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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 140 of 155)
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the governing value throughout all the subsequent proceedings was nob
brought to their notice or argued in the case before them. We therefore
are of opinion that the learned Judge was right in holding that no appeal lay
to him, We therefore dismiss the appeal with costs.

Appeal dismissed.



1893

MAY. 16.

APPEL-
LATE
CIVIL.

15 A. 363 =

13 A.W.N.
(1893) 148.



(1) 15 A, 63-12 A.W.N. (1892) 240. (2) 13 A. 320=11 A.W.N, (1891) 107.

951



15 All. 366 INDIAN DECISIONS, NEW SERIES [Yol.

18 g 3 15 A. 365 = 13 A.W.N. (1893) Hi.

MAY, 16. EEVISIONAL CRIMINAL.

Before Mr. Justice Tyrrell.



SIGNAL

CRIMINAL. THE QUEEN-EMPRESS v. LAKHPAT.* [16th May, 1893.]

Criminal Pro!ed^lre Code, s. 560 Compensation for frivolous or vexatious complaint
15 A. 385= Such compensation inapplicable to a complaint undvr s. 110 of the Code.

13 A, W, IS. The award of compensation under s. 560 oi the Code of Criminal Procedure

(1893) 114. must be in respect of a frivolous and vexatious accusation of an [366] offence of

which the accused person has been discharged or acquitted. That section is not

applicable to an application made to a Magistrate solely with a view to his

taking proceedings under s. 110 of the Code.

[F., 25 B. 48 (49) ; 33 P.R. 1902 (Or.) ; R., 7 A.L.J. 743-11 Or. L.J. 446 (447) = 7
Ind. Gas. 2905 131 P.L.R. 1905 = 42 P.R. 1905 (Cr).]

THIS was a reference under s. 438 of the Code of Criminal Procedure
made by Sessions Judge of Meerut in respect of an order of a first class
Magistrate dismissing an application to take security for good behaviour
under s. 110 of the Code from one Hira, and ordering the applicant to
pay Es. 50 as compensation to Hira under s. 560. The applicant
applied for revision of the above mentioned order to the Sessions Judge,
who, being of opinion that the order was illegal, referred the case to the
High Court.

On this reference the following order was passed by TYRRELL, J. :

OEDER.

One Lakhpat has been fined by a Magistrate at Meerut under s. 560
of the Criminal Procedure Code for having given information to a Magis-
trate that one Hira was a person amenable to the provisions of s. 110
of that Code. The Magistrate found that Hira was not an habitual rob-
ber, house-breaker or thief, or otherwise a person contemplated by s. 110.
The Court of the Session Judge of Meerub took up in revision the ques-
tion of the legality of this fine, and has reported the case upon the ground
that s, 560 contemplates information and accusation for an offence, and
provides compensation for a person who has been discharged or acquitted
of such offence, the accusation againsG him being held to be frivolous or
vexatious.

Tbe order for fine or compensation is to be conveyed in the order of
discharge or acquittal of the Magistrate trying the matter. The learned
Sessions Judge held that in the present case no offence was imputed, no
offence was tried and no offender was discharged. The provisions of
Chapter VIII are aimed at the preventing of, and are not consequent on
the commission of specified offences, An offence means any act or omis-
sion made punishable by any law for the time being in force. The order
of discharge or acquittal means an order relating to an imputed offence.
Now Hira was not charged with any offence. Ha was called on to show
cause why he should not execute a certain bond : the execution of a bond is
the [367] only consequence of failure to show such cause, but it is not a
punishment, and the imputed criminal habit is not a charge of an offence.
Therefore Hira was not discharged or acquitted of an offence, and therefore
there is no order of the Magistrate which coull b3 made the vehicle of a
lawful order of compensation as required by s. 560. There is authority

* Criminal Revision No. 274,
952



YHJ BUDR PEASAD V. BAIJNATH 15 All. 368

relating to the corresponding section of the former Code of Criminal Pro- 1893
cedure to the effect that compensation cannot be granted to a person MAT 16.
respecting whom a rule similar to that issued under Chapter VIII of the _~
present Code has been discharged. BEVI-

