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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 146 of 155)
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(1) See STANDING OROPS, 14 A. 30.

(2) 8. 2 See APPELLATE COURT, 13 A. 320.

(3) SB. 2, 244, 295 See APPEAL, 14 A. 210.

(4) 8s. 2, 244 (c), 540 Bee APPEAL, 13 A. 290.

(5) 8s. 2, 244, 622 See REVISION, 14 A. 520.

(6) 8s. 2, 293, 510. 588 Hee APPEAL, 14 A. 201.

(7) 8 13 See RES JUDICATA, 13 A. 309 ; 15 A. 3 ; 15 A. 108 ; 15 A. 327.

(8) S. 13, Erpl. 2 Bee RES JUDICATA, 14 A. 64.

(9) 8s. 18, 43 See RES JUDICATA, 13 A. 53.

(10) 8s. 13, 278, 331 Bee RES JUDICATA, 14 A. 417.

(11) 8. 25 See SMALL CAUSE BUIT, 13 A. 324.

(12) Ss. 26, 31, 45, 53, 578 See EXECUTION OF DECREE, 15 A. 380.

(13) 8. 32 See PARTIES TO SUIT, 14 A. 524.

(14) 8. 43 See RES JUDICATA, 14 A. 572.

(15) S. 52 See VERIFICATION OF PLAINT, 15 A. 59.

(16) 8. 54 See LIMITATION, 15 A. 65.

(17) Sa. 54, 55, 543, 551, 582, 584, 585 See SECOND APPEAL, 15 A. 367.

(18) 89. 54, 57 See LANDLORD AND TENANT, 15 A. 337 iF.B.)

(19) 8. Ill See SET OFF, 13 A. 96.

(20) 8s. Ill, 216 See SET OFF, 15 A. 9.

(21) 8- 142-A See DOCUMENTARY EVIDENCE, 14 A. 356,

(22) S. 158 See EXECUTION OF DECREE, 15 A, 49,

(23) Ss. 203. 562, G22, 647 Small Cause Court Judgmtnl of Small Cause Court,

what should be contained therein Revision Act IX of 1887 (Small Cause
Cow ts Act*; s. 25. Section 203 of the Code of Civil Procedure does not
relieve the Judge of a Small Cause Court from the necessity of giving some
indication in his judgment that he has understood the facts of the case in
which such judgment is given.

Where a judgment in a Small Cause Court suit stated merely that the suit
was dismissed for reasons given in the Judge's decision in another suit,
and the judgment in the suit so referred to was in the following words :
"Claim for recovery of money lent with interest. Reply. Defendant
pleads that he has paid the debt to plaintiff. Issue. Has the defendant
paid the debt claimed to the plaintiff ? Finding. It is not proved that
the defendant paid the debt to the plaintiff. Ordered that the claim is
decreed with costs : " held that this was in fact no judgment at all, and
the case must be remanded for re-trial on the merits under the analogy of
s. 562 of the Code of Civil Procedure, read with s. 647 ib. MALIK RAHMAT
v. SHIVA PRASAD. 13 A. 533 = 11 A.W.N. (1891) 172 ... 337

(24) S. 206 See STEP-IN-AID OF EXECUTION, 13 A. 124.

(25) 8s. 206, 209, 622. See DECREE, AMENDMENT OF, ]5 A. 121.

(26) 8s. 206, 582, 588, r '591 See APPEAL, 14 A. 226.

(27) 8. 214 See PRE-EMPTION, 14 A. 529.

(28) SSr 224, 336, 622 See PRINCIPAL AND SURETY, 15 A. 163.

(29) S. 230 Execution of decree '* Application to execute a decree" Limita-

tion. The term " application to execute a decree " in the third paragraph
of s. 230 of the Code of Civil Procedure means any application to execute
a decree. Ib is not confined to the last application preceding the expiry
of the period of twelve years from either of the points of time mentioned
in ol. (a) or cl. (b) of the same paragraph of the section above mentioned.
TILESHRI RAI v. PARBATI, 15 A. 198=13 A.W.N. (1893) 93 ... 845

(30) S. 232 See STEP IN-AID OF EXECUTION, 13 A. 89.

(31) S. 237 See HINDU LAW (JOINT FAMILY/, 14 A. 190.

(32) 8. 246 See CROSS DECREES, 14 A. 359.

(38) Ss. 258, 283 See CLAIM TO ATTACHED PROPERTY, 13 A. 339.

996



GENERAL INDEX.

