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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 110 of 155)
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Muhammad Sadik is wholly illegal, opposed, as it must be regarded, to
the express prohibition contained in the proviso of s. 10 of the Lunacy
Act (Act No. XXXV of 1858).

The next point then is whether the appellant, Fazl Eab, is a fit and
proper person to be appointed manager of the lunatic's property. Upon
this point I entirely agree, upon the evidence which has been taken in
the case, with the conclusions afc which the learned District Judge has
arrived, that the petitioner, appellant, Fazl Rab, is not fib to be so appointed
as manager of the lunatic's property, for during a number of years there
have been disputes between him and the father of the lunatic, and it is
amply shown that Fazl Bab is no 1 ; acting as a loving uncle for the benefit
of bis unfortunate nephew, Muhammed Sadik, but that his object is to
get hold of the lunatic's property and to deal with it as best as he likes ;
so that upon this point I have no doubt that the learned District Judge
[47] was right, and I agree with him, and regard Fazl Rab as an unfit
person to be appointed as the guardian of the person or property of the
lunatic, Muhammad Sadik.

Now the last point urged on behalf of the appellant is that even if the
appellant, Fazl Rab, be regarded as unfit the proper order in the case

745

A VII 94



15 All. 48



INDIAN DECISIONS, NEW SERIES



[Vol.



1892 should be that the Court of Wards or some other capable person should
JOLY 11. undertake the guardianship of the person and property of the lunatic.

I am of opinion that, whatever value may be attached to the sugges-

APPKL- tion, one thing is certain, that this Court as a Court of appeal is not the

LATE Court to decide whether a particular person is the best person to be so

CIVIL. appointed. The jurisdiction in regard to minors is conferred upon the

_ Civil Courts by Act No. XL of 1858 and in regard to lunatics by Act No.

15 A. 29= XXXV of 1858, and therefore the Civil Courts thus invested with authority

12 A.W.N. are bound by the principle contained in s. 26 of Act No. VI of 1871, which

(1892; 225. has been reproduced in s. 37 of Act No. XII of 1887, and to act according

to the Hindu or the Muhammadan law as the parties may belong to.

Now if it were necessary to refer to the Hindu law it would be easy to

show that it is the duty of the Sovereign in oases of insanity to be the

guardian of the lunatics. Be it as it may, I am dealing with the case of a

Shia Muhammadan who has been found to be a lunatic, and the qusstion

is what is the duty of this Court in respect of such a person.

I have no doubt under the Shia law that under the conditions in
which Muhammad Sadik is situated it is the duty of the British Govern-
ment which protects him, of the Government which realizes revenue from
his estate, of the Government which can pass any order as to his life or
death or to his welfare to abide in oases of this character by the Shia law
which governs this case. The original Arabic authoritative text of that
law together with its translation is the following :

" The fourth rule is that the guardianship in regard to the property
of a minor or a lunatic belongs to the father or the paternal [48]
grandfather, but when they do not exist then to their executor, and if even-
he does not exist then it belongs to the ruling authority. (Sharayeh-ul
Islam, Book on Legal Disability, u. 194).*

Be it as it may, the learned District Judge in dealing with the case
has not so dealt with it. He evidently did 'not know that Musammat
Zainab Bibi was one of the legal heirs under the Shia law of inheritance
and therefore be passed the order which he did appointing her guardian
of her lunatic husband, Muhammad Sadik.

For these reasons I would decree the appeal, and setting aside the
order of the lower Court remand the case to that Court to act in the best
manner under the circumstances and the facts of the case, and to appoint
a fit guardian of the person of the lunatic, Muhammad Sadik, and manager
of his estate, or to act under such other powers as the Lunacy Act (Act
No. XXXV of 1858) confers upon the learned District Judge. As to costs
I would direct that they abide the result, according to the conclusions at
which the learned District Judge arrives.

KNOX, J. I agree in the order proposed by my brother Mahmood, I
feel with him that Musammat Zainab Bibi, who apparently is still a young
woman and without any experience of the world, is not the fittest person
to be the guardian of the unfortunate Muhammad Sadik. The death of
Musammat Khatun Bibi makes her position a still more difficult one, and
I think it probable a more fitting guardian can be found.