The District Magistrate, who was not called on for an explanation in SIGNAL
the matter, has interposed an observation to the effect that he remembers CRIMINAL.
' a late ruling of one of the High Courts in which a charge under s. 110
of Criminal Procedure Code was treated as a charge of offence committed." 18 *' 363 =
He has ommitted to indicate the ruling he refers to. The order of com- 13 A '-N.
pensation is set aside, and if any money has been levied under it, it shall * 893 ' lli<
be returned.



13 A. 367 = 13 A.W N. (1893) 113.

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



RUDR PRASAD (Plaintift) v. BAIJNATH AND ANOTHER (Defendants}*

[17th May, 1891.]

ivil I'rccedtre Code, ss. 54, 55, 54?, 551. 592, 584, 585 Second appeal, summary
rejection of memorandum Reasons for rejection to be recorded.

Per EDGE, C, J. A Judge to whom a memorandum of appeal from an appellate
decree is presented for admission is entitled to consider whether any of the
grounds mentioned in s. 584 of the Code of Civil Procedure in f-ict exist and
apply to the case before him, and if they do not to reject the memorandum of
appeal summarily, s. 551 of the Code of Civil Procedure applies to appeals which
have been admitted.

Per AIKMAN, J. When a memorandum of appeal is summarily rejected,
whether unt'er s. 543 or under s 54 read with s. 582 of the C"de ot Civil
Procedure, the reasons for such rejection should be recorded ; scd q'-czre. whether,
unle-s it appears from the memorandum of appeal taken by itself 1368] that a
second appeal docs not lie, a second appeal can be summarily rejected and should
not rather be dealt with under s. 551 of the Code.

Semble that a ground of appeal to the effect that the lower appellate Court has
misconstrued a document is not one of the grounds of second appeal contemplated
by s. 594 of the Code of Civil Procedure.

R., 30 A. 290 (293) = 5 A L.J. 594 = A,W.N. (1908) 109.]

THE facts of this case sufficiently aopear from the judgment of
Edge, C.J.

Pandit Ratan Ghand, for the appellant.
Munshi Gobind Prasad, for the respondents.

JUDGMENT.

EDGE, C. J. The memorandum of appeal in this case was presented
to my brother Blair for admission. He rejected it. He did not state his
reasons for rejecting but it is obvious that he made bis order of rejec-
tion, because the proposed appeal did not come whithin s. 584 of the
Code of Civil Procedure. It is enacted by s. 585 that no second appeal
shall lie except on the grounds mentioned in s. 584." That section has
been emphasized by their Lordships of the Privy Council who have told
the Courts in India that they have no power to admit as a second appeal

* Appeal No. 26 of 1892 under s. 10 of the Letters Patent.

953
A VII 120



15 All. 369



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 an appeal which does not fall within s. 584. I regard 9. 585 as a positive
MAY 17. prohibition by the Legislature to the Courts which are bound to act under

the Code of Givil Procedure against admitting, as second appeals,

APPEL- appeals from appellatedeerees which do not come under s. 584. It is obvious
LATE to my mind that when the Legislature enacted s. 584 and s. 535, they did
ClVIL. n k m fc 0n d that those sections should be made futile by an unfounded

