No. 128, which is a general form of decree
for sale in a mortgage suit, we find that that; form is confined, so far as the
present purposes are concerned, strictly to a decree under s. 88 of the
Transfer of Property Act and does nob include any subsequent relief. It
might be inferred from these two forms that the subsequent relief, although
it might be claimed in the plaint, was not to be included in the decree for
sale under s. 88. In our opinion the more correct way of drawing up a
decree in a suit for sale on a mortgage would be to confine the decree for
sale, i.e., the first decree to be passed, to a decree under s. 88 against the
mortgaged property, and that any subsaquenc relief to which, after that
decree bad been executed, it might appear that the plaintiff was entitled,
should stand over for a decree under s. 90. In our opinion s. 13 of the Code
of Civil Procedure would not apply to an application under s. 90 for a
decree, no matter whether the plaintiff had or had not claimed originally in
518] his suit subsequent relief, or whether, if claimed, such subsequent
relief had been allowed or disallowed by the Court when making the
decree under s. 88, the time for adjudicating on the claim for subsequent
relief not arriving until the decree under s. 88 had been exhausted.

Another objection which was relied on for the defendants, was that
the balance in respect of which the decree under s. 90 has been made was
not legally recoverable from the defendants otherwise than out of the
property sold. It will be remembered that the defendants are not the
mortgagors, but the heirs of the mortgagor, and they are Muhammadaos,

(1) 10 A.W.N. (1890) 142,

(2) 13 A, 356.



and that the property which it is sought to sell under the decree under
B. 90 is property which was of the mortgagor in his lifetime and has come
to the defendants as his heirs. Mr. Abdul Majid for the respondent, the
decree-holder, has relied upon the decision of the Calcutta Court in Sonatun
Shah v. Ali Newaz Khan (1) as an authority to show that the balance
legally recoverable under s. 90 from the defendants otherwise than
out of the property sold is the balance remaining due to the decree-holder
under the decree obtained under s. 88 of the Transfer of Property Act.
In our opinion, however, effect must be given to the words " legally
recoverable " and " otherwise than out of the property sold " which that
decision does not appear to give. These words, in our opinion, mean, by way
of illustration, that the balance must be a balance which the mortgagee is not
precluded by the terms of the mortgage from realizing otherwise than out of
the property sold or a balance the recovery of which is not barred by limita-
tion, e.<7.,the suit might have been brought at a period of time when, if the
plaintiff was relying on his personal remedy agaiust the defendant, his suit
for the personal remedy would be barred by time, although within time as a
suit for sale on the mortgage. We do not say that this is exhaustive. We
merely refer to these two cases as illustrations. Now in the mortgage
here there is nothing to preclude the plaintiff from obtaining a decree under
a. 90 and it has not been suggested that there is any bar of limitation, but
[5193 it is contended on behalf of the defendants that the mortgage
contained no covenant or promise upon which the mortgagor or bis heirs
holding assets could be made liable, and that the only remedy was against
the property mortgaged. If it be the fact, we do not say that it is so,
that on the true construction of the mortgage there is no express covenant
or provision to pay the mortgage money otherwise than out of the mort-
gaged property, still there is the implied promise to pay, which, if there
is nothing in the mortgage from which a contrary intention should be
inferred, the law will presume from the fact of the mortgagor's accepting
the loan. Where there is in a mortgage nothing to the contrary the
" mortgage contains within itself, so to speak, a personal liability to repay
the amount advanced." [See the observations of Sir George Jessel,
M, E. in Button v. Sutton (2'.]

In support of the argument on behalf of the defendants that the
balance was not legally recoverable except from the property mortgaged,
it was further suggested that s. 68 of the Transfer of Property Act
debarred the plaintiff from any remedy except against the mortgaged
property. It is quite true that s. 68 precludes a mortgagee from suing the
mortgagor for the mortgage money except in the cases provided for in that
section, that is, it would preclude the mortgagee from maintaining a suit
in which bis primary relief was a relief against the mortgagor personally
unless the case came within the exception to that section. That section
in our opinion in no wise debars a mortgagee from seeking the decree
provided for by s. 90. The mortgagee suing on his mortgage for sale gets
a decree under s. 88, executes his decree under s. 89, and, if the nett
proceeds of the sale are insufficient, then, without any suit against the
mortgagor personally, the mortgagee is given in bis suit on the mortgage a
further remedy by way of a decree under s. 90. For these reasons we hold
that our brother Knox, from whose judgment this is a Letters Patent
appeal, was right in dismissing the judgment-debtor's appeal to this Court.
We dismiss this appeal with costs.
Appeal dismissed.


