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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 153 of 155)
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in the suit, had be chosen to defend it. KlSHAN 8AHA v, ALADAD

KHAN, u A. 64 = 11 A.W.N, (1891) 2-a ... 413

<4) Civil Procedure Cede, rs. 13. 43 Aic-rtiinmeit of a defendant's liability by
an oierat'.ve dicree after the declaration of hi> gentral liability in a prior
dfcrei Bis death in th$ interval between such decrees, and effect, in txn-
cutitn of his representatives not teitg partiis !o Hit cperative oneMesne-'
profits Parties Non-joinder. The dismissal of a suit to have set aside
an order made in one district, for the sale of the plaintiff's interest in
property therein, is not a bar under ss. 13 and 43, Civil Procedure, to
another suit to obtain relief against an order in another district for the
sale of property therein belonging to the same plaintiff, or of other pro-
perty not included in the order of sale against which the dismissed suit
was directed.

An operative decree, obtained after the death of a defendant, ascertaining
for the first time, the extent and quality of his liability, the latter having
b:en already declared in general terms in a prior decree, cannot bind the
representatives of the deceased, unless they were made parties to the suit
in which such ascertainment was pronounced.

The question of the amount of mesne profits due, they having been decreed
together with the possession of land in 1856, against a body of village
proprietors, was not decided till 1877. In that year an operativs decree
was made against the village proprietors whose names appeared as defend-
ants in the suit of 1856, and in 1681 execution proceedings were taken,
against the present plaintiff?, attributing to them the character of heirs of
the original judgment-debtors.

Bell, that the right to execute for mesne profits was not wholly dependent
upon whether or not the ancestor of the present plaintiffs had been a
party to the decree of 1856, which did not ascertain the amount of the
profit?, or determine whether the then defendants were liable jointly or
severally, in respect of the wrongful possession.

Before the issue of a money decree which was capable of being pub into
execution, the alleged ancestor of the present plaintiffs was dead, and the
latter, not having been parties to that decree, were not liable under it.
RADHA PRASAD SINGH v. LAL SAHIB RAI, 13 A. 53 (P.O.) = 17 I. A. 150
= 5 Sar. P.C.J. GOO ... 33

<(5) Civil Procedure Code, ss. 13, '273, 331 Execution of decree Res judioata,
The plaintiff, having obtained a decree for possession of certain land, applied
for execution by delivery of possession, Whereupon a third party filed an
objection, in the Court of the MuusiS, that be held a prior decree for posses-
sion of the same land, and therefore the plaintiff's decree was incapable of
execution. This objection was allowed, and the plaintiff then sued for
establishment of his right to possession of the land jointly with the objector,
making the former judgment debtor and the objector defendants to the
suit. Tne Subordinate Judge in first appeal held that the Munsif had



Res J udicata (Concluded) . PAGK

acted under s. 331 of the Code of Civil Procedure, and, applying s. 13 of
the same Code, dismissed the plaintiff's suit. The plaintiff then appeal-
ed. Held that circumstances did not exist to give the Munsif jurisdiction
to aot under s. 331, and that his order must be taken to have been made,
as it purported to have been made, under s. 278.

The scope and application of s. 331 of the Code of Civil Procedure com-
mented upon. MAHABIR PRASAD v. PARMA, 14 A. 417 = 12 A.W.N.
(1892) 51 ... 635

(6) Civil Procedure Code, s. 43 Splitting remedies Suit fcr declaration of title

and for possession Subsequent suit for possession. Where a previous suit
for a declaration of title to immoveable property has been dismissed on
the ground that the plaintiff was not in possession at the time of filing
the euit, a subsequent suit on the same title for recovery of possession of
the land is not barred under s. 43 of tbo Code of Civil Procedure. MOHAN
LAL v. BlIiASO, 14 A. 512 = 12 A.W.N. (1892), 80 ... 696

