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THE plaintiffs sued in the Court of the Munsiff of Ballia for the recovery
of possession of 3 bighas 13 biswas of land by cancelment of an auction
sale, dated the 3rd of April 1883, and two settlement decisions, dated the
14th of February and the 26th June 1885, and to recover Rs. 87 as
damages.

The plaintiffs claimed as purchasers under a sale-deed, dated the 4th of
September 1880, from one Ram Lai, a tenant at fixed rates. They alleged
that they had obtained possession, but that in the recent settlement the
defendant, Tilak Raj, had caused bis name to be entered in the khasra
in respect of the land. The plaintiffs had objected to his entry of the
defendant's name, but their objection was disallowed. Their application
for review of judgment was also disallowed. The plaintiffs then brought

* Second Appeal No. 888 of 1890 from a decree of Babu Lalta Prasad, Subordinate
Judge of Gazipur, dated the 10th July 1890, modifying a decree of Munshi Girdbari
Lai, Munsiff of Ballia, dated the 14th March 1890.

793

A VII 100



15 All. 120 INDIAN DECISIONS, NEW SERIES [Yol.

1892 a claim in the Civil Court for maintenance of possession, but that claim

DEC. 19. was dismissed.

The defendant, Tilak Eaj, pleaded that he being the sole zemindar of

APPEL- the land in suit and the plaintiffs the representatives, as they alleged, of a

LATE cultivator, the suit was not cognizable by a Civil Court. He also pleaded

ClVIL. res judicata, that Earn Lai was not competent to transfer his tenant rights

to the plaintiffs, that the sale-deed of the plaintiffs was collusive, that his

15 A. 119= own p uro hase at auction sale was a valid transaction, and lastly that the

40 V TIT

damages assessed by the plaintiffs were excessive. The second defendant,
.893) 19. jj a j Kishore, was impleaded as a pro forma defendant, having purchased
a portion of the land in dispute from Tilak Eaj.

[120] The first Court after framing five issues and considering them
decreed the plaintiffs' claim for possession and for a portion of the dama-
ges claimed.

In appeal the Subordinate Judge remanded the case, ostensibly under
s. 562 of the Code of Civil Procedure.

The case was accordingly re-tried, by a different Munsif, and in
the result the plaintiff's suit was dismissed with costs.

The plaintiffs thereupon appealed and the defendants filed objections
under s. 561 of the Code of Civil Procedure. The low.er appellate Court
allowed the plaintiffs' appeal and gave them a decree for possession and
part of the damages claimed.

The defendants thereupon appealed to the High Court, and at the
hearing of this appeal, though the point was not taken in the memoran-
dum of appeal, they attempted to plead that the remand order under
s. 562 of the Code of Civil Procedure mentioned above was a bad
order, and in view apparently of this contention the appeal was re-
ferred by the single Judge before whom it had been laid to a Bench
of two Judges.

Munshi Jwala Prasad, for the appellants.

Mr. /. E. Howard and Munshi Gobind Prasad, for the respondents.

JUDGMENT.

EDGE, C. J., and AIRMAN, J. Mr. Jwala Prasad for the surviving
defendant-appellant has contended that he is entitled in this appeal from
the decree of the lower appellate Court to question the order of remand
passed under s. 562 of the Code of Civil Procedure, notwithstanding that
that objection was not set forth amongst his grounds of objection in the
memorandum of appeal here. In our opinion an objection which may be
heard under s. 591 of the Code must be one set forth in the memorandum
of appeal. Section 591 gives an exceptional previlege to the appellant,
apparently on the condition that his objection is an objection set forth as
a ground in his memorandum of appeal. Even if we were not prevented
from hearing this objection by reason of its not having been set forth in
the memorandum of appeal, we would not, having regard to the [121] fact
that the order under s. 562 was made as long ago as the 19th of December
1888, give leave to the appellant to urge that particular objection at this
late stage of the case after such a long period has elapsed since the order.

