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between the sum mentioned in the decree and the amount alleged by the appel-
lant to be due.

[Dias,, 27 A. 447 (448) = A.W.N. (1905) 40=-2 A.L.J. 105 ; 11 Ind. Gas. 198 (199) =
213 P.L.R. 1911 ; 134 P. W. R. 1911 ; N.F. 30 A. 547 (549) = 5 A.L.J. 531 =
A.W.N. (1908) 247 = 4 M.L.T. 448 ; 29 M, 367 (369) = 16 M.L.J. 287 ; 5 N.L.R.
130 (133) ; R. 14 M. 480 (483) ; 2 O.C. 87 (89) ; 9 0.0. 153 (154)].

IN this case the memorandum of appeal came before the Registrar of
the Court on a question as to the sufficiency of stamp. The Registrar
referred the question for decision, under s. 5 of the Court Fees Act, in these
terms :

" This is an appeal in a redemption of mortgage case by the plaintiff
in the suit.

" The lower Court granted a decree for redemption on payment of
Bs. 2, 15,446-15-6, while the plaintiff claimed that the whole mortgage
money had been paid.

" The appellant appeals against the amount he is ordered to pay for
redemption, and the question of the right to redeem is not in contest.

" The question is, whether under these circumstances the memoran-
dum of appeal should be stamped under s. 7, ol. IX of the Court Fees Act,
according to the principal money expressed to be secured by the instrument
of moitgage, or on the difference between the sum awarded and that which
the appellant admits to be due.



* Reference under s, 5 of the Court Fees Act.
59



13 All. 96



INDIAN DECISIONS, NEW SERIES



[Vol.



1890

JULY 10.

GIVIL

KEFEK-

ENOB.

31.94 =
10A.W.N.
(1890) 231.



" There are three rulings to the point. The first, in which this Court
Bam Lakhan Rai held that a suit might change its nature in appeal,
v. Bendan Rai (1). wag j n nature very similar to this case, and it was held
that the proper stamp was on the money value of the appeal,

" The next case was also decided by this Court. It was in a pre-emp-
Hafiz Ahmad, t:. tion case, but the principle laid down is cloar and
Bobha Ram (2). equally applicable to a redemption [96] of mortgage
case. It says that when the right to pre-empt is in question an appeal
should be stamped on the value of the property as in the original suit ;
but when the question in appeal relates solely to the amount to be paid by
the pre-emptor the fee should be calculated ad valorem on the amount
actually in dispute.

" The last case deals with redemption cases.

" The case itself is hardly to the point, as the right to redeem was in
Umat Khan v. issue, but the case quoted in note A seems to the
Muha mmad point. It is not very clear whether the right to re-
Khan (8). deem was also in issue, but the last paragraph but
one from the bottom of the page would point to its not being so. If
this is so, the Bombay High Court held that in any appeal connected
with redemption the stamp should be calculated as in the original suit on
the principal amount secured by the mortgage-deed.

" The principle laid down by this High Court in I.L.E. 6 All. 488,
commends itself to me as the sounder for the following reasons :

" (a) It recognises that the appeal may lie from only part of the
decree, which the Bombay ruling does not seem to do, but which is
clearly recognized by s. 16 of the Court Fees Act.

" (b) S. 7 of the Court Fees Act relates only to stamp valuation in
suits, and is nowhere made applicable to appeals. In many instances the
value in appeal may be definite, whereas in the original suit it could not
be ascertained (were provision not made in the Act) until the suit were
decided.

" The question involved is one of considerable importance, and the
difference in fee in this case is large, and as there seems a difference of
opinion between this High Court and that of Bombay, I refer the matter
to the Judge appointed to decide such questions under s. 5 of the Court
Fees Act.

" If the stamp be leviable on the amount secured by the instrument
of mortgage, the memorandum seems to be properly stamped.

" [97] If the stamp should be calcuated on the sum contested by the
appellant there is a deficiency of Rs. 1,825 (2,025 200). I would note that
the period of limitation expires on the 17th instant."

