Chas. A. Stevens & Bros.

The 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

. (page 148 of 155)
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 148 of 155)
Font size
QR-code for this ebook

sufficient to satisfy tbe amount decreed to the plaintiff, the other property
of three, and the persons of two of the judgment-debtors were to be

Held that such a deoree could be executed against the persons and other
property of the pirti" named therein, without its being necessary ior
the decree-holder to obtain a separate deoree under s. 90 of ihe Transfer
of Property Act (IV of 1882). BATAK NATB v. PlTAMBAB DAS, 13 A.
360=11 A. W.N. (1891) 127 ... 228

(9) Limitation Execution of decree Act XV of 1877 (Limitation Act), sch ii, art.

179 cl. (2: " Apreal " " Final decree cr order " Decree against defen-
dants severally- Af peal by some only of ihe judgment-debtors Civil Proce-
dure Code, s. 544. Where a deoree for possession of immoveable property
was passed not jointly, but severally, aa against all the defendants indivi-
dually, and specifically stated the proportions of which thay were severally
in possession as also the costs sapartelv payable by each of them to the
plaintiff ; and where two only of the defendants appealed on pleas which
did not assail the decree in respect of any right or ground common to the
appellants and all or any of the non-appealing defendants, but referred
merely to the specific property alleged to be in the appellants' hands :
Reid by the F'jll Bench (Brodhurst and Mahmood,, JJ. dessenting) that a first
application for execution of the original deoree against those defendants
who had not appealed from it, and which was made five years after the
date of the decree, was barred by limitation, and clause 2 of art. 179,
soh. ii of the Limitation Act (XV of 1877), did not apply so as to make
time run from the proceeflings'io the appeal preferred by the other defen-
dants. That clause appeals only to- those oases in which the parties to
the execution proceedings were parties to tho appeal, or to the class of oases
to which s. 544 of the Civil Procedure Code applies.


A VII 127


Execution of Decree (Continued). PAGE

Hdd by Brcdhurst and Mohmood, JJ., contra, that ait. 179, clause 2, must
be construed as applying without any exceptions to decrees from which an
appeal has been lodged by any of the parties to the litigation in the
original t-uit. MASHIAT-UN-NISSA v. RANI, 13 A. 1 (F B ) = 10 A.W.N.
(1890) 207 ... 1

(10) Execution cf decree Court executing decree not cimpettnt to go b-.hird its
firms Act TV cf 1882, ss- 88, 0. Where a decree c:n a hypothecation
bond besides decreeing sale of the hypothecated property purported also
to grant relief over against the person and nnrt-hypo'hecated property of
the judgment debtor and such decrees remaining unchallenged became
final in its entirety.

Held that it was competent to the decree-holder by application for execution
oi the decree to proceed against the non-hypothecated property of his
judgicert-deltor and it was cot necessary for him to apply to the Court
for a der-rfe under P. SO of the Transfer of Property Acl. LALJI LAL v,
C.J. BARBER, 36 A. 334 = 13 A.W.N. (1693); 121 ... 931

(111 Act IV (f 1882 (Transfer of Propetty Act], s. 90 Nature of decree con-
(eniplated by thai seition, The plaintiff obtained a decree en a hypothe-
cation bond, the decree providing that the money secured by the bond waa
to be renlipfd by sale of the hypothecated property, and, if that proved
in&uffioient to satisfy the decree, by pale of other property of the judgment-
debtor. The hypothecated property was sold and the proceeds were not
rufficie-nt to sp.lis'y the decree. The decree-holder thereupon applied for
enforcement of that rorticn of the decree which related to the other
properly of the judgment-debtor. To this application it was objected that
it was necessary to obtain a decree under s. 90 of the Transfer of Pro-
perty Act (IV of 1882). This objection was allowed and the decree-holder
applied for and obtained a decree under the paid secticn. The judgment-
debtor then apperled against that decree on the ground, amongft others,
that, looking to the terms ct (be original decree, the application under
a. 90 was sepeiflucus,

