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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 147 of 155)
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Where a person is arrested by the police under the provisions of a. 55 of
the Code of Criminal Procedure he should always be given the option of
release on reasonable bail being supplied. In re PETITION OF DAULAT
SINGH, 14 A. 45 = 11 A.W.N, (1891) 179 401

(2) S. 107. See SECURITY TO KEEP THE PEACE, 14 A. 49.
(8) S. 110See FRIVOLOUS COMPLAINT, 15 A. 365.

(4) Ss. 133, 136, 140 Act XLV of 1860, s. 188 Disobedience to order duly

promulgated by public servant. A person against whom an order

under s. 133 of tbe Code of Criminal Procedure is passed, who

neglects to take any steps whatever in respect of such order within

> the time therein specified, either by way of compliance therewith or by



Criminal Procedure Code (Act X of 1882) (Continued). PAGE

way of objection thereto in the manner prescribed by law, renders himself
liable to be proceeded against under s. 188 of the Indian Penal Code with-
out its being necessary to wait until the order has been made absolute. If
such order is made absolute under s. 140 of the Code of Criminal Proce-
dure, further proceedings can then be had, under s. 168 of the Indian Peral
Code, against the person disobeying the order absolute. When an order
under s. 13.-; of the Code of Criminal Procedure has been made absolute
under s. 140 ib., its validity cannot subsequently be questioned. QUEEN-
EMPRESS v. BlSHAMBAR LAL, 13 A. 577 = 11 A. W.N. (1891) 169 ... 365


(6) 8s. 145, 146 See MAGISTRATE, JURISDICTION OF, 15 A. '391.

(7) S. 161 Act XLV of 1860, ss. 191 and 193 .Fated tvidence Statement made

to a police pffiztr investigating a case Mcdeof recording such statements.
It is not necessary that t,he statement of a witiMM recorded under
s. 161 of the Code of Criminal Procedure, 1882, should be elicited and record-
ed in the form of alternate question and answer. It is sufficient if such
statement is substantially an answer to one or more questions addressed
to the witness before tbe statement is made.

The provisions of.'ss. 191 and 193 ol the Indian Penal Code do apply to the
case of false statements made under s. 161 of the Code of Criminal
Procedure, 1882.

It is not illegal, though unnecessary, for a police officer recording a state-
ment undar s. 161 of the Code of Criminal Procedure, 1882, to obtain the
signatures of persons present at the time to authenticate his reoord of
such statement. QUEEN EMPRESS V. BHAGWANTIA, 15 A. 11=12
A.W.N. (1892) 141 ... 722

(S) 8s. 161, 162389 STATEMENTS MADR TO THE POLICE, 15 A. 25.

(9) 83. 191, 342 See COGNISANCE OF OFFENCE. 13 A. 345.

(10) S. 192 Transfer Procedure to be followed where a caie has been trans-

ferred after the tvidence for the prosecution has been recorded. A Magis-
trate to whose Court a oae under s. 355 of the Indian Penal Code has
been transferred at a stage when all the evidence for the prosecution had
been taken, did not re-summon the witnesses for the prosecution but
proceeded to aci on their evidence as if it had been taken before himself ;

Held that whether such procedure amounted to an irregularity of ille-
gality or not, it waa sufficiently prejudicial to the accused to warrant the
conviction being quashed. QUEEN-EMPRESS v. BASHIR KHAN, 14 A.

346 = 12 A.W.N (1892) 19 ... 589

(11) S. 195 See COURT, 15 A. 141,

(12) 8s. 19E, 404, 439 See SANCTION TO PROSECUTE, 15 A. 61.

(13) 8s. 195, 476, 487 See SESSIONS JUDGE, JURISDICTION OF, 14 A. 354.

(14) 8s. 233, 234, 537, 338, 339 See JOINT TRIAL OF ACCUiBD, 14 A. 502.

(15) 8. 268 See SESSIONS TRIAL, 13 A. 337.

(16) S3. 269, 428, 53T See MATERIAL IRREGULARITY, 15 A. 136.