(7) Civil Procedure Code, s. 13 Res judioata. One Musammat Nazir Begam

brought a suit against a lambardar for her share in the profits of a certain
mahal, her claim being based upon an assignment executed in her favour
on the 29th of July 1889 by one Musammat Basti Begam as heir to one
Mueammat Moti Begam, deceased. Prior to that assignment, namely on
the 3rd of June, 1887, a suit had been commenced by the lambardar
against Basti Begam and one Khwajah Bakhsh for possession of other
property alleged to have been of Moti Begam in her life-time, and in this
suit it was ultimately found, but subsequently to the above-mentioned
assignment in favour of Nazir Begam, that Ehwajah Bakhsb, and not
Basti Begam, was the heir to Moti Begam. Held that the suit commenc-
ed on the 3rd of June 1887 did not operate as res judicata in respect of
the present plaintiff's (Nazir Begam's) claims under her assignment from
Basti Begam. NIAZ-ULLAH KHAN v. NAZIR BEGAM, 15 A. 108 = 12
A.W.N. (1892) 246 ... 786

(8) Civil Procedure Code, s. IBSoundnffsin law of pnvious decisicn immaterial

Hindu LawAdottionBaqqals. Where a judicial decision pleaded as
constituting res judicata, in ail other respects fulfils the requirements of
s. 13 of the Coae of Civil Procedure, and no appeal has been preferred
against it within limitation, it is immaterial whether such decision is or
is not sound law.

Semble that Baqqals do not belong to the regenerate classes, and therefore,
the rule of law which forbids a Hindu to adopt a boy whose mother he
could not have married, does not apply to them. PHUNDO v. JANGI
NATH, 15 A. 327= 13 A.W.N. (1893) 110 926

(9) Executicn of decree Principle of res judicata as applied to execution prcceed-

ingsRule in Sarju Prasad v. Sita Ram Civil Procedure Code, s. 373.
Where a judgment-debtor, being entitled and having an opportunity to
plead s. 373 of the Code of Civil Procedure as a bar to execution of the
decree against him neglects to do so, and the application in respect of
which such objection might have been taken is entertained by the Court
and orders passed thereon, the principle of res judicata will apply to such
proceedings, and the judgment-debtor cannot at a subsequent stage of the
same execution proceeding? object that such previous application for exe-
cution ought in fact to have been held to be barred by the operation of
8. 373 abovementioned. SHER SINGH v. DAYA RAM, 13 A, 564 = 11 A.
W.N. (16S1) 164 ... 356

(10) See EXECUTION OF DECREE, 15 A. 49.

(11) Bee FORMER JUDGMENT, 15 A. 261


.Restitution or conjugal rights.

See HUSBAND AND WIFE, 13 A. 12*3.
Restoration of Appeal.

Application for restoration of an appeal dismissed for default Vakalatnama,
Where a vakil had been duly empowered by a vakalatnama drawn in the
customary form to file and conduct an appeal in the High Court, and
that appeal had been dismissed for default : Held that such vakil waa



Restoration of Appeal (Concluded,) PAGE

competent without filing a fresh vok&lainima to present an application
for the restoration of the said appeal to the list of pending appeals.
(1892), 222 '... 751

Revenue Court.

See APPEAL, 14 A. 500.

Revenue Partition.


(2) See WAJIB-UL-ARZ, 15 A. 410.

(1) Act IX of 1887 (Provincial Small Cause Courts' Act) ,8.25 Small Cause Court

Revision Circumstances under which High Court will exercise its re-
visional pawer under s. 25 o! Act IX of 1888. 'Section 25 of the Provincial
Small Cause Courts' Act (IX of 1887) was not intended to give in
effect a right of appeal in all Small Cause Court cases, either on law or
fact. The revisional powers given by that section are only ezerciseable
where it appears that sum substantial injustice to a party to the litiga-
tion has directly resulted from a material misapplication or misapprehen-
sion of law, or from a material error in procedure. MUHAMMAD BAKAR v,
BAHAL SINGH, 13 A. 277 (F.B.) = il A.W.N. (1891) 80 ... 173