' allegation in a memorandum of second appeal of a ground mentioned in

IS A, 367 => s. 584. If tha question as to whether an appeal from an appellate decree
13 A.W.K. lay, depended merely on the statement of a proposed appellant of one
(1893) 118, of the grounds mentioned in s. 584 in bis memorandum of appeal,
s. 585 would not come into operation until the appeal had been admitted
and had been argued, whereas that section distinctly says that no
appeal from an appellate decree not falling within s. 584, shall He. It
is the duty of the Judge to see, when a memorandum of appeal from
an appellate decree is presented to him for admission, that the appellant
does not, through inadvertence or otherwise, seek to obtain admission
of an appeal by stating in his [369] memorandum of appeal one of
the grounds mentioned in s. 584, when such ground plainly does not
arise. Section 584 gives an appeal when those grounds actually exist,
not in cases in which they do not exist as objections to the decree
and appeal below except in a false or erroneous statement made in a
memorandum of appeal. If s. 584 is intended to give an appeal from
an appellate decree when any of the grounds mentioned in that section
are stated in a memorandum of appeal, that section might have said so.
If it had, it would have reduced the law to an absurdity, because then
the appeal would succeed, not because any good ground was shown why it
should succeed, but simply because the appellant chose to allege in hia
memorandum of appeal that one of the grounds mentioned in s. 584
existed in the case. I am consequently of opinion that a Judge
taking an application for the admission of an appeal from an
appellate decree is entitled to consider whether any of the grounds
mentioned in s. 584 in fact exist and are applicable to the case before
him. It might be suggested that all such cases should be sent up for a
Bench under s. 551 of the Code. I wish to point out that ?. 551 applies
to appeals, i. e., to cases in which the memorandum of appeal has been
admitted and the appeal has been registered. Of course, as frequently
happens, an appeal which is prohibited by s. 585 may get through without
the attention of the Judge being drawn to the fact that in it none of the
grounds mentioned in s. 584 exist. By way of example, a memorandum
of appeal from an appellate decree might be presented, and in it might be
alleged every single ground mentioned in s. 584. The copy of the judg-
ment and decree, which necessarily accompany the memorandum, might
show that, by reason of some finding of fact of the lower appellate Court,
not one of those grounds could possibly apply. Another objection has been
taken by Mr. Ratan Chand to the order of my brother Blair rejecting the
memorandum of appeal in this Court. Ib is contendad that as tha subject-
matter of the appeal exceeds 100 rudees in value : my brother Blair had no
jurisdiction to reject the memorandum of appeal. That objection is based
upon a very casual reading of, or possibly upon a total omission to read,
rule 1 of the Kules of this Court of the 30bh of November, 1889.
[370] Sub-rule (l) of rule 1 gave my brother Blair, as far as this Court
had power to do so under s. 652 of the Code of Civil Procedure, authority
or jurisdiction to hear and dispose of an application such as this. Sub-
rule (2) of rule 1 relates to second appeals. Now to come to the merits.

954



YII3 RDDR PBASAD V. BAIJNATH 15 All. 371

The question between the parties was as to a wall. The plaintiff, appel- 1893
lant here, brought his suit on the allegation that the wall was exclusively his
and that the defendant had committed trespass by interfering with the
wall. The two Courts found on the eyidence that the wall was a party APPEL-
wall, i.e., the common property of the plaintiff and the defendant. The LATE
lower appellate Court, before coming to that finding, actually inspected CIVIL

the wall as" it stood. So far as appears by anything before us it is a pure

question of fact. The title on which the plaintiff claimed was found 15 A. 367 =
against him, and there was nothing in the case to bring it within s, 584 13 A W.N,
of the Code of Civil Procedure. Consequently, in my opinion, my brother (1893) 115.
Blair acted according to law in rejecting the memorandum of appeal, and
I would dismiss this appeal with costs.