MAT 20,


11 A. 513 =

12 AW.N.

(1892) 80.

(1) 16 0. 423.

(2) 22 Oh. D. 511 (515, 516).


14 All. 520




MAY 21.



li ft. 520 -
12 A.W.N,
(1892) 99.

14 A. 520 = 12 A.W.N. (1892) 99.


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

BAHIMA (Decree-holder] v. NEPAL EAI (Judgment-debtor) *

[21st May, 1892.]
Act IV of 1882, s. 87 Civil Procedure Code, ss. 2, 244 and 61Z Revision, '

An order under s. 87 of Act IV of 1982 extending the time for payment of the
mortgage money by a mortgagor is a decree within the meaning of ss. 2 and 244
of the Code of Civil Procedure, 1832, and therefore no application will lie under
s. 622 of that Code for revision of such order.

[P., 26 B. 121 = 3 Bom. L.R. 554 ; 10 A.L.J. 520 = 17 Ind. Gas. 912 (913) ; R, 25
M. 244 (290) (F.B.); 25 M. 300 (313).]

THE facts of this case, so far as they are necessary for the purposes
of this report, appear from the judgment of the Court.
The Hon'ble Mr. Spankie, for the applicant.
Mr. Abdul Raoof, for the opposite party.


EDGE, C. J., and BLAIR, J This is an application for revision in
which we are asked to exercise our powers under s. 622 of the Code of
Civil Procedure, and to set aside an order of the Subordinate Judge
of Ghazipur postponing the day appointed for payment under a fore-
closure decree. The decree was made under s. 86 of the Transfer of Pro-
perty Act. A date was fixed for payment. After the expiry of that date
the Subordinate Judge, on the application of the defendant, made the
order which we are asked to revise. The order was not a ministerial
order such as the order in the case of Hulas Rai v. Pirthi Singh (1), or
the order in the case of Bandhu v. Shah Muhammad Taki (2). It was
an order which was made under s. 87 of the Transfer of Property Act,
and, if the Court had power to make it at all, it could only have been
made upon good cause shown. Consequently, it was a judicial and not
a ministerial order. In our opinion it was an order which related to
the execution or discharge of a decree within the meaning of clause (c)
of 3. 244 of the Code of Civil Procedure. It was consequently appeal-
able as a decree. This view is consistent with that taken by this Court
in the case referred to in the note at page 502 and ia not inconsistent
with the case of Hulas Rai v. Pirthi Singh. (1) As the [521] order in
question was appealable, it cannot be the subject of revision under
s. 622 of the Code of Civil Procedure. The application for revision is dis-
missed with costs.

Application rejected.

* Application for Revision No. 63 of 1891, under B. 622 of the Civil Procedure Code.
(1) 9 A. 500. (2) 8 A.W.N. (1888) 119.



1) A. 521 = 12 A W.N. (1892) 110.


Before Mr. Justice Knox. EXTRA-



Practice Sessions trial Witness for the Crown not called at Sessions trial though CRIMINAL.
eximin?d before the committing Magistrate Duty of tht prosecution with regard to -
the produ.tion of such witness. 14 A. 521 =

At a trial before the High Court in the exaroiee of its original criminal juris- *2 A. W.N.
diction it is not the duty either of the prosecution or of the Court to examine (1892) 110.
any witness merely because he was examined as a witness for the Crown before
the committing Magistrate, if the prosecution is of opinion that no reliance can
be placed on suoh witness' testimony. All that the prosecution is bound to do ,

is to have the witnesses who were examined before the committing Magistrate
present at the trial so as to give the Court or Counsel for the defence, -as the
case may be, an opportunity of examining them. Dhunno Kazi (1) and Empress
of Ind a v. Kaliprosonno Doss (2). approved. The Empiew v. Grish Chunder
TaluUdar (3) and The Empress v. Ishan Duti (4), dissented from.

CR., 16 A. 84 (F.B.) = 14 A.W.N. 7.]