(2) Powers of High Court Jurisdiction Act IX of 1887 (Small Cause Courts

Act) sch, ii. cl (18). Unless She facts from which want of jurisdiction on
the part of a subordinate Court miy ba inferred are patent upon the face
of the record, the High Court will not interfere in revision.
A suit by a Mahammadan to obtain a share in property distributable under
the terms of a certain endowment is a suit of the nature contemplated by
clause (18) of schedule ii of the Provincial Small Cause Courts Act IX of
18S7, and therefore not cognizible by a Court of Small Causes. MlHR
ALI SHAH v. MUHAMMAD HUSEN, 14 A. 413 = 12 A.W.N. (1892) 79 ... 632

(3) Act IV of 1882, s. 87 Civil Procedure Code, ss. 2, 244 and 622- Revision,

An order under s. 87 of Act IV of 1882 extending the time for payment
of the mortgage money by a mortgagor is a decree within the meaning of
ss. 2 and 214 of the Code of Civil Procedure, 1882, and therefore no ap-
plication will lie under s. 622 of that Code for revision of such order,
KAHIMA v. NEPAL RAI, 14 A. 5-20 = 12 A.W.N. (1892), 99 ... 702

(4) Act IX of 1887, s. 25 Civil Procedure Code. s. 622 Revision Limitation

Wrong decision of a point of limitation no ground for revision, An applica-
tion under s. 25 of Act IX of 1887 to set aside a decree ought not to be
entertained except in oases to which a similar application under s. 622 of
the Code of Civil Procedure would be allowed.

Suck an application will not lie whsre the sole ground is whether the first
Court was or was not right in its decision on a question of limitation.

R.N. SAHAI v. OFFL. LIQUOR OF. H. BANK, 15 A. 139=13 A.W.N.

(1893) 59 ... 807

(5) High Court's pcwer of revision Practice Civil Procedure Cole, ss. 281, 283,

484, 622. The High Court will not exercise its revisional jurisdiction so
long as there is any other remedy open to the applicant.
Where a Subordinate Judge disallowed an application for the release of
certain property which had been attached before judgment. Held that
thete being a remedy by suit under s. 283 of the Code of Civil Procedure,
the High Court should not interfere with such order in revision. J.J.
GUISE v. JAISRAJ, 15 A. 405 = 13 A.W N. (1893), 172 ... 979

(6) Bee APPEAL, 15 A. 373.

(7) See CIV. PRO. CODE, 8s. 203, 562, 622, 647, 13 A. 533.

(8) See COSTS, 15 A. 169.

(9) Bee DECREE AMENDMENT OF, 15 A. 121.

(10) See PRINCIPAL AND SURETY, 15 A. 183.


Right of way.

Bee EASEMENT, 14 A. 185 ; 15 A. 370.



: Right of Suit. PAGF

(1) See HINDU LA\V (REVERSIONER), 15 A. 132,

(2) See PARTIES TO SUIT, 14 A. 524.

(1) Act XLV if 1860, ss. 24, 147 ani 391-Dacoity Riot Dishonest intention a
nectssiry ingredient of dacoity. Where several Hindus acting in concert
forcibly removed an ox and two oows from the possession of a Moham-
medan, not for the purpose of causing " wrongful gain" to themselves or
"wrongful loss" to the owner of the cattle, but for the purpose of preventing
the killing of the oows :

Held, that they could not properly be convicted of daooity but only of riot.
QUEEN-EMPRESS v. RAGHUNATH RAI, 15 A. 22 = 12 A, w.N. (1892)

220 ... 729-

0) See DAGOITY, 15 A. 299.


Sao BAI-BIL-WAFA, 14 A. 195.

Sale Certificate.

Sao EXECUTION SALE, 15 A. 107.
Sale of Goods.

Sea SET-OFF, 15 A. 9.

Sanction to prosecute.