As to the second ground no attempt has been made to support it.
The first ground of appeal is not very intelligible. We are told that the
holding in question was one to which the second and not the first
paragraph of s. 9 of Act No. XII of 1881 applies. The appellants
are precluded by the finding of the Court below, which is not questioned
in appeal, from contending that the holding was not one at fixed rates.

794



YII]



HASAN SHAH V. SHED PRASAD



15 All. 122



The appeal of the surviving defendant ia'dismissed with costs. The
appeal so far as it concerns the other appellant, Tilak Eaj Singh, who
died more than six months ago, and whose representatives have not been
brought on the record, abates. Appeal dismissed.



15 A. 121 = 13 A. W.N. (1893) 44.

KEVISIONAL CIVIL.
Before Mr. Justice Tyrrell, and Mr. Justice Blair.



1892
DEC. 19.

APPEL-
LATE
CIVIL.

IB A. 119=

13 A. W.N.
(1898) 11.



HASAN SHAH (Applicant) v. SHEO PRASAD AND ANOTHEa (Opposite

parties)* [14th January, 1893.]

Civil Procedure Code, ss. 206, 209, 622 Amendment of decree Interest given by
amendment in decree which was not given by the judgment Revision..

The plaintiffs sued for recovery of a certain auru of money and interest up to
date of suit and for interest during the suit and subsequent to decree until satis-
faction thereof. The Court in its judgment awarded the plaintiffs a specified sum
of money and ordered that the rest of the plaintiffs' claim should stand dismissed.
Subsequently the Court amended its decree by adding a decretal order for the
payment to the plaintiffs by the defendant of interest during the pendency of the
suit and after decree until the satisfaction of the debt. Held that it was illegal
for the Court to decree the claim for interest by way of amendment of its decree
and. that the order so amending the decree was open to revision.

[R., 31 B. 447 (449) ; 11 O.C. 208 (211).]

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

[122] Pandit Sundar Lai, for the applicant.
Munshi Bam Prasad, for the opposite party.

JUDGMENT.

TYRRELL and BLAIR, JJ. This is a judgment-debtor's application
for revision. A decree had been given against him after the trial of the
suit for Es. 4,791-7-0 out of the arriount claimed by the plaintiffs. The
rest of the plaintiffs' claim was dismissed.

The plaintiffs' case was field on the 18th of June, 1891. They asked
for Ks. 10,000 principal and interest calculated up to that date. They
also asked for interest for the period covered by the trial and for further
interest after the decree. These were all specific parts of the claim.

The Court, has we said above, in its judgment awarded the plaintiffs
nearly half of the money as claimed and decreed that the rest of the claim,
not " the rest of the money claim," should stand dismissed. The decree
of the Court was framed in complete accordance with the judgment, that
is, the decree gave Es. 4,791-7-0 to the plaintiffs and^no other part of the
reliefs claimed by them. Subsequently, on an application of the decree-
holders, the Subordinate Judge, purporting to act under ss. 206 and 209
of Act No. XIV of 1882, amended this decree by adding a decretal order
for the payment to the plaintiffs by the applicant here of interest during the
pendency of the suit and after decree until the satisfaction of the debt.
This order is challenged in this application for revision.

We are constrained to hold that this order is open to revision and
not to hold that the petitioner had his remedy by way of appeal from the

* Application No. 34 of 1892 under e. 622 cf the Civil Procedure Code for revision
of an order of Maulvi Shah Ahxnad-ullah, Subordinate Judge of Meerut, dated the 23rd
April, 1892.

795



15 All. 123



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 amended decree. The Full Bench ruling in Raghunath Das v. Raj Kumar (1)
JAN. 14, is authoritative on this point. Having carefully considered the judgment
in this case we think that Mr. Sundar Lai has made out a good case for
EEVI- the petitioner.