On the above reference the Chief Justice made the following order :

ORDER.

EDGE, C. J. I am of opinion that the stamp is sufficient, and I so
decide for the following reasons.

S. 7, sub-s. 9, of the Court Fees Act, VII of 1870, enacts that in
suits such as this the amount of fee payable shall be computed according
to the principal money expressed to be secured by the instrument of
mortgage, and does not make the amount of the fee to depend on the
balance which the mortgagor may say is due, or on that which the
mortgagee alleges to be due. In the suit the mortgagor claimed a decree



(1) Legal Remembrancer, Vol. I, p. 163.

60



(2) 6 A. 488.



(3) 10 B.



YII]



JAW1TBI V. H. A. EMILB



13 All. 98



for redemption on the allegation that the mortgage debt had been satisfied. 1890
So far as the court-fee on the plaint was concerned, it was immaterial JULY 10.
whether fche mortgage debt had in fact been satisfied, or whether redemption
could only be had on payment of Rs. 2,15,446-15-6. CIVIL

This is the plaintiff-mortgagor's appeal, and it appears to me that the REFER-
relief which he is claiming in this appeal is a decree for redemption of the gNCE.
mortgaged property on payment of the amount, if any, which is due. That
appears to ma to be a relief which it is impossible to value. In my ISA. 9J=>
opinion we must apply s. 7, sub-s. ix. 10 A.W.N

If, on the other hand, the decree below had decreed redemption on (1890) 231.
payment of, say, Rs. 500, and the defendants, morbgagees were appealing
on the ground that the amount due was Ra. 2,00,000, I am of opinion that
the amount of court-fee should be calculated on the difference between
Rs. 500 and Rs. 2,00,000.



13 A. 98 = 10 A.W.N. (1890) 232.

[98] REVISIONAL CIVIL.
Before Sir John Edge, Kt,, Chief Justice and Mr. Justice Young.



JAWITRI (Defendant) v. H. A. EMILE (Plaintiff).* f 131st October, 1890]

Trespass Building on plaintiffs land Damages Mandatory injunction Suit for
further damages Alleged disobedience of mandatory injunction Cause of action
Suit not maintainable'

The defendant having built a> wall on the plaintiff's land, the plaintiff brought
a suit in which he aaked for damages for the trespass, and an injunction, and a
decree was passed for damages and for a mandatory injunction directing the
defendant within two months to remove the wall, and to restore the plaintiff's
premises to their former condition. Two years subsequently the plaintiff brought
another suit for damages, alleging his c^usa of action to be the defendant's dis-
obediduoe of the mandatory injunction, and proving as damages that people were
deterred from becoming his tenants by fearing that, owing to the defendant's
previous action, r.he hillside on which the plaintiff's premises were situate, was
likely to fall. There was no structural or other damage done to the plaintiff's
property other than that which was done prior to the oommeneoment of the
previous suit.

Held, that the suit would not lie for damages for non-compliance with the
mandatory injunction, to compel the performance of which the plaintiff bad his
remedy in execution. Mitchell v.Darley Main Colliery Company (1) distinguished.

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

Babu Dwarka Nath Banerji, for the petitioner.

Mr J. E. Hoivard and Babu Bishan Sahai for the opposite party.

JUDGMENT.

EDGE, C.J., and YOUNG, J. The plaintiff in this case was the owner
of Thespic Lodge. Mussooree. His property was on a lower level than
that of the defendant. The defendant, in order to secure his property,
which had been damaged by a slip, proceeded to build a " pushta " or
retaining wall, and, unfortunately for him, commenced to build that wall
on the plaintiff's premises, and thereby undoubtedly committed a trespass.
It would appear that at the time of the slip some soil and other matters
had come down the hillside on to the plaintiff's premises. The plaintiff



Miscellaneous Application under s. 622 of the Civil Procedure Code.
(1) L, R. HApp. Gas. 127.