(17) Ss. 289, 292 See SESSIONS TRIAL, 14 A, 212.

(18) S. 337 Pardon Trial of person who having accepted a pardon has not

fulfilled the conditions en which it was offered. Where a pardon has been
tendered to any person in connection witn an offence, he should not be
tried for any alleged breach of the conditions of bis pardon or for any
offence connected with that for which he hag received pardon until tbe trial
of the principal offence, and of any offence connected therewith, has been
completed. QUEEN-EMPRESS v. 8UDRA, 14 A. 336 = 12 A.W.N. (1892)
21 ... 582

(19) Ss. 342, 366, 367 and 54C Seisicr.s trial Accuied ferson, txaminalion cf

Witnesses, trtatmint of by Court Order cf txcmination Ju'dgmtnt
Sentence. Questions put by the Court to an accused person under tbe
provisions of s. 342 of tho Cede of Criminal Procedure, 1882, must be
strictly limited to the purpose described in that section, i.e., "of ena-

, bling the accused to explain any circumstances appearing in the evidence

against him." The evidence referred to in that section is .the evidence
already given at the trial at the time when the Court puts questions to
the accused.



Criminal Procedure Code (Act X of 1882) (Concluded). PAGE

It is not intended by s. 540 of the Code of Criminal Procedure, 1882, that a
Judge ehall reverse the order of a Sessions trial and call the witnesses
summoned for the defence before the oase for the prosecution is closed.

It is illegal on the part of a Court to threaten witnesses with the penalties
of the law unless they are evidently giving wilfully false evidence or per-
sistently refusing to give evidence of facts which must be within their

A f-eutenco which has been passed or a direction that an accused be Bet at
liberty which bas been given at a Sessions trial before the judgment
required by s. SW of the Code of Criminal Procedure, 1882, has been
written is illegal. QUEEN-EMPRESS v. HARGOBIND SINGH, 14 A. 242
= 12 A. W.N. (1892) 83 ... 525

(20) Ss. 420 to 423 See CRIMINAL APPEAL, 13 A. 171.

(21) S. 423 See SESSIO.NS COURT, 15 A. 205.

(22) 8. 476 See SANCTION TO PROSECUTE, 15 A. 392.

(23) S. 488 See MAINTENANCE, 13 A. 348.

(24) S3. 488, 490 Bee MAINTENANCE, 15 A. 143,

(25) S. 155 See BIAS, 15 A. 192.

(26) S. 560 See FRIVOLOUS COMPLAINT, 15 A. 365.
Cross Claims.

See SET OFF, 15 A. 9i
Cross decrees.

Set-off Civil Proc:dure Code, s. 246. Where a decree-holder holds a decree
against several persons jointly, one of whom holds a decree against him
singly, both decrees being executable in the same Court, it is competent
to the holder of the joint decree, under the provisions of s 246 of the
Code of Civil Procedure, to plead such decree in answer to an application
for execution of the deotee against him singly. BAM 8UKH DAS v. TOTA
RAM, 14 A. 339 = 12 A. W.N. (1892) 12 ... 584


See HUSBAND AND WIFE, 13 A. 126.

Sae WAJIB-UL-ARZ, 13 A. 407.


(1) Act XLV of 1860, s. 395 Dacoity Forcible removal of cows by Hindus from

the possession of Muhammaiani. Where a large body of Hindus acting
in concert and apparently under the influence of religious feeling attacked
certain Mubammadans who were driving cattle along a public road and
forcibly deprived them of tbe possession of suob cattle under circumstances
which did not indicate any intention of subsequently restoring such cattle
to their lawful owners, lit Id that the offence of which the Hindus were
guilty was decoity under s. 395 of the Indian Penal Code, and not merely
riot. QUEEN-EMPRESS v. RAM BARAN, 15 A. 299 = 13 A. W.N. (1893)
142 ... 908

(2) See RIOT, 15 A. 22.

(1) See INTEREST, 13 A. 330,

(2) See TRESPASS, 13 A. 98.
Deadly weapon.