Civil Procedure Code (Act XIV of 1882) {Continued). PAGE

(34) 8. 266 (1) See HINDU LAW (MAINTENANCE), 15 A. 371.

(35) S. 268 (a) See EXECUTION OF DECREE, 13 A. 76.

(36) Ss. 268, 274 Mortgage-bond Attachment, Where the rights and interests

under his mortgage of a mortgagee out of possession are attached in exe-
cution of a decree, the procedure by which such attachment must be
effected is that prescribed by s. 269 of the Code of Civil Procedure. S. 274
of the Code cannot be applied in such a case. KARIM-UN-NISSA v. i HUD
CHAND, 15 A. 134 = 13 A.W.N. (1893) 51 ... 603

(37) 8. 2'<4 c - FXECUTION OF DECREE, 13 A. 119.

(38) Sf. 283, 622, 2eu, 4-4 -Bee REVISION, 15 A. 405.

(39) S, 293 See APPEAL, 13 A. 569.

(40) 8s. 295, 315 See SEPABATE SUIT, 13 A. 383. . ..,

(41) 8. 311 See DECREE-HOLDER, 15 A. 318.

(42) S. 311 See PARTIES TO SUITS, 15 A. 407.

(43) Ss. 336, 344 See PRINCIPAL AND SURETY, 13 A. 100.

(44) 83. 350, 359 See INSOLVENCY, 14 A. 145,

(45) S. 351 See EXECUTION OF DECREE, 14 A. 358.

(46) 8. 373 See COSTS, 15 A. 169.

<47) 8. 373 See RES JUDICATA, 13 A. 564.

(48) S. 375 Act X of 1873 (Indian Oaths Act), s. 11 Adjustment of suit. The

question in a suit was whether the purchase-money for a house, which bad
been paid by the defendant, had been paid out of his own funds or out of
monies belonging to the plaintiff. A witness for the defence having made
statements apparently favourable to the plaintiff's case, the pleaders
for both parties signed and presented to the Court a petition that if upon
a particular bond in the witness's possession it should be stated, that the
money was received through the defendant, the Court should decree the
suit, otherwise the suit should be dismissed.

Held that this arrangement was not an adjuatmant or compromise of the
suit within the meaning of s. 375 of the Civil Procedure Cods, so as to
determine the jurisdiction of the Court and necessitate its passing a decree
according to the arrangement.

The Oaths Act (X of 1873) does not constrain a Court to pass a decision in
favour of a particular party. If a party to a suit says he will be bound by
the oath of a particular person, s. 11 of the Act only means that pro-
tanto he will be bound, i.e., so far as the matter of that evidence is con-
cerned, and that evidence will be conclusive as to its truth as against him
throughout the whole of the litigation. But it in no way compels the
Court trying the case to accept it as conclusive. MUHAMMAD ZAHUR
v. CHEDA LAL, '4 A. 141 = 12 A.W.N. (189J) 3 460

(49) 8. 411 See JURISDICTION, 15 A. 324.

<50) Ss. 411, 412 Sae PAUPER SUIT, 13 A. 326.

(51) 8s. 485, 486, 268 (a) See MORTGAGE (GENERAL), 14 A. 162.

(52) Ss, 496, 588, ol. 24 See APPEAL, 15 A. 8.

(53) 8s. 508, 514, 521 See ARBITRATION, 13 A. 300.

(54) S. 514 See ARBITRATION, 14 A, 343. ; <,

(55) S. 521 See N.W.P. RENT ACT, s. 221, 14 A. 347.

(56) 8s. 522, 525 See APPEAL, 13 A. 366.

(57) 8. 542 Bee LIMITATION, 15 A. 123. ..,

(58) S. 542 Sse SECOND APPEAL, 13 A. 331.

(59) 8. 544 See EXECUTION OF DECREE, 13 A. 1.

(60) S. 546 See STAY OF EXECUTION. 15 A. 196.
<61) 8s. 556, 558 Bee LETTERS PATENT, 14 A. 361.

(62) S. 559 Addition of a respondent by the Court Limitation. Held by the
Full Bench that it is competent to a Court acting under s. 559 of the
Code of Civil Procedure to add a person as respondent in an appeal
though the time within which an appeal might have been preferred as

997



GENERAL INDEX,

CMI Procedure Code (Act XV of,1883) (Concluded), PA&E

against such tierson has expired. BINDE8HRI NAIK v. GANQA SAKAN

8AHU. 14 A/154 (F.B.) = 12 A.W.N. (1892) 13 46

(63) 8. 559 See APPEAL, 13 A. 78.

