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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 105 of 155)
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and fourth grounds of appeal appear to ra'se only questions of law on me 14 A. 524 =
findings of fact in the first Court. The lower appellate Court did DOB come 12 A.W.N.
to any finding of fact inconsistent with any findings of fact in the first (1892) 104.
Court. It apparently assumed that they were correct. Two questions
arise. The first is, where a contract is made with or a debt incurred to a
firm consisting of three partners and one of those partners dies, can a suit
be maintained by one of the two surviving partners alone against the
contractors or debtors ? In our opinion it cannot, except possibly in the
case of an assignment by one of the two surving co-partners to the other,
which is not the case here. It was decided by this Court in the case of
Dular Ghand v. Balram Das (1) that a suit cannot be maintained by one
only of the partners of a firm in respect of a cause of action which had ac-
crued to all jointly. It was decided by this Court in Gobind Prasad v.
Chandar Sekhar (2) that the surviving partner or partners were the persons
to sue on a contract made with the firm. In our opinion that is good law,
and it was necessary in order that this suit should be maintainable
that the surviving partners of the firm of Moti Bam, Liladhar should
be plaintiffs in the suit. The next question is what is the effect of
one of those surviving partners not having been made a party until
after the period of limitation for such a suit had expired ? In Ram-
sebuk v. Ram Lai Koondoo (3) and Kalidas Kevaldas v. Nathu Bhagvan (4)
it was held that where an objection on the ground of non-joinder of parties
was taken in proper time by the defendants, and limitation had run so far as
the [528 j persons were concerned who should have been joined as plaintiffs
and had not been joined, the whole suit must be dismissed. It appears to
us that the same result must follow where a Judge acting under s. 32 of
the Code of Civil Procedure adds a person as a necessary plaintiff after the
period of limitation for a suit by him alone or with others has expired.
S. 22 of the Indian Limitation Act, 1877, would clearly aoply to the right
of suit of the person so added, and the suit could not be maintained without
him. The only case which has been suggested as throwing any doubt
on that being the correct view of the law is the case of The Oriental
Bank Corporation v. Charriol (5). AH that that case apparently decided
was that limitation does not preclude a Court from acting under s. 32
of the Code of Civil Procedure in adding a person as a necessary
partyjto a suit. It is not obvious how the observations of the learned Judges
in that case could be reconciled with the specific provisions of s. 22
of the Indian Limitation Act, 1877, if those observations are to be read
as implying that any Court could do otherwise than dismiss a suit which
was barred by limitation. The power of a Court to add a party and the
duty of that Court to di?miss the suit as barred by limitation are two differ-
ent questions. Some of the illustrations referred to in that case appear
to be cases contemplated in the .provisoes to s. 22 of the Indian Limitation
Act, 1877. The recent Full Bench case of Bindeshri Naik v. Ganga Saran



(1) 1 A. 453.
(4) 7 B. 317.



(2) 9 A. 486,
(5) 1-20. 642,



(3) 6 C. 8J5.



707



All. 529



INDIAN DECISIONS, NEW SEKIES



[Yol.



1892 Sahu (I) as to the question of limitation where a party is joined related to
JUNE 13. the joinder of a party under the provisions of s. 559 of the Oode of Civil

Procedure.
APPEL- i n our opinion the decree of the first Court was right. We set

LATE aside the order under appeal and affirm the decree of the first Court.
CIVIL. Appeal decreed.



14 A. 524 =
12 A.W.N.
(1892) 104.



14 A. 529 = 12 A.W.N. (1892) 106.

[529] APPELLATE CIVIL.
Before Sir John Edge, Et., Chief Justice, and Mr. Justice Tyrrell.



JAI KISHN (Defendant]



. BHOLA NATH AND ANOTHER (Plaintiffs) *
[20oh June, 1892,]

Civil Procedure Code, s. 21 i Pre-emption Decree for pre-emption conditioned on pay*
ment within fixed time Omission to state conieqiience of tion-paymtnt Limitation,

Where in a suit for pre-emption the decree, while decreeing the plaintiff's
right to pre-emption np >n payment of the pre-emptive price within one month
from the date of the decree, omitted to state what would be the f fleet on the
plaint-ffs suit of non-payment within the prescribed period : Held that the
plaintiff, unless he had pr.id the pre-emptive price before the expiry of the Raid
month, could not enforce his decree for pre-emption. Kidai Singh v. Jaisri
Singh (2) referred to, Bandhu Bhagat v. Shah Muhammad Taqi (3) dissented
from.