SIGNAL We do not hold that under s. 209 of Aot No; XIV of 1882, a Court is

CIVIL empowered merely to embody in a decree interest which had been adjudged
payable in the suit. We think such a reading of that section would make it
ISA. 121 out of place, absurd and mere sur-[l23]plusage. It does not require a
13 A.W.N. rule of procedure to enable a Court to decree a relief which it has adjudg-
(1{J93) U. ed in its judgment. But we find that the Subordinate Judge, whose order is
before us, in adjudging a specific sum, principal and interest, to the res-
pondents here proceeded in terms to dismiss the rest of their claim (baqia-
dawd). It is quite possible, as was the contention for the respondents, that
the claim for interest after the institution of the suit may not have been
present to the Subordinate Judge's mind when he made this order; but we
may not speculate on this point. We must take the words of the judgment
as we find them.

It is unquestionable that the claim for interest was part of the baqia
dawa (or rest of the claim) and with it stood dismissed.

This being so, it was illegal for the Subordinate Judge to decree this
claim by way of amendment of his decree.

The amended decree of the Subordinate-Judge is set-aside ; the decree
unamended will stand as the decree in this suit, and this application is
decreed with costs.

Application allowed.



15 A. 123 = 13 AWN. (1893) 47.
APPELLATE CIVIL.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Burkitt and
Mr. Justice Aikman.



AHMAD ALI (Plaintiff) v. WABIS HUSAIN AND ANOTHER
(Defendants)* [4th January, 1893.J

Act XV of 1877, s. 4 Civil Procedure Code, as. 541, 542, 584, 585. 587 Limitation
Seccnd Appeal Plea cf limitation as to first appellate Court taken orally by appel-
lant tn Second Appeal Court not bound to consider such plea.

An appellant in a Second Appeal raised orally at the bearing a plea not taken
in his memorandum of appeal to the effoot, that the respondent's appeal to the
lower Court (where they had been appellants) bad been barred by limitation
when it was presented.

Held that, even though the plea proposed to be raised was one involving a question
of limitation, the appellant was not entitled as of right to be heard in support
[124] of it without the leave of the Court granted under s. 542 of the Code of
Civil Prooedure ; that the Court was not itself bound to consider that plea, and
under the circumstances did not think it necessary to enter into. Ram Kishen
Upadhiav. Dipa Upadhia (2) approved.

[Rel. on,13Ind. Gas. 79'2 (7931 = 84 P.R. 1911 ; R., 34 C. 941 = 6 C.L.J. 237 = 11 C.W.N.
959 ; 17 Ind. Gas. 638 (639) = 8 N.L.R. 174 (176) ]



* Second Appeal No. 601 of 1890, from a decree of. F. E. Elliot, Esq., District
Judge of Allahabad, dated the 12th March 1890, reversing a decree of Lala Shankar
Lai, MunsiS of Allahabad, dated the 24th December 1887.

(1) 7 A. 876. (2) 13 A. 580,

796



YII] AHMAD ALt V. WAEIS HUSAIN 15 All. 125

THE facts of this case are aa follows : 1893

The plaintiff sued in the Court of theMunsif of Allahabad for possession JAN. 4.
of a certain piece of land, alleging that the land was part of the enclosure
belonging to his house, but that the defendant, Bhondu, had interfered with APPEL-
his possession by taking proceedings in the Criminal Court, as the resulo of LATE
which he had obtained an order that certain buildings erected by the CIVIL
plaintiff on the disputed land should be demolished. '

Tho defendant, Bhondu, denied the plaintiff's title to the land and 15 ft. 123 =
stated that the land formed part of his holding, which he and his ancestors 13 A.W.N.
held from the sole zemindar, Waris Husain, and his predecessors-in-title. (1893) 17.
Waris Husain also filed a similar written statement endorsing the state-
ments of the defendant Bhondu.

The Munsif, finding that the land in question was originally included
in the plaintiff's holding gave him, on the 24th of December 1887,
a decree as prayed.

