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into Court. We set aside the decree or order of the Subordinate Judge
with full costs here and below to be paid by the defendant to the plaintiffs,
and we direct the Subordinate Judge of Jaunpur to send the file from his
Court to the Court of the District Judge, in which Court alone the case
properly is, there to be disposed of by the District Judge in due course of
law.

NOTE. The provisions of ss. 45, 212 and 244 of Act No. X of 1887 are identical
with those of Ss. 45, 212 and 244 of the present Code of Civil Procednre (Aot No. XIV
of 1882).

Appeal decreed,



1892

JULY 22.

-
APPEL-

LATE
CIVIL.

** A. 831 =

12 A.W.N.
(1892) 154.



A VII-90



(1) 19 C. 132.
713



I.L.R., 15 ALLAHABAD.



15 A, 1=12 A.W.N. (1892) 215.

[i] APPELLATE CIVIL.

Before Mr. Justice Mahmood and Mr. Justice Blair.



JAMUN AND ANOTHER (Defendant) v. NANDLAL (Plaintiff).*

[7ch June, 1892.]
Account stated Acknowledgment of debt Limitation Act XV of 1877, sch. ti, Art. 64.

The striking of a balance in an account, the items of which are all on one
side, does not amount to an " account Etated " in the proper sense of the term.

Hence the signature of the debtor to such balance amounts to no more than
an acknowledgment of a debt ; and if the debt is barred at the time of signature
will not give riee to any fresh period of limitation in favour of the creditor.
Nahauibai v. Nathu Bhau 1), followed.

[P., 23 A 502 (503) =21 A W.N. 150 ; 11 C.P.L.R. 65 (71) ; R., 3 O.C. 195 (201) ;
Disappr., 68 P.B. 1904=123 P.L.R. 1904.]

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

Pandit Sundar Lai, for the appellants.
Mr. J. E. Howard, for the respondent.

JUDGMENT.

MAHMOOD and BLAIR, JJ. The facts of this case are very simple.
The plaintiff came into Court with a suit for recovery of a certain sum of
money upon the allegation that a statement of account between the parties
having taken place on the 16th of June 1889, the same was recorded and
signed by the defendants.

The suit was resisted upon various grounds with which we are not
concerned. But the ground taken by the defendants, anr) with which
alone we are at present concerned, is that all the items bo [2] which the
alleged statement of account related were at the time the suit was institut-
ed barrea by limitation.

The Court of first instance found that all the items were barred by
limitation on the 16th of June 1889, and that the transaction of that date
could not be regarded as a statement of account within the meaning of
art. 64 of the Indian Limitation Act (Act No. XV of 1877). The suit was
filed on the 24th of April 1890.

Upon appeal the learned Subordinate Judge tried the only question
whether or not the so-called statement of account could be so regarded
with reference to art. 64 of the second schedule of the Limitation Act (Acfc
No. XV of 1877), and he observed in dealing with the so-called statement
of account that it did amount to such a statement of account. His
words are "The balance of Rs. 965-8-0 on page 75 is recoverable after
accounts ; the interest whereof is 2 annas per rupee every sixth month,"

' Firat Appeal, No. 31 of 1891 from an order of Maulvi Muhammad Abdur
Razzak, Subordinate Judge of Saharanpur, dated the 8th April 1891.

(1) 7 B. 414.

715



1892

JUNE 7

APPEL-
LATE
CIVIL.

ISA 1 =
12 A.W.N.

(1892) '215.



15 All. 3 INDIAN DECISIONS, NEW SERIES [Yol.

1892 Now the lower appellate Court regarded it as a sufficient statement

JUNE 7. of account to enable the plaintiff to reap the benefit of saving a fresh period

of limitation from that date, and for this reason it decreed the appeal, and

APPEL- setting aside the decree of the Court of first instance remanded the case

LATE under s. 562 of the Code of Civil Procedure for trial upon the merits.

