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appears by a comparison with the corresponding clause of the present
Limitation Act (XV of 1877). That alteration is represented not by the pre-
sence of anything, but by the absence of a word, viz., the word " Hindu "
and [286] in lieu, thereof, "Person" is introduced. When the case was
argued on behalf of the appellants I must confess that I felt, especially ID
view of the sudden change, (which certainly has to be considerd seriously
in statutory language) that this art. 127 was intended to be applied to
Muhammadans also. The change at least sounded as an amendment of
a great verbal sound, but that sound was nothing other than vox et

(1) 14 B. 70.
179



13 All. 287 INDIAN DECISIONS, NEW SBBIBS [Yol.



1890 prceterea nihil so far as the exigencies of this case are concerned, because
DEC. 22. upon full consideration of this matter it seems to me that the Legislature
never intended to apply to Muhammadans in the Provinces within the
FULL jurisdiction of this Court, a rule unknown to the land, unknown to the
BENCH Muhammadan law, unknown to the people, by saying that upon the death
of an ancestor or propositus bis property does not descend to the heirs in
13 A. 282 definite separate shares, but acquires the nature of the joint property of
(P.B.) the Hindu jurisprudence. On the contrary, the Muhammadan law pre-
11 A.W.N. sumes that each share is separate and that each sharer is the separate
'1891) 88, owner of his separate share, and if such sharers wish to live together
they may do so, but their separate ownership and relations are not
changed.

Enough has been said by the learned Chief Justice and my brother
Straight to show that for purposes of employing art. 127 of Act XV of
1877, certain things are necessary, that at least there must be a joint
family, and I will not go further than that because my brother Straight
has already represented what, the other three conditions are. Now in
this part of the country the joint family system as understood by Hindus
does not exist among Muhammadans in the sense in which the law has
employed it. Even if it did exist, I think I must say that the learned
pleader Pandit Ajudhia Nath's argument before me when I made the
referring order, was perfectly sound, that the law in these provinces
will not allow the recognition of any such family status because of
s. 27 of Act XII of 1887. I must also say what I felt when the learned
Pandit then argued, and what I still feel, that the Bombay cases which
on that occasion the learned counsel for the appellants referred to and
insisted upon, have no application to this case, because it is governed
[287] by a totally different statute as to the application of the Muhatr^-
madan law. I also agree with the argument of the learned Pandit,which
the learned Pandit then addressed, that Eegulation IV of 1872, of the
Bombay Code, must not be lost sight of in determining the importance to
be attached to the rulings on this point cited from that Presidency.

I wish to say, with reference to some observations which were made
in the course of the argument when the case was heard in the Division
Bench, (to the effect that it would be depriving the Muhammadans of this
part of the country of a great right if the article in question were not applic-
able to suits such as this), that I have long held the opinion that the
statutes of limitation are statutes of repose, and that, far from being
construed in the sense of the strict construction of penal statutes against
their application, they should be strictly enforced for security of titles.
This I have said in more than one case to be found in the reports. I wish to
add that whatever difficulty may arise over the interpretation of art. 127, of
the present Limitation Act (XV of 1877), that difficulty need not be enhanced
in a case in which Muhammadan ladies, even when they are pardanashin,
sue after the lapse of time. For this view I wish to refer to cases where
I have before now pointed out the cogency of the doctrine vigilantibus non
dormientibus jura subveniunt.

One thing more. In the case of Bavasha v. Masumsha (1), upon
which Mr. Abdul Majid has again relied to-day, t/ie learned Judge in
reading, or rather reproducing, the art. 127 of the Limitation Act (XV of
1877) seems apparently, so far as the report goes, to have understood tho
phra.se"to share therein* as if the vrord" share" was a noun and not &

(l) 14 B. 70.
180



YII] JAGRUP RAI V. BADHBY SINGH 13 All. 289

varb. I do not understand it in that sense. I understand it to mean 1890

exactly what my brother Straight has described, viz., that it is a verb and DEC. -2-2.
means "to have restoration to joint enjoyment."

The other oases which have been referred to by me in the referring FULL,

order must be taken subject to what in this case the learned Chief Justice BENCH,
and my brother Straight have said and which has the [288] concurrence

of my brother Tyrrell. The answer to chis reference is that arb. 127 of 13 A 23

the present Limitation Act, XV of 1877, does not govern such actions as (F-B.).=

the one represented by the plaint in this case. I therefore agree in the ** A.W.N.

order made. (1891) 88,

KNOX, J. I agree in the answers proposed.