Bold, that the decree ccrlinaplBttd bj s. 90 of the Tiansfer of Property Act
is in fact an crder to be obtained in execution of a decree for sale ; and
though in the present instance the application for such a decree may have
been supe'flueus, it may nevertheless be regarded as an application for
execution of a decree by enforcement of a portion of it against property
other than (he mortgaged property. DUEGA DAI v. BHAGWAT PBASAD,
13 A. 356 = 11 A.W.N. (1891) 104 ... 226

U2) Civil Procedure Code, 5. 158 Act VI o/ 1892, s. 4. Execution of decree
Application {or execution struck off in cense quinve of non-payment of tal-
bana Subsequent .application for execution, An application for execu-
tion of a decree by attachment of immoveable property having been
presented by a decree-bolder, the Court executing the decree ordered
that the costs of such attachment should be deposited by the decree-
holder on or before a certain specified date. The costs of attachment
were not deposited by the day named in the order above referred to and
the Court thereupon passed the following order ; " This c;ise came on
lor hearing to-day ; as the decree-holder has not deposited the costs of
attachment, &c. , therefore it is ordered that the case be struck off for

Held, that whether this second order was an order under s, 158 of the Code
of Civil Procedure deciding the application for attachment, or whether its
effect was merely to remove the application from the file of pending oppli-
oations without deciding it, in either case no fresh application (being of
a precisely similar nature) was entertainable, though in the latter case,
possibly the former application might be reutwed. PHEKU v. PIRTHI
PAL SINGH, 16 A. 49 = 12 A.W.N. (1892J 222 ... 747

U3) See APPEAL, u A. 210.
<U) See Civ- PRO. CODE, 8. 230.


(16) Bee COMPROMISE DECREE, 14 A, 350.
<17) See DECREE HOLDER, 15 A. 318.




Execution of Decree (Concluded). PAGE

(19) Bae HINDU LAW (ALIENATION^ 15 A. 339.

(20) See HINDU LAW (JOINT FAMILY), 14 A. 190.

(21) See HINDU LAW (MAINTENANCE), 15 A. 371.


(23) S?o RKS JUDICATA, 13 A. 53 ; 13 A. 564 ; 14 A. 64 ; 14 A. 417.

(21) See STAY OF EXECUTION, 15 A. 196.

(25; 836 STEP itf AID OF EXECUTION, 13 A. 89.

(26) See STEP-IN-AID OF EXECUTION, 13 A. 124 ; 13 A. 211.

(27) See TRESPASS, 13 A. 99.

Execution Proceedings.

(1) Exe:nt(on c/.re ree AppKca'ion f^r irdw absiluti for szle Mortgage Act

JV r/ 1-8,': (Transkr if Prcpiriy), ss. 83 and 89. Tae holder of a decree
under s. 88 of the Transfer of Property Act (IV of 1682) applied for exoou-
tion to the Court charged with execution of the decree.

Reid that this was a good application under a. 89 oi the Act, and that it was
nut necessary that suoh application should ba made to the Court which had
passed the decree. An application for an order absolute for sale under s. 89
of the Transfer of Property Act (IV of 1882) is a proceeding in execution
and subject to the rules of procedure governing such misters. OUDH
BEHAUI LAL v. NAGESHAR LAL, 13 A. 278 (FB) = n A.W.N. (1891)
83 ... 174

(2) See LIMITATION ACT, art 179 (5) 15 A. 84.
(H) See SEPARATE DECREE, 13 A. 383.

Execution Sale.

(1) Act I ol 1879, s. 46 ; sch. i, art. 16 -Stamp Sale certificate Szle. subject to Where property subject to an iucumbranoe is sold by auc-
tion in execution of a decree, the sale certificate should be stamped ac-
cording to the amount of the purchase money, acd not according to the
amount of the purchase money together with the iccumbrance. JwALA
PRAS\D v. RAMNARAIN, 15 A. 107 = 12 A.W.N. (1892) 243 ... 735

(2) Bee APPEAL, 13 A. 569.

