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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 28 of 155)
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sideration of his receiving his costs I undertake that he shall not appeal
against it.' That is a compromise. The undertaking therefore is prima
facie binding." There are other cases [276] also which show how
careful the Courts are not to interfere with compromises or settlements

(1) L. R. 20 Q. B. D. 141. (2) 38 Ch. D. 51.



YII] MUHAMMAD BAKAR V. BAHAL SINGH 13 All. 277

effected by counsel on behalf of clients in suits. The case of Prem Sookh 1890
v. Pirthee Ram (1) that of Hakeemoonnissa v. Buldeo (2), and the case of DEC. 20.

Sirdar Begum v. Izzutcolnissa (3), are cases which relate to the authority

of vakils and do not affect the case before us. When the authority of FULL
vakils to bind their clients is called in question that authority must depend BENCH,
entirely on the terms of the particular vakalatnama. For my part I
should read a vakalafcnama widely and liberally, unless it appears that the 13 Al 272
client intended to limit the authority of his vakil. In my opinion my <F.B.) =
brother Mahmood should reject this application for review.

STRAIGHT, J. I am entirely of same view, and approve of the ( 1891 ) 61 -
learned Chief Justice's answer to this reference, namely, that the compro-
mise on which my brother Mahmood made his decree was binding on both
parties to the appeal.

TYKRELD, J. I concur in the view of the learned Chief Justice, and
in the answer given to the reference.

MAHMOOD, J. I also concur in the answer of the learned Ghief
Justice, and my brother Straight.

KNOX, J. I concur.

The application for review was disposed of on the same day in accord-
ance with the views expressed by the Full Bench by the following order :

OEDER.

MAHMOOD, J. This is an application under s. 626 of the Code of
Civil Procedure by an applicant for review of judgment. It was referred 1
to the Full B-3ach by me, and the answer which has been given by the Full
Bench renders it necessary for me to deal with it under s. 627 of the Code
of Civil Procedure, and the rule No. 6 of the rules of the Court. In view
of the answer given by the Full Bench I reject this application. No order
as tocosGs is necessary, as no notioa has gone to the opposite party.

Application rejected.



13 A. 277 fP.B.) = lt A.W N. (1891) 80.

[277] FULL BENCH.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight,
Mr. Justice Tyrrell, Mr. Justice Mahmood and Mr. Justice Knox.



MUHAMMAD BAKAR (Defendant) v. BAHAL SINGH (Plaintiff).*

[20th December, 1890.]

Act IX of 1837 (Provincial S mill Cause Courts' Act), a. 25Small Cause Court-
Revision Circumstances undir wliic'i thz High Gourt will exercise its revisional
powers undtr s. 25 ot Act IX o/\887. ,

Section 25 of the Provincial Smill Cause Courts' Aot (Act IX of 1887) was not
intended to give in effect a right of appeal in all Small Cause Court oases, either
on law or fact. The revision**! powers given by that section are only exeroiseable
where it appears that oome substantial injustice to a party to the litigation has
directly resulted from a material misapplication or misapprehension of law, or
from a material error in procedure. Muhammad Nizam-ui-din Khan v. hira
Lai (4) and Masum Ali v. Mohsin AH (5) approved.

[P., 17 Ind. Gas. 470 (471) = 15 0.0. 319 (320) ; R., 13 A. 533 = 11 A.W.N. 172 ; 15
A. 139 (140); 16 A. 476 (477) = 14 A.W.N. 183:21 A. 89=18 A.W.N. 157;
21 B. 250 (254) 23 B. 334 ; 11 O.P.L.R. 91 ; L.B.B. (18931900) 61.]

* Civil Revision, No. 16 of 1890.

(1) N.W.P.H.C.R. 1867, p. 222. (2) N.W-P.H.C.R. 1868, p. 309.

(3) N.W.P.H.C.R. 1876, p. 149. (4) 10 A.W.N. (1890) 121.

(5) 10 A.W.N. (1890) 201.