CIVIL. -^ i s f rom the lower apoellate Court's decree that this first appeal

from order has been preferred under s. 588 of the Code of Civil Procedure,

15 A, 1= and the only point upon which Pandit Sundar Lai, holding the brief of

12 A.W.N. Munshi Bam Prasad, has insisted is that art. 64 of the second schedule

(1892) 215. of the Limitation Act has no application to the present case because the

entry of the 16th of June, 1889 cannot be called a statement of account

within the meaning of that enactment.

Ib seems that this account, which ended with the entry of the 16th
of June 1889, was not a mutual account between the parties, but on one
side only. There was only the account of the money items advanced to
the defendants, and not corresponding entries of items advanced by the
defendants.

[3] In our opinion the interpretation of the meaning of ' statement
of account' given by Mr. Justice West in Nahanibai v. Nathu Bhau (1),
which was followed in Tribhovan Gangaram v. Amina (2), is correct, and
we need add nothing to the explanation and reasons stated in the earlier
of these two rulings. It comes to this that the plaintiff is suing for the
recovery of items whioh the first Court held were barred by limitation
and to which we find no objection was taken by way of appeal to the
second Court. We must therefore take it as a matter of fact that these
items were so barred.

In this view of the case we think that the Court of the first instance
held rightly that the plaintiff's suit was barred by limitation. We decree
the appeal, and setting aside the decree of the lower appellaoe Court,
restore that of the Court of first instance with costs in all the Courts.

Appeal decreed.



15 A 3 = 12 A.W.N (1892) 113.

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



INDASJIT PRASAD AND OTHERS (Plaintiffs) y. EICHHAEAI (Defendant)*

[27oh June, 1892.]

Civil Procedure Code, a, 13 Res judioata Finding in judgment in conflict with term
of deoee.

The decree in a suit gave the plaintiff an unrestricted right to the property
claimed by him, but in the judgment on whioh that decree was based it was
stated, the finding apparently nob being a finding on any material issue in the
suit, that the defendants were entitled to certain rights in respect of the property
decreed to the plaintiff. No application was made to bring the decree into con-
formity with the judgment, and the deoree as it stood was affirmed on appeal.
Held that the defendants, as plaintiff* in a subsequent suit between the same
parties relating to the same property, oould not plead the finding in their favour
in the judgment as constituting res judicaia in the face of the clear wording of
the decree.

* Second Appeal. No. 1235 of 1889, from a decree of Rai Kulwant Prasad, Subordi-
nate Judge of Azamgarb, dated the 4th July 1889, confirming a decree of Maulvi
Muoir-ud din Ahmad, Munsif of Muhammadabad, dated the 7th February 1889.

(1) 7 B. 414. (2) 9 B. 616.

716



YII]



INDABJIT PRASAD V. BICHHA BAI



15 All. 5



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

Mr. Abdul Eaoof, for the appellant.

Babu Bishnu Chandra Mottra, for the respondent.

JUDGMENT.