(3) bee APPEAL, 14 A. 201.

(4) See PARTIES TO SUITS, 15 A. 407.

Ex-proprietary Tenant.

(1) See LANDLORD AND TENANT, 15 A. 219, 231.

(2) See RELINQUISHMENT; 13 A. 396.

False Certificate of attendance.

False Complaint.

Act XLV cf 1860, s. 182 False inforimtion to a public servant False complaint
to the police. Whereas the result of a police investigation it appears
that a complaint made to the police of the commission of an offence
punishable under the Indian Penal Code is false, it is not ueoessary
that the complainant should he given any further opportunity of
establishing the truth of his allegations bafore his prosecution under
s. 182 of the Indian Penal Code is proceeded with. QUEEN EMPRESS v.
RAOHUTIWARI, 16 A. 836-18 A W.N. (1893), lit ... 932' ;

False Evidence.

(1) See Civ. PKO. CODE, S. 16:, 15 A. 11.

(2) See SESSIONS JUDGE, 14 A. 354.
Findings of fact.

See APPEAL, 15 A. 413.
Forfeiture Act, 1859.

8, 50 Forfeiture of rebel's property Limitation. A Hindu widow in possession
of a six auuas zamindari share of her husband's, sold the share in 1655 to



Forfeiture Act, 1859 (Conduced). PAK

persona who, in 1858, were convicted of rebellion, atid their estates, includ-
ing the share, were confiscated by Government. The share was granted
to ether persons as a reward for loyalty, and remained in their possession 1996, when a suit for possession and mesne profits was brought, just
before the expiry of twelve yr ars from the widow's death, by a reversioner
to her husband's estate, on the ground that the sale of 1355 could not
affect more than the widow's life-interest, and that nothing more had been
confiscated by the Government in 1858 and granted to the defendants.
Tho plaintiff had taken no stepts in 1855 to question the sale, or in 1858
to assert his claims a? reversioner,

Held that the suit was barred by P. 20 of Act IX of 1859. RAMPHUL
TIWAEI v. Bodri NATH, 13 A. 108 ... 68

Former Judgment.

Evidence afforded by prior record's Fahe personation Res judic&ta. Where the
main question was whether, in fact, the heir to an estate, a minor in
possession through the manager under the Court of Wards, had been, as
the plaintiff alleged him to have been, put forward by false personation, a
Divisional Court of appeal decided in favour of the defence and dismissed
the suit.

Pending this decision, a Full Bench disposed of questions of law as to the
admissibility in evidence in this suit of the judgment and record in a
prior suit, in which it had been found, as a fact, that there had been at
one time, in existence an heir born of the parentage which the defence in
this suit alleged to be that of the minor defendant.

It was disputed in the present suit, whether the minor defendant was the
same individual whom his alleged mother, the defendant in the former suit
(there being the same plaintiff in both suits), stated to be her son | also,
whether, if that identity were proded, the suit would be barred as res-

This latter question was deaided in the negative by the Fall Bench, which
held the judgment in the former suit not to be conclusive upon tbe present
one ; bub also, held the record to be admissible. There was no appeal from
that decision ; and on an appeal from the decree of the Divisional Court,
the Judicial Committee affirmed, on the facts, the decree madp. PALAK-


6 Bar. P.O. J. 378 = 17 Ind. Jur. 167 ... 884

Frivolous Accusation.

Frivolous Complaint.

Criminal Procedure Cede, s, 560 Compensaticn for ftivolus or vexatious com-
plaint Such compensation inapplicable to a complaint under s. 110 of the
Code- The ward of compensation under s. 560 of tbe Code of Criminal
Procedure must be in respect of a frivolous and vexatious accusation of an
offence of which tbe accused person hug 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.

QUEEN-EMPRESS v. LAKHPAT, 15 A. 365= 13 A.w.N. 11893), 114 952

General Clauses Act, 1868.

(1) B. 2, els. 5 & 6 See MORTGAGE (PRIORITY), 13 A. 432.