13 A 288 <F B.I = 11 A.W.N. (1891) 63.
FULL BENCH.

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



JAGRUP RAI AND OTHERS (Defendants) v. RADHEY SINGH AND
OTHERS (Plaintiffs).* [22nd -December, 1890.]

Registered and unregistered document Priority Mortgagee under registered deed
competing with auction-purchaser at a sale under a decree on a prior unregistered
mortgage-deed Act III of 1877 (Registration Act), s. 50.

Under s. 50 of the Registration Aot the decree or order which is not to be
effected by a registered document must be a decree or order made prior to the
execution and registration of the registered document, r Therefore where the
plaintiffs, who were mortgagees under a registered instrument, sued to set aside
a sale to the defendants under a decree on an unregistered mortgage, the plain-
tiffs' registered mortgage being subsequent to the unregistered mortgage or which
the defendants relied, but prior to the decree thereon held that the defendants,
auction-purchasers, must take subjeoc to the rights of the plaintiffs as mortgagees.
The Himalaya Bank. Limited v. The Simla Bank t Limited (1), Madar Saheb v.
Subbarayalu Naydu (2), Kanhaiya Lalv. Bansidhar (3) and Shahi Ram v.
Shib Lai (4) referred to.

[F., 28 C. 139 (HI); 21 A.W.N. 112; R. & D , (1911) 2 M-W.N. 461 (464i = lO M.L.J
385 (387).]

THE facts of this case sufficiently appear from the judgment of
Edge, CJ.

Mr. Abdul Majid and Mr. Hamid-ullah, for the appellants.
Munshi Jwala Prasad, for the respondents.

. JUDGMENT.

EDGE, C. J. The plaintiffs were appellants here. They brought
their suit to have it declared that a decree obtained on the 12th September
1882, on an unregistered bond of the 31st January 1877, and the auction-
sale held under that decree at which the defendants purchased were null
and void. The plaintiffs were mortgagees of the property. Their
mortgage was dated the 5th December 1877, and was registered.
On that mortgage they obtained a decree on the [289] 19th December
1882. The question turns on s. 50 of the Registration Act. Now in
this case the unregistered mortgage which was the basis of the defendants'
title was prior in date to the plaintiffs' registered mortgage, but the

'Second Appeal No. 116 of 1889.
(J) 8 A. 23. (2) 6 M. 88. (3) 4 A.WN. (1884) 136. (4) 5 A.W.N. (1885) 63.

181



13 All. 290 INDIAN DECISIONS, NEW SERIES [Yol.

1890 plaintiffs' registered mortgage was prior in date to the making of the
DEO. 22. decree on the unregistered mortgage.

It appears to me that under s. 50 of the Registration Act the decree

FULL or or( 3 er which is not to be affected by a registered document must be

BENCH, a decree or order made prior to the execution and registration of the

~r~~^ registered document. The question was considered by this Court in The

' Himalaya Bank, Limited v. The Simla Bank, Limited (1), and it appears

i wit k me ^ na ^ I nay come to the same conclusion as the learned Chief

' ' ' Justice and my brother Tyrrell did in that case with respect to the question

of priorities. We cannot grant the relief asked for by the plaintiffs. The

decree under which the sale took place was a perfectly good decree, the

only thing is that it does not affect the plaintiffs' right to have it declared

that it was subject to their lien. The decree that I shall propose will

be that the appeal be decreed with costs and the suit of the plaintiffs

decreed to this extent that it be declared that the decree of the 12th

September 1862, and the sale thereunder of the 12bh March 1887 did not

affect the rights of the plaintiffs under their registered mortgage of the

5th December 1877, and the decree thereon of the 19th December 1882.

STRAIGHT, J. I am of the same opinion. I think that the law is
very clearly stated on this point in the judgment of Shahi Bam v. Shib
Lai (2) decided by Mr. Justice Oldfield and my brother Mahmood, and
referred to in The Himalaya Bank, Limited v. The Simla Bank, Limited,
and the view therein held entirely coincides with the view just now
expressed by the learned Chief Justice, and is also in accordance with the
view I myself expressed in the case of Kanhaiya Lai v. Bansidhar (3). A
like view is taken by the Madras Court in Madar Saheb v. Subbarayalu
Nayudu (4). I also agree [290] in the order proposed by the learned
Chief Justice and the form which the decree should take.

TYRRELL, J. I also concur.