61



13 All. 99



INDIAN DECISIONS, NEW SERIES



[Yol



1890

OCT. 81.

REVI-

SIONAL

CIVIL.

13 A. 98 =
10 A.W.N.
<1890) 232.



brought a suifc in which he asked [99] for damages for the wrongful tres-
pass of the defendant, and also sought an injunction. The plaintiff got a
decree for damages and obtained a mandatory injunction by which the
defendant was ordered within two months to remove the wall from the
plaintiff's premises and to restore the plaintiff's premises to the condition
in which they were before. The plaintiff proceeded to execute that decree,
but execution appears to have been resisted by the defendant ; whether
it was properly pressed on or not by the plaintiff we need not inquire. In
1889, two years subsequently, the plaintiff brought the present suit in
which he sought damages, alleging his cause of action to be that the
defendant had not obeyed the mandatory injunction. The damages which
he proved were that people were deterred from becoming tenants of some
rooms in his house, fearing that, owing to what the defendant had done,
the hillside might come down and overwhelm them. The plaintiff
obtained a decree for Es. 300. There was in fact no structural or other
damage done to the plaintiff's property other than that which was done before
the commencement of the previous suifc. The question for us is, whether
this suit will lie. It has been contended by Mr. Howard on the authority
of Mitchell v. Darley Main Colliery Company (1), that this suifc lies. On
the other hand, Mr. Banerji relies on the case of Serrao v. Noel (2) in
the Court of Appeal. The Darlcy Main Colliery Company case was a
case in which the defendants had lawfully excavated their own coal, but,
unfortunately for them, had not taken the precaution to leave support
for the surface. In that case a subsidence occurred and damaged the
property of the plaintiff. Compensation was made for that damage, and
many years subsequently a fresh subsidence occurred, and the majority
of the House of Lords ultimately decided that the fresh subsidence gave
a fresh cause of action. In Buckhouse v. Bonomi (3), the House of Lords
had decided that a cause of action did not arise until subsidence occurred.
The House of Lords, following the principle of that case, held that each fresh
subsidence gave a fresh cause of action. To take that case, if Mr. Mitchell,
after compensation had been made [100] for the original damage,
had brought a suit in which he claimed damages on the ground that people
were deterred from taking his surface lands for building purposes owing to a
fear that there might be fresh subsidence, we apprehend that such a suit
would not have lain. In this case the cause of action was the wrongful act
of the defendant in building the " pushta " on the land of the plaintiff.
For that wrongful act compensation was awarded in the first suit, and a
further remedy was decreed in the form of a mandatory injunction. All
that has happened since has been that people have been afraid to take the
rooms in the plaintiff's house fearing that some injury might happen to
them. We need not decide whether the plaintiff would have any remedy
or not, if, by reason of the original acts of the defendant, structural or
other damages should happen to his property. In our opinion this suit
does not lie for damages for non-compliance with the mandatory injunc-
tion to compel the performance of which the plaintiff had his remedy in
execution. It is always dangerous to give illustrations, but it appears to
us that it might equally well be contended that plaintiff who had obtained
a money decree might bring a subsequent action for the non-payment of
the decretal amount. We set aside the decree below and make an order
dismissing the suit; with costs here and below.

Appeal allowed.

(1) L.B. 11 App. Gas. 127. (2) L.B. 15 Q.B.D, 549. (3) 34 L.J.Q.B. 181,

62



YII] BAMZAN V. GERARD 13 All. 102

13 A. 100 = 11 A.W.N. (1891) S. 1890

APPELLATE CIVIL. DEC^S.

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

RAMZAN (Petitioner} v. GERARD (Objector)* CIVIL.

[5th December, 1890.] ~

lj A. 100^

Surety, liability of Judgment debtor applying to be declared an insolvent Civil Proce- u 4 \y fl
dure Code, ss. 336, 344.

(lO3j) 0.