See LATHI, 15 A. 19.
Declaratory Suit.

(1) See COURT FEE, 13 A. 389.

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

(3) See RES JUDICATA, 13 A. 309.

Decree. .

(1) See APPEAL, 14 A. 210 ; 15 A. 359.

(2) See REVISION, 14 A. 520.

(3) See APPELLATE COURT, 13 A. 320.



Decree and Judgment, Variance between. PAGBT

See RES JUDIOATA, 15 A. 3,

Decree, Amendment of.

(1) Civil Procedure Code. ss. 206, 209, GWAm-.ndmen! of decree Interest given

by amendment in decree which was not given by tht judgment Revision.
The plaintiffs sued foe recovery of a certain sum of money and interest up
to date of suit and for interest during the suit and subsequent to decree
until satisfaction 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 satis-
faction 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. HASAN SHAH v, SHEO
PBASAD, 15 A. 121= 13 A.W.N. (1893) 44 ... 795

(2) Bee APPEAL, 14 A. 226.

(3) See STEP-IN-AID OF EXECUTION, 13 A. 124.

Decree, Form of.

(1) Bee APPEAL, 14 A. 500,

(2) See EXECUTION OF DECREE, 13 A. 343.


(4) See POSSESSORY SUIT, 15 A. 412.
Decree, Construction of.


(1) Civ. Pro Code, s. 311 "Execution of decree Decree holder," The

term "decree-holder" in s. 311 of the Code of Civil Procedure is not
limited to the decree-holder who instituted the exeoution-prooeedings, but
include a decree bolder who is entitled to come in and share in the pro-
ceeds under s. 295 of the Code. AJUDHIA PRASAD v. NAND LAL
SINGH, 15 A. 318 = 13 A-W.N. (1893), 119 ... 920

(2) See EXECUTION OF DECREE, 15 A. 324.

(3) Sea PARTIES TO SUITS, 15 A. 407.


See REMAND, 14 A. 23.

Deposit of title-deeds.

See TRANSFER OF PROPERTY ACT, 8. 59, 14 A. 238.

See HUSBAND AND WIFE, 13 A. 126.

See COSTS, 15 A. 333.
Dismissal for default.

(1) See APPEAL, 15 A. 359.

(2) See LETTEBS PATENT, 14 A. 361.


Disobedience to lawful authority.

See CRIM. PRO. CODE, Ss. 133, 136, 140, 13 L. 577.
Dispute as to possession of immoveable property.

(1) Grim. Pro Code, s. 145 Order for interim possession of immoveable pro-

perty Point cf time, possession at which is to be looked at in determining
which party is entitled to an order under s. 145. The possession which a
Magistrate acting under s. 145 of the Code of Criminal Procedure has to
find and support, is possession at the time of the Magistrate's proceed-
ings. Hence, where a Magistrate decided a question of possession under
s. 145 upon evidence taken six months previously, held that such order
was irregular and unsustainable. In the matter of the petition of JAI
LAL, 13 A. 362 = 11 A.W.N. (1S91) 115 ... 230




District Judge, Jurisdiction of. PAGE

See TRANSFER OF SUIT, 14 A. 531.
Documentary Evidence.

Evidence Document rejected as inadmissible but allowed to remain on the record
Civ. Pro. Code, s. 142-A. Where a document tendered in evi leuoe in
a Court of first instance was rejected a? inadmissible but was neverthe-
lees allowed to remain on the record of the o*se. Hell, that the mere

fact of the document remaining on the record did not make it evidence
in the Appellate Court, but it must be tendered as evidence in the Appel-
late Court and accepted thereby. HAR GOBIND v. NONI BAH^, 14 A.
356=12 A.W.N. (1892), 42 ... 896

Dying Declaration.