I confess to considerable doubt as to what interpretation should be
put upon the words " the legal heir " in s. 10 of Act No. XXXV of 1858.
In that year no enactment corresponding to Act No. I of 1868 was in
force in India. The only aid to be obtained in interpreting the words of



r



746



YII]



PHEKU V, PIBTHI PAL SINGH



15 All, 50



the Act is what can be derived from the provisions contained in s. 23. Act
No. XXXV received the assent of the Governor-General on the 14th day of
September 1858, and on the same day Act No. XXXIV was placed upon the
statute [49] book. This last-mentioned Act also contains a section devoted
to interpretation of the language contained in it, viz., a. 32. Now g. 32 of
Act No. XXXIV and s. 23 of Act No. XXXV are almost word for word
the same, with one striking exception. In s. 32 ia to be found this
sentence "words importing the singular number shall include bbe plural
number, and words importing the plural number shall include the singular."
This sentence is absent from s. 23 of Act No. XXXV, and I am unable
to consider the omission an accidental one. Under these circumstances
I am unable tp interpret the word " the legal heir " as including the plural
number. As however I agree in the order proposed, it is unnecessary for
me to consider the question further.

Appeal decreed.

15 A. 49 = 12 A.W.N. (1892) 222.

APPELLATE CIVIL.

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



1892

JULY 11.

-
APPEL-

LATE

QiVIL.

-

IS A. 29 =
* 2 A. W.H,

(1892) 223.



PHEKU (Judgment-debtor) v. PIRTHI PAL SINGH AND OTHERS

(Decree- holders)* [2nd November, 1892.]

Civil Procedure Code, s. 158 Act VI of 1892, s. 4 Execution of decree Application
for execution struck off in consequence of non-payment of talbana Subsequent appli-
cation for execution^

An application for execution of a decree by attachment of immoveable property
having been presented by a decree-holder, the Court executing the decree ordered
that the coats of such attachment should be deposited by the decree-holder on or
before a certain specified date. The costs of attachment were not deposited by the
day named in the order above referred to and the Court thereupon passed the
following order : "This case oame on for hearing to-day ; as the decree-holder
has not deposited the costs of attachment, &o., therefore it is ordered that the
case be struck cfifor default."

Held, that whether this second order was an order under s. 153 of the Code of
Civil Procedure deciding the application for attachment, or whether its effect was
merely to remove, the application from the file of pending applications without
deciding it, in either case no fresh application (being of a precisely similar nature)
was entcrtainable, though in the latter case, possib'y the former application
might be renewed.
fR., 15 A. 84 (101) (F.B.) ; 16 A. 26 (27).]

THIS appeal originally cams before a Bench consisting of Straight
and Tyrrell, JJ., who, in view of certain difficulties as to the effect of an
order under s. 158 of the Code of Civil Procedure, desired that [50] the
case might be laid before a Bench consisting of the Chief Justice and
themselves. The facts of the case are very fully stated in the referring
order, which is as. follows :

STRAIGHT and TYRRELL, JJ. This is an appeal on the execution
side and the judgment-debtor is the appellant. The decree obtained by
the decree-holder, respondent, was dated the 7th of July 1884, and was
passed upon a mortgage-bond of the year 1870, executed by Musammat
Resham Bibi, thewife of the appellant, in respect of a zemindari share of
bar's, which she had acquired from her father. The decree ordered sale
of the hypothecated property. The first application for execution was

* First Appeal No. 7 of 1891, from a decree of Maulvi Shah Ahmud-ullab, Subordi-
nate Judge of Allahabad, dated the 23rd November 1890.



15 All. 51 INDIAN DECISIONS, NfiW SERIES [Yol.

1892 made upon the llth of June 1887, and, the decree then being more than
Nov. 2. one year old, notice was issued to the judgment-debtor to show cause as

required by law. On the 29th of June 1887, that being the date fixed for

APPEL- the judgment-debtor to appear and show cause, the following order was

LATE passed : " To-day the case came on for hearing and the judgment-debtor

ClVIL being called did not appear, and the service of process being proved by the

report of the Nazir, ordered that the decree-bolder do pay the costs of

15 A. 49 = attachment, &c., by the 6th of July 1887, and let the pleader be informed."

12 A.W.N To this order there is attached the signature of the decree-holder's pleader.

(1892) 222. Upon the 6th of July 1887, that being the date fixed by which talbana

was to be paid in, the following order was passed : " This case came on

for hearing to-day ; as the decree-holder has not deposited the costs of

attachment, &c., therefore it is ordered that the case be struck off for

default."