[4] EDGE, C. J., and KNOX, J. The only question in this second
appeal is as to whether s. 13 of the Code of Civil Procedure applies In
a former suit the defendant in this Court was plaintiff and the plaintiffs
in this suit wero defendants. In this suit the plaintiffs claim one-half
of the value of the produce of certain trees and one-half value of the
wood of such of these trees as are cut down. It was found by the
lower appellate Court that they had not established their right to the
half value. The plaintiffs, however, in this suit rely on s. 13 of the
Code of Civil Procedure. Now in the former suit the plaintiff, defendant
here, sued for proprietary possession of these trees aftd to establish his
proprietary and exclusive right to these trees on the basis that the defend-
ants, plaintiffs here, never had any title to the trees at all. In the former
suit the Munsif gave the plaintiff, defendant here, an unlimited decree
decreeing his claim, i. e., the Munsif decreed the claim for possession and
for title as prayed, but in his judgment the Munsif had stated that the
then plaintiff's possession of the trees would be subject to the defendants'
right to half the value of the produce and half the value of the timber.
That case went to appeal and objections under s. 561 of the Code of
Civil Procedure were filed in the lower appellate Court. The Munsif had
not found any issue directly raising the question as to whether the then
defendants were entitled to any part of the produce or any part of the
timber of the trees, although he had found a general issue as to whether
the then plaintiff was entitled to the trees. In the appeal in that suit,
the then plaintiff, who was respondent, by his objection under s. 561
questioned the statement in the Munsif's judgment that the defendants in
that suit were entitled to a moiety of the produce and a moiety of the
timber. The result was that the appellate Court dismissed the appeal
and disallowed the objections, affirming consequently the decree of
the Munsif. Now the question arises : bow does s. 13 of the Code of
Civil Procedure apply in suoh a case? On the one hand, the defen-
dant here has a decree in the former suit confirmed in appeal entirely in
his favour, showing, so far as a decree can, that he had exclusive right and
title to the trees, for that was decreed to him. On the other hand, the plain-
tiffs [5] here have a passage in the judgment of the first Court in the former
suit that they were entitled to half of the produce and half of the timber
of the trees. Now if the decree was at variance with the judgment an
application ought to have been made to bring the decree into accordance
with the judgment. That decree as it stands is a decree unlimited as to the
now defendant's possessory right and title, and it appears to us that when
there is an apparent conflict between a decree which is specific and clear in
its terms and a statement of fact in the judgment upon which that decree
was based, which, if material, was inconsistent with the decree, we
must pay attention to the decree as it stands in preference to the state-
ment of facts. This case is quite distinct from the case of Kali
Krishna Tagore v. The Secretary of State for India in Council (1). The
decree in the former suit there was, that in that suit the plaintiff

(1) 15 I. A. 186,
717



1892

JUNE 27.

APPEL-
LATE
CIVIL.

15 A. 3 =
12 A.W.N.
(1892) 113.



15 All. 6



INDIAN DECISIONS, NEW SERIES



[Vol.



1892 wa -s not entitled to the relief sought. That was not a decree which,
JUNE 27. having regard to the judgment, finally and' for ever settled the ques-

tion of title as between tbe litigants ; it was more like a decree to

APPEL- the effect that the plaintiff's then suit was premiture. We have no doubt
LATE ^^ i Q every case where tbe application of s. 13 is in question it is not
CIVIL OD ^ necessary to look at the decree but at the judgment. Many im-

' material issues may be raised and fought out in a case which an

IS A. 3= examination of the record would prove to have been absolutely immaterial.
12 A,W.N 4 In our opinion, s. 13 was never intended to bar the trial of a material
(18B2) 113. issue in a suit, because the Judge in a previous suit where that question
was absolutely immaterial had tried the question and given an opinion
upon it. There are also cases in which the decree possibly alone could
not be understood without an examination of tbe pleadings, of the issues
and of the judgment, but in all tbese cases the decree is tbe final judicial
determination of the suit, and in our opinion if a decree is specific and
is at variance with-a statement in tbe judgment on which it is founded,
it is the decree to which we must pay attention and not to the statement
in the judgment. The decree and not the statement in the judgment
must be taken on matters which are material [6] to the final determin-
ation of the Court on the subject ; otherwise you might have a man lawfully
in possession under a decree declaring his title to possession aud you
might have his opponent still enticled by reason of a statement in the
judgment on which that decree was passed to question the title of the
man in possession. We consequently hold that, so far as s. 13 of the
Code of Civil Procedure applies, the olaintiffs, and not the defendant
here, are barred by the former suit. We dismiss this appeal with costs.

Appeal dismissed.



IS A. 6 = 12 A W.N. (1892) 114.

APPELLATE CRIMINAL.

Before Mr. Justice Tyrrell and Mr. Justice Blair.



QUEEN-EMPRESS v. BANKHANDI.* [30bh June, 1892.]