The defendants appealed to the District Judge, their appeal going
entirely to the estimate placed upon the evidence by the Court of first in-
stance. That appeal was filed on the 14th of February 1888. The District
Judge decreed the appeal and dismissed the plaintiff's claim in toto.

The plaintiff then appealed to the High Court on several grounds, but
saying nothing in his memorandum of appeal as to the question of the
respondents' appeal below being barred by limitation. This appeal was
referred on the llth of July 1891, by Mahmood, J., to a Bench of two
Judges and subsequently by a general order of the Court was laid before
a Bench of three Judges, as involving a question which might be affected
by the passing of the bill which subsequently became Act No. VI of 1882.

Pandit Sundar Lai, for the appellant.

[125] Babu Durga Char an Banerji, for the respondents.

JUDGMENT.

EDGE, C. J., BURKITT and AIKMAN, JJ. This appeal has been placed
before this Bench of three Judges, as it was one of the cases in which it
was understood that a question of limitation as to the appeal below would
be raised as to which it might be necessary to consider whether s. 3 of
Act No. VI of 1892 applied. Pandit Sundar Lai for the appellant asks us
to hear an argument which he contends would show that when the
memorandum of appeal of the defendants, respondents here, was presented,
in the Court below, it was insufficiently stamped, and that the alleged
deficiency was made good after the period of limitation applicable to the
appeal had expired, and he would thus contend that the case comes within
the principle of the decision inBalkaram Rai v. Gobind Nath Tiwari(I). The
Pandit's client, who was the plaintiff in the suit and the appellant here, filed
his appeal on the 28th of May 1890, and he did not by any ground in his
memrandum of appeal raise any question as to the appeal of the defen-
dants in the Court below being time-barred. Pandi Sundar Lai, however,
contends that s. 4 of the Indian Limitation Act (Act No. XV of 1877)
makes it obligatory on this Court, in Second Appeal to hear and determine
the question as to whether the defendants' appeal in the Court below was
or was not barred by limitation at the time when it was presented in that
Court, and he necessarily contends further that s. 4 of the Indian Limita-
tion Act, 1877, overrides the restriction imposed upon an appellant by
a. 542 of the Code of Civil Procedure. He also contends that, if he is wrong

(1) 13 A. 129.

797



15 All. 126



INDIAN DECISIONS, NEW SERIES



[Vol.



1893 on his first point, this is a case in which we should give leave to the appel-
JAN. 4. lant to have this point of limitation argued, although it was not taken in

his grounds of appeal. It is necessary to see in the first instance what it

APPEL- is that s. 4 of the Indian Limitation Act, 1877, actually enacts. Omitting
LATE cbe explanation, s. 4 is as follows : " Subject to the provisions con-
ClVlL tained in sections 5 to 25 (inclusive), every suit instituted, appeal