(1) Way Prescription Landholder and tenant Act V of 1882 (Basemen's)

Act VIII of 1891. There is nothing in Act VIII of 1891 to compel

the Court, to apply the Easements Act (V of 1882) to a suit commenced

before Act VIII of 1S91 came into force.
A tenant cannot as against bis landlord acquire by prescription an eaa.e-

ment of way in favour of the land occupied by him as tenant, over other

land belonging to his landlord.
So held by the Fall Bench. UDIT SINGH v. KASHI RAM, 14 185 (F.B)

= 12 A.W.N. (1892): 38 ... 489

(2) Right of way Easement of necessity Act XV of 1877, s. 26 Act IV of 1882,

s. 8 Eastmwts " annexed "Act V of 1882. ss. 2, 5, 13, 19 i4 and 45,
Vic., Chav. 4 1 , s. 6 Act I of 1872, s. 114. Illustration tg) Presumption
against plaintiff from refusal to produce title-deeds. The plaintiffs were
owners ot an hotel and the defendant of certain adjacent property. The two
properties had at, one time been united, and at that time the manager of
the hotel on behalf of the owner used to obtain water for the purposes of
the hotel from a certain spring by means of a road which ran over land
which subsequently became the defendant's. There was another, but
smaller and much less convenient path from the hotel to the spring. The
plaintiffs became owners of their portion of the property in 1886, and the
defendant of his portion in 1888. The plaintiffs continued to use the
above-mentioned road through the defendant's property for the purpose of
getting water from the hotel uutil 1889, when the defendant refused to
perm't them any longer to use the road. The plaintiffs accordingly sued
the defendant for a declaration of their right of way over the said road ;
but refused to put in evidence the deed under which they became owners
of the hotel property.

Held upon these facts that the plaintiff? were not entiflen to any right of
way over the land in question. Owing to the non-production by the plain-
tiffs of their title-deeds, is must be presumed as against them that the
evidence afforded thereby would be unfavourable to their claim, and no
right of way in favour of the ptaintifh could be shown to arise otherwise,
either as an easement of necessity or as an easement the intention to
grant which might be inferred. WUTZLER v. SHARPE, 15 A. 270 = 13
A.W.N. (1893), 151 ... 890

Easement of necessity.

See EASEMENT, 15 A. 270.


(1) See LANDLORD AND TENANT, 13 A. 403; 14 A. 223 ; 15 A. 189.

(2) See POSSESSORY SUIT, 13 A. 537.

(3) See VALUATION OF SUIT, 15 A. 63.

English Law.


Equitable Charge.

Equitable charge on property purchased A charge created in favmr of the lender
of the purchase-money. By the acts of the parties, and their relations to



Equitable Charge (Concluded). PAGE

one another, money borrowed by an agent for a principal for the purchase
of property was rendered a charge upon the latter in the principal's Hands,
he being the real purchaser.

The lender of money, which he advanced to the nominal purchaser of
property, who was tbe agent of the real purchaser, made the advance with
the knowledge that it was for the principal's purposes, the latter only
using tbe agent's name in the purchase. The nominal purchaser then
executed a deed purporting to hypothecate the property as security for the
loan. The lender, not having been paid, obtained a money-decree against
the nominal purchaser, and, bringing the property to a Court sale, bought
it himself. He could not, however, obtain entry of his name in the
colleotorate books, on the opposition of the real purchaser, and a suit
brought by him for a declaration of his title, and his right to possession,
against the nominal purchaser, was dismissed.

Afterwards, in the 'present suit, which the lender brought against both the
real and the nominal purchasers, it was held that although, in regard to
the previous judgment, it might be difficult to decide that the deed itself
constituted a valid hypothecation, the facts of the case were sufficient to
show that tbo lender of tbe money was entitled to a declaration that the
advance of money for the purchase formed an equitable charge unon the
property against the real purchaser. BHAGWATI PBASAD v. RADHA

KISHEN SEWAK PANDB, 15 A. 304 (P.C.) = 20 I. A. 103 = 6 Bar. P.C.J. 7
= 17 Ind. Jur. 320 ... 911

Equitable Estoppel.

Equitable Mortgage.