(1) Grim. Pro. Code, ss, 195, 404, 439 Sane/ion to prosecute Appeal

Bevision.T'ae proceeding under s. 195 of the Cade of Criminal Procedure
by which an order granting or refusing to giant sanction to prosecute
may be set aside is a proceeding in revision and not by way of appeal.
MEHDI HASAN v. TOTA RAM, 15 A. 61 = 12 A. W.N. (892), 242

(2) Crim. Pro. Code, s. 476 Order by Magistrate for prosecution, under

s. 195 of the Indian Penal Code Preliminary inquiry. When a Magis-
trate takes action under s. 476 of the Code of Onminal Procedure, it is
not necessary to the validity of his order that he should hold a preli-
minary inquiry. QUEEN-EMPRESS V. MATABADAL, 15 A. 392 = 13 A.
W.N. (1893) 146 ... 970

Search Warrant.

See ARMS ACT, Ss. 19 (/), 95, 15 A. 129.
Second Appeal,

(1) F lea raised at the hearing which was not taken in the memorandum of appeal

Practice. A plea that the memorandum of appeal in the lower appellate
Court was insufficiently stamped, and that such deficiency was not made
good within the period of limitation is not a plea which can be raised at
the hearing of a second appeal, when it has not been taken in the memo-
randum of appeal. RAM KlSHEN UPADHIA v. DlPA UPADHIA, 13 A. 580
= 11 A. W.N. (1891) 166 ... 367

(2) Plea sought to be raised which ivas not taken in the memorandum of appeal

Civ, Pro. Cede, s. 542. Section 542 of the Code of Civil Proce-
dure was intended to confer upon the Court a power exeroiseable by it
alone ; it was not intended to enable an appellant to take the respondent
by surprise by urging matter of which he had no notice. BANSIDHAR v.
8ITA RAM, 13 A. 381 = 11 A. W.N. (1891) 147 ... 24$

(3) Civ- Pro. Code, ss. 54, 55, 643, 551. 582, 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 ap-
pellate 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
fact exist and apply to the CPEC before him and if they do not to reject the
memorandum of appeal summarily.

Section 551 of the Code of Civil Procedure applies to appeals which have
been admitted.

Per AlKMAN, ;J. When a memorandum of appeal is summarily rejected,
v.hethcr under e. 543, or under s. 54 read with s. 582 of the Code of Civil



Second Appeal (Concluded). PA3F

Procedure, the reason for such rejection should be recorded ; fed quaere
whether, unless it appears from the memorandum of appeal taken by
itself that a second appeal does 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 eSect that the lower appeilate Court
has misconstrued a document is not one of the grounds of second appeal
contemplated by s. 584 of the Code of Civil Procedure. K.UDR PRASAD
v. BAIJNATH, 15 A. 367 = 13 A.W.N. (1893), 115 ... 953

(4) See COSTS, 15 A. 333.

(5) See LIMITATION. 15 A. 123.
Security to keep the peace.

Power of the Idagiatratt of a district to call upon a perscn residing in another dis-
trict to furnish security Criminal Procedure Cede, s. 107. Section 107
of the Criminal Procedure Code does not empower a Magistrate to issue
process under it toa person not residing within his jurisdiction. In ie
Petition of AEDUL, AZIZ, 14 A. 49 = 11 A.W.N. (1891) 182 ... 403


Sea GRIM. PRO. CODE, S?. 342, 367, and 540, 14 A. 242.
Separate Offences,

Separate Suit.

Execution of decre) Sale in execution' Sa r e set aside Suit by purchistr for
return oj purchase monty Civil Procedure Code, S3. 295, 315. Where an
auction purchaser seeks to have refundei tho pries paid by him for property
sold in execution of A decree, on the ground that at the time of sale the
judgment debtor had no saleable interest therein, it is competent to him
to proceed by way of a regular suit against the person in whose hands such
price has corneas such person's rateable share of the assets of the judg-
ment-debtor under s. 295 of the Code of Civil Procedure. He is not limited
to the procedure in the execution department mentioned in P. 315 of the
= 11 A.W.N. (1891) 138 ... 244

Separate Trials.

