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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 34 of 155)
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The Government Pleader, Munshi Bam Prasad, for the Crown.


[338] TYRRELL, J. A preliminary point was raised by the learned
Counsel who appeared for the appellants. He contended that the .convic-
tion of his clients was bad in law for want of jurisdiction in the Court
below. The trial began before the learned Sassions Judge of Moradabad
and three assessors on the 10th day of August 1890. This was in due
conformity with the ruie contained in s. 268 of the Code of Criminal
Procedure, that all trials before a Court of Sessions shall be either by jury
or with the aid of assessors. In an early stage of the trial one assessor
died, and later on another assessor became too ill to take any further part
in the trial. The trial reached its latest stage at the sitting of the
18th day of September 1890, when the assessor Govind Earn alone
attended. The case for the prosecution having closed, and the exa-
mination of the accused and of some of their witnesses having been
had, the learned pleader for the accused addressed the Court for about
an hour and a half on the law and merits of the case. Before he had
spoken more than ten minutes, Mr. Goviad Earn obtained leave from the
Judge to leave the Court-house on the plea of illness and consequent con-
fusion of mind. He did not return till the address on behalf of the accused
was finished, and having heard the Government Pleader's reply for the pro-
secution, he gave his opinion that the accused were guilty, on vague and
unsatisfactory grounds. On these facts Mr. Pogose claims that the trial
was bad with reference to ss. 268 and 285 of Act X of 1882. The point
is new and of considerable importance. It is clear that a trial held by a
Sessions Judge without any assessor would be bad for want of jurisdiction.
It is equally certain that if all the assessors with whose aid a Sessions Court
commenced a trial " aro prevented from attending (throughout the trial) or
absent themselves, the proceeding shall be stayed and a new trial " must be

* Criminal Appeal No, 749 of 1890,


held. The question arises, however, as to what is the meaning of the words 1891
" prevented from attending, or absent themselves." Mr. Govind Ram MARCH 17.
attended throughout the most part of the trial and absented himself for a
portion thereof only ; but can he be said to have attended and not to have APPEL-
been absent in the substantial sense of s. 285 ? I have bad the advantage LATE
of con-[339]sulting my brother Straight, and I am of opinion that this CRIMINAL,
question must be answered in the negative.

The first part of s. 285 explicitly provides that the assessors shall 18 * 33?
attend throughout the proceedings, that is to say, that there shall be no ** A.W.N.
break in their attendance, which shall be exactly commensurate with the (1891) 93.
entire continuance of the trial down to the time when the finding is made.
In the case before me the portion of the trial covered by the provisions of
s. 290, a very important portion from the point of view of the accused, was
conducted without the aid of auy assessor, and to that extent the attend-
ance was not continuously complete. I must allow this plea, with the
result that I am constrained to find that the trial was before a Court
without jurisdiction, and must therefore be set aside. The conviction,
sentence and all other proceedings before me are annulled, and a new trial
must be had according to law.

13 A. 339 = 11 A.W.N. (1891) 100.

Before Mr. Justice Mahmood.

KALYAN SINGH (Plaintiff) v, KAMTA PRASAD (Defendant)*
[23rd March, 1891.]

Execution c.f decree Attachment Previous assignment in satisfaction of decree of third
party Suit ly assignee to establish right to attached property Civil Prccedure
Cede, ss, 258 ard 283.

Where a regular suit under s. 283 of tbo Code of Civil Procedure was brought
to establish the plaintiff's right to certain attached property, on the allegation
that the property attached had been transferred to him in satisfaction of a
decree held by him against the judgment-debtor,

Held, that it was not necessary that such transfer should be certified under the
provisions of s. 258 of the Code of Civil Procedure, The prohibition to take
cognizance of adjustments and payments referred to in s. 258 above-mentioned
relates only to the Court executing the decree,

[D.. 20 A. 254.]

THE facts of this case sufficiently appear from the judgment of
Mabmood, J.

[340] Munshi Ram Pro sad and Munshi Gobind Prasad for the

Maulvi Mehdi Hasan and Munshi Jokhu Lai for the respondent.