(1) Evidence Failure to prove an alleged transaction of lending money. Upon

the evidence the decision of the High Court was affirmed as to a question
ot fact, viz., whether the de'endant's deceased father had, or had not, in
his lifetime, in consideration of a payment to his order by the plaintiff,
promised repayment. The High Court, reversing the decree of the first
Court, had fcuod that there had been no sufficient proof of the alleged
transaction. This was the conclusion, also, on this appeal ; and although
it was possible that the money might (as it was indicated in the judgment)
have been wrongly obtained from the plaintiff by persons about him, it
was not shown to have been received bv the alleged birrower. LACHMI
PRASAD v. NARENDRO KISHOKE SINGH, 14 A. 169 (P.O.) = 19 I. A. 9 =
6 Bar. P.C.J. 106 = 15 Ind. Jur. 750 _ 478

(2) Acknowledgment of debt Stamp Act I of 1879, sen. I, art. IAct XV of

1877, s. 19. The question whether or not an allusion to a debt contained
in a letter from a debtor to his creditor amounts lo an acknowledgment of
tbe debt within the meaning of Art. 1, sob. I, of the Indian Stamp Act,
1979, is a question in each case of the intention of the writer. Hence,
were such a letter, written ante titem motam, before limitation in respect
of tbe 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 Act, 1877. Held that the said letter was ro* inadmis-
sible in evidence by reason of its not having been stamped. BISHAMBAR
NATH v. NAND KlSHORE, 15 A. 56 = 12 A.W.N, (1892) 234 ... 753

{3} See APPELLATE COURT, u A. 366.



(6) See JOINT TRIAL OF ACCUSED, 14 A. 502.

(7) See MAHANT. 1H A. 256.


(10) See WAJIB-UL ARZ, 13 A, 407.



Evidence Act I of 1872.) PAGE

8. 114aae EASEMENT, 15 A. 270.
Examination of accused person.


(2) Sea GRIM. PRO- CODE, 8?. 342, 366, 367, 540, 14 A. 242.
Exclusive possession.

Execution of Decree.

(1) Decree of Appellate Court What that dtciee should contain. Where the Judg-

ment of au Appellate Court directed that a certain sum over and above
what had been decreed to him in the Court of first instance should be
decreed to the appellant, but the decree of the Appellate Court did not
specify the sums that would be due to the appellant under that decree,
except by reference to the judgment on which it was based and to the
decree of the Court of first instance,

Held that though the decree an thus drawn was informal, yet as the amount
due to the decree-holder wasasoertainable from the record, and the decree
was thus praoiically capable of execution, execution should, as a matter
of equity, be granted to the decree-holder. JAWAHIR MAL v. KlSTUR
CHAND, 13 A. 343=11 A.W.N. (1891) 119 ... 217

(2) Decree conditional on payment of a sum certain within a fixed time Payment

after time sjpecified in decree. A Court having framed a decree condition-
ed on tho payment by the plaintiff of a sum certain with a specified time
has no power to extend the time for payment after the period mentioned
in the decree has elapsed. RAM LAI, DUBE v. HAR NARAIN, 13 A. 400
= 11 A.W.N. (1891) 150 ... 256

(3) Decree to be executed where there has been an appeal. Where the Appellate

Court has modified the decree of the Court below, the decree of the Appel-
late Court supersedes entirely that of the lower Court, and is the only
decree which can ba executed. NOURANG RAI v. LATIF CHAUDHRY,
13 A. 394 = 11 A.W.N (1891) 148 ... 55*

(4) Insolvency Two reliefs not co -.current Civil Procedure Code, ss. 351, et

seq. A decree-holder in respect of whose judgment-debtor an -order
declaring him insolvent and appointing a receiver has been passed under
s. 351 of the Code of Civil Procedure, and whose deoree has been placed on
the list of the judgment debtor's scheduled debts, cannot, pari passu with
the proceedings in insolvency, go on executing his deoree ID the ordidary
way against that judgment-debtor. GAURI DATT v. SHANKAR LAD, 14
A. 358 = 12 A.W.N. (1892) 36 ... 597