AlKMAN, J. This is an appeal under s. 10 of the Letters Patent
against an order of my brother Blair, rejecting a memorandum of second
appeal. The order appealed against consists of the single word " rejected."
No reasons are given for the rejection. A memorandum of appeal may ba
rejected under the provisions of s. 543 if it is not drawn up in the manner
prescribed by law. It may also be rejected on any of the grounds set
forth in s. 54, reading that section with s. 532 of the Code of Civjl Proce-
dure ; but whether rejected under s. 543, or undar s. 54 read with s. 582,
the reasons for the rejection ought to be recorded. (Vide second para-
graph of s. 543 and s. 55). Apparently the reason for the rejection in this
case was that, in the opinion of my brother Blair, no second appeal
lay with reference to the provisions of ss. 584 and 585 of the Code.
By cl. (f;) of s. 54 read with s. 582 a memorandum of appeal must
be rejected if the appeal appears from any statement in the memorandum
to be barred by any positive rule of law. If the grounds set forth in the
memorandum of second appeal were such as could cot by any chance come
within any of the clauses of s. 584, it would bo [37 1] the duty of
the Court to reject it, because in such a case it would appear from the
statement in the memorandum that the appeal would be barred by the
prohibition in s. 585. One of the grounds set forth in the memorandum of
appeal in question was as follows : " That the sale-deed produced by the
plaintiff has not been properly construed. It proves the wall to belong to the
plaintiff." It has been the practice of the Court to allow questions regard-
ing the construction of documents to be raised in- second appeals, though,
speaking for myself, I have some difficulty in understanding under which
clause of s. 584 a question as to construction of a document would fall.
Unless it appears from the statement in the memorandum of appeal taken
by itself that a second appeal does not lie, I am doubtful whether a second
appeal can be summarily rejected under cl (a) of s 54 read with s. 582 of
the Code of Civil Procedure. I am inclined to think that when it is ne-
cessary to refer to the judgment appealed against to see whether a second
appeal will lie, it would be better in such a case to fix a date under
s. 551 of the Code for hearing the appellant or his pleader before throwing
out the apneal. In the present case, however, after comparing the judg-
ment appealed against with the grounds stated in the memorandum of
appeal, I have no hesitation in saying that this was not a case in which a
second appeal lay, and I concur with the learned Chief Ju&tice in the order
proposed by him.

Appeal dismissed.



955



13 All. 372



1893

MAT 18.

APPEL-
LATE
CIVIL.

ISA. 371 =

13 A. W.N.
1893) 1)9.



INDIAN DECISIONS, NEW SERIES
IS A. 371 = 13 A. W.N. (1893) 149.
APPELLATE CIVIL.

Before Mr. -Justice Knox.



[Yol,



GDLAB KUAR (Judgment- debtor) v. BANSIDHAR AND OTHERS
(Decree-holders)* [18bh May, 1893.]

Hindu law Hindu widow Maintenance Attachment of property assigned in lieu of
maintenance Civil Procedure Code, s. S266, cl. |1).

Held that an interest, in the income of immoveable property assigned by way
of maintenance to a Hindu widow by the members of her family is not capable
of being attached and sold in execution of a decree against the widow. Dnvali
v. Apaji Oanesh 1, referred to.

[Not P., 14 C.P.L.R. 114 (115) ; R., 12 O.L.J. 146 (154)=7 Ind. Oas. 80 (85).]

[372] GULAB KUAR, the appellant, was in possession of two villages
which had been assigned to her by her deceased husband, Bhagwant Singh,
in lieu of a maintenance alllowance of Rg. 100 per mensem. The respondent
Bansider, holding a simple money decree against Gulab Duar caused the
rights and interests of Gulab Kuar in those villages to.be brought to sale
and they were purchased by Girwar Singh and others. Gulab Kuar
accordingly sued for cancellation of the sale, pleading inter alia that pro-
perty so assigned in lieu of maintenance could not be made the subject of
attachment and sale in execution of a decree. The Courb of first instance
(the Subordinate Judge) held with reference to the case of Diwali v. Apaji
Oanesh (1) that the property could be attached and sold, and disallowed
the judgment-debtor's other pleas. The judgment- debtor appealed to the
High Court.

The facts of this case sufficiently appear from the judgment of
Knox, J.

Mr. D. Banerji and Mr. Abdul Majid, for the appellant.

Munshi Bam Prasad and Pandib Sundar Lai, for the respondents.

JUDGMENT.