Practice Sessions trial Witness Rejection by Court of Sessions of witnesses sent up by
the committing Magistrate.

It is tbe duty of a Sessions Court to examine all the witnesses sent up by the
committing Magistrate. That Court is not jastifiai in rejecting any of the wit-
nesses so sent up unless it ha? good reason to believe that suoh witness came
into tbe Court-house with a predetermined intention of giving false evidence.

THE facts of this case, so far as they are necessary for the purposes
of this report, sufficiently appear from tbe judgment of the Court.

The Public Prosecutor (The Hon'ble Mr. Spankie), for the Crown.
The appellant was not represented.

JUDGMENT.

TYRRELL and BLAIR, JJ. Bankhandi appeals against his convic-
tion and sentence to death for murder. His case also comes before us for
confirmation of sentence.

On tbe llth February 1892, between 9 A.M. and noon, the appellant's
wife was nearly decapitated with a hatchet, the property of and found in



* Criminal Appeal No. 404 of 1893.
718



YII] ZABADA JAN V. MUHAMMAD TAIAB 15 All. 8

the house of the appellant. It was covered with blood. The only question in 1892
the case is whether Bankhandi, appellant, in a fit of rage, because his wife JUNE 30.
quarrelled with him about money lost in gambling, murdered her with the axe
or whether, as Backhand! from the moment of the crime down to the end of APPEL-
his [7] trial asserted, the woman was killed by Pal Singh and Jhandu Singh, LATE
the brothers-in-law of the appellant, who, as he said, was shortly afterwards CRIMINAL.
grievously wounded in the throat by Pal Singh. There is no evidence in
support of Bankhandi's story, and the case for the prosecution is well 13 A. 6=
established by the medical and other evidence. The story of Bankhandi, 12 A.W.N.
both as to the death of his wife and as to the infliction of a wound or (1892) 114.
wounds on his own throat, is negatived almost conclusively by the medical
evidence and largely by the statements of the villagers as to the events
of the morning in question. We noticed with dissatisfaction that at the
suggestion of the Court the prosecution withdrew, as witnesses against
the prisoner, Ganga, bis brother, Kallu, his father, and Musammat
Prano, his mother. Two of these were mentioned in his first state-
ment by the appellant as eye-witnesses of the attack upon himself, and
it was equally objectionable from the point of view of the prosecution
or of the defence that these witnesses who bad been sent up by the
committing Magistrate in his calendar should not have been examined.
Courts are not competent when trying persona accused of criminal
offences to pick and choose among the witnesses sent up by the com-
mitting Magistrate. It is their duty to examine all the witnesses, unless
the Court baa good and sufficient cause on the representation of the
Government Pleader or other person charged with the prosecution to
believe that the witness came into the Court-house with a predetermined
intention of giving false evidence.

The assessors agreed with the learned Judge in finding the accused
guilty of murder, the only conclusion which could rationally have been
formed on the evidence by persons of ordinary honesty and intelligence.
We dismiss the appeal and, affirming the conviction and sentence, we
direct that the sentence be carried into effect.



ISA. 8 = 12 A.W N. (1892) 140.

[8] APPELLATE CIVIL.

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



ZABADA JAN (Defendant) v. MUHAMMAD TAIAB AND ANOTHER
(Plaintiffs).* [1st July, 1892.]

Civil Procedure Code, as, 495, 588. cl. (24) Order refusing to set aside an injunction-
Appeal.

An appeal will lie under s. 588, ol. (24), of the Code of Civil Procedure from
an order under s. 496 of the Code refusing to set aside an injunction. Nabbi
Buksh v. Chasni (1), referred to.

IN a suit for partition of certain immoveable property between the
parties to this appeal in the Court of a Subordinate Judge an injunction
was obtained by the plaintiffs against the defendant to restrain the defend-
ant from building on a portion of the land in suit which was then in her

* First Appeal No. 23 of 1892, from an order of Babu Bepin Bebari Makerji,
Subordinate Judge of Mainpuri, dated the 6th January, 1892.