MAHMOOD, J. The facts of this case are the following :

Kalyan Sirgb, plaintiff-appellant, obtained a money-decree for

arrears of rent against one Bhurwa, who is stated to have been a tenant

of the said Kalyan Singh. This decree was for a sum of Ks. 9 as. 15 p. 2,

and dated the llth July 1882. It is then stated that for the money

* Second Appeal, No. 1222 of 1889, from a decree of G.J. Nioholls, E.q , District
Judge of Cawnpore, dated the 27th August 1889, reversing a decree of Babu Khettar
Mohan Ghose, Munsif ol Patebpur, dated the 30th June 1888,


13 All. 341






13 A. 339 =
(1891) 100.

due upon that decree and some othyr money due by Bhurwa to Kalyan
Singh, the former transferred certain trees to the latter.

Against the aforesaid Bhurwa, the defendant-respondent Kamta
Prasad also "obtained a simple money-decree. This was some time in
1885. In execution of his decree Kamta Prasad attached the trees now
in dispute. Thereupon Kalyan Singh objected to the attachment, upon
the allegation that he was the owner of the trees, and that the aforesaid
Bhurwa no longer possessed any attachable or saleable interest in the
trees. The Court executing the decree allowed the objections by its order
dated the 14th January 1888 ; but on appeal that order was set aside on
the 28th March, 1888. The objections were thus disallowed and the
attachment maintained.

Kalyan Singh thereupon instituted the present regular suit under
a. 283 of the Code of Civil Procedure, suing to set aside the order of the
28th March 1888. This suit was filed on the 9bh April 1888, and was
decreed by the first Court ; but upon appeal the lower appellate Court
reversed the first Court's decree on the 27th August 1889, thus dismissing
the suit.

By an oversight the learned Judge in delivering his judgment and
decree wrongly used the name of Kalyan Singh, the plaintiff-appellant,
instead of Kamta Prasad, the defendant-respondent, in whose favour he
was passsing the judgment. This matter, however, was brought to his
notice, and the learned Judge, acting under the provisions of s. 206 of the
Code of Civil Procedure, amended the [341] judgment and the decree by
his order dated the 20th November 1889.

Whilst the matter stood thus, this second appeal was filed by Kalyan
Singh to this Court 'on the 26th November 1889. Tho appeal was prefer-
red againt the decree of the lower appellate Court of the 27th August
1889, and in the grounds of appeal objection was taken to the error the
Judge had made and afterwards corrected by the order of the 20lih Novem-
ber 1889.

Mr. Mehdi Hasan has raised a preliminary objection that the appeal
cannot prevail, because it has not been preferred from the final decree of
the 20th November 1889. In view of this objection Mr. 'Gobind Prasad,
Jibe learned pleader for the appellant, has amended his memorandum
of appeal by striking out the first and tha fourth grounds of appeal and by
inserting reference to the amendment as made by the order of the 20th
November 1889. This ho has been allowed to do under rule 22 of the
rules of this Court. Tho preliminary objection is thus disposed of.

Upon the merits of the case the learned Judge has held that because
the alleged transfer of the trees by Bhurwa to Kalayan Singh was made in
satisfaction of the decree of the llth July 1882, it was necessary, under
s. 258 of the Code of Civil Procedure, that the aforeaaid transfer and satis-
faction should have been certified ; that no such certification took place,
and that therefore the alleged transfer cannot be taken into account even
in the regular suit.

This view of the law is erroneous, and it is enough for me to refer to
the case of Bam Ghulam v. Janki Rai (1) to show that the prohibition to
take cognizance of payments in execution of decrees is limited to the
Court which has to deal with the execution of the decrees and does not
extend to Courts that have to try the allegations of the parties on the

(I.) 7 A. 124.



13 All. 343.

Sellamiyyan v.
Muthan (1),

P a t D a s i v.
Sharup Chand Mali

M a I I a m m o. v.
Venkappa (3).

merits. In delivering my judgment in that case I expressed my dissent
from some of the Bombay rulings therein referred to.

[32] In support of my view Mr. Gobind Prasad has drawn my
attention to the cases noted in the margin. I need not
enter into a detailed consideration of these cases, because
what I said in the case reported in I.L.R. 7 Allahabad,
is enough to show that the prohibition to take cogniz-
ance of adjustments and payments referred to in s. 258
of the Code of Civil Procedure relates only to Courts
executing the decree and Do no others. Such, indeed, is
the clear effect of the last few words of the section itself as they now stand.
In my opinion the learned Judge of the lower appellate Court,
by reason of his having taken an erroneous view of the law, precluded
himself from deciding the case upon its merits. The learned
Judge has not considered the nature of the alleged transfer of trees
by Bhurwa in favour of Kalyan Singh, nor has he considered whe-
ther the transfer is valid with reference to the rules of the Transfer of
Property Act and the requirements of the Registration Law. It was further
necessary to ascertain whether, notwithstanding such transfer, Bhurwa
still possesses rights and interest in the said trees, and the nature and
extent of such rights.