See TRANSFER OF SUIT, 14 A. 531.
Sessions Court.

(I) Criminal Procedure Code, ss. 423, 439 Sessions Judge, powersef, as a Court
of appeal -Commitment. It is competent to a Sessions Judge acting as a
Court of appeal under s. 423 of the Code of Criminal Procedure, 1882,
having reversed tha finding and sentence, to order the appellant to be
committed for trial to the Court of Session. QUEEN-EMPRESS v. MAULA
BAKESH, 15 A. 205 = 13 A.W.N. (1893) 105 ... 849

Practice Session trial Witmss Rejection by Court of Sessions of witnessts
sent up by the committing Magistrate. It is the duty of a Sessions Court
to examine all the witnesses sent up by the committing Magistrate. That
Court is not justified in rejecting any of the witnesses so sent up unless it
has good reason to belive that such witness came into the Court house
with a predetermined intention of giving false evidence. QUEEN-
, EMPRESS v. BANKHANDI, 15 A. 6 = 12 A.W.N. (1882) 114 ... 403

Sessions Judge Jurisdction.

( riminal Procedure Code, ss. 195, 476, 467 Act XLV of I860, s. 193 False evi-
dence Jurisdiction Sessions Judge. A Sessions Judge who has directed
the trial of a person for the offence of giving false evidence committed in
the course of a judicial proceeding of a criminal nature before him cannot
try the case himself. QUEEN-EMPRESS v. MAKHDUM, 14 A. 354=12
A.W.N. (1892) 32 ... 595

Sessions Trial.

(1) Sessions Court Assesscrs Assessors prevented by dezth or illnefs from attend-
ing a nialCrim. Pro. Code, is. 268 and 285. During the course cf trial
before a Sessions Court with three assessors, one assessor died at an early
stage of the proceedings, Later on, another assessor became too ill to
take any further part in the trial, and the. third, assessor was obliged o



Sessions Tri*! (Concluded). PAGE

retire at the beginning of the accused's pleader's address to the Court and
did cot) return until it was finished.

Held, that the law contemplated the continuous attendance of at least one
assessor throughout the trial. This condition not having been fulfilled,
the proceedings before the Sessions Court must be set apide as having (with
regard to the provisions of s. 268 of the Code of Criminal Procedure) been
held before a Court not having jurisdiction. QUEEN-EMPRESS v.
MUHAMMAD MAHMUD KHAN, 13 A, 337 ~ 11 A.W.N. (1891) 93 ... 214

(2) Practice Sessions trial Adducing eviience for the defence Documents pro-
duced for ci o&s-examination of Crown witness Right of reply Criminal
Procedure Code, ss, 289, 292 Witness for Crown tendered at Sessions
trial ^vho had not been examined by the committing Magistrate. In a trial
before a High Court or a Court or Session evidence for the defence cannot
be adduced until the close of the case for the prosecution ; bub council for
the defence may, while a witness for the Crown is under cross-examination,
put documents to him, and if in so doing counsel reads or causes to be
read to the Court such documents, he thereby impliedly undertakes to put
those documents in as evidence at the proper time. When such docu-
ments as aforesaid are filed in Court as evidence, cr any other documentary,
evidence is put in by the defence, the defence baa " adduced evidence "
within the meaning of ss. 289 et seq. of the Code of Criminal Procedure,
so as to give the prosecution a right of reply, though no witnesses may be
called for the defence.

In a trial at the Criminal Sessions of the High Court, during the cross-
examination of one of the witnesses for the Crown, counsel for the defence
put certain documents to the witness, and these were read to the Court
and jury and marked as exhibits as evidence for the defence, and were filed
with the record in the same way an the evidence for the prosecution had been
marked and filed. During the oross-fxaminatiou of the next witness a.
similar course was pursued, and after the cross examination had continued
for seme time, counsel for the defence applied to the Court for a rulir g as to
whether the fact of documents having been used during cross-examination
in the manner above stated would, under s. 292 of the Code of Criminal
Procedure, entitle the Crown to a reply, in the event of the accused not
calling witnesses,

Ecld that although, as a rratter of order, such a question would be better
raised either when the first document intended to be used in this way was
put to a witness, or when the accused was asked if he meant to adduce
evidence, yet there was nothing in the Code of Criminal Procedure to
prevent the Court from deciding the question at any other stage, and that,
under the special circumstances of the case, it might be considered then.