(5) Attachment Incorrect description of property sought to be attached Subse-

quent purchase of some property under a decree for pre-emption Civil Prcce-
dureCode, s.274. In execution of a simple money decree against the holders
of a muafi interest in a certain village, who did not possess any zamtndari
interest in that village, an attachment was obtained by the decree-holder
in 1884, of "an eight biswas zamindari share of mauza D," and under
that attachment a sale took place in January, 1886. Meanwhile, in
December, 1885, a decree for pro emptionin respect of a sale by the judg-
ment debtors in 1881 of their muafi interests in the village, was' decreed
in favour of persons who were not parties to the litigation in which the
attachment of 1884 was effected. The plaintiffs (who were in possession)
sued for a declaration of their right to the muafi interests as against the
auction-purchaser under the sale of January, 1886.

Held that the attachment in 1S84 wag not a good attachment of the muafi
interests of the judgment-debtors, and the auction purchaser could not be
held to have purchased those muafi interest?, and the title of the plaintiffs
under their pre-emptive deoree of December, 1885, must prevail. HARGU
LAL SINGH v. MUHAMMAD BAZA KHAN, 13 A. 119= 11 A.W.N. (1891)
16 ... 74

(6) Attachment of debt Order prohibiting creditor from recovering debt Suit

for rent under attachment Civil Procedure Code, s. 268 (a) Act XV of
1877 (Limitation Act), s. 15 Injunction or order staying a suit 8. 268,
ol. 'a) of the Civil Procedure Code, does not mean that, while a debt
is under attachment, the person to whom the debt was originally owing,



Execution of Decree. (Continued).

should be barred from bringing a suit in respect of it. What it prohibits
is the recovery of the debt, and the payment of it by the debtor to the

S*nb!f..An order of attachment under 8. 268 of the Civil Procedure Code
is not an it-junction or order staying a suit within the meaning of a. 15
of the Limitation Act (XV cf 1677). SHIB SINGH v. BITA BAM, 13 A.
76 = 10 A. W.N. (1890) 194 ... ^

(7) Attadm^nt as joint family proptrty of property in fact partitio^ei Joint

suit by hrlfiers of two shorts to have their shares declirt d r.ot Hat le to attcch-
ment Misjoinder of causes of action Civil Procedi*re Code, s?. !t6,3l,45,
53, 578 A decree holder in execution of a decree against one G.L. attact-
cd a house as belonging to G.L. and his two sons forming a joint Hindu
famiiy. Tte sons objected that the house had previously been partitioned
and was held by them and their father in separate shares, but their objec-
tion was disallowed. They then brought a joint suit for a declaration
that their respective portions of the house were not liable to attachment
in execution of a decree againpt their father. No objection was taken to
the frame of thst suit, and the Court of first instance gave the plaintiffs a
decree on tbe finding that partition had in foot taksn plioe prior tc the
suit in which tha defendant, judgment-creditor, had obtained his decree.
On appeal by the judgment-creditor, the lower Appellate Court dismissed
the suit entirely, on the ground of misjoinder of causes of action. The
plaintiffs appealed to the High Court.

Held on these (acts that the plaintiffs should have been allowed to amend
their plaint by striking out the name of one of them, and that unr'cr the
circumstances R. 578 of the Code of Civil Procedure would apply. BEHAEI
LAL v. KODU BAM, 15 A. 380 = 13 A. W.N. (1893) 150 ... 954

(8) M or tgage Decree against the person and other property of the jugment-

debtor as well as against the property mortgaged Act IV of 1862 (Trans-
fer of Property Act) t s. 90. In % suit for enforcement of a mortgage
security tb^ plaintifia prayed for a decree both as against the mortgaged
properly and also, in the event of the mortgaged property not realising
sufficient to satisfy his claim, as against the other property and the per-
sons of the defendants, and the decree which the plaintiff obtained was
framed in accordance with the prayer in the plaint, that is to say, tbe
decree expressely provided that, should the mortgaged property not realise

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 147 of 155)