The second application for execution out of which this appeal before
us arises was made upon the 20th of March 1890, and it was refused
by the Munsif upon the 19fch of July 1890, in the following terms :

"In reference to the observations of Sir John Edge, C. J., reported in
page 119 of the Weekly Notes, for 1890, I cannot but hold that this
application for execution cannot be allowed. The order was to file
talbana within a specified time, and when it was not filed the case was
struck off. That order for filing the talbana bears the [51] decree-
holders' pleader's signature. Application for execution refused without
costs."

In appeal to the Subordinate Judge he waa of opinion that the Munsif's
decision was wrong, and he expresses himself in the following terms :

" The Muosif by the High Court's decision alluded to iu his judgment
probably understands that the procedure under s. 158 of the Civil Proce-
dure Code is applicable to the first rejected application: but in my opinion
this is a mistake. The procedure under the said section would have been
applicable had the decree-holders on their application been granted time
for further proceeding, but such was not done in the present case. On the
former application of the decree- holders a notice was issued to the
judgment-debtors, and after the service of this notice the Court itself gave
the decree-holders in their absence further time for .depositing the costs
of attachment, &c., but on proof of their failure to do this, the said ap-
plication was rejected. The aforesaid proceeding therefore was not one
under s. 158 of the Civil Procedure Code. I have taken this meaning of
the said section in accordance with the view expressed by the Madras
High Court in their decision published on page 41 of I.L.R. Vol. VII. "

The Subordinate Judge therefore reversed the decision of the Munsif
and remanded the execution-proceedings to the Munsif for restoration to
the file of pending proceedings. It is this order of remand that is subject
of this first appeal to this Court. It is strenuously contended by Mr. Srish
Chandra on behalf of the judgment-debtor appellant that the portion of the
learned Chief Justice's judgment to which reference is made by the Munsif
in his decision is directly applicable to the circumstances of this case, and
that this Bench is bound by that Fall Bench decision. Mr. Srish Chandra
has also urged that assuming the decision of the 6th of July 1887 in the
execution-application to have been given under s. 158 of the Code of Civil
Procedure that makes not only the present application one barred by the
former decision, but precluded the decree-holder from making any subse-
quent application for execution of his decree. [52] As at present advised
we are disposed to hold that the decision of the 6th of July 1887 was

748



YII]



PHEKU V. PIBTHI PAL SINGH



15 All. S3



a decision under s. 158, Civil Procedure Code. By the order of the 29tb of
June 1887, time had been given to the decree-holder, notice of which had
reached his pleader, to perform an act necessary to the farther progress of
the application towards an order for attachment, if necessary, or for sale,
by deposit of talbana, that is to say, the necessary expenses incidental
to such attachment or sale, and that having failed to do this act for which
time had been given him, the decree-holder was in default in the sense of
s. 158 which, by s. 647 of the Code, is made applicable to proceedings
in execution. We see nothing in the section to justify the view taken by
the learned Subordinate Judge that it was essential that Ihe order of the
29th of June 1887 should have been made upon the application of the
decree-holder or his pleader. It is in our opinion enough that it was
made and that it was brought to the knowledge of the decree-holder's
pleader, and that there was default in the sense of s. 158 of the Code.
Our minds however are not without difficulty as to the precise effect
of the order passed under s. 158, viz., as to whether it can be regarded
as a bar to all subsequent applications. As the question involved is
one that more or less arises out of an expression used in the course of
the judgment of the learned Chief Justice in the Full Bench case, we
both feel that it is desirable we should have the benefit of his assistance
in disposing of this appeal, and we therefore refer the hearing and disposal
of this appeal to a Bench consisting of the learned Chief Justice and
ourselves.

The reference came on for hearing before a Bench consisting of
Edge, C.J., and Tyrrell and Blair, JJ., and the following judgments were
delivered :

Mr. J. Simeon, for the appellant.

Babu Durga Charan Banerji, for the respondents.

JUDGMENTS.