(2) 8. 3, c!. 13 See APPELLATE COURT, 13 A. 320.

(3) Bee STANDING CROPS, 14 A. 30,

"Bee PRE-EMPTION, 14 A. 533.
Government Revenue.

Quardlan ad I item.

Guardian and Ward.

Guardian and Wat d~- Guardian ad litem How long appointment of guardian
ad litem remains in fcrce Charge of guardian on applualion of ward



(iaardian and Ward (Concluded). FAGE

Act VIII of 1890 iCrwardian and Wards Act), s. 10. Where a guardian ad-
litemhas once been appointed, his appointment enures for the whole of the
/is in the course of which it has been made, unless and until it is revoked
by the Court ; but if the person to whom suob guardian is appointed prays
for big rermval and for the substitution of a guardian namrfd by the
applicant, the Court- will appoint the guardian so named in the absence of
any special and valid objection to suoh person. JWALA DEI v. PIBBHU,
1ft A. 35 = 11 A.W.N. (1891), 192 ... 394

Guard'ans and Wards Act, 1890.

8. 10. Seo GUARDIAN AND WARD, 14 A, 35.
High Court, Jurisdiction of.

(1) Jurisdiction Civ I and Revenue Courts Appeil Erroneous exercise of
Jurisdiction by subordinate Court cipable of being made a ground of appeal
to thf. High Court, Where the High Court ia the Court of appeal from any
particular subordinate Court, and that Court acts without jurisdiction in
the trial of a suit or aa appeal before it, the High Court has power as an
appellate Court to eet right the prooaedings of suoh subordinate Court.
JWAH PRASAD v. SALIG RAM, 13 A. 575 = 11 A.W.N. (1891), 158 ... 363

(2; Bee COMPROMISE DECREE, 14 A. 350.

(3) Bee REVISION, 13 A. 277.

(4) Bee REVISION, 14 A. 413.

(5) See REVISION, ISA. 405.

High Court, Powers of.

See APPEAL, 15 A. 413.
High Court Sessions.

See SESSIONS TRIAL, 14 A. 521.
Hindu Law.





5. GIFT.









15. WIDOW.
1 .Adoption.

(1) Adoption by iv'.dow to deceasid husband Died of adoption, construction of
Powers of adoptive mother. The widow of a separated Hindu made an
adoption to her deceased husband under a power to adopt conferred upon
her by her huabands's will. The deed by which the adoption, the validity
of which w-is not disputed, was evidenced, contained, amongst others, the
following conditions; " that during my, (i.e., the adoptive mother's) life-
time I shall be the owner and manager of the estate and that after my
death the adopted son should have the same rights and privileges as would
have been enjoyed by the natural son of Isban Cbandar Mukarji born of

Held that these words conferred upon the widow an interest and an autho-
rity not less than she would have had as the widow of a separated sonlesB
Hindu to whom no adoption had been made, so far as her position as


Hindu Law I. Adoption (Concluded}. PAQB

manager was concerned. KALI D,i3 v. BlJAT 8HANKAB, 13 A. 391 = 11
A.W.N. (1891) 141 ... 250

'2) Btncres School Adcption Adoption of only son Maxim, quod fieri non debet
faotum valet. 'According to tQe ijuunres School u H.uuaL^w. Uie giving
in adoption of an only sou is sinfu), and to that extent contrary to the
Hindu Law ; but the adoption of such a son, having taken place in fact,
ia not null and void ; and the m*xim quod ft-.ri nos cebet facium valet
is applicable and should be applied to euch an adoption.
80 hf,ld by thePull Bench. BENI PRASAD v. HARDAI BlBI, 14 A. 67

(F.B.) = 12 A.W.N. (1892) 161 ... 415

(3) Cus'.om Adoption of iisters's son B.'hra Brahmans. Amongst the

Bobra Brahmans of the northern districts of the North- Western Pro-
vinces, there exists li valid and legal custom in virtue of which a per-
son of that caste can ndopo his sister's son. CHAIN SUKH RAM v. PAR-
BATI, 14 A. 53 = 11 A.W.N. (1691) 222 ... 40&

(4) Bee RES JUDICATA, 15 A. 327.
2. Alienation.