MAHMOOD, J. I am also of the same opinion, and only wish to say
that in the case of Shahi Ram v. Shib Lai (2) I had the honor of consider-
ing this question with Mr. Justice Oldfield, and the views which were then
expressed were approved, as my brother Straight has pointed out, by
Petheram, C.J., and my brother Tyrrell in the case of the Himalaya Bank,
Limited v. The Simla Bank, Limited (1). Indeed, at page 28 a passage
from that judgment is quoted which is of importance in this matter : and
I give my concurrence all the more willingly, because now a Bench
consisting of the whole of this Court as now constituted has approved
it.

KNOX, J. I agree with the learned Chief Justice.

Appeal decreed.



(!) 8 A. 23. (2) 5 A.W.N. (1865) 63. (3) 4 A.W.N. (1884) 136. (4) 6 M. i

182



11] BISHEN DAYAL V. BANE OF UPPER INDIA, LTD, 13 All. 291

13 A. 290=11 A.W.N. (1891) 94. Igg0

APPELLATE CIVIL. DEC. ii.

Before Mr. Justice Mahmood. APPEL-



LATE
BISHEN DAYAL (Judgment-debtor] v. THE BANK OF UPPER INDIA, CIVIL.

LIMITED (Decree- holder).* [llth December, 1890.]

13 A. 290 =

Execution o/ decree Party improperly brought on the record as representative of deceased < i 5 w M
Judgment- debtor Appeal Costs Civil Procedure Code,' ss. 2, 244. cl. (c), 540.

One B.D. was made a party to an application for execution of a decree as one ^
of the representatives of a deceased judgment-debtor. It had been decided in a
previous suit that B.D. was not related to the judgment-debtor in such a m inner
that he could become his legal representative, and in this proceeding also he
objected that he was not such representative, and his objection was allowed
and the order allowing it remained unappealed and became final. The Court,
however, while allowing the objection, did not give the objector his costs.

Held, that the objector did not, by being improperly brought into the execution
proceedings, lose his right of appeal, and further, that he could under the cir-
cumstances appeal on the question of costs alone.

[291] THE facts <fc this case are fully stated in the judgment of
Mahmood, J.

Munahi Bam Prasad for the appellant.
Mr. J. E. Howard for the respondent.

JUDGMENT.

MAHMOOD, J. Thiss is a first appeal, purporting to have been pre-
sented to this Court under the provisions of cl. (c) of s. 244 of the Code of
Civil Procedure, read with the definition of decree contained in the inter-
pretation clause of s. 2 of that enactment (Act XIV of 1882), and as such
the appeal must be regarded as one falling under the purview of s. 540 of
that enactment.

When the case was originally heard by me, Mr. Bam Prasad appear-
ing on behalf of the appellant, a preliminary objection was raised on be-
half of the respondent that no such appeal lay. Another point was urged
against the appeal, viz., that even if the appeal did lie, the Court below
had exercised a discretion vested in it by s. 220 of the Civil Procedure
Code, and that discretion was not open, under the circumstances of this
case, to interference by this Court in appeal, because the question related
only to costs and not to the substantial merits of the dispute between
the parties.

In order to render the contention thus presented to me intelligible,
and also because the learned Judge of the Lower Court in recording his
judgment has in more than one instance mixed up the names of the
parties, I consider it necessary to give the following tabular statement as
representing the relative position of the, parties whose names are important

for the disposal of this appeal.

HAR SAHAI,



_ _ __
I I 1

Bijai Bahadur. Bakht Bahadur Raj Bahadur.
died childless. I

Biehen Dayal.
son.



Hira Lai. Jai Ghand.



* First Appeal No. 196 of 1389, from a decree of G.J. Nicholls. Esq., District
Judge of Gawnpore, dated the 24th August 1889.

183



13 All. 292



INDIAN DECISIONS, NEW SERIES



[Vol.



1890 The family represented by the above table is a family of Sribastub

DEC. 11. Kayasthas, whose religious doctrines, apparently, are so undefined that it

became necessary for Bishen Dayal, the son of Raj Bahadur, to [292]

APPEL- sue the latter and other members of the family in order to establish

LATE that the family were Hindus and not Muhammadas, or at least that the

CIVIL Hindu law of inheritance applied to the family and not the Muhammadan

law of the Kuran. This cause finally came up before a Division Bench of

18 A. 290~ this 1 Court, consisting of my brothers Straight and Tyrrell, who, in the case

11 A. W.N. named Raj Bahadur v. Bishen Dayal (1) disposed of this question, and

(1891) 94. that report shows the exact decision at which the learned Judges arrived.