THIS was a trial before Knox, J., and a jury at the Criminal Sessions
of the High Court. The accused, Patrick Sfcanton and John Flynn, were
charged with offences punishable under ss. 457,380, 411 and 414 of the
Indian Penal Code. At the close of the case for the prosecution, Counsel
for the defence called the attention of the Court to the fact that one of the
witnesses who had been examined by the committing Magistrate had not
been called by the prosecution, and contended that such witness ought to
be called by the prosecution or at least tended for cross-examination, or
should be examined by the Court. The arguments on both sides are
stated in the ruling of Knox, J.

The Public Prosecutor (the Hon'ble Mr. Spankie), for the Crown,

[522] Mr. J. E. Howard t for the prisoners.


KNOX, J. The prosecution in this case having concluded their case
without calling a certain witness, one Michael Tyrrell, who had been
examined by the committing Magistrate, Mr. Howard, who appeared for
the defence, contended that it was the duty of the prosecution at any
rate to place that witness in the witness-box so that Counsel for the
defence might exercise his right of cross-examination. If this was not
done, he contended further that the Court, in the interests of the defence
and of justice, ought to send for that witness and examine him as a
witness called by the Court. The learned Counsel referred the Court to
the practice which, according to him, had prevailed for the first eight or nine
years, if not further, from the institution of the Court, and observed that
the principle for which he was arguing was a principle too well known to
need the weight of authority. He was unable to refer the Court to any
precedent save that of the Empress v. Grish Chunder Talukdar (3). That
was a case tried before Jackson and Tottenham, JJ., and Mr. Justice
Jackson there laid down that " the ordinary practice in properly constituted
Courts is, that where a witness for the prosecution is not called on the
part of the Crown, he is placed in the witness-box in order that the
defence may have an opportunity of cross-examining him ; and certainly

(1) 8 C. 121. (3) 11 C. 245. (3) 5 C. 614. (4) 15 W. B. Cr. R. 34.



1892 where the Judge thought it necessary to call one of these witnesses for

JUNE 7, the purpose of eliciting some facts which be thought material for the

prosecution, the prisoner ought to have been allowed an opportunely of

EXTRA- putting any question that he thought necessary in cross-examination."

ORDINARY For this view Mr. Justice Jackson has cited no authority, and, with

ORIGINAL ^ e ex eption of the case of- The Empress v. Ishan Dutt (1), I have been

p unable to find any criminal case ruling to the same effect. On behalf

' of the Grown I have been referred to the case of The Empress of India v.

14 A. 521= Kaliprosonno Dass (2). That was a very strong case. In it Counsel
12 A.W.N. for the Grown, after putting forward such number of witnesses as he
(1892) 110. thought sufficient to support of the case for the Grown, tendered a number
of others for cross-examination, but refrained from [523] examining
or tendering for cross-examination a witness of whom the Crown consi-
dered that no reliance could be placed upon his evidence. Mr. Justice
Trevelyan held that under the circumstances he was of opinion that
the prosecution were not bound to tender such a witness for cross-
examination or to do more than have him present in Court for the accused
to call him or not, as he might think fib. I was also referred to the case
of Dhunno Kazi (3) in which the presiding Judges held that " the only
legitimate object of a prosecution is to secure, not a conviction, but that
justice be done. The prosecutor is not therefore free to choose how much
evidence he will bring before the Court. He is bound to produce all the
evidence in his favour directly bearing upon the charge. It is prima facie
his duty, accordingly, to call those witnesses who prove their connection
with the transactions in question, and also must be able to give important
information. The only thing which can relieve the prosecutor from calling
such witnesses is the reasonable belief that, if called, they would not speak
the truth." Mr. Spankie contended as to the principle which should govern
the decision in this case that the Code of Criminal Procedure gives ample
facilities to an accused person for placing before the Court and Jury every
witness from whom he considers it likely that anything to his benefit
may be elicited. Looking to the way in which cases are prepared in
India, I am distinctly of opinion that the principle laid down in the later
Calcutta cases, in Dhunno Kazi and in KaUprosonna Dass, is the right
principle. The Code of Criminal Procedure nowhere lays upon the
prosecution the burden of putting forward as a witness in support of their
case any person on whose evidence they cannot place reliance. Tne duty
of a Public Prosecutor, in India especially, is one attended with great
difficulty, and he should be allowed the utmost freedom in marshalling bia
evidence, for in most cases he will find, so far as my experience goes, n&
proper attempt made to do so by the Court below. Looking to the old
practice, I cannot find that any further duty was imposed on the
prosecution in this country than that of having in attendance every witness
who bad been examined by the committing Magistrate. This the
prosecution is [524] bound to do, and this they have done in the
present instance. It might perhaps be contended that if the commit-
ting Magistrate had stated in his order of commitment that he had been
influenced by a certain witness in ordering an accused person to be
committed, Counsel for the Crown was in common fairness bound either
to examine such witness or to tender him for cross-examination. In the
present case the witness Tyrrell was a witness called especially by the
Court, and, for reasons which will presently appear, I will say nothing