EDGE, O.J. The appellant here is the judgment-debtor. The decree-
holders applied for execution of their decree. Notice was served upon
the judgment-debtor, and on the 29th of June 1887 [53] the Munsif
passed an order giving the decree-holders time up to the 6th of July . 1887,
to pay into Court the costs of the attachment. On the 6th of July 1887
the Munsif passed an order striking off tbe application for attachment
on the ground that the decree-holders had not paid into Court the costs
of the attachment. t On the 20th of March 1890, the application out of
which this appeal has arisen. was made. It was a substantive application
for execution of the decree and did not purport to be, and was not, an
application for revival of the previous proceedings. The Munsif dismissed
the application relying on some observations of mine in my judgment
in Radha Charan v. Man Singh (I). On appeal the Subordinate Judge set
aside the order of the Munsif and made an order of remand relying on the
case of Sri Raja Venkataramaya Apparau Bahadur v. Anumukonda Ran-
gaya Nayudu (2). In my opinion the Madras case is absolutely inapplicable
to tbe present. That was a case in which s. 158 of the Code of Civil
Procedure could not apply on the facts as stated therein. The judgment-
debtor appealed against the order of the Subordinate Judge. Now it has
been argued that the Munsif proceeded under s. 98 of the Code of Civil
Procedure when he passed his order of the 6th of July 1887. That
argument cannot be supported. The 6th of July 1887 was not a date fixed



1892

NOV. a.

APPEL-
LATE
CIVIL.

is A. =49

12A.W.N.
(1892) 222,



(1) 12 A. 392 = 10 A.W.N. <1890) 119.



(2)7 M. 41.



749



15 All. 54



[Yoi:



1892 for tha defendant to appear and answer, nor was this a case in which

Nov. 2. neither party appeared on a subsequent date to which the hearing of the

application had been adjourned, nor was the absence of the parties,

APPEL- or either of them, the cause of the Court's action. The cause of the

LATB Court's action was the non-payment by the decree- holders by the date

CIVIL fixed for that purpose of the costs of the attachment;. It was a case to

which in my opinion s. 158 of the Code of Civil Procedure would apply.

13 A. 49= It is not necessary to express an opinion as to whether what the Munsif
12 A.W.N. did was a deciding of the application or merely a putting of the appli-
(1892) 222. cation aside from the list of pending applications leaving ii undecided.
Probably the Munsif by his order intended to express a dismissal of
the application. If the order of the Gfch of July operated as a dismissal
[54] of the application it was a decision under s. 158 of the Code, and
whether erroneously made or not, it was a bar, so long as it existed, to a
precisely similar application, as this was, on behalf of the same parties.
If the order of the 6th of July did not operate as a decision of the appli-
cation, then all that can be said is that in that event there having been no
decision of the application, the application is as yet undisposed of. Now
it is quite clear from s. 4 of Act No. VI of 1892 that applications for
execution of decrees are proceedings in suits, and I can find nothing to
suggest that two precisely similar proceedings by the same party against
the same party in respect of the same matter can be co-existe.nt in a suit.
The existence of the first proceeding undisposed of in my opinion pre-
cludes the entertainment; of the second precisely similar proceeding : I
mean by ' precisely similar, ' similar in parties, similar in object, and similar
in subject-matter ; so that whether the order of the 6th of July 1887 is to
be regarded as an order deciding the first application for execution of the
decree, or whether it is to be regarded as ao order merely removing that
application from the list of pending applications and not deciding it, the
present application is not one which can be entertained- I would allow
this appeal and Iwould set aside the order of the Subordinate Judge and
reinstate the order of the Munsif with costs in all Courts.

TYRRELL, J. I entirely concur and will only add a word with refer-
ence to a decision of the learned Chief Justice and myself in Bijai Singh
v. Haiyat Begam (1). The head-note in that case is somewhat misleading.
It is to the effect that : " Where an application for execution of decree
is struck off the file on an adverse decision on law or on the merits, the
order, if not set aside on review or appeal, will operate as res judicata.
But where the application is struck off meraly because talbana has not
been paid or some other step is not taken, the order does not bar a further
application. " In fact our decree in that case was based OQ the following
grounds : " It is said that the striking off the application of the 3rd of
November, 1887, must be treated as analogous to the decision of a [55]
suit under s. 158 of the Civil Procedure Code. So we understand the
argument. The application of the 3rd of November 1887 was struck off
because the Court thought it was long enough on the file. It did this
although talbana had been paid." It is clear that that was nob a case falling
under s. 158 of the Code of Civil Procedure, and that it does not in any
way clash with the views which have been enunciated to-day in the
appeal before us.

BLAIR, J., I concur.

Appeal decreed.

(1) 9 A.W.N. .(1889) 163.
750



YH]



RAGHUNATH SINGH V. RAGHUBIB SAHAI



15 All. 56



15 A. 53 = 12 AWN. (1892) 222.
APPELLATE CIVIL.

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



EAGHUNATH SINGH [Petitioner) v. KAGHDBIR SAHAI (Opposite Party).*

[2nd November, 1892.]