(1) Joint Hindu family Hypothecation by father of joint anas'ral eslatf Pro-

perly defcrited as " haq hnouq zirnindari apna " enforcing
hypothecation Attachment ol estate Suit ly sons for declaration that
only father's interest affected by hypothecation Burden ol proof. Where
a Hindu FOU comes into Court to assail either a mortgage made by bis
father, or a decree passed against his father, or a Bale held or threatened
in execution of such decree whether it be upon a mortgage security or in
respect, ol ;ii simple money debt where there is nothing to show any
limitation of the interest sold or threatened with Bale or charged in a
security or dealt; with by a decree, it. rests upon him, if he seek* t,o escape
from having his interest affected by the sale, to establit-h that ihe debt
which he desires to be exempted from paying was of such a nature that
be, as the son of a Hindu, would not be under a pioua obligation to dis-
charge it, or (hat his interests in the property were not covered by the
mortgage or touched by the decree or affected by the sale certificate

In a suit by the sons of a Hindu for a declaration tlm certain joint ances-
tral property was not liable to sale in execution of a decree upon a
hypothecation-bond of such property executed by their father in
which the property was described as " haq Jiaquq tamindati apua, " and
that the bond and decree were limited to the father's own interest-, held
by the Full Bench that, if the plaintiffs could not show that the interest
which was hypothecated was a limited interest, the Court must take it,
as against the plaintiffs, that the family property was hypothecated. PEM
8INGH v. PARTAB8INGH, 14 A. 179(F.B.) = 12 A.W.N. (1392) 49 ... 484

(2) Hindu Law -Mitafahara Joint Eindu family Mortgage Attempt by one

co-$Jiarer to mortgage his undivided share on his own account Effective sale
of pait of such a share in (xe^ution of a decree against the co-shartr Inte-
rest allowed on the mortgage debt according to the contract. Under the
Miiakshara, as administered by the High Courts of the North- West
Provinces and Bengal, an undivided share in ancestral estate, held by a
member of a joint family in coparcenary, cannot be mortgaged by him on
his own private account, without the consent of those who share the joint
estate, An attempted mortgage by one of them does not create a charga
which can have priority over purchases at execution sales made bcna fide
and without notice of it ; such purchasers having acquired the right of
oompeliing the partition which the debtor might have compelled, had he
been so miuded, before the alienation by the sale of his share.
As to the invalidity of the attempted mortgage, Sadabart Prasad Sahu v.
Foollash Koer referred to, and approved. As to the right of the purcha-
ser of the share at a judicial sale, Been Dyal v. Jugdeep Narain Singh,
followed, and reference made to the distinction, mentioned in the latter
case, between a voluntary alienation without such consent, and an invo-
luntary one as the result of the execution of a decree against the co-parcener,
and a judioial sale thereunder,



Mixiu Law 2. \\len*t:on (Concluded). FAB

A father and son composed a joint family, holding a share of ancestral lands.
The son m-rrg-iged to a banker, to secure a loan, his interest in the
undivided sharo, His father, without having notice of the mortgage, pur-
cha^G'1 in coo'-; rvU.i, portions of the estate forming part of tbc sou's joint
share, at- sales in execution of decrees against the latter, obtained by his

Held, that the son's interest in the portions so sold, passed to the father,
whose rights therein as purchaser at the judicial sales were not aSaoted
by th"* mortage, The mortgagee could, in execution of a miney decree,
which hs nvght obtain against the mortgagor, personally attach and bring
to a judicial sale suoh parts of the mortgaged property as had not already
been solrl, but not in virtue of the mortgage.