[P., 53 P.R. 1903=107 P.L.R. 1903 : R., 16 A. 65 ; 8 Ind. Cas. 592 (593) = 3 Bur.
L.T. 2 ; 18 Ind. Cas. 48 = 53 P.W.R. 1913 ; 44 P.L.R. 1913.]

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

Munshi Madho Prasad, for the appellant.
Pandit Bishambar Nath, for the respondents.

JUDGMENT.

EDGE, C. J., and TYRRELL, J. This was a suit to redeem a mortgage.
The plaintiffs were assignees of the mortgagor. The defendant set up a
defence that the mortgage no longer existed, as he had become, in pur-
suance of a decree of the Courb, the purchaser in pre-emption, pre-emption
having arisen on the sale of the equity of redemption. Jai Kishn is the
defendant. On the 20bh of May 1887, be got his decree in pre-emption in
the Court of the Subordinate Judge subject to his paying the pre-emptive
price within one month from the date of the decree. He appealed to
the District Judge. The District Judge in appeal varied the decree so
far as the price was concerned and fixed one month from the date of his
decree for payment. The District Judge did not go on to declare that if
the money and costs were not paid within the month, the suit should
stand dismissed with costs, and therefore technically bis [530] decree was
not in complete accordance with s. 214 of the Code of Civil Procedure ; but
it is quite clear from that decree that Jai Kishn's pre-emptive right could
only be enforced under the decree if he made the payment within the
month, and that if he failed to make the payment within the month the



* First Appeal, No. 32 of 1892. from an order of M. 8. Howell, Esq., District Judge
of SbaLj ibanpur, dated the 7th December, 1891.

(1) 14 A. 154 = 12 A.W.N. (1892) 13. (2) 13 A. 376.

(3) 12 A.W.N. (1892) 40.

708



JAI RISEN V, BHOLA NATH



All. 531



decree which he had obtained was useless to him, as his right was decreed
to be dependant on the payment within the month. Jai Kishn appealed
to this Court, and this Court; dismissed his appeal and confirmed the
decree of the District Judge. When this Court made its decree it did not
extend the time for payment of the pre-emptive price. Most proba-
bly the Court was not asked to do so. The pre-emptive price was not
paid into Court until long after the expiration of the month limited by the
decree of the District Judge. Now in this suit Jai Kishn, the defendant,
is relying on that decree in his pre-emption suife. The first Court in this
suit accepting his contention dismissed the suit. The second Court set aside
the decree and passed an order of remand under s. 562 of the Code of Civil
Procedure. Jai Kishn has brought this appeal from that order of re-
mand. Mr. Madho Prasad has contended that, as the decree of the District
Judge in the pre-emption suit, although it fixed one month from the date
of the decree for payment of the money and costs, did not declare that if
the money and costs were not paid within the month the suit should stand
dismissed, the defendant had three years limitation from the date of that
decree or from the date of the decree in appeal in this Court to pay in the
money. He relied on the case of Bandhu Bhagat v. Shah Muhammad
Taqi (1) in which it was held that where a decree under s. 92 of the Trans-
fer of Property Act did not declare what was to take place if the redemption
money was not paid within the period fixed by the decree the mortgagor
had three years limitation for the execution of bis decree, notwithstanding
that be had not paid the money within the time fixed by the decree. Any
judgment of the Judge who decided that case is entitled to careful consider-
ation and great weight, but it appears to us that s. 92 of the Transfer of
Property Act fixes the outside period of limitation within which a Court may
fix a day for the payment of the [531] money, and that outside limit i8
6 months and not 3 years. The section also enacts what the decree shall be.
Section 93 shows what may take place according to law if the money is
paid or is not paid within the period limited by the decree under
8. 92. When a decree under the Transfer of Property Act fixes
a time within 6 months for the payment of the money, we fail
to see how a plaintiff, unless he could get extension of the time,
could have a right to make the payment after the time limited had
expired. In the case of Kodai Singh v. Jaisri Singh (2) three of the
Judges concurred in the decision of Mr. Justice Straight, which was not
inconsistent with the view which we hold in this case, and two of those
three Judges expressly protected themselves from being understood as
expressing any opinion on the cases referred to by Mr. Justice Mahmood
in his judgment. In our opinion Jai Kishn, not having made the pay-
ment within the time limited by the decree, lost the benefits of that
pre-emption decree and cannot protect himself under it. The decree of
the Judge of Shahjahanpur was right. We dismiss this appeal with
costs.