Held also that the use of the documents in the manner above stated gave
the prosecution a right of reply.

At a trial before the High Court or the Court of Session, the Crown cannot
demand as of right that any witness who was not examined by the com-
mitting Magistrate either before commitment or, under s. 219 of the Code,
after it, should be called and examined. The Court may call and examine
such a witness if it considers it necessary in the interests of justice.

QUEEN-EMPRESS v. G. W, HAYPIELD, 14 A. 212 = 12 A.W.N. (1892)

63 ... 506

<3) Practice Sessicns trial Witness for tie Crown not called at Sessions tiial
though examined before the Committing Magistrate Duty of tie prosecu-
tion with regaid to the production of such witr.ess. At a trial before the
High Court in the exercise of its original criminal jurisdiction it is not
the duty either of the prosecution or of the Court to examine any witness
merely because he was examined as a witness for the Crown before the
committing Magistrate, if the prosecution is of opinion that no reliance
can be placed on such witness's testimony. All that the prosecution is
bound to do is to have the winesseas who were examined before the com-
mitting Magistrate present at the trial so as to give the Court or Counsel
for the defence, as the case may be, an opportunity of examining them.


U89a) no ... 703

(4) Bee ClUM, FRO. CODE, 8s. 342, 36H, 367 and 540, 14 A, 249,



Set off. PAGE

(1) Practice Suit for balance of account Civil Procedure Code, s. Ill The

defendant was lessee from Government of a bridge of boats over the Ganges
under a lease for five years, the consideration for which was payable
by instalments extending over the term of the lease. The lease contain-
ed, amongst other provisions, one to the effect that the Government, if it
saw fit at the expiration of the lease to farm the bridge to any other con-
tractor, should be bound to take over the lessee's plant at a fair valuation
to be determined by arbitration; and another clause provided that " should
the Government, however, see fit to cancel the lease during its currency
with a view to substitute a pontoon bridge, or for any other cause for
which the lessee is not responsible he will be entitled to compensation
from Government for all losses." The lessee died before the expiration of
the lease, and the Magistrate of the District, acting on behalf of the
Government, proceeded to deprive his representatives of the use of the
bridge and to seiza the stock and materials. The Magistrate then direct-
ed two persons to assess the value of the stock, which was ultimately
fixed at Rs. 10,900. The Magistrate added a percentage, bringing the
total amount up to Rs. 12,100 ; and a suit was filed on behalf of Govern-
ment against the representatives of the deceased lessee giving credit to
the defendants for such amount, and claiming the balance due in respect
of the last two instalments under the contract.

Hdd thai the sum of Rs. 12,100 assessed in the manner above described,
could not striotly be regarded as a set-off. The suit was one for balance of
account and the defendants were entitled to dispute the correctness of
the plaintiff 1 !} estimate of the item allowed in their favour. SECRETARY
OF 3TATE v. MADARI LAL, 13 A. 296 (F.B.) = 11 A.W.N. (1891) 85 ... 186

(2) Civil Procedure Coie, ss. Ill and 216 Set-off Cress-claims (f the nature of

let-off, The plaintiffs agreed to purchase from the defendant certain
timber. They paid part of the price in advance and took delivery of some
part of the timber, out refused to take delivery of the rest, and sub-
sequently sued the defendant to recover part of the price paid, alleging
that the portion of which they had taken delivery was not of the quality
contracted for. Held that in such a suit, the defendant might claim by
way of set-cff compensation for the loss which he had incurred in the
re-saie of that portion of the timber, the subject cf the contract, of which

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 153 of 155)