(64) B. 562 See APPAEL, 15 A. 413.

(65) 8s. 562, 91 3oe REMAND, 15 A. 119.

(66) 8. 566 See REMAND, 14 A. 23.

(67) 8?. 566, 567838 APPELLATE COUBT, 14 A. 366.

(68) 89. 566, 567 See APPELLATE COURT, 15 A 315.

(69) 8. 577 See COMPROMISE DECBEK, 14 A. 350.

(70) 8, 599 See APPEAL TO PRIVY COUNCIL. 15 A. 14.

(71) 8. 617 See LIMITATION ACT, art. 179 (5), 15 A. 84.
Ctatm to attached property.

Execution of decree Attachment Previous assignment in satisfaction of decree
of third party Suit by assignee to establish right to attached property
Civil Procedure Cone, Ss, 258 and 283. Where a regular suit under a. i!83
of the Code of Civil Procedure was brought to establish the plaintiff's
right to certain attached property, on the allegation that the property
attached had been transferred to him in satisfaction of a decree held by
him against the judgment-debtor,

Held, that it was not neceseary that such transfer should be certified under
the provisions of s. 258 of the Code of Civil Procedure. The prohibition to
take cognizance ot adjustments and payments referred to in s. 258 abnve-
mentioned relates only to the Court executing the decree. KALYAN

, SINGH v. KAMTA PRASAD, 13 A. 339 = 11 A.W.N. (1891) 100 ... 215-

Cegalzance of offence.

Criminal Procedure Code, ss. 191 and 342 Magistrate taking cognizance of an
offence on his own personal knowledge Bight of accused to have the case
transferred Power cf Magistrate to question the accused. Where a Magis-
trate was found to have taken cognizance of an offence under ol. (c) of
s. 191 of the Code of Criminal Procedure. Held that he had no power, on
an application being made under the last clause of the section above
named, to refuse to transfer the case.

Held also that where a Magistrate, before evidence taken for the prosecution,
put questions to the accused of the nature of a cross-examination, such
procedure was illegal, as it could not be said that the questions were put
" for the purpose ot enabling the accused to explain any circumstances
appearing against him in the evidence," within the meaning of s. 342 of
the Code of Criminal Procedure. QUEEN-EMPRESS v. R. HAWTHORNE,
13 A. 345 = 11 A.W.N. (1691) 102 ... S19-

Collector.

See WAJIB-UL-ARZ, 15 A. 410.
Commitment to Sessions Court,
See SESSIONS COURT, 15 A. 205.
Compensation.

See FRIVOLOUS COMPLAINT, 15 A. 365,
Compromise.

(1) See CIV. PRO. CODE, s. 11. 14 A. 141.

(2) See PLEADER AND CLIENT, 13 A. 272.
Compromise decree.

Civil Procedure Code, s. 577 Unverified Sulabnamah Execution of decree
Mortgage, redemption of Decree not specifying result cf ncn-payment of
mortgage Debt within the time prescribed thereby for payment Limitation
Act XV o/ J877 (Indian Limitation Act), sch. ii, art. 179. Where an
application purporting to contain the terms of a compromise was presented
to the High Court by one of the parties to an appeal before it, but on the
so called sulahnamah being sent down to Lower Court for verifioation r

it was found that the attendance of the parties for that purpose could not

. -

998



GEN1RAL INDBX.

Compromise decree (Concluded). PAGB

be procured :Lleld that the High Court was not justified in passing a
decree under s. 577 of the Code of Civil Procedure in accordance with the
terms of tha unverified sulahnamah.

Where a decree for redemption of mortgage etated that the amount due
under the mortgage should be paid within four months, but omitted to
st.ire what the result would be if the mortgage debt was not so paid :
Held that it was competent to the decree-holder to execute such decree
at any time within the period of limitation prescribed by art. 170 of the
second schedule of Aot XV of 1877. BANDHU BHAGAT v. SHAH MUHAM-
MAD TAQI, 14 A. 350=12 A.W.N. (1892) 40 , ... 592

Conditional decree.

(1) See EXECUTION OF DECREE, 13 A. 400.

(2) See PRE-EMPTION, 14 A. 529.
Conditional sale.

(1) See MORTGAGE (CONDITIONAL SALE).

(2) See PRE-EMPTION, 14 A. 341.

Confiscation.

See FORFEITURE ACT, s. 20, 13 A. 103.
Consent decree.

See HINDU LAW (WIDOW), 15 A. 382.
Construction of document.