(1) 15 W.B. Or. R. 34. (2) 14 0, 245. (3) 8 0. 121.

704 '


further than this that after examining him the committing Magistrate 1892

placed on record that this evidence wag not evidence which induced him JOHE 7.

to make or led him in any way up to his order of committal. I have said

this much in order that Counsel may in future cases'have a guide to what EXTRA-

I believe ought to ba the practice in criminal trials in this Court. As, ORDINARY

however, many observations have been made respecting this witness to ORIGINAL

the jury, I will under the circumstances call him under the special powers

given to me under s. 540. CRIMINAL.

in. nt**

14 A. 324 = 12 A.W N. (1892) 104. 12 i.W.H.

APPELLATE CIVIL. (1892) lia *

Before Sir John Edge, Kt,, Chief Justice, and Mr. Justice Tyrrell.

IMAM-UD-DIN AND ANOTHER (Defendants} v. LILADHAR (Plaintiff).*

[13th June, 1892.]

Suit Non-joinder of parties Limitation Act XV of 1877, s. 22 Civil Procedure
Code, s. 32 Partnership Bight of surviving to sue for debts due to firm.

Except possibly in the ease of an assignment by the other surviving partner or
partners, it is not competent to one only of two or more surviving partners to
sue for a debt due to r.he firm. Dular Chaud v. Balrzm Das (1) and Qobind
Prasad v. Chandar Sekhir (2) referred to.

A Court may, under s. 32 of the Ooda of Civil Procedure, add a party necessary
to ? suit, although ii may be obliged by the Indian Limitation Act, 1877, to
dismiss the suit; after suoh ptrty has been added Ramsebuk v. Ram Lall
Koovdoo (3) and Kiliiat Keval Das v. Nithu Bhagvan (4) referred to. The
Oriental Bank Corporation v. Ch irriol (5) discussed.

[Not F., 27 C. 540 ; P., 15 A. 407 ; (409) ; 6 M.L.J. 27 ; R., 29 A. 311 = 4 A.L.J. 194 =
A.W.N. (1907), 53 ; 21 B. 154 i!58i ; 33 M. 246 (2*9) = 4 Ind. Gas. 392 (3941 = 20
M.L.J. 79 (84) = 7 M L T. 67 ; 35 M. 635 690) = 10 Ind. Cas. 875 (877) = 21
M.L.J. 508 <516> = (19111 I M W.N. 44'2 (447' ; 5 L J. 242 = 11 C.W.N. 350 ;
7 Ind. Cas. 252 (253> = 3 M.L.T. 230 i281) = M W N 1910. 472 (474) ; 10 M.L.T.
418 (425) = <1911) 2 M W-N. 450(457); 25 P.R 1903 = 74 P.L.R. 1903; 4
8.L.R. 2 (9) ; D , 25 A. 378 (383; ; 33 A. 272 (-J78) = 8 A.L.J. 256 (26i)=13
Bom. LR 359 (366) = 13 C.L.J. 345 = 15 0. W N. 321 <327)=9 Ind. Cas. 739
(741) = 21 M.L J. 378 = 9 M.L.T. 343 (345) = (1911) 2 M.W.N, 395 ; 25 C. 285 ;
32 C. 582 = 9 C.W.N. 421.]

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

Mr. W.M. Golvin, Babu Jogindro Nath Chaudhri, and Maulvi
Ghulam Mujtaba, for the appellants.

Mr. Hameed-ullah, for the respondent.