It is unnecessary for me to say more about that decision than that I
have referred to it because it explains the preliminary circumstances of
the question which I am going to decide in this case. The decision of
the High Court was passed on the 22nd March 1882, and that decision
became final and is so admitted by the parties.

Subsequently to this decision it appears that upon a hypothecation
bond jointly executed by Bakht Bahadur and Bijai Bahadur, the Bank of
Upper India, Ld., respondent in this appeal, obtained a decree on the
25th August 1884, and that decree, being a money-decree by enforcement
of lien, also became final.

Bakht Bahadur died childless on the 14th April 1899, leaving, as the
table which I have already stated shows, certain relatives, among others a
brother, Raj Bahadur, the father of Bishen Dyal the present appellant
before me.

Matters stood thus when on the 27th May, 1889, the Bank, decree-
holder, filed an application for execution under s. 235, of the Civil
Procedure Code, for execution of the decree of the 25th August 1884, and
in that application, acting apparently under s. 234 of the Code, the decree-
holder represented the judgment-debtors to be Bijai Bahadur, the original
debtor of the decree, and along with him Jai Chand and Hira Lai, as sons
of the deceased Bijai Bahadur, and besides these Eaj Bahadur and Bishen
Dayal, described in tne application as the heirs of Lala Bakht Bahadur,
the deceased.

This application initiated the present litigation, and in the course there-
of, among other matters which ensued, and to which I need not [293] refer,
Bishen Dayal, the present appellant before me, came forward as an
objector, alleging that he had been wrongfully impleaded, because he was
not the heir of the deceased Bakht Bahadur, the judgment-debtor, nor in
any manner liable to the decree of the 20th August 1884, which was being
put into execution. In other words, he stated that he was in no manner
concerned with the decree, either by dint of representing any interest? of
Bakht Bahadur, or otherwise, and that the action of the Bank, decree-
holder, in thus impleading him was so wrong that he had been dragged
into a litigation with which he had no concern.

This objection was, rightly or wrongly, decided in the Court below
and resulted in an order passed by the lower Court in the following terms:
"Bishen Dayal on his own objection is struck out of the record, the

objectors bearing their own costs."

From this adjudication no appeal has been preferred by the Bank,
decree-holder, and it must, therefore, be taken that the adjudication of
the Court below as to Bishen Dayal having no interest as legal

(1) 4 A. 343.
184



VII] BISHEN DAYAL V. BANK OP UPPER INDIA, LTD. 13?A11. 295

representative of the deceased judgment-debtor, Bakhfc Bahadur, under the 1890
decree of the 25th August 1884, is a final adjudication. DEO. 11.

But Bishen Dayal, the objector, who had thus succeeded in the
Court below, has preferred this appeal, and the learned argument which has APPEL-
bean addressed on his bahalf by Mr. Ram Prasad, has been considered by LATE
me, bearing fully in my mind the necessity for the Court of appeal not CIVIL.
lightly to disturb an order as to costs made under s. 220 of the Oivil
Procedure Code. 131.290=

I have said so repeatedly and wish to repeat it now that orders as to ** * W.N.
costs should not unnecessarily be made subject of appeal, because an (1891) 94.
appellate Court would not on slight grounds disturb the discretion of the
Court of first instance.

But it seems to me that in this case the decree of this Court of the
22nd March 1882, which had not only been passed but had also been
published in the Official Eeports, in volume 1 of the I.L.R. Allahabad
Series, page 343, ought to have put the decree- [294] holder upon caution
as to whether or not Bishen Dayal was to be impleaded in the cause,

First of all, before I give effect to this circumstance, I must dispose
of the preliminary objection to which I have referred, viz., that no appeal
lay in this case.

In the Full Bench case of Seth Ghand Mai v. Durga Dei (1), I gave
expression to the views which I still hold in a judgment to be found at
pages 325 Co 328, especially the observations made by me at page 326.