Appeal dismissed.



1892

JUNE 20.

APPEL-
LATE
CIVIL.

14 A 529 =

12 A.W.N.
(1892) 106,



(1) 12 A.W.N, (1892J 40,



(2) 13 A. 376.



709



14 All. 532



INDIAN DECISIONS, NEW SERIES



[Yol,



1892

JULY 29.

APPEL-
LATE
CIVIL.

14 A. 531 =
12 A.W.N.
(1892) 154.



11 A. 881-12 A.W.N. (1892) 151.

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



FATIMA BIBI (Plaintiff) v. ABDUL MAJID (Defendant)*

[22nd July, 1892.]

Act X 0/1877, ss. 45 and 212, 244, clause 'a' Suit for recovery of immoveable pro-
petty and for mesne profits Separate trials of the two claims Transfer of suit by
order of High Court, duty of Court to Ibhich the transfer is made.

When a suit bus been transferred by an order of the High Court from the
Court of a Subordinate Judge to the Court of the Dietrich Judge for trial, it ia
the duty of the Dietrict Judge to try the suit himself, and he is not competent to
transfer the suit back to the Court of the Subordinate Judge.

In a suit on title in which the recovery of immoveable property and mesne
profits are claimed the Court may, under s. 45 of the Code of Civil Procedure,
order separate trials in respect of the claim for the recovery of the immoveable
property and in respect of the claim for mtane profits.

Where under s. 212 of the Code of Civil Procedure a Court in such suit passes
a decree for the property and directs an inquiry into the amount of mesne
profits that [532] direction as to the inquiry into the amount of mesne profits
need not necessarily be contained in the decree. Puran Chand v. Roy Badha
Kis/tcn (1) referred to.
[R., 26 A. 623 = A W.N. (1904) H6.]

THE facts of this case are fully stated in the judgment of the Court.

Messrs. T. Conlan, Amir-ud-din, A. Strachey, Abdul Baoof and
Babu Jogindro Nath Chaudhri, for the appellant.

The Hon'ble Mr. Spankie, Mr. D. Banerji, Munahi Jwala Prasad
and Pandit Sundar Lai, for the respondent.

JUDGMENT.

EDGE, C.J., and BLAIR, J. In order to understand the question
which we have got to deal with here it is necessary shortly to refer to the
proceedings in the suit. The suit was brought by a Mubammadan lady
against her nephew for a declaration of title to, and for possession of, certain
shares in immoveable property. The plaintiff also claimed mesne profits
for the years 1283, 1284 and 1285 Easli. It would appear that the question
as to her title to be awarded mesne profits in case her title to the shares
was established was not disputed. The defendant, in fact, paid into Court
some Rs. 15,000 in respect of the claim for mesne profits. It would also
appear that in order to ascertain what the mesne profits were for the years
in question to which the plaintiff would be entitled a troublesome and
prolonged inquiry would be necessary. We should say that the plaintiff's
claim lor mesne profits amounted to some 99,000 odd rupees. The suit
was instituted in the Court of the Subordinate Judge of Jaunpur on the
5th of May, 1879, and on the 3rd of October 1879 the Subordinate Judge
passed an order that the case should be brought forward for determination
of the claim to the property, and that it be separately brought forward
for inquiry into and determination of the claim for mesne profits. That
order undoubtedly meant that there should be, so to speak, two separate
inquiries and determinations in the same suit, viz., that the question
of title to tbe property should be first determined and that after that
was determine^ the question of mesne profits should be 'disposed of.
Previously to that order, namely, on the 26th of June 1879, the Subordinate

* First Appeal, No. 218 of 1891, from a decree of Babu Nil Madhab Bai, Subor-
dinate Judge of Jaunpur, dated the 2nd June, 1890.

(1) 19 0. 132.