presented and application made, after the period of limitation pre-
18 A. 123- scribed therefor by the second schedule hereto annexed, shall be dis-
13 A.W.N. [126] missed, although limitation has not been set up as a defence." Now
U893) 47, we have no doubt that under s. 4 it is the duty of a Court of first instance
to dismiss a suit before it, which is barred by limitation, whether the plea
of limitation is raised or not. We have also no doubt that under s. 4, it
is the duty of an appellate Court to dismiss an appeal before it, if that
appeal was barred by limitation when presented, no matter whether the
respondent in such appeal raises the defence of limitation to it or not.
Similarly a Court to which any application to which s. 4 applies is made,
will be bound to apply the law of limitation to it even though the opposite
party does not raise the question of limitation. The question before us
now is not a question as to whether the appeal before us is
barred by limitation. It is a question, if we allow it to be argued,
as to whether the appeal in the Court below was barred by limita-
tion. Our jurisdiction as an appellate Court does not arise by reason
of s. 4 of the Indian Limitation Act, but in this case by virtue of
the provisions of Chapter XLII of the Code of Civil Procedure and such
provisions of Chapter XLI as are made applicable to Second Appeals
by s. 587. Section 584, is an enabling section and gives the right of
Second Appeal in cases which come within clauses (a), (b) or (c) of that
section. Section 585 makes it clear that a Second Appeal can only be
maintained on one or other of the grounds specified in s. 584. We have to
look back to Chapter XLI, and by s. 541 the memorandum of appeal must
set forth the grounds of objection. Eeading that section into Chapter
XLII by virtue of s. 587, it is obvious that the grounds in Second Appeal
of objection to the appellate decree must be set out in the memorandum
of appeal. If s. 542 was not also applicable to Second Appeals it would
follow that no appellant in Second Appeal could be heard upon any
grounds of appeal not set 'out in his memorandum of appeal. But,
inasmuch as it is necessary to apply s. 541 to Second Appeals, as otherwise
there would be no provision requiring any grounds to be set forth in a
memorandum of Second Appeal, and as it was obviously the intention of
the Legislature that the grounds of appeal, whether the appeal was a First
Appeal or a Second [127] Appeal should be set forbh in the memorandum
of appeal, it is also necessary to apply s. 542 to Second Appeals. That
s. 541 does apply to Second Appeals is obvious from the decision of their
Lordships of the Privy Council in Durga Ghowdhrani v. Jewahir Singh
Chotvdhri (1), for we find that their Lordships, at p. 26 of the report, in
reference to sub-section (a) of s. 584, say : " In sub-section (a) the word
' specified ' obviously means specified in the memorandum or grounds of
appeal."

The reason why we have gone at some length into showing that
ss. 541 and 542 apply to Second Appeals, is that it was argued that s. 542
did not apply to Second Appeals. Now referring to s. 542 we find that the
appellant by that section is not without the leave of the Court entitled to

(1) 18 G. 23.
798



YII] AHMAD ALI V. WABIS HUSAIN 15 All. 128

urge or be heard in support of any ground of objection to the decree in 1893
appeal which has not been set out in his memorandum of appeal. If it JAN. '4.
had been intended by the Legislature when the Code of Civil Procedure
(Act No. XIV of 1882; was passed that an appellant should be entitled to APPEL-
urge and be beard in support of a ground of objection to the decree below LATE
depending on limitation, although no such ground had been set out in his ClVIL.
memorandum of appeal, we would have expected to find an exception
made in s. 542 in respect of questions of limitation, and that that section * 3 &* 123 =
would not have included in its terms an unlimited prohibition against an i3 A.W.N.
appellant, except by leave of the Court, urging or being heard in support of (1893) 47.
a ground of objection to the decree not taken in his memorandum of
appeal. It appears to us that in considering whether or not we are bound
feo apply s. 4 of the Indian Limitation Act in this particular case, it is
necessary to see whether that obligation is imposed upon us by these
provisions as to procedure contained in the Code of Civil Procedure under
and in accordance with which only can the appeal come before this Court.
It further appears to us that whether the question is one as to limitation
to be applied to the appeal in the Court balow or any other
question going to the maintenance or otherwise of that decree, we
are not bound to hear an appellant in support of such an objection
[128] unless it has been raised by his grounds of appeal, and we are not
bound to apply s. 4 of tbe Indian Limitation Act, 1877, to the appeal in
the Court below when that ground has not been taken in the memoran-
dum of appeal here. That this Court can hear the appellant on that
ground or could of its own motion consider the question as to whether
the appeal in the Court below was barred by limitation, we have no doubt,
so long as the opposite party was given an ooportunity of being heard on
the point. What we have said applies to the rights of an appellant. It
is quite clear to us that a respondent in Second Appeal would be entitled
to show that tne appellant's appeal in tbe Court below was time-barred,
and thus to support the decree of the Court below by showing that that
decree was maintainable although the question of limitation as to the
appeal had not been taken in the Court below. . However, that is not the
question before the Court in this case. We hold that the appellant is not
entitled to urge or be heard in support of this objection which is not
included in his grounds of appeal and that we are not bound under the
circumstances to apply s. 4 of the Indian Limitation Act, 1877, to the
appeal in the Court below. We are supported in this view by the deci-
sion of this Courfc in Bam Kishan Upadhia v. Dipa Upadhia (1), and by the
decision of the High Court at Bombay in Dattu v. Kasai (2).