A person who executes a bond undertaking to produce a judgment-debtor at any
time when the Court should direct him to do BO, and standing security under
s. 336 of the Civil Procedura Code for the judgment-debtor's applying to be declar-
ed insolvent, is released from his obligation under the bond when the judgment-
debtor [101] files his petition under s. 344 to be declared inaolvent. Koylash
Chandra Shaha v. Christophoridi (1) approved.

[P.. 19 B. 210 (212) ; Appl., 16. A. 37 (38) = 13 A.W.N. 203; R. ; 100 P.R. (1894)
U.B.R. Civil (18921895). Vol. II. 269.]

THIS was a reference to the High Court, under s. 617 of the Civil
Procedure Code, by the Subordinate Judge of Dehra Dun. The order of
reference was as follows : .

11 Under the provisions of s. 617 of the Civil Procedure Code, I have
the honour to forward a bond of F. B. Sakloth's under s. 336, together
with the whole record, for orders.

" Briefly, Mr. Gerard was arrested in execution of a decree, and
Mr. F. B. Sakloth gave the bond. Mr. Gerard did make his application
under s. 344 of the Civil Procedure Code, but that application was rejected.as
on the day fixed for the hearing he did not appear, A previous application
had been rejected on the merits by the District Judge of Eawal Pindi.
Subsequently to Mr. Gerard's application.F.B. Sakloth gave in a petition to
the effect that "he understands his responsiblity is now ended, but should it
be otherwise, petitioner hereby revokes bis suretyship so far as it involves
further responsibility." Therefore be was ordered to produce Mr. Gerard.
This was on the 23rd September, and up to the 8th November, the date fixed
for the hearing under s. 347 of the Civil Procedure Code, he did not do so.

" The question is, was F. B. Sakloth released from his bond when
Mr. Gerard applied under s. 344 of the Civil Procedure Code ?

" I am of opinion that he was not. The bond, though drawn up by
Mr. Melviil, a vakil of longstanding, is not in the form prescribed on
p. 326 of the Circular Book, and this escaped my notice at the time it was
presented. However, it seems essentially the same in its provisions, which
are, first, that ' I, Mr. Gerard, shall apply &c., and, second, that ' he shall
appear when called on.' This last I take to mean until the decision
of the insolvency case. Both conditions appear in s. 336 of the Civil
Procedure Code, Mr. Melvill, however, has referred me to Koylash
Chandra Shaha v. Christophoridi (1), which seems to be against me. The
reasons for [102] that decision, however, do not appear in the report
of the case. Possibly it may have been based on the terms of the bond.

" I have the honour then to ask whether I am to follow that ruling,
and, if I am, what procedure am I to adopt on a person's applying under
s. 344 to secure his subsequent attendance till discharged or otherwise."

* Reference under ?. 617 of the Civil Procedure Code, by C. Steel, Esq., Subordi-
nate Judge, Dehra Dun, dated the 1st November. 1889.

(1) 15 C. 171.

63



13 All. 103 IND TAN DECISIONS, NEW SERIES [Yol.

1890 OPINION.

DBOJ5, EDGE, G.J., and TYRREL; J. We are of opinion that the case of

Koylash Chandra Shaha v. Christophoridi (1) was rightly decided

and applied, and that the surety, is discharged. The record will be
LATE returned.
CIVIL.

is *Tioo= 13 * 102 -

"l.W.H. APPELLATE CIVIL.

5

Before Mr. Justice Straight and Mr. Justice Brodhurst.



HAKIM-UN-NISSA (Plaintiff) v. DEONARAIN AND OTHERS (Defendants).*

[17th July, 1888.]

Act IV of 1882 (Transftr of Property Act), s. 135 Actionable claim Transfer of claim
for an amount less than its value Suit by transferee to enforce claim Defendant
not entitled to plead that terms of transfer were unconscionable.