KNOX, J. The sole 'question that has been argued in this appeal is,
whether the rights and interests which have been made over to a Hindu
widow by the family to which she belongs in lieu of maintenance can or
cannot be attached and sold by auction in satisfaction of a decree. The
lower Court has held that an objection to the effect that it cannot be so
attached and sold is not one which can be entertained. It appears to have
arrived at that conclusion atter a consideration of the oase of Oiivali v.
Apaji Ganesh (1). The point, however, for determination here was not
expressly decided in that case. The learned Judges decided the case before
them upon another point. Looking to the language used in s. 266. cl. (0
of the Code of Civil Procedure and the explanation which follows, I am of
opinion that this clause was intended to remove rights and interests of thia
description out of the category of properties which could be attached and
sold in [373] execution of a decree. Clause (I) owes its origin, no doubt,
to a principle similar to that which dictated the insertion of cl. (g) in the
same section.



* First Appeal No. 131 of 1892 from a decree of Maulvi Shah Ahmad-ullah, Sub-
ordinate Judge of Mesrut, dated the 5th March 1892.

(1) 10 B. 342,
956



YII]



GAURI DATT V. PAESOTAM DAS



13 All. 375



The appeal must therefore prevail. The decree of the lowei Court
be set aside and the objection raised by the appellant must be allowed
with the costs in both the Courts.

Appeal decreed.



15 A. 373 = 13 A.W.N. <1893) 122.

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



1893

MAY 18.

APPEL-
LATE
CIVIL.

ISA. 3?1 =
13 A.W.N.
(1893) 149.



GAURI DATT (Decree-holder) v. PARSOTAM DAS (Judgment-debtor.}*
[18th May, 1893.J

Act IX of 1887, s. 25 Bevisicn Letters Patent, s. 10 Appeal.

No appeal will lie under s. 10 of the Letters Patent from an order of a single
Judge of the H'gh Court in revision under s. 25 of Act No. IX of 1887. Muham-
mad Naim-ullah Khan v. Ihsan-ullah Khan (1), referred to.

[P., 28 A. 133 = A.W.N, (1905) 218.]

IN this case the appellant, Gauri Datt had obtained a decree in a
Court of Small Causes against the respondent and one Shankar LU on
the llth of February 1887. He applied for execution of this decree on
the 7t>h of January 1888, after which no further steps to execute the decree
were taken until the application to which this appeal relates was made on
the 13th of April 1891. It was then contended before the Judge of the
Small Cause Court that this application for execution was not barred by
limitation, because one of the two judgment-debtors having become
insolvent, had, during the course of the proceedings in insolvency, made
a deposition upon the 14th of April 1888, in which ho acknowledged Gauri
Datt's decree. The Court, however, disallowed this plea, holding that
the acknowledgment of one judgment-debtor only was not sufficient, and
dismissed the application for execution as time-barred.

The decree-bolder applied to the High Courb under s. 25 of Act No. IX
of 1887 for revision of this order, but his application was dismissed by
Straight, J., on the 8th of February 1892.

The decree-holder then appealed under s. 10 of the Letters Patent
from the order of Straight, J., above mentioned.

[374] Kunwar Parmanand, for the appellant.

Babu Jogindro Nath Chaudhri, for the respondent.

JUDGMENT.

EDGE. C. J. This appeal has been brought from an order of Mr.
Justice Straight, dismissing an apolication for revision made to this Courb
under s. 25 of Act No. IX of 1887. The primary question to consider is
whether an appeal lies in this case under s. 10 of the Letters Patent.
What I said in my judgment in Muhammad Naim-ullah Khan v. Ihsan-
ullah Khan (1), in reference to s. 622 of the Code of Civil Procedure, I
adhere to, and I think what I there said is equally applicable to an
attempt to appeal against an order passed in revision under s. 25, Act No. IX
of 1887. In my opinion this appeal does not lie. It should be dismissed
with costs.

* Appeal No. 18 of 1892 undet s. 10 of the Letters Patent.
(1) 14 A. 226 at p. 232.