173



13 All. 278 INDIAN DECISIONS, NEW SERIES [Yol,

1890 THE facts of this case were as follows :

DEC. 20. The plaintiff sued in the Small Cause Court at Saharanpur for the

sum of Rs. 300 on a promissory note and a sale-deed executed in favour of

FULL fc ne plaintiff on behalf of Muhammad Hashim, the creditor, on account of

BENCH, the promissory note. The defendant pleaded (1) that the instrument sued

T~T on was not a promissory note, but an agreement, hence no cause of action

' had accrued to the plaintiff, (2) that no notice as provided by s. 13 of

' ' ~ Act IV of 1883 had been issued to him, and (3) that the plaintiff could not

' ' ' derive any benefit contrary to the terms of the instrument and that the

plaintiff's claim against the defendant's person was improper. The

Court framed issues in accordance with these pleadings and decided all

of them in favour of the plaintiff ; giving the plaintiff a decree for the sum

claimed wich costs. The defendant then applied to the High Court

for revision on the following grounds : (1) because the learned Judge

was wrong in holding that the condition about the time of payment was

void under s. 29 of Act IX of 1872, (2) because the document sued upon

was insufficiently stamped and was therefore inadmissible in evidence, and

(3) because the suit was premature. The application came on for hearing

before Straight, J., who referred it to a Division Bench. It then came

[278] before Edge, C. J., and Brodhurst, J., who ordered that it should

be laid before the Full Bench.

Maulvi Ghulam Mujtaba, for the applicant.
Pandit Sundar Lai, for the opposite party.

JUDGMENT.

EDGE, C. J., STRAIGHT, TYRRKLL, MAHMOOD and KNOX, JJ. We
are of opinion that the powers conferred by s. 25 of Act IX of 1887 are
purely discretionary. We agree with the opinion of Mahmood, J., in re
Muhammad Nizam-ud-din Khanv. Hira Lai (1) and Masum Aii v. Masum
Ali (2) that it was not intended by that section to give in effect a right of
appeal in all Small Cause Court cases, either on law or fact. We think we
should not interfere under s. 25 of the Act unless it clearly appeared to us
that some substantial injustice to a party to the litigation had directly
resulted from a material misapplication or misapprehension of law or
material error in procedure in the Court of Small Causes and that this is
not such a case. The application is dismissed with costs.

Application dismissed.



13 A. 278 (F.B.) = H A.W.N. (1891) 83.
FULL BENCH.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight, Mr. Justice
Tyrrell, Mr. Justice Mahmood and Mr. Justice Knox.-



OUDH BEHARI LAL (Judgment- debtor} v. NAGESHAR LAL
(Decree-holder).* [22nd December, 1890. J

Execution of decree Application for order absolute for sale Mortgage Act IV of 1882
(Transfer of Property Act], ss. 88 and 89.

The holder of a decree under s. 88 of the Transfer of Property Act (IV of
1882) applied for execution to the Court charged with execution of the decree.

* Second Appeal, No. 378 of 1890.

(1) 10 A.W.N. (1890) 121, (2) 10 A.W.N. (1890) 201.'

174



YII] OUDH BEHARI LAL V. NAGBSHAE LAL 13 All, 280

Held that this was a good application under s. 89 of the Act, and that it was
not neoessary that such applioation should ba made to the Court which had
passed the decree. An application for an order absolute for sale under s. 89 of DEC. 22
the Transfer of Property A>jt (IV of 1882) is a proceeding in execution and subject ~~~
to the rules of procedure governing such matters. FULL

[Oils., 21 C. 818 (823) ; 25 C. 133 (135) ; N.P., 10 C.L.J. 91 (95) ; F., 20 A. 302 BENCH.

(303) ; 24 A. 179 (183) ; Appl., 20 A. 357 = 18 A.W.N. 71 ; 23 A. 88 = 20 A.W.N.