(1)GC. 168.

719



15 All. 9



INDIAN DECISIONS, NEW SERIES



[Yol,



1892

JULY 1.

APPEL-
LATE
CIVIL.

ISA. 8 =
12A.W.N.
(1892) 140.



possession. The injunction was served on the defendant on the 9 L J h of
December 1891, bub she neither applied to get it set aside, nor, apparently,'
until the intervention of an amin of the Court, did she desist from building
a house which was at the time in process of consbruction. Subsequently
on the 6fch of January 1892, the defendant applied under 8. 497 of the
Code of Civil Procedure to the Court issuing the injunction to have the
same set aside, but the Court on the same day refused to set aside the
injunction. The defendant then appealed to the High Court.

Babu Jogindro Nath Chaudhri, for the appellant.

Maulvi Ghulam Mujtaba, for the respondents.

JUDGMENT.

EDGE, C.J., and BLAIR, J. This is an appeal from an order under
s. 496 of the Code of Civil Procedure refusing to discharge an injunction.
For the respondent it is objected that no appeal lies, it being contended
that the only orders under s. 496 which are appealable under s. 588, cl. (24),
are orders discharging, varying, or setting aside an injunction. Clause (24)
in our opinion gives an appeal where the order is an order discharging, vary-
ing, or setting aside an injunction, or an order refusing to discharge, vary
or set [9] aside an injunction. An examination of the other clauses of
s. 588 shows that when it was intended to limit an appeal to an affirmative
order or to a negative order that was expressly done. Clauses (20) and (25)
may be cited as examples. Further, the decision in the case of Nubbi
Buksh v. Ghami (1), although not a decision oncl. (24), decides the princi-
ple which we think applies here. We hold that the order in question was
appealable under s. 588, cl. (24), of the Code of Civil Proaedure. As to
the merits it is said on behalf of the appellants that they had pulled down
the house before the order for the injunction was made. The injunction
restrains them from pulling down the house or building, and it is in our
opinion eminently a case in which it was proper that such an order of
injunction should be made as the suit was one for partition. We dismiss
the appeal with costs.

Appeal dismissed.



ISA. 9 = 12 A.W.N. (1892) 118.

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



NIAZ GOL KHAN (Defendant) v. DURGA PRASAD AND ANOTHER
(Plaintiffs)* [2nd July, 1892.3

Civil Procedure Code, ss. Ill and 216 Set-off Cross claims of the nature of set-off.

The plaintiffs agreed to purchase from the defendant certain timber. They
paid part of the price in advance and took delivery of some part of the timber,
but refused to take delivery of the rest, and subsequently sued the defendant to
recover part of the price paid, alleging that the portion of which they had taken
delivery was not of the quality contracted for. Beld that in such a suit, the
defendant might claim by way of set-off compensation for the loss which he had

* Second Appeal No. 431 of 1889, from a decree of T.R. Redferns Esq., District
Judge of Bareilly, dated the 24th December 1898, confirming a decree of Maulvi
Muhammad Abdul Qaiyum, Subordinate Judge of Bareilly, dated the 20th June, 1888.

(1) 6 0. 168.

720



YII] NIAZ GUL KHAN V. DURGA PBASAD 15 All

incurred in the re-sale of that portion of the timber, the subject of the contract, 1892
of which the plaintiffs had failed to take delivery.

8. Ill of the Code of Civil Procedure is not exhaustive of the descriptions of
cross-claim which may be allowed by way oi set-off. T '

Stephen Clark v. Ruthnavaloo Chetti (1), T. Kistnasany Pillay v The Muni-
cipal Commissioners for the Town of Madras (2), Kishorchand Champalal v. LATE
Ha-[W}d]iowji Visram (3), Pragi Lai v. Maxufell (4), Bhaqbat Panda v. GlVir.
Bamdeb Panda (5), Chisholm v. Oopal Chunder Surma (6), referred to.