ID Construction of document Deed Site-deed or deed of g^ft. :A deed which
purported ou the face of it to be a deed of sale contained a recital that the
consideration had been received by the vendor and returned as a gift to
the vendee. The words used were " Hath * nawasi apneki bai
k*i:,Vi karks zir i-samman tarnam wokamal wasul paker baksh diya aur
bib i kardiya."

Tbe deed was stamped as a sale-deed and was duly registered, but no
possession was given under it, and there was appearently no evidence ex-
ternal to the deed that any consideration bad passed between the parties.

Heli by EDGE, C.J., and TYRRELL and KNOX, JJ., that in the absence
of any evidence external to the rlf>ed itself of the intention of the parties,
the deed in question must be taken to be a deed of sale.

Per MAHMOOD, J. t contra. The lower Appellate Court having found that
no consideration had passed, the deed must be considered as a deed of
gift, though wearing the appearance of a sale deed, and, possession not
having been given, under Muhammadan Liw the gift was invalid.
ANGAL LAL v. MUHAMMAD HUSAIN, 13 A. 409 = 11" A.W.N, (1691)
159. ... 262

(2) See EQUITABLE CHARGE, 15 A. 304.

Contract Act (IX of 1872).

S. 74 Mortgage Interest Penalty. Where in a contract under which interest
is payable it is agreed between the parties that if such interest be not paid
punctually the defaulter shall be liable to pay interest at an enhanced
rate (whether from the time of default or from tha time when interest
first became payable under the contract), such agreement does not come
within s. 74 of the Indian Contract Act, and is to be construed according
to the intentions of the parties as expressed therein and not as a stipula-
tion for a penalty. Such agreement is to be enforced according to its
terms unless it be found to have been when made unconscionable or frau-
dulent. \
The English doctrine cf penal stipulations as applied to such agreements
considered and not followed. BANEE BEHARI v. SUNDAR LAL, 15 A.
232 (F.B.) = 13 A.W.N. (1893) 130 ... 967

Contribution.

Act IV of 1882 (Transfer of Property Act), ss. 52 and 82 Contribution Lis pen-
dens. Two properties, A and B, belonging to different owners, were mort-
gaged under a joint bond lot the same debt;. The mortgagee put his bond
in suit, and having obtained a decree caused property A to be sold, the
proceeds of which proved more than sufficient to satisfy the whole mort-
gage-debt. Before such sale, however, X had, in execution of a simple

999



GENERAL INDEX.



Contribution. (Conceded). PAGE

money-decree, acquired a share in property A. X accordingly sued for
contribution from property B, in that, so far as his share in property A
went, he had satisfied the mortgage debt, and ultimately obtained a dec-
ree in his favour ; but, during the pendency of that litigation, property B
had been transferred to Y.

Held that Y must take the property subject to X's right to contribution
from it in respect of the loss of his share in property A. BALDEO SABA
t>. BAIJ NATH, 13 A. 371 = 11 A.W.N. (1891) 133 ... 236

Co-sharers.

Co-sharers Payment of arrears of Government revenue by nr,e co-shareri effect of
Charge -Lien Act XIX of 1873 (N.W.P. Land Bevznue. Act], ss. 146,
148, 150 166, 173-^c XII 0/1381 (N. W. P. Rent Act), ss. 93, m.etseq
Act IV of 1882 (Transfer of Property Act.}, s. 100. A co-sharer in amahal,
who was also the lambardar, paid arrears of Government revenue for the
years 1882, 1883, and part of 1884, in respect of certain lands in the mahal
which were the exclusive property of another co-sharer. These land*
were subject to simple mortgages executed in 1873, upon which decrees
were obtained in 1884, and had been sold in execution of these decrees in
1887. The co-sbarer-lambardar, having obtained a decree in a Court of
Revenue against the mortgagors under s. 93 <g) of the N.W.P. Fen? &<jt
(XII of 1881) for recovery of the arrears of revenue paid by him, sought
to execute that decree under s. 177 of the Act by sale of the lands which
had been sold in 1387 ', and thereupon the auction-purchaser at that sale
objected under g. 178, and, the objection having been overruled, brought
a suit as authorized by s. 181 in a Civil Court to establish bis title tc the
lands and to have them protected from sale in execution of the Court of
Revenue decree. This euit was decreed, and the decree, not having been
appealed against, became final. Subsequently, the oo-sharer-lambardar
brought a suit in the Civil Court in which he claimed a decree for enforce-
ment of lien by sale of the lands for the amount of the Court of Revenue
decree, and for a declaration that the said lien " which is on account of
Government," be declared preferential to the mortgages of 1873, the
decrees thereon of 1884, and the sales under those decrees of 1887. He
claimed this lien not only in respect of the arrears of Government revenue
paid, but also in respect of future interest.