15 All. 375 INDIAN DECISIONS, NEW SERIES

1893 AlKMAN, J. I entirely concur with the Teamed Chief Justice in think-

MAY 18. ig n appeal lies in this case. Section 25 of the Provincial Small Cause

Courts Act, No. IX of 1887, gives the High Court discretionary power to

APPEL- call for the record of a case decided by a Court of Small Causes and pass
LATE such order in respect thereto as it thinks fit. In the present case
CIVIL -^ r ' J us kic0 Straight declined to exercise his discretionary powers. In my

' opinion there is nothing in s. 10 of -the Letters Patent to support the con-

'15 A. 373= tention that an appeal lies from such an order. I entirely agree with the
3 A.W.N. observations made by the learned Chief Justice in the case of Muhammad
(1893) 122. Naim-ullah Khan v. Ihsan-ullah Khan (l). These observations, though
they had special reference to applications under s. 622 of the Code of
Civil Procedure, apply with equal force to applications under s. 25 of the
Provincial Small Cause Courts Act. Although not directly in point, the
observations of Peacock, C. J., in the case of Mussamat Raqyhu Bibi v.
Noorjahan Begam and others (2), support the view I have taken. I have
no hesitation in holding that the order of the Judge declining to exercise
the discretionary power given to this Court by s. 25 is not a judgment,
within the meaning of s. 10 of the Letters Patent, from which an appeal
lies. I concur in thinking that this appeal should be dismissed with costs.

Appeal dismissed.



13 A. 375 = 13 A.W.N. (1893) 122.

[375] APPELLATE CIVIL.

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



JAGAN NATH PRASAD (Defendant) v. BHIKA EAM AND ANOTHER
(Plaintiffs).* [19th May, 1893.]

Act XII of 1881 (N.W.P. Bent Act), s. 56 Landholder and tenant Landholder's
Uiv (or rent " Rent payable " " Arrear of rent due."

The first paragraph of s. 56 of Act No. XII of 1881, applies not only where
there is rant in arrear due from the cultivator to bis landlord, but also where
rent is accruing due in respect of the period during which the produce was being
grown.

Hence where any one except the landlord wishes to bring to sale the produce
of a cultivator, he must, in order to avoid the prohibition contained in s. 56 of
Act No. XII of 1881, tender to the immediate landlord of the cultivator the
amount, if any, for which the landlord might on the next ensuing silo day dis-
train the produce for arrears of rent.
[P., 31 A. 82 = 6 A.L.J. 71 (93) = 5 M.L.T. 185 J 1 Ind. Cap. 416 (425).]

THE plaintiffs in the suit out of which this appeal arose were the
present respondents Bhika Earn and Kanhaiya Ram. The defendants
were (l) certain tenants of the plaintiffs who were in possession of a
holding bearing an annual rental of Es. 68, (2) the holder of a decree
against the first set of defendants, and (3) the auction purchaser under the
said decree.

It appeared that the defendant No. 2, appellant in this appeal, in
execution of a money decree against Earn Sukh, one of the first set of
defendants, attached in March 1890, a portion of the crops growing on

* Second Appeal No. 184 of 1891 from a decree of Babu Ganga Saran, Subordinate
Judge of Agra, dated the 12th December 1890, reversing a decree of Babu Raj Nath
Frasad, Munsif of Mahaban, dated the 19th June 1890.

(1) 14 A. 226 at p. 232. (2) 12 W.R. 459.

958



YII] JAGAN NATH PBASAD V. BHIKA RAM 15 All, 377

such defendant's holding and had them sold, and they were purchased by 1893

defendant No. 3 for Rs. 57. Thereupon the plaintiffs sued in the Court MAY 19.

of the Muasif of Mahabaa to recover Rs. 60 which they alleged to be the

rent due to them for the year 1297 fasli, in respect of the said holding. APPEL-

The Munsif dismissed the suit on the ground that when the crops were LATE

sold the arrears of rent claimed had not yet become payable to the GlVIL.

plaintiffs. The plaintiff appealed to the Subordinate Judge who disagreed

with the Munsif as to his interpretation of s. 56 of Act No. XII of 1881, M * 378=.

and decreed the appeal and the plaintiff's suit with costs. From this 13A.W.H.



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 140 of 155)