In the present case it has been argued on behalf of the respondent
that because the lower Court has held that Bisheu Dayal was not a repre-
sentative of the deceased debtor Bakht Bahadur, therefore, he has no right
of appeal at all, and much learned argument was addressed as to this
matter. It seems to me tha'u when this petition of the 27th May 1889,
praying for execution, was filed, Bishen Dayal was already impleaded in
the cause and no question rose over that petition as a petition for exe-
cution of decree. It was a Us of which the array of parties was distinctly
stated in the petition whereby it was initiated ;and, being so initiated, and
the array of parties being such as that petition represented, the adjudica-
tion of the Court that the appellant was not the legal representative of
Bakht Bahadur will not take away the right which cl. (c).of s. 244, confers
upon him, read with s. 540 of the Civil Procedure Code. What he says is
that he was called the representative of a dead judgment-debtor, Bakht
Bahadur, but he was not such representative, that he was a stranger to
the suit and a stranger to the decree of the 25th August 1884, in which
that suit resulted, that he had been wrongly dragged into Court by the
erroneous behaviour of the decree-holder, and that, because of this, the
Court rightly decided that be was a third party, and in consequence that
he was released from such liability as might have arisen under that decree
imposing burden upon him. I have no doubt that the words of the Civil
Procedure Code give him the right of appealing in order to [295] complain
of the costs which have not been awarded in his favour for having been
thus wrongly impleaded.

Then as to the merits of the order itself. As a question of direction,
I hope it will always be remembered by Courts of Justice when exercising
their jurisdiction under the discretionary power of s. 220, that when an
innocent party is dragged into a Us and has to stand the brunt of a trial,
he has to undergo much vexation of mind independent of expenses, for



A VII



(1) 12 A. 313.
185



13 All. 296



INDIAN DECISIONS, NEW SERIES



[Vol.



1890

DEC. 11 ,

APPEL-
LATE
CIVIL.

13 A. 290 =

11 A.W.N.
(1891) 9*.



wrongly being dragged into a cause, and such circumstances are enough
consideration for allowing at least such costs as the law allows to a
successful litigant.

In this case the judgment of the learned Judge of the lower Court
shows the repeated mistakes he has made over the relationship of the
parties. I find the name of Bakbt Bahadur on more than one occasion
used instead of that of Bishen Dayal, and that Bishen Dayal has been
wrongly described in the cause as a party to the litigation.

It was probable on this account that the learned Judge did not follow
the general rule of the law that a succesful party is entitled to his costs
and that the mistakes of the opposite party are no reason for departing
from the general rule. Indeed the proviso to s. 220 of the Civil Procedure
Code itself gives the warning to the effect that there should be reason for
any orders as to costs which do not follow the evenb. In the judgment
of the learned Judge there are no reasons, other than that the Bank,
decree-holder, was not sufficiently cautious to ascertain who were the
parties against whom to proceed in the execution of their decree of the
25th August 1884.

I think I have said enough to show that the order of the Court below,
so far as it relates to the costs of Bishen Dayal, objector, appellant before
me, cannot be sustained. No other party has appealed, and therefore my
order in this case is that this appeal, be allowed, that the order of the
lower Court so far as it disallows the costs incurred by the appellant
Bishen Dayal, be reversed, and that the Bank, respondent, bear the costs
of the appellant in both the Courts.

Appeal decreed.

13 A 296 (F.B.) = 11 A.W.N. (1891) 85.
[296] FULL BENCH.

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



THE SECRETARY OP STATE FOR INDIA IN COUNCIL (Plaintijft v.
MADARI LAL AND ANOTHER (Defendants).*

[5th January, 1891,]
Practice Set-off Suit for balance of account Civil Procedure Code, s. 111.

The defendant was lessee from Government of a bridge of boats over tbe Ganges
under a lease for five years, the consideration for which was payable by
instalments extending over tbe term of tbe lease. Tbe lease contained, amongst
other provisions, one to tbe effect that the Government, if it saw fit at the
expiration of the lease to form the bridge to any other contractor, should be
bound to take over the lessee's plaint at a fair valuation to be determined by
arbitration; and another clause provided that " should the Government, however,
. eee 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 tbe
bridge and to seize tbe stock and materials. The Magistrate then directed two
persons to assess the value of the stock, which was ultimately fixed at Rs. 10,900.
Tbe Magistrate added a percentage, bringing tbe total amount up to Rs. 12,100;
and a suit was filed on behalf of Government against the representatives of the
deceased lessee giving credit to tbe defendants for such amount, and claiming:
the balance due in respect of tbe last two instalments under the contract.

First Appeal, No. 107 of 1689.
186



YII) SECRETARY OF STATE V. MADARI LAL 13 All. 298

Held that tbe sum of Us. 12,000 assessed in the manner above described could 1RQ1
not strictly be regarded as a set-off. Tbe suit was one for balance of account and
the defendants were entitled to dispute the correctness of the plaintiff's estimate ^ AN - &



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 29 of 155)