A proper adjudication of all these various points would be trial upon
the merits. The learned Judge did noi do so, having disposed of the case on
a preliminary point, and having taken an erroneous view of the provisions
of s. 258 of the Code of Civil Procedure.

I think the case should ba tried on the merits as indicated above. I
decree the appeal, set aside the judgment and decree of the Court below,
and remand the case to that Court under s. 562 of the Code of Civil
Procedure for disposal upon the merits. Costs to abide the result.

Cause remanded.

13 A. 343 = 11 A.W.N. (1891) 119.
Before Sir John Edge, Kt., Chief Justice and Mr. Justice Knox.

(Opposite parties) .* [31st March, 1891.]

Execution of decree Decree of appellate Court What that decree should contain.

Where the judgment of an appellate Court directed that a certain sum over
aud above what had been decreed to him in the Court of first instance should be
decreed to the appellant, but the decree of the appellate Court did not specify
the sums that would be due to the appellant under that decree, except by refer-
ence to the judgment on which it was based and to the decree of the Court of
first instance,

Held that though the decree as thus drawn was informal, yet as the amount
due to the decree-holder wag ascertainable from the record, and the decree was
thus praotic.tlly capable of execution, execution should, as a matter of equity,
be granted to the decree-holder.

[Appr., 18 A. 344 ; R., A.W.N. (1908) 257 = 5 A.L.J. 742.]

Reference under s. 18, Ajmere Courts Regulation No. I of 1877.

(1) 12 M. 61. (2) 14 C. 376. (3) 8 M. 277.


13 1, 339 =
11 A.W.N.
(1891) 100.

A VII 28


13 All. 344



1891 THIS was a reference under s. 18 of the Ajmere Courts Regulation

MARCH 81, No. I of 1877, made by the Commissioner of Ajmere-Marwara upon the

following facts :

EBVI- On the 22nd December, 1883, one Jawahir Mai obtained a decree for

SIGNAL Es. 4,110-12-8 in the Court of the Subordinate Judge of Beawar. The

GlVIL. decree-holder appealed to the District; Judge against this decree, claiming

an additional sum of Rs. 1,601-7-0. The appellate Court found in favour of

IS 1. 343 the appellant, but omitted to enter the sum found in his favour in its decree.

11 A.W.N. The first application for execution was made on the 4th December, 1886,

(1891) 119. and it was ultimately struck off. On the 19th November, 1889, a second

application for execution was filed and the usual proceeding? commenced.

On the 21st October, 1889, the decree- holder applied in the appellate Court

to bring the decree of that Court into conformity with the judgment.

That application was rejected on the 29th November, 1889, on the ground

that there was no reason for amendment of the decree. The execution

proceedings initiated on the 19th November, 1889 were terminated by an

order of the 19th December, striking off the execution proceedings as barred

by [344] limitation. From this order the decree-holder appealed, but his

appeal was rejected. He then applied that a reference might be made to

the High Court on the point of limitation and other legal questions which

were considered to have arisen in the case.

The reference came before Edge, C.J. and Knox, J., who gave judg-
ment as follows :