209 ;23 M. 521 ; 1 O.C. 49(50) ; Appr.. 23 B. 644 (650) = 1 Bom. L.B. 136 (138; IS 1. 278
R., 19 A. 520 = 17 A.W.N. 137 ; 24 A. 542 = 22 A.W.N. 160; 27 A. 625 = 2 A.L.J. / n \ =
371 = A.W.N. (1905) 136 ; 28 A. 193 (194) = A.W.N. (1905) 241 = 2 A.L.J. 640; 30 * ', ''
A. 248 <250) = 5 A.L.J. 272 = A.W.N. (1908) 103 ; 33 A. 154 (161( = 7 A.L.J. 1001 l *""
(1009) = 7 Ind. Cas. 926 (928) ; 33 C. 867 (875) = 4 C.L.J. 141 ; 26 M. 244 (250) <*891) 83.
(F.B.) ; 11 A.L.J. 224(223) ; 1-2 A.W.N. 5 ; 16 A.W.N. 100 ; 10C.L.J. 91 (95); 9
C.P.L.R. 5 (7); 12 C.P.L.B. 82 (85); 16 C.P.L.R. Ill ; 6 Ind. Cas. 323 (325) = 13
C.L.J. 459 (462) ; 18 Ind. Cas. 731 (732) ; 5 O.C. 251 ; 6 O.C. 114 ; Disc., and
Doubted, 27 A. 571 (505) = 2 A L J. 180 = A.W.N. (1905) 70.]

THIS was a second appeal in execution proceedings. The respondent
was the holder of a decree for enforcement of a hypothacatory lien dated
the 31st January 1885. The terms of the decree were as follows : " It
is ordered and decreed that a decree be passed against the absent defend-
ant and against the property hypothecated, [279] for the amount claimed
with costs and a future interest, by the enforcement of the hypothecation
of the property mortgaged, and that the property mortgaged can be sold
after six months." The decree-holder applied on more than one occasion
and the judgment-debtor obtained postponements on various pleas. Ulti-
mately, however, on the decree- holder making an application for execution,
the judgment-debtor objected that execution could not be granted, the
decree not being framed in accordance with the provisions of s. 88 of the
Transfer of Property Act (IV of 1882). This objection was disallowed by
the Subordinate Judge on the 25th November 1889. The judgment-debtor
then appealed to the District Judge who upheld the Subordinate Judge's
order, holding that the decree was practically in conformity with the pro-
visions of s. 88 of the Transfer of Property Act, that the application
before him was to all intents and purposes an applicaiiiou under s. 89
of the same Act, to have the order for sale made absolute and the pro-
perty sold, and that since proceedings under s. 89 were proceedings in execu-
tion it was not necessary for the decree-holder to make two applications,
one to have the order for sale made abaolute and another to sell the
property. The judgment-debtor then appealed to the High Court. The
appeal came before Mahmood, J., who ordered it to be laid before a Bench
of two Judges with the suggestion that the question involved was one
which, with a view to uniformity of practice in the Court, it might be
advisable to refer to the Full Banch. The case was accordingly under the
order of the Chief Justice of the 7th November 1890 laid before the Full
Bench.

Babu Durga Charan Banerji, for the appellant.

Mr. T. Conlan and Munshi Ram Prasad, for the respondent.

JUDGMENT.

STRAIGHT, J. The point raised by this reference, which has been
made to the Full Bench by the learned Chief Justice at the instance of my
brother Mahmood, arises as to the construction to be placed upon s. 89 of
the Transfer of Property Act. The appeal before my brother Mahmood
was an execution appeal from an order of the District Judge of Gorakhpur,
dated the 10th January 1890, by which he held that the decree before him,
execution of which had [280] been sought in the first Court, was a decree

175



13 All. 281 INDIAN DECISIONS. NEW SERIES [Yol.

1890 which practically complied with the requirements of s. 88 of the Transfer

DEC. 22. f Property Act, and that the application of the 23rd August 1888, for the

execution of that decree was an application with the meaning of s. 89 of

FULL the Transfer of Property Act. That application was in the following terms:

BENCH. -"In my former application of the 6th July 1886, for sale of property, which

was transferred to the Collector, the judgment-debtor applied for time and

13 1. 278 m ade an agreement to the effect that at the end of October 1887 he would

pay, and he made an application for extension of time in Court and my

11 A.W.N, application was dismissed. He has not paid, and therefore this application

(1891) 83. j s ma <3 ei and it is prayed that the property be attached and sold."