Held by the Full Bench (Mahmood, J., dissenting):

(i) That the Legislature had not given or recognized in the North-Westeru
Provinces any such right of charge or lien in favour of a person paying
Government revenue as was claimed here, or provided any means by
which such a charge could be enforced, and that any such charge would
be at variance with the policy and intention of the Government as disclos-
ed in its legislative enactments.

(ii) That no Civil Court had jurisdiction to entertain the suit, and no Court
of Revenue had jurisdiction to make a decree for sale of the immoveable
property or a decree in execution of which the immoveable property could
be sold to the prejudice of inoumbrances to which it was subject.

(iii) That it was not the intention of the Legislature that a Civil Court
should have jurisdiction to invest, by declaration or otherwise, a decree
of a Court of Revenue with the attributes of decree for sale such as
oould be passed by a Civil Court in a suit for sale under the Transfer of
Property Act, 1882.

<iv) That there is no general principal of equity to the effect that whoever
having an interest in an estate, makes a payment in order to save the estate,
obtains a charge on the estate, and, therefore, in the absence of a statutory
enactment, a co-sharer who paid the whole revenue and thus saved the
estate, does not, by reason of such payment, acquired a charge on the
share of his defaulting co-sharer.

(v) That the principal of Maritime Civil Salvage had no application to th
case, and that no analogy could exist between the case of a salvor in
Maritime Civil Salvage and the case of a co-sharer in a mahal to whom
s. 146 or B. 148 of the North- West ren Provinces Land Revenue Act (XIX
ol 1873) applied. BETH CHITOB MAL v. SHIB LAL, 14 A. 273 (P.B.) =
12 A.W.N. (1892) 117.

1000



GENERAL INDEX,

Co-sharers. PAGE

Act XII of 1981, ss. 93 (</>, 205 Act XIX of 1873, s. 146" Prcprittor " " Co-
sharer" Civil and Revenue Courts, jurisdiction of. Where a lambardar
brought a suit foe arrears of land revenue payable by the proprietors against
several defendants of whom some were co-sharers and others mortgagees
in possession. Held that such suit was one of the nature contemplated
by s. 93 (gr) of the North-Western Provinces Rent Act, 1881, and was
cognizable by a (Court of Revenue as against all the defendants.
LACHMAN SINGH v. GHASI, 15 A. 137 = 13 A.W.N. (1893) 63 ... 806

Casts.

<1) Taxation Competency of Judge before taxation to reconsider on ordtr as to
costs made by his predecessor in office Certificate of pleader's f(e Civil
Proztdure Code, s. 373 Revision. A Sabordinate Judge ia granting
the application of a plaintiff before him for permission to withdraw with
leave to file a fresh suit in the same matter made an order as to costs in
favour of the defendants in the following terms : " As the case has not
been contested to the bitter end, half the pleader's fees are allowed and
the process expenses, &c., incurred in the case, except those already refus-
ed to the defendants. For travelling and incidental expenses defendants
to put in a bill in one week, this to be subject to the decision of the Court
after hearing b'lth "parties. The application under s. 373 of the Code of
Civil Procedure is granted with leave to the plaintiff to bring a fresh suit
for the same matter. Costs allowed to defendants as above."

The Judge who bad made the above order having been transferred before
taxation was completed.

Held that it was competent to his successor at taxation and before granting
payment of the pleader's fees to consider whether the certificate given by a
pleader as to the fee paid to him in the case was according to rule and to
disallow payment of any fee not duly certified as paid.

Held also that the order under B. 373 of the Code of Civil Procedure was an
order liable to revision. MARY DICK v. LOUISA DICK, 15 A. 169 = 13 A.
W.N. (1893) 78 ... 826

(2) Costs Second appeal Exercise of discretion rf Court as to apportionment of

costs An appeal as to costs will lie from an appellate decree when the
Courts has exercised its discretion as to costs arbitrarily, and not accord-
ing to general principles. DAULAT RAM v. DDBGA PRASAD, 15 A. 333
= 13 A.W.N. (1893) 110. ... 930

(3) See APPEAL, 13 A. 290.

(4) See ARBITRATION, 13 A. 300.
Court.