[F., 27 A. 145 (147)= 1 A.L J. 529=VW.N. (1904) 193; R., 85 P.K, 1908 = 130 13 i. 9=
P.L.R. 1903 = 80 P.W.B. 1908 ; Expl., 19 A.W.N. 143.] 12 A.W.N.

THE facts of this case sufficiently appear from the judgment of the * 1892 } H5.
Court.

Pandit Sundar Lai and Maulvi Ghulam Mujtdba, for the appellant.

Mr. D. Banerji and Babu Jogindro Nath Chaudhri, for the respon-
dents.

JUDGMENT.

EDGE, C. J., and BLAIR, J. The plaintiffs contracted to buy from the
defendant and to take delivery of certain timber. They paid a large portion
of the contract price beforehand and took delivery of about two-thirds of
the timber, and then wrongfully, as it is found, refused to take delivery of the
balance and brought this suit to recover from the defendant the amount
advanced by them in excess of the price of the timber of which they had
taken delivery, and also for damages, alleging that the timber which was
actually delivered was not up to contract. The defendant pleaded a set-off,
alleging that there had been a fall in the market price of timber and that
he had been put to considerable expense owing to the plaintiff's breach of
contract and he denied the plaintiff's right to maintain the suit against
him. It has been found that the timber which was delivered was accord-
ing to contract and that the only breach of contract was the breach on the
part of the plaintiffs in declining to further perform the contract and to take
delivery of the balance of the timber. The defendant's set-off was disal-
lowed, it having been regarded as sounding in damages. There is a series
of decisions showing that in the view of the Courts in India a right to set-off
may arise under circumstances under which the right would not arise in
England and under circumstances under which a right to set-off under s.lll
of the Code of Civil Procedure, 1882, would not arise. Some of those
decisions are Stephen Clark v. Ruthnavaloo Chetti (1), T. Kistnasamy
Pillay v. The Municipal Commissioners for the Town of Madras (2),
Kishorchand Champalal v. Madhowji Vi&-\\i\ram (3), Pragi Lai v.
Maxwell (4), Bhagbat Panda v. Bamdeb Panda (5), and G. Chisholm
v. Gopal Chunder Surma (6). Section 216 of the Code of Civil
Procedure, as amended by Act No. VII of 1888, recognises that a right
of set-off which would not be admissible under s. Ill of that Code
might be otherwise admissible and that a defendant pleading it might
be entitled to a decree on it as against the plaintiff. Under these
circumstances the Court should have gone into the question of the defend-
ant's set-off, as it arose out of the same transaction ; but inasmuch as it
appears to us that if the question of set-off were gone into the parties
would be put to the expense of a remand with the result that the defendant
would succeed in the suit, and inasmuch as Pandit Sundar Lai is willing
to forego any claim in excess on the set-off, we have allowed him to object

(1) 2 M.H.C.B. 296. (2) 4 M.H.C.B, 120. (3) 4 B. 407.

(4) 7 A. 284, (5) 11 C. 557. (6) 16 C. 711.

721
A. VII 91



15 All. 12



[Vol.



1892

JULY 2.

APPEL-
LATE
CITIL.

15 1.9-

12 A. W.N.
(1892) 115.



to the maintenance of the suit at all in this appeal although that point
was not specifically raised. In our opinion upon the findings below the
plaintiff's suit should have been dismissed. We allow this appeal, and
dismiss the plaintiff's suit with costs. Pandit Sundar Lai on behalf of his
client abandoning the set-off, the set-off is dismissed, but without costs.
The defendant will have Che costs of the suit in all Courts.

Appeal dismissed.



15 A. 11 = 12 A. W.N. (1892) 141.
APPELLATE CRIMINAL.

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



QUEEN-EMPRESS v. BHAGWANTIA.* [9fch July, 1892.]



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 106 of 155)