It has been contended this is not an application within the meaning
of s. 89 of the Transfer of Property Act, for an order absolute for sale, and
Mr. Durga Charan, who appears in support of the judgment-debtor,
objector, appellant in the appeal, argues that that application is one
which should be made to the Oourt which passed the decree as the
Court which passed the decree, and it is not an application in execution.
In other words, Mr. Durga Charan contends that before sale can be
ordered, the Court which passed the original decree for sale, must make
that decree absolute.

I am of opinion that an application for an order absolute for sale
under s. 89 of the Transfer of Property Act is a proceedings in execution,
and subject to the rules of procedure governing such matters.

In reference to the analogous s. 87 of the same Act, a like view was
expressed by my brother Mahmood and myself in the case of Kedar Nath
v. Lalji Sahai (1), with regard to orders absolute for foreclosure, and I
see no grounds for doubting the propriety of that decision. Where a
decree has been passed under ss. 86, 87, 88, 89 or 92 directing payment
into Court by a specified date of a sum of money and, in the event of its
not being paid, declaring that foreclosure or sale shall follow, or a right to
redeem shall be barred, it would, in my opinion, be a misnomer, if payment
is made to [281] describe such payment as other than one made in execu-
tion of decree. On tbe other hand, it appears equally clear to me that if
such payment is not made, the consequences which follow are also matters
concerned with the execution of the decree, flowing as a matter of course
out of the decree itself, viz., to give it effect against the judgment-debtor
for having failed to satisfy the conditions of the decree. If decrees are
properly prepared under ss. 86, 88 and 92, they should fully set out all
these conditions and declare the consequences that will follow if they are
or are not fulfilled.

Such being the view I take of this matfcar, the decision of the learned
Judge below was a right decision and this appeal must be and it is dis-
missed with costs.

EDGE, C. J. I concur.

TYRKHLL, J. I entirely concur.

MAHMOOD, J. I also agree in my brother Straight's judgment, and
also in everything that he has said, but I am anxious to say, as one of the
Judges who referred this case to the Full Bench, and with reference to my
order o! reference of the 1st August, 1890, that there are three rulings of
this Court, to be considered, and one ruling of the Calcutta Court. Daaling
first with the printed case of Ram Lai v. Narain (2) to which reference
is made in my order of reference, I cannot help feeling that the judgment
delivered by my brother Straight to-day conflicts with that decision, and

(1) 12 A. 61. (2) 12 A. 539.



VI I] AMME RAHAM V. ZIA AHMAD 13 All. 282

since his judgment in this case has the concurrence of the whole Court, I 1890
hold that the earlier decision cannot be any longer treated as authority DEC. 23.
upon this point. Tbe next is an unreported case which also is before, me
viz., Babu Dina Prasad Singh v. Skah Sifat Alam (F. A. No. 16 of 1889) FULL
which was disposed of by the learned Chief Justice on the 2nd July 1889. BENCH.
That judgment also was cited, and I ^must express the opinion that the
view expressed by my brother Straight to-day renders that judgment also 13 * 2 ' 8
unauthoritative for any further discussion of the same question in this fF-B.) s
Court. The third case is that of Musammat Parbati v. Behari Raj ** A - w N -
(S. A. No. 512 of 1890) on the execution side, which was disposed <* 891 ) 88 -
[282] of by the judgment of the learned Chief Justice and our late col-
league Mr. Justice Young, dated the 8th May 1890, and that judgment is
confirmed by what my brother Straight has said. Then comes the fourth
case, namely, the case in which the Calcutta Court in the case of Poresh
Nath Mojumdar v. Ramjodu Mojumdar (1) decided the same point, and it
was cited by Mr. Durga Charan as an authority in his favour.