Interest on the money lent was contracted to be payable, " even if a suit
ahouid be instituted " at the rate fixed for the period for which the money
waa lent. Held, that interest must ha decreed at this r*t,e, according to
the con^ru:*-, down to tha institution of the suit. BALGOBIND DAS v.
NABAIN LAL, 16 A. 339 (P.C.) = 20I.A. H6 - =6 Bar. P.O.J. 313=17 Ind.
Jur 425 ... 934

(3/ Sae HINDU LAW ( WIDOW), 14 A. 420. .
3 Custom.

4. -Debts.

(1) Hindu LiwJnni Hindu family Lubility of sins d>4*\iq thsir fakir's

life-time far h:s antecedent debts. Held by the Pull Beach th<tt the socs in
a joint Hindu family ware liable to be sued along with th^ir father upon a
mortgage i) id givau by the father alone after the sons were born which
purpjrte i 10 mortgage the joint family property, the consideration having
been, with atr.fl'ug exception, money advances antecedently made by the
mortgagee to bjrn not as manager of the family or with the authority of
the sons or for family purpose?, but not for purposes of immorality or for
purposes which if the father was de^d would exonerate tha soas from the
pious obligation o' paying such deb'-.s of the father.

Held also that the decree in such a suit should ba a deorea for sale of the
mortg^d property under s 83 of Act No. IV of 1882. BADRI PflASAD
v. MADAN LAL, 15 A. 75 (F.B.J-13 A.W.N. (1893;, 52 ... T65

(2) Sae HINDU LAW (JOINT FAMILY), 13 A. 216. ,

Hindu Law Hindu widow Gift, The widow of a separated Hindu being in
possession, as such widow, of property left by her husband, executed a
deed of gift of such property in favour of hec daughter's sin, her daughter
being also a party to thi deed. Subsequently to the execution of this
deed of gifr, thj executant's daughter gave birth to another son : Held,
thai the deed in question could not affeot more than the life interests of
the executant and her daughter, and could not operate to prevent the
succession (as to a moiety of the property) opening up in favour of the
subsequently-born son on the death of the survivor of the two ladies,
DULI SINGH v SUNDAB SINGH, 14 A. 377 = 12 A.W.N. (1892) 33 ... 610

6, Inheritance.

See SUCCESSION, 13 A. 573.
7. Joint family.

(1) Joint Hindu family Mortgage executed by father on the whole joint family
property in re'pe t of his own debt Liability of sons Burden oj proof.
The father of a joint and undivided Hmdu family executed a mortgage
over the whole immoveable property of the joint family. The mortgagees
having obtained a decree on their mortgage and having put an attach-
ment on the joint family property, the minor sons of the mortgagor sued
for a declaration that their interest in the attached property was not
liable under the mortgagees' decree, inasmuch as the debts in respect of
which ths mortgage had been executed had been contracted for immoral
purposes and were not such as they, by the Hindu law, were under a pioua
obligation to discharge. TeW.,lhat the burden of proving that the debts
in question were contracted for the purposes alleged lay on the plaintiffs.

BHAWANI BAKHSH v. RAM DAI, 13 A. ai6-= 11 A W.N. (isai) 57 ... 136



Hindu Law 7. Joint family (Concluded). PAG*

(2) Joint Hindu family Simply miney decree against father how far binding
upon son's interest in the joint family property Execution c.f decree Civil
Procedure Code, s. 237. With reference to the question whether the whole
joint family property or only the interest of the father therein is liable
under a decree obtained against a Hindu father, li?ld that where there
is nothing to show any limitation of the extent of the interest eolJ, whe-
ther the File took place in execution of a decree on a mortgage oc ot dimple
money decree, ii. may be presumed that the family properly and not the
mere undivided share of the father was sold.

The ppocifioition required by 8. C J37 of the Civil Procedure Cc^o, of the
judgment-debtor's share or interest in immoveable property sought feo be
attached, should state distinctly whether it was the judgment-debtor'a
undivided ebare or the family property in which the judgment-debtor had
an undivided share, which was sought to be attached , and should alyo specify
what that farcily property was. If the specification merely referred to
the judgment-debtor's share and interest in wLat was the family

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 148 of 155)