Act III of 1877, s. 73 Criminal Procedure Code, s. 195 Registrar "Court"
A Registrar acting under s. 73 of the Indian Registration Act, 1877, is not
a Court within the meaning of s. 195 of the Code of Criminal Procedure.
QUEEN-EMPRESS v. RAM LAL, 15 A. 141 = 13 A.W.N. (1893) 59 ... 809
Court executing decree.

See EXECUTION OP DECREE, 15 A. 3^4.
Court fee.

(1) Suit for declaratory decree Declaration sought that certain property u~as
joint ancestral property and not liable to attachment in execution of a cer-
tain decree Court-fee payable on such suit. "The plaintiffs specified
in their plaint as the reliefs sought by them : (I) That it be declared by
the Court that the property mentioned at foot is the joint ancestral pro-
perty cf the plaintiffs and not liable to attachment and sale in exeoution
of the decree of the defendant No. 4, dated 4th December, 1883, against
the defendant No. 1. (2) That the costs of the suit be also awarded by the
decree. The suit is valued with reference to the amount of the decree
and the value of the property at Rs. 6,000. (3) That any other relief
which the Court may think the plaintiffs entitled to may also be granted".
Held, that the suit should be deemed a suit for one declaratory decree only,
without consequently relief, and that a court-fee of Rs. 10 was sufficient.
GOBIND NATH TIWAKI v. G. MATI TAURAYAN, 13 A. 389 = 11 A.W.N,
(1891) 139

1001
A VII 126



GENERAL INDEX.

Court-fee (Concluded). PAGE

(2) Bee APPELLATE COURT, 15 A.; 112.

(3) See LIMITATION, 15 A. 65.

(4) See PAUPER APPEAL, 13 A. 305.

(5) See STAMP DUTY, 15 A. 117.
Court Fees Act (VI! of 1870).

(1) 8. 7 Sea VALUATION OF SUIT. 15 A. 378.

(2) S. 7 (5) See VALUATION OP SUIT, 15 A. 63.

(3) 8. 7, ol. (ix) See MORTGAGE (REDEMPTION), 13 A. 94.

Criminal Appeal.

(1) Appeal preferred by appellant in jail Power of appellate Court to dispose

of appeal in absence of the appellant Criminal Procedure Code, ss. 42<0,
421, 422, 423. Where an appeal, preferred under s. 420 of the Criminal
Procedure Code, has been admitted by the appellate Court, and notioe
has been properly given under s. 422, and reoord of the case has been sent
foe and perused under a. 423, the appellate Court is competent, under
the last-mentioned section, to dispose of the appeal though the appellant
is not present and is not represented by a pleader.

The only limitation placed by s. 423 on the powers of the appellate Court is
that the Court, before disposing of the appeal, must peruse the reoord,
and, if the appellant is present or is represented by a pleader, the appellant
in person must be heard, or the pleader must be heard.

80 held by the Full Bench, Mahmood, J,, dissenting.

Held, by Mabmood, J., contra, that the principles of audi alter am -par km
and ubi jus \bi remedium and the provisions of s. 492 of the Code, as to
notice of appeal, imply that, where an appeal is admitted and not pumma-
rily rejected under s. 421, the appellant must have a real opportunity of
being heard ; that in the passage in s. 423 " after perusing the record and
hearing the appellant or his pleader, if the appears," the word " he "
refers to the pleader, and must not be read as " either of them ;" that, in
any case, the words " if he appears " make it a condition precedent to the
disposal of an appeal under the section that the appellant is heard, or at
least has tbe choice of appearing ; that the word " appears " refers to the
personal appearance of tbe appellant ; and that an appeal which has been
admitted cannot be disposed of unless the appellant is before the appellate
Court, or can be heard within the meaning of s. 423.

Semble,per Mahmood, J., but the High Court in appeal is competent to send
for a criminal to appear before it to explain a difficulty in his case.
QUEEN-EMPRESS v, POHPI, 13 A. m (F.B,) = il A.W.N. (1891) 48 ... 107

(2) See APPEAL TO PRIVY. COUNCIL, 15 A. 310,
Criminal Case.

See APPEAL TO PRIVY COUNCIL, 15 A. 310.
Criminal Practice.

(1) See CRIM. PRO. CODE, 8. 161, 15 A. 11,

(2) See SESSIONS COURT, 15 A. 6.

(3) See SESSIONS TRIAL, 14 A. 521.
Criminal Procedure Code (Act X of 1882).

(1) S. 55 Subsequent treatment of persons arrested under Hie previsions of s. 55.



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 146 of 155)