There is much in that judgment which undoubtedly supports the
argument which Mr. Durga Charan addressed to us. But it is unneces-
sary, after the expression of opinion which has been given to the view of
this Bench by my brother Straight, that I should say anything more
than this that I am not prepared to accept that or all that 'was said in
that case either as to the theory of the decrees nisi in such cases or as to
the decrees absolute or their effect upon the procedure of the Court, which
is governed by the Civil Procedure Code. I therefore give my full con-
currence to all that has fallen from my brother Straight.

KNOX, J. I concur with what has been said by the learned Chief
Justice and my brother Straight.

Appeal' dismissed.



13 A. 282 (F.B.) = 11 A.W.N. (1891) 88.
FULL BENCH.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight, Mr. Justice
Tyrrell, Mr. Justice Mahmood and Mr. Justice Knox.



AMME RAH AM AND OTHERS (Plaintiffs v. ZIA AHMAD AND OTHERS
(Defendants).* [22nd December, 1890.]

Act XV of 1877 (Limitation Act) , sch. it, No. 127 Limitation Suit by Muhammadans
for possession by right c,f inheritance of shares in the property of their deceased
ancestor.

The words " joint family property" in No. 127 of eoh. ii of the Limitation Act
(XV of 1877) mean "the property of a joint family."

Hence the period of limitation prescribed by No. 127 of sob. ii of the Limi-
tation Act. will not apply to a oaee in which members of a Muhammadan family
are suing for possession by right of inheritance of shares in immoveable property
alleged to have been that of the deceased common ancestor of themselves ;and
some of the defendants, and of which they allege they bad been dispossessed by
the defendants.

Bavasha v. Masumsha (2) dissented from.

[P., 15 M. 57 (59) ; 5 N.L.B. 41 (42) = 2 Ind. Gas. 15 (16) ; Rel., 16 Ind. Gas. 882 (883);
Appl., 23 B. 137 (140) ; 22 C. 954 (959) ; 7 O.W.N. 155 (157) ; R., 29 A. 308 (309)
= A.W.N. (1907) 52 = 4 A.LJ. 209; 30 A. 324 (327) = A.W.N. (1908) 126 = 5
A.L.J. 352 = 4 M.L.T. 38 ; 5 Bom.L.R. 355 (362); 15 O.C 111 (115) = 15 Ind. Gas.
394 (396) ; 15 O.G. 397 (400).]

* First Appeal No. 191 of 1888.
(1) 16 C. 246. (3) 14 6. 70.

177
A VII 23



13 All. 283 INDIAN DECISIONS, NEW SERIES [Yol.

1890 [283] The plaintiffs in this case were two daughters and a grand-

DEO. 22. daughter of one Karamat Hussain who died in February 1862, possessed,

as the plaintiffs alleged, of a certain village granted to him in recognition

FULL of his services during the mutiny. They alleged that on the 20th June

BENCH. 1880, Nihal Ahmad, the son of Karamat Hussain (brother and uncle of the

plaintiffs) sold the said village and the vendees in their turn transferred it

13 A. 282 to others ; that they came to know of this on the death of Nilhal Ahmad

(P.B.)= in 1884, and demanded possession of their shares from the assignees.

11 i.W.N This being refused, they sued the assignees together with certain other

(1891) 88. members of the family of Karamat Hussain for recovery of possession of

what they alleged to be their shares in the property together with mesne

profits. The suit was resisted amongst other grounds on the ground that

it was barred by limitation. The Court of first instance dismissed the

suit. The plaintiffs then appealed to the High Court and the appeal came

before Mahmood and Young, JJ., who, on the question of limitation being

again raised, referred the case, by their order of the 2nd July 1890, to

the Full Bench for determination of the question whether or not the

terms of No. 127, scb. Si of the Limitation Act, were applicable to the case.

Mr. Amiruddin and Mr. Abdul Majid for the appellants.

Pandit Ajudhja Nath and Pandit Sundar Lai for the respondents.

JUDGMENT.