EDGE, C. J., and KNOX, J. This is a reference from the Commis-
sioner of Ajmere. Jawahir Mai obtained a decree against Kistur Chand
and another for Rs. 4,110-12-8 with costs. That decree was obtained on
the 22nd December, 1883. The defendants appealed, and their appeal
was dismissed. The plaintiff also appealed and his appeal was allowed.
The result of his appeal was that he obtained a decree for certain costs of
the appeal and for a sum found by the Commissioner to be Rs. 1,601-11-7
in addition to the amount of the original decree. On the 4th December,
1886, he applied for execution, and on the 19fch February, 1887 his
application was struck off, .on the ground that he had not complied
with the direction of the Court to file an inventory of the property
to be attached and on the further ground that he was not present.
There is no doubt in our minds that the decree to be executed is
the decree of the appellate Court. We are informed that Jawahir
Mai applied to the appellate Court to bring its decree into accord-
ance with its judgment, and that the appellate Court dismissed that
application, being of opinion that the decree was in accordance with
its judgment and the application unnecessary. -If the decree of the
appellate Court had been drawn up strictly in form, it should have shown
in itself the ultimate relief granted, that is, it should have shown a decree
in Jawahir Mai's favour, not only for the amount of the decree in the
Court of first instance, but for the additional amount decreed in appeal
by the appellate Court, and should also have shown the costs. The decree
did not specify these amounts except by reference to the decree of the
Court of first instance and to the finding of the Commissioner. Now,
although this decree is not in form, still from the record it can be ascer-
tained what the amount was, and in our opinion the informality in
the decree which was the resulc of the [345] manner in which
it was drawn up in the office of the appellate Court, should not be



allowed, where equity and good conscience are to guide us, to stand 1891

in the way of Jawahir Mai's obtaining execution for the amount found MARCH 81.

in his favour and for his costs. The application for execution was also ~~

informal, but we think it may be treated as an application to exe- REVI-

cute the decree in the case. It referred not only to the decree of the SIGNAL

Court of first instance, but also to the decree of the appellate Court. OlVIL.

Now as to the question of limitation. The application of the 4th Decem- - -

bar, 1886, although it was struck off on the 19th February, 1887, was 131.3*3-

still, in our opinion, an application for execution, or a taking a step-in- H I.W.H.

aid of execution within the meaning of art. 179 of the second schedule of (1891) 119.
the Indian Limitation Act, and therefore the present application is not
time barred. Owing to the view which we take and have expressed in
this case it doas not appear to us to be necessary to discuss the question
as to the conflict between the decisions of the High Courts. With this
expression of opinion we order the papers to be returned to the Commis-
sioner of Ajmere-Marwara.

13 A. 355 = 11 A.W.N. (1891) 102,
Before Mr. Justice Straight,

QUEEN-EMPRESS u. R. HAWTHORNE.* [3rd April, 1891.]

Criminal Procedure Code, ss. 191 ani 342 Magistrate taking cognisance of an offence
on his own personal knowledge Right of accused to have the case transferred-
Power cf Magistrate to question the accused.

Where a Magistrate was found to have taken cognizance of an offence under
ol. (c) of s. 191 of the Code of Criminal Procedure. Held that he had no power,
on an application being made under the last clause of tha section abovenamed,
to refuse to transfer the case,

Held also that where a Magistrate, before evidence taken for the prosecution,
put questions to the accused of the nature of a cross-examination, such procedure
was illegal, as it could not be said that the questions were put "for the purpose
of enabling the accused to explain any circumstances appearing against him in
the evidence," within the meaning of s. 312 of the Code of Criminal Procedure.

[R., 9 Cr. L.J. 56 (57) ; 4 N.L.R. 163 (164) ; Rat. Unrep. Or. Gas. 679 (680)].

[346] TEE facts of this case are briefly as follows : .

Robert Hawthorne was tried before the Superintendent of Dehra Dun
and a jury on three charges under Act XXV of 1867 in connection with
the printing and publishing of a newspaper known as " The Beacon" at
Mussoorie. Prior to the issue of summons to the accused, certain
correspondence had passed between the Superintendent and Assistant
Superintendent of Dahra Dun and the accused, the former calling the
latter's attention to certain provisions of Act XXV of 1867, the latter
asserting that he had complied with them, The Superintendent of Dehra
Dun also seems to have directed the police to make some inquiries in
connection with the case, the result of which was embodied in a report,
which, however, was not in the nature of a formal statement of facts
constituting an offence alleged to have been committed by the accused.
At the commencement of the trial the accused applied to the Court, under
s. 191 of the Coda of Criminal Procedure, for the transfer of the case, but
his application was disallowed. It also appeared that before any evidence

* Criminal Revision No. 613 of 1890.


1891 was taken in the case, the Court questioned the accused as to the charges
APRIL 3. against him, and used bis answers as evidence against him in the course

of the trial.

KEVI- The accused was convicted on each of the charges and sentenced to

SIGNAL fines which aggregated Es. 500, or, in default of payment, to imprisonment
CRIMINAL. amounting to two months and fifteen days.