716



FATIMA BIBI V. ABDUL MAJID 14 All. 534

Judge bad fixed nine issues for determination in the [533] suit. J892
The first seven issues did nob relate to the question of mesne profits, JULY 22.
but related to the question of title to the property and the kind of
possession, if any, to which the plaintiff was entitled. The eighth issue APPEL-
related to the amount of mesne profits ; the ninth issue was as to costs. LATE
On the 18th of June 1880 the Subordinate Judge not having gone into rt T vrr

question of mesne profits made a decree as to title and possession. The '

decree itself was silent as to the question of mesne profits, but the earlier li A. 531 =
part of the judgment on which the decree was based shows why the ques- 12 A. W.N.
tion of mesne profits had been allowed to stand over, and although that (1892) 153.
judgment deals with the other issues, it says, as to the eighth and ninth
issues : "The last two issues cannot now be decided and must be left to
my successor to decide. " There can be, consequently, no suggestion that
the question of mesne profits had been tried or determined, or that it can
be inferred from the decree being silent as to then that the plaintiff's
claim to mesne profits had bean rejected by the Subordinate Judge.
The defendant appealed to this Court from that decree, and this Court
on the 6th of January, 1882, dismissed that appeal. In the judgment
dismissing the appeal the learned Judges, in referring to mesne profits,
said : " As to the mesne profits, interest thereon and costs relating thereto,
we have for the present nothing to do. " From that decree in this Court
the defendant appealed to Her Majesty in Council, and his appeal was on
the 27th June, 1885, dismissed. On the 25r,h of February 1882, the then
Subordinate Judge of Jaunpur framed and fixed certain issues relating to
the question of mesne profits. On the 15th of March 1882, the defendant
applied to the Subordinate Judge to have further issues fixed, and on the
21st of March 1882, the Subordinate Judge made an order fixing certain
additional issues. For reasons which may or may not have been good the
trial of the question of mesne profits was removed from the Court of
the Subordinate Judge to the Court of the District Judge. Then,
after the then Subordinate Judge had been replaced by his successor, the
trial as to mesne profits was sent back to the Court of the Subordinate
Judge. It was then ultimately pent; back to the Court of the District Judge.
The last- mentioned order was [534] made on the 3rd of February 1885.
On the 24th of February 1886, the then District Judge of Jaunpur, having
absolutely no jurisdiction to transfer the case from the Court, passed an
order transferring it to the Court of the Subordinate Judge. The case was
then under the orders of this Court, which was the only Court having juris-
diction to make an order of transfer in the case, in the Court of the District
Judge, and it was the duty of the District Judge to obey the law and the
orders of this Court, and himself to dispose of the case which had been
transferred by this Court to hia. Up to that time there had been endless
delays. The plaintiff had been anxious to get her mesne profits deter-
mined. There appears to have been an equal anxiety on the part of the
defendant to hinder and delay the determination of the question of mesne
profits. The file and record in the case under the order of the District
Judge of the 24th of February 1886, went back to the Court of the
Subordinate Judge of Jaunpur, and the then incumbent of that office on
the 2nd of June 1890, having beard apparently arguments at some length
from learned counsel, held in his judgment of that date that the order of
the District Judge was ultra vires that the Court of the Subordinate
Judge had no jurisdiction, and that, if it bad, as the plaintiff de-
clined to adopt the suggestion of the District Judge that io was neces-
sary to bring the decree into accordance with the judgment, the only