As to the application of the appellant for leave to urge this question,
we do not think that a case is made out for granting that permission. The
decision in the case of Balkaran ftai v. Gobind Nath Tiwari was given on
the 14bh of February 1890, and was reported in the number of the Weekly
Notes for 8th March 1890, and the appeal in this case was not presented
to this Court until the 28th of May 1890. Further, we think that, as a
rule, leave should not be given in such cases where it would be necessary
to go into calculations under the Court Fees Act or considerations as to
dates or reasons why the Court below thought fit to consider tbe appeal
as presented within time. The appeal will go to a Bench of two Judges
to be decided on the other points involved in it.

(1) 13 A, 580. (2) 8B. 535.

799



15 All. 129 INDIAN DECISIONS, NEW SERIES [Vol.

1993 15 A. 129 = 13 A.W.N. (1893) 48.

JAN. 21. [129] APPELLATE CRIMINAL.

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



LATE

CRIMINAL. QUEEN-EMPRESS v. SANGAM LAL.* [21st January, 1893.]

~~T Act XI of 1878. ss. 19 (f), 25 Unlawful possession of arms Search-warrant, contents
ISA. 1< O j Possession ", what evidence necessary where arms found in common room of

18 A.W.N. joint family house.

(1893) 48. Where a Magistrate issues a search-warrant under s. 25 of the Indian Arms

Aot, 1678, it is necessary that he shouk- record the grounds of his belief that the
person against whom the warrant is issued has in his possession arms, ammuni-
tion or military stores for an unlawfnl purpose

Where proceedings under the Indian Arms Act, 1878, in respect of the unlawful
possession of arms are taken against a member of a joint Hindu family not being
.the head of such joint family and arms are found in a common room of the joint
family house, it is incumbent upon the prosecution to give good evidence that
suuh arms are in the exclusive possession and control of the particular member
of the joint family who is sought to be charged with their possession.

[Rel. on. 16 O.W.N. 145 = 13 Or. L. J. 65 (98) = 13 Ind. Gas. 721 ; Appl., 9 C.L.J. 663
(686) = 13 C W.N. 861 = 50 Cr. L.J. 125 (146/ = 2 Ind. Cas. 681 (693); 2 O.C. 99<lOl);
R., 28 A. 598 = A.W.N. 1907, 187 = 6 Cr. L.J. 23 ; 9 C.L.J. 663 = 10 X>. L.J. 125
(1461 = 130 W.N. 861 = 3 Ind. Gas. 681 (693); D. f 28 A. 302 = 3 A.L.J. 833 (835) =
A.W.N. 1906, 11 = 3 Cr. L.J. 88 ; 3 Or. L.J. 71 = 52 P.R. 1905 (Cr.) = 158 P.L.R.
1905.]

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

The Hon'ble Mr. Colvin and Babu Durga Charan Banerji, for the
appellant.

The Public Prosecutor (Mr..4. Strachey), for the Crown.

JUDGMENT.

KNOX and BLAIR, JJ. The appellant, Sangam Lai, has been con-
victed of an offence under s. 9 (f) of Act XI of 1878. It appears that
on a search made in a baithak, called by the police Sangam Lai's baithak,
two swords were found inside an almirah which was locked when the
police arrived and which bad to be forced open by them because the key
was not produced. Two axes were found elsewhere, but we are satisfied



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 117 of 155)