EDGE, C.J. The only question which we need decide here is
whether art. 127 of the second schedule of the Indian Limitation Act
applies. This admittedly is not a family that could strictly or com-
monly be called joint. It is a Muhammadan family of these Provin-
ces. The difficulty has arisen from the words " joint family pro-
perty" in art. 127. Now those words may possibly be construed
in two different ways. They might be construed as " the joint pro-
perty of the family" or as " the property of the joint family." I think
in this country we would be misconstruing those words " joint family
property " to hold that they apply to a case where property was
joint but the family was not. Many persons besides a family may
have vested in them joint property. A, B and C, in no way related,
may have vested in them joint property. If we were to read [284]
this article as meaning " the joint property of the family," the
difficulty in my mind would arise as to what could be the reason why the
Legislature intended that art. 127 should apply to a family that was not
joint and made no similar provision in respect of the joint property of
persons who were not members of the family. In my humble judg-
ment " joint family property," means in art. 127 the property of a joint
family and that would be strictly speaking " joint family property." The
reason why the word " Hindu " which occurred in art. 127 of Act IX of
1871 was omitted from art. 127 of the present Code may be, that there
are, as I believe, in some districts of India Muhammadan families which
might be described as joint. The case is to go to the Bench of two Judges
with this expression of opinion.

STRAIGHT, J. By the plaint in this suit, the plaintiffs-appellants,
after asserting that they bad been in enjoyment of certain property,
alleged that some of the defendants had dispossessed them from such
enjoyment and they prayed for recovery of absolute possession of their
shares according to the Muhammadan law of inheritance, in respect
of the estate of a certain deceased person. They nowhere in their
plaint alleged that the property is the joint property of a joint family,

178



YII] AMMB BAHAM V. ZIA AHMAD 13 All. 286

that they had been excluded from the joint enjoyment and prayed 1890

that their right to share in such joint enjoyment should be enforced. It DEC. 22.

seems, therefore, to me, that the article of the Limitation law naturally

and properly applicable to their suit, was the provision to be found in FULL

art. 142 of the second schedule of the Limitation Act. As I understand, the BENCH.

rule of interpretation to be applied to the Limitation law is that if a form

of suit naturally falls within the four corners of a particular article, we

are not to strain construction for the purpose of throwing it into a category

of suits to which a more favourable period of limitation is given by some ll A-W.N.

other article of that law. Moreover, the Legislature is to be presumed not (1891) 88.

to have made two limitation articles applicable to the same conditions of

facts and identical suits.

Now I take it that art. 127 contemplates, first, a joint family in the
accepted and well understood meaning of the term; next, it [285] con-
templates joint family property; next, it contemplates joint enjoyment ;
and lastly, it contemplates exclusion from such joint enjoyment, which is
the motive cause for the institution of the suit. With great respect to
the learned Judge who decided it seems to me that the Bombay case of
Bavasha v. Masumsha (1) overlooks the precise wording of this article.
What the plaintiff in the suit to which that article applies must pray is to
enforce his right to share in, not to a share of the joint family property ;
that is to say, it is a suit to restore the status quo ante of enjoyment that
by his exclusion he has been deprived of. This is the particular form of
suit to which that article is, in my opinion, limited, and it does not apply
to such a condition of facts as are disclosed in the present case. I entirely
concur with the learned Chief Justice in the answer proposed.

TYRRELL, J. I agree.

MAHMOOD, J. In order to render my judgment short, I wish
to refer to the order of reference passed by me in this cause on the
2nd July 1890, in which Mr. Justice Young concurred and which neces-
sitated its coming on for hearing, under the sanction of the learned Chief
Justice, before this Bench of five Judges.

To what has fallen from his Lordship the learned Chief Justice and
also from my brother Straight as to the exact meaning of art. 127 of the
present Limitation Act (XV of 1877). I have nothing to add, beyond
wishing to explain that when this case was argued in the Division Bench,
much difficulty and doubt arose over some of the cases which are mentioned
in my referring order.

I do not wish to deal with those cases in detail. It is enough for me
to say that I will consider this point, now that it is before a Full Bench,
wholly in reference to the observations which were made on behalf of the
plaintiffs-appellants in connection with the alteration of the statutory
words of art. 127 in the old Limitation Act (IX of 1871) as that alteration



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 28 of 155)