A mortgagee by conditional sale having obtained an order (or foreclosure under
Regulation XVII of 1806, his heirs, who were oat of possession, executed a deed
of assignment to a third person, transferring to him the rights acquired by the
mortgagee under that order. At the trims of the execution of the daed no steps had
been taken by the mortgagee or his heirs to bring a suit for declaration of their
title and for possession of the property. A suit for that purpose was brought by
thn assignee, the defendants being the conditional vendors and also the assignors
under the deed above mentioned. The latter made no defence, but admitted tin
justice of the claim, and a decree was passed in favour of the plaintiff against
them as well against the other defendants.

Held, that the answering defendants, the conditional vendors, could not take
advantage of the terms of the assignment for the purpose of defeating the claim,
on the grouud that the assignment was an unconscionable bargain, so unfair that
tbe Court should not enforce it. If a person who has an actionable claim against
another chooses to sell it cheap, that is no reason why that other is to stand
cleared and discharged of his liability to the assignor.

Held also that the answering defendants were entitled to tbe benefit contained
in the first paragraph of a. 135 of the Transfer of Property Ace (IV of 1882), and
would be entitled to take the bargain off the plaintiff's hands by paying to him
the price and incidental expenses of the sale with interest [103] ou that price
from tbe day that the plaintiff paid it to the date of its repayment to him. Jani
Begam v. Jahingir Khin (2) followed Grish Chandra v. Kashisauri Debi (3),
and Khosheb Biswas v. Satar Mondol (4) dissented from.

[R. 18 A. 265 (267) ; 20 A. 327 = 18 A.W.N. 54 ; 21 C. 568 (575) (F.B.)]

ON the 18fch October 1862, Manbasi Eai, Tehlu Eai and Ajib Eai, exe-
cuted a deed of conditional sale of immoveable property to Behari Bhagat,
for Es. 400. In June, 1873, Earn Ghulatn and Bhusi, representatives of
Behari Bbagat, instituted foreclosure proceedings under Regulation XVII
of 1806, and an order for forcloaure was passed on the 16th June, 1874.
On the 30bh July, 1884, Earn Ghulam and Bhusi, being out of possession,
and nob having commenced any suit for declaration of their title and for
possession by virtue of the order for foreclosure, executed a deed of assign-
ment in favour of Musammat Hakim-un-Nissa Bibi, by which they trans-
ferred to her all their rights as conditional vendees. The deed recited the
inability of the assignors to find funds to prosecute a suit, and contained
the following passage :

Second Appeal, No. 161 of 1887, from a decree of Q. J. Nioholls, Esq., District
Judge of Ghazipur, dated the 22nd December, 1886, reversing a decree of Pandit Ratnan
Lai, Subordinate Judge of Ghazipur, dated the 29th Septemper, 1885.

(1) 15 C. 171. (1; 9 A. 476. (3) 13 0, 145. (4) 15 C. 436.

64



HAKIM-UN-NISSA v. DEONAEAIN



13 All. 105



" And if, after proper endeavour, the aforesaid rights above specified
in this deed do not anyhow come into the purchaser's possession, or the
principal with interest is not realized, the purchaser will be entitled to the
refund of Rs. 200, i.e., half the consideration mentioned in this bond, also
of whatever cost the purchaser may have actually incurred in her attempt
to obtain possession of the said rights and of whatever sum she may have
paid to any party as costs, o., or any other sum that the purchaser may
have to pay in connection with this transaction will be recoverable from
the person and property, moveable and immoveable, of the executant."

The present suit was brought by Musammat Hnkim-un-nissa for
proprietary possession of the property comprised in the conditional
sale-deed of the 18th October, 1862, and affected by the foreclosure
order of the 16th June, 1874, she impleaded as defendants to the
suit the heirs of the original conditional vendors, and also her assignors
under the deed of the 30tb July, 1884, Earn Gbulam and Bhusi.
[104] These latter admitted the claim and did not defend the suit. The
other defendants resisted the claim on the ground, inter alia, that the deed
of the 30th July, 1884, was a champertous transaction which the Courts
ought not to enforce.