Application for restoration of an appeal dismissed for default Vakalatnima.

Where a vakil had been duly empowered by a vakalatnama drawn in the
cuRtomary form to file and conduct an appeal ia the High Court, and that appeal
had been dismissed for default : Held that such vakil was competent without
filing a fresh vaJcalainama to present an application for the restoration of the
said appeal to the list of pending appeals.

THIS was an application to restore to the list of pending appeals a
Second Appeal (No. 709 of 1891) filed by the petitioner which bad been
dismissed for default by an order of Straight, J., on the 24th of March,
1892. The circumstances under which the said appeal was dismissed
appear frcm the judgment of the Court.

Babu Jogindro Nath Chaudhri and Babu Durga Charan Banerji, for
the applicant.

Babu Eajendro Nath Mukerji, for the opposite party.

JUDGMENT.

EDGE, C.J., and TYRRKLL, J. This is an application to set aside a
decree passed in default of appearance dismissing an appeal. We are
satisfied that the non-appearance of the vakil to represent the appellant
at the bearing was caused by the accidental omission of the vakil's name
from the printed cause-list. The gentleman in question in our experience
inyariably attends to his clients' cases and follows tbe practice of the
Court with regularity. We consider that this is a case in which the
decree should be set; aside and the appeal [56] reinstated. There is,
however, a further objection raised, namely, that no special vakalatnama
has been filed authorizing the vakils, or either of tbem, especially to
make this application, and it has been contended that the vakalatnama
which authorized these vakils to file the appeal and to conduct the pro-
ceedings in it, and which was rightly filed, lapsed and determined tbe
moment the decree dismissing the appeal was passed. That contention
cannot in our opinion be supported. Under the vakalatnama authorizing
the vakils to conduct the proceedings in the appeal they were authorized
to conduct proceedings in execution subsequent to decree, whether those
proceedings in execution were by or against their clients. It is also mani-
fest that if vre set aside tbe decree of dismissal and reinstate the appeal
it will not be a fresh appeal, but will be an appeal to which tbe vakalat-
nama already filed applies, and it would seem strange if under these
circumstances it were necessary to file a special vakalatnama for the
simple purpose of enabling the appellant to have, not a new appeal
entered, but his original appeal reinstated and proceeded with. In our
opinion no fresh vakalatnama was necessary. We accordingly set aside
the decree of dismissal and reinstate the appeal on the list of pending
appeals in this Court. We make no order as to costs.



1892

NOV. 2.

APPEL-
LATE
CIVIL.

13 A. 55 =
12 i.W.N.

(1892) 222



* Miscellaneous Application No. 64 of 1892 in Second Appeal No. 709 of 1891.

751



15 All. 57 INDIAN DECISIONS, NEW SERIES [Yfll.

1892 . 15 A. 36 = 12 A.W N. (1892) 234.

9- APPELLATE CIVIL.



APPEL- Before Mr. Justice Knox and Mr. Justice Blair.

LATE

CIVIL. BISHAMBAR NATH (Plaintiff) v. NAND KISHORE AND OTHERS

ISA. 56 = (Defendants).* [9th November, 1892.]

12 A.W.N Acknowledgment of debt Stamp Act I of 1879, sch. I. art. IAct XV of 1877, s. 19.

(1892) 239. The question whether or not an allusion to a debt contained in a letter from a

debtor to his oreditor amounts to an acknowledgment of the debt within the
meaning of art. 1, sob. I of the Indian Stamp Act, 1879, is a question in each
case of the intention of the writer. Henoe, where suoh a letter, written ante litem
motam, before limitation in respect of the debt had expired, and at a time when
other evidence of the debt was subsisting, was tendered in evidence as an
acknowledgment of the debt for the purpose of saving limitation under the
provisions of s. 19 of the Indian Limitation [57] Act, 1877. Held that the said
letter was not inadmissible in evidence by reason of its not having been stamped.

CR., 19 A. 255 ; 21 B. 201 <205) ; 30 C. 687.]

[N.B. This is stated as Second Appeal No. 444 of 1892 in 12 A.W.N. (1892) 234 ; Ed.]

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

Mufashi Bam Prasad, Pandit Sundar Lai and Kunwar Parmanand,
for the appellant.

Babu Jogindro Nath Chaudhri, for the respondents.

JUDGMENT.

KNOX, J. This was a suit brought by one Chaube Bishambar Nath,
who is appellant before us, to recover money, principal and interest, which



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 110 of 155)