711



14 All. 535



INDIAN DECISIONS, NEW SERIES



[Yol,



1892 course for the Subordinate Judge wag to strike the case off his file. He

JULY 22. accordingly passed a decree or order striking the case off the file and

ordering one-quarter costs to be allowed bo the defendant. That order is

APPEL- .dated apparently the 17th of June 1890. That is an incorrect date. It

LATE should have borne the same date as the judgment. From that decree or

CIVIL. order this appeal has been brought. That decree or order was at, any rate,

a determination by the Subordinate Judge that the question as to mesne

14 A. 531= profits could not be decided in this Court, and consequently, so far as
12 A.W.N. his Court was concerned, it, subject to appeal, concluded that quea-
.(1892) 134. fcion. The plaintiff had from time to time made attempts, sometimes
in the Court below and twice in this Court, to get the question of
the mesne profits to which she was entitled determined. Notwith-
standing orders of this Court, the question has still remained unde-[535]
termined. The defendant apparently has succeeded, by raising diffi-
culties and making applications, in keeping the plaintiff out of what she
is in justice entitled to, namely, a determination of the amount of mesne
profits to which she is entitled, and consequently, if the plaintiff is entitled
to a larger sum for mesne profits than the Rs. 15,000 paid into Court, the
defendant has successfully kept her down to the present moment out of
possession of such mesne profits. Such delays amount to an abuse of the
process of the Civil Courts. It is the duty of Civil Courts to facilitate the
determination of questions such as these here, and by their decrees and
orders to put the successful litigant promptly in possession of what he proves
himself to be entitled to. Ic would almost appear as if in the Courts at
Jaunpur during the period when this lady was trying to obtain her rights a
powerful and obstructive defendant was able to defeat justice. Some of the
judicial officers who had to do with this case undoubtedly tried to do their
duty, and no blame is to be attached to them. It is now contended on
behalf of the plaintiff, appellant here, that the District Judge of Jaunpur had
.no jurisdiction to make the order of the 24th of February, 1886. That is
also admitted by the able Counsel who represents the defendant. We are
satisfied that the District Judge had no jurisdiction to make the order of
transfer, and that what the Subordinate Judge should have done was to
have returned the record to the Court of the District Judge and not to have
passed a decree or order awarding costs in the case. It has been contended
on behalf of the respondent that the plaintiff is now debarred of all right to
.have the question of mesne profits determined. That contention is based
upon a suggested construction of s. 212 of the then Code of Civil Proce-
dure. It is argued that the latter part of s. 212 applies only to enable
the Court to include in its decree for possession in a direction that
mesne profits should be ascertained, and that the decree itself not
containing such direction, the question of mesne profits cannot now be
raised, unless by bringing the decree into accordance with the judgment.
The object of that contention, which was the contention before the
District Judge of Jaunpur in 1886, is obvious. If the plaintiff did
apply to bring the decree into accordance with the Judgment, the
[536] defendant would raise the question as to whether an application for
that purpose was not time-barred, and there would thus be another oppor-
tunity afforded of prolonging the period for which the plaintiff is to be
deprived of her right to have the mesne profits determined. Now s. 212
does not say that the direction for an inquiry into the amount of mesne
-profits shall be entered in the decree ; but Mr. Spankie contends that
8. 212 is controlled and governed by s. 244 of the Code, and that cl. (a) of
8. 244 indicates that the direction to ascertain the mesne profits under s. 212

712



YII]



FATIMA BIEI V. ABDUL MAJID



14 All. S37



must be entered in the decree. We cannot interpret s. 212 by s. 244. If
we were to do so it would be necessary in all cases in which a direction
for inquiry into mesne profits was made under s. 212 that the execution of
the decree should remain in the Court which passed the decree, because it
is the Court which under s. 212 directs an inquiry which has " to dispose of
the same" on further orders, and consequently the powers, and very neces-
sary powers, of transferring a decree for execution elsewhere contained in
the Code would be inapplicable to a case coming within the latter portion of
s. 212 if the contention were correct. In our opinion cl. (a) of s. 244 only
applies to a case in which a decree deals specifically with mesne profits,
i.e., decrees the period for which mesne profits are to be allowed, and the
property in respect of which they are to be allowed, and does not apply to
the ordinary case where a decree is passed for the property and an inquiry
as to the amount of mesne profits is directed under s. 212. The Subordi-
nate Judge who made the decree obviously thought that he was acting
under s. 212 of the then Code of Civil Procedure. In our opinion he had
power to act as he did under s. 212 of the then Code, and we are also
of opinion that he had power under s. 45 to try separately the questions
of title and of mesne profits. We. are rather inclined to the opinion
that, although he thought he was acting under s. 212, his procedure
came within a. 45 and was justified by that section. Mr. Spankie
addressed to us a long argument on the meaning of the words " cause
of action " in s. 45. It appears to us that the term " cause of action "
has not been used in ss. 43, 44, 45, 46 and 47 of the then Code in pre-
cisely the same sense. S. 44 shows that the Legislature considered
[537] that the cause of action for mesne profits of immoveable property
was distinguishable from the cause of action for the recovery of immove-
able property. A Full Bench of the High Court of Calcutta in the case of
Puran Ghand v. Roy Radha Kishen (1) held that a decree which was for
the possession of immoveabte property and which referred to the
mesne profits as follows : " The amount of mesne profits shall be
ascertained in the execution department," was not a decree for those
mesne profits, and that, so far as it referred to the mesn* profits, it
was merely an interlocutory order, and that the proceedings to determine
the amount of the mesne profits were not in that case proceedings in
execution of the decree, but were merely a continuation of the original suit
and carried on as if a single suit were brought for mesne profits by itself. In
that case the period for which the mesne profits were to be awarded was
not ascertained or fixed by the decree. That judgment is consistent with
our view as to the meaning of cl. (a) of s. 244 of the Code. It is clear that
this lady is in justice entitled to have the mesne profits ascertained, in
order that she may obtain payment of those mesne profits, if she succeeds
in showing that they amount to more than the sum which has been paid



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 105 of 155)