EDGE, C. J., and TYRRKLL, J. This appeal has arisen in a suit
brought on two hundis. The promisees of the hundis were a firm called Moti
Ram, Liladhar. Toe drawers of the hundis are the defendants, appellants
here. The suit was originally brought by Liladhar alone. The defend-
ants required inspection of the books of the firm Moti Bam, Liladhar,
and from time to time obtained further time for filing their written state-
ment. When they filed their written statement they distinctly raised

* First Appeal, No. 7 of 1892. from an order of W. Blennerhassett, Egq., District
Judge of Aligarh, dated the 18th December, 1891.

(1) 1 A. 453. (2) 9 A. 485. (3) 6 C. 815.

(4) 7 B. 217. (5) 12 0. 642.

A VII 89


1892 the objection that all the parties who should necessarily be joined as
JUNE 13. plaintiffs were not joined. Upon that Jiwa Earn applied to be made a

co-plaintiff. Liladhur opposed, but in the result the Subordinate Judge,

APPEL- exercising his powers under a 32 of the Code of Civil Procedure, made Jiwa
. LATE Earn a co-plaintiff with Liladhar. Now at the time when Jiwa Earn was
OlVIL. toade a co-plaintiff any suit on those hundis in which it was necessary to
make him a party was barred by limitation Tne Subordinate Judge found
HA. 024=: that Jiwa Earn, Liladbar and Moti Earn, who was their father, were joint
2 A.W N. owners and co-parceners in the firm of Moti Earn, Liladhar, and that on
(1892) 104. the death of Moti Earn the surviving "co-parceners," who, on those find-
ings were the surviving co-partners, were Liladhar and Jiwa Eim. Liladar
on his own behalf appealed against the decree of the Subordinate Judge,
which had dismissed the suit on the ground of limitation. His grounds
of appeal are as follows :

(1) The shop of Mofci Earn and Liladhar is not ancestral.

(2) The plaintiff alone is entitled to sue.

(3) Jiwa Earn has no right of suit.

(4) Jiwa Eim has been improperly made a plaintiff.

The District Judge on appeal allowed the appeal on the ground that
1 the defendants did not raise the plea of non-joinder at the [526] earliest
possible period, nor before the first bearing; consequently they must be
taken to have waived it, and the suit can proceed in Liladhar's, plaintiff's
name," and remanded the case under s. 562 of the Code of Civil Proce-
dure. From that order of remand this appeal has been brought. The
learned District Judge apparently confounded the right of a defendant to
object on the ground of the want of parties with the power of a Judge to
act under s. 32 when the fact of the want of parties is brought to his atten-
tion by the pleadings or otherwise. The objection as to want of parties was
taken by the defendants in their written statement and could not well
have been taken before. Section 117 of the Code of Civil Procedure
shows that when a written statement has been filed, whether it has been
filed at or before the first hearing of the suit, the Court, amongst other
things, shall at the first hearing of the suit ascertain from each party or his
pleader whether he admits or denies such allegations of fact as are made in
the written statement, if any, of the opposite party and are not expressly or
by necessary implication denied by the party against whom they are made.
The written statement is the most formal document in which a defendant
can raise an objection of want of parties or that he did not make the con-
tract as alleged. In our opinion the objection was in this case taken
at the earliest possible opportunity, and the Subordinate Judge was not
precluded by s. 34, and by the fact that the objection was taken at the
first hearing from making his order under s. 32. Having regard to ss. 64,
68 and 69 of the Code of Oivil Procedure the first hearing of a suit might
be the earliest opportunity which a defendant might have of raising any
question aa to want of parties. It is difficult to understand how a defend-
ant could be deemed to have waived an objection for want of parties
by not having taken the objection before the first hearing when he had
. no opportunity of taking his objection until the first bearing, or was until
then ignorant of the facts on which the objection depended. Whether
under such circumstances a defendant could be deemed to have waived
the objection or not, his omission could not deprive the Court of the
power to act under s. 32. Now the plaintiff, Liladhar, had taken out
a certificate for the purposes of this case which [527] covered only
one-half of the amount claimed. The explanation given for that is



14 All. 528


JUNE 13.


that he required no certificate so far as his own moiety of the firm's
claim is concerned, and that a certificate was only required in respect of
the sbare of his deceased father. This negatives the suggestion that this
was not a case of partnership, bub only a case of survivorship in a joint
family. The meaning of the first ground in the memorandum of appeal
in the Courfa below is not very plain. It had been found that the business
or firm of Moti Ram Liladhar was a co-partnership. The second, th'rd

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 104 of 155)