The Court of first instance '(Subordinate Judge of Ghazipur) decreed
the claim. On appeal, the lower appellate Court (District Judge of
Ghazipur, reversed the first Court's judgment and dismissed the suit, on
the ground that the terms of the deed of the 30th July, 1884, were
extortionate and inequitable, and contrary to public policy. This view
was principally based on the smallness of the consideration for the deed.
The District Judge observed "If the litigation succeeded, the plaintiff
got Rs. 2,498 odd, or the zemindari while Ram Ghulam and Bhusi got
nothing save perhaps the Rs. 200 shown to the Registrar : if it did nob
succeed, they were to pay her Rs. 200 and every cost, legitimate and
illegitimate, the woman chose to demand, She could say what she liked
as to costs and payments out of Court. I find that this suit is one
contrary to public policy and therefore not maintainable."

The plaintiff appealed to the High Court.

Kunwar Shivanath Sinha, Pandit Ajudhia Nath and Pandit Sundar
Lai for the appellant.

Mr, Amir-ud-din and Munshi Kashi Prasad for the respondents.

JUDGMENT.

STRAIGHT, J. The suit to which this appeal relates was one of
some peculiarity. In order to make the question which has been
raised in appeal and the view I take of it intelligible, it is necessary
that I should state briefly the main facts out of which the litigation
arises. It appears that in the year 1862, three persons, by name Manbasi
Rai, Teblu Rai and Ajaib Rai, were owners of a thirteen gandas share
of mauza Mahwari Kalan, situate in the Gbazipur district. On the
18th October, 1862, those three persons, for a consideration of Rs. 400,
made a conditional deed of sale, the term of which was to expire on
the 31st October, 1868, in favour of one Bebari Bbagat, who is now dead
and is represented by two persons named Ram [105] Ghulam and Bhusi.
In the year 1873, certain proceedings for foreclosure under the old Regula-
tion then in force were taken by Bebari Bbagat under his conditional
sale-deed, and upon the 16th June, 1874, an order of foreclosure was made.
Nothing appears to have been done upon that order by Behari Bhagafr



1888
JULY 17.

APPEL-
LATE
CIVIL.

13 A. 102.



ATII-9



65



13 All. 106



INDIAN DECISIONS, NEW SERIES



[Vol.



1888 or by Earn Ghulam and Bhusi, his heirs. On the 30bh July, 1884, by a deed
JULY 17. of assignment executed by Ram Ghulam and Bhusi, in favour of Musammat
Hakrm-un-nissa, the plaintiff-appellant before us. those two persons
APPBL- transferred to Musammat Hakim-un-nissa the rights that they had
LATE acquired under the foreclosure order of the 16bh June, 1874. That right,
OlVIL. ^ ne vendors not being in possession of, or having obtained possession of the
share originally conditionally sold to Behari Bhagat, consisted of a right
13 A. 102. to g o i n f, o Court, if resisted by the conditional vendor, to have it declared
that under the foreclosure order they had good title to the property
as proprietors, and to have possession of the same by ejectment of
the vendor in possession. I have no doubt that, upon the face of
that assignment of the 30bh July, 1884, what was sold by Earn Ghulam
and Bhusi to Musammat Hakim-UD-nissa was an actionable claim of the
kind and description I have mentioned. Upon the strength of that assign-
ment the plaintiff has come into Court with her present suit. It is
unnecessary for me, for the purpose of dealing with this case up- to the
point it has reached In the Court below, to say any more than this, that
among the defences raised on the part of the defendants was a defence
that the agreement, as between the plaintiff and her vendors, was open
to objection on the ground of its being champertous, and that accordingly
it ought not to he recognized as giving the plaintiff a title upon which she
can come into Court and sue. The Subordinate Judge, who tried the case
as a Court of first instance, decreed the plaintiff's claim for proprietary
possession of the property, holding, so I understand, that the foreclosure
order of the IGfih June, 1374, was a good and binding order, and that upon



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 11 of 155)