The accused thereupon appealed to the Sessions Judge, who held that,

13 A. 348= though the procedure of the Magistrate was undoubtedly irregular, both

11 A.W.N. as to bis refusal to transfer the case and as to bis examination of the

(1891) 102. accused, these were irregularities which could be and were cured by

s. 537 of the Code of Criminal Procedure. The Judge, however, quashed

tha sentence of imprisonment altogether, as one not warranted by law,

and in place of the original fine of Es. 500 substituted a nominal fine of

Es. 5. The accused then applied to the High Court for revision of the

Judge's order.

Mr. A. Strachey, for the petitioner.

The Public Prosecutor, Mr. C. Dillon, for the Crown.


[347] STRAIGHT, J. I entirely concur with the learned Sessions
Judge that the District Magistrate must be regarded as having taken
cognizance of the case under ol. (c) of s. 191 of the Code of Criminal
Procedure. It is patent from the record that there was no " complaint"
or "police report," in the well-understood sense of the Code, and it is
difficult to understand how the District Magistrate could even have
brought himself to think that there was. It is clear to my mind that the
process was really issued by him upon bis personal knowledge and
suspicion that an offence against Act XXV of 1867 bad been committed.
For this no possible fault can be found with him. On the contrary, it was
his imperative duty to see that the provisions of a very salutary Act were
complied with, and if they had been disobeyed that the offender should be
punished. But the District Magistrate having, as I have no doubt
he did, taken cognizance under ol. (c) of s. 191, he had no option or
alternative but to grant the application of the accused to send the
case to the Court of Sessions or transfer it for trial to another District
Magistrate. The words " shall be entitled to require" are mandatory,
and he could* not refuse to comply with them. It therefore becomes
unnecessary to examine the reasons given by him in his order of the 3rd
October, though I may say I quite agree with the learned Judge that there
is nothing in chapter XVIII of the Code which excludes or overrules the
provisions of s. 191, cl. (c). That being so, the District Magistrate was, in
my opinion, without jurisdiction and was not a " Court of competent
jurisdiction," the error or defect in whose procedure could be cured by
s. 537. In this respect, therefore, I differ with the learned Sessions Judge
and am unable to sustain the District Magistrate's proceedings. Moreover,
I am constrained to remark that it is impossible, upon a perusal of all that
took place prior to the case being launched, not to feel that the Magistrate
had a " personal interest " in the proceedings, and I must most empha-
tically express myself as to the impropriety and irregularity of the
examination to which the accused was subjected on the 23rd August.
The case waa a warrant case and not a particle of evidence had been
recorded, so that the power given by s. 342 of the Code to examine
an accused " for the purpose of [348] enabling him to explain any
circumstance appearing in the evidence against him " bad not come into





* 8 *

play. A Magistrate has no right, in such a way as was adopted here, 1891

to elicit damaging or incriminating admissions from a person against APRIL 3.

whom he has issued process, for the ourpose of afterwards treating them

as evidence in the case, and chapter XXI of the Code gives no countenance

to any such procedure. The impression left upon my mind upon a perusal

of all the papers, is that the case was tried in too much of a storm, and

that from the beginning to the end the Magistrate lost sight of the fact

that one of the not the least important incidents in the administration of

criminal justice "is to clear away everything which might engender HA-W-N,

suspicion and distrust of the tribunal, and to promote the feeling of U891),1Q3.,

confidence in the administration of justice which is so essential to social

order and security " Sergeant v. Dale (l). It is, however, unnecessary

for me to enter at large into the proceedings of the trial, being of opinion,

as I am, that the accused having claimed his right under the last clause

of s. 191 of the Code, the jurisdiction of the Magistrate was ousted.

I quash the conviction and fines in all Courts, and having regard to
all that has taken place, I think no further action should be ordered by
me or adopted by the local authorities. Any money that has been realised
as fine should be refunded.

13 A. 3)8 = 11 A.W.N. (1891) 115.

Before Mr. Justice Knox.


[4th April, 1891.]

Criminal Procedure Code, ch. XV, s. 483 Order for maintenance of wifeWife living
apart from her husband' for good cause Jurisdiction-

Where a wife, after a temporary absence from her husband on a visit, found
on her return that be was living with another woman and thereupon left him

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 34 of 155)