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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 38 of 155)
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reference, arises in considering whether such decrees, which are usually
passed, or which purport to be passed, under s. 214 of the Code of Civil Pro-
cedure, are decrees in the nature of decrees nisi or decrees absolute in tbe
same manner as in any other class of cases where the decrees may, by force of
equity, be subjected to considerations and limitations of amount or time as
to rayment of money as a condition precedent to the recovery of possession,
or subjected to other restrictions which the Court may deem fit to impose.
This is a matter which I had to bear in mind in Rup Ghand v. Shamsh-ul-
Jehan (3), and I dealt with tbe matter in a suit for pre-emption itself.deal-
ing with it much upon the same principles as those governing other condi-
tional decrees passed in suits where the possession of immoveable property
is subjected to conditions. I think it is enough to say, in order not to delay
or prolong my judgment, that, as I have already explained, between my
ruling in Chhidda v. Imdad Husain (1), and the ruling in Rup Ghand v.
Shamsh-ul-Jehan (3) no distinction of principle really exists, and it is
only because the learned Judge of the lower appellate Court misapplied
tbe former ruling that he considered that the ruling relieved him of the
duty of trying the suit upon the merits. I think the rule which was laid
down in Rup Chand v. Shamsh-ul-Jehan (3) is a rule which should govern
this case, consistent as it is with tbe principle of tbe Calcutta Court in
Noor Ali Chaudhtiri v. Koni Meah (4) and the Bombay Court ruling in
Daulat and Jagjivan v. Bhukadas Manekchand (5) to both of which 1
referred in the casa. I am also glad that the con-[38l]clusions arrived
at by me in this case are wholly consistent with those arrived at in the
judgment which has just been delivered. I therefore agree in the order
which has been made in tbe case by my brother Straight.

EDGE, C.J. In concurring with tbe judgment which has been

(1) 8 A.W.K. (1888), 4, (2) N.W.P.H.O.R. (1868), '254. (3) 11 A. 346.
(4) 13 0. 13. (5) 11 B. 172,

242



YII] BANSIDHAR V. SIT A RAM 13 All. 382

delivered by my brother Straight, I should say that I understand thab 1889

judgment to be in no way based upon any cases referred to in the judg- DEC. 10,

ment just delivered by my brother Mahmood. As to those cases and the

inferences to be drawn from them I decline to express any opinion. I ain FULL

of the same opinion as my brother Straight. BENCH.
BRODHURST, J. I concur with my brother Straight.

TYRRELL, J. I also concur with my brother Straight without 13 A. 378

expressirg any opicicn on the capes just referred to in his judgment by (F.B.)
my brother Mahmood.



13 A. 381 = 11 S.W.N, (1891) 147.
APPELLATE CIVIL.

Before Mr. Justice Mahmood.



BANSIDHAR AND ANOTHER (Judgment-debtors) v. SITA RAM
(Decree-holder).* . [22nd April, 1891. j

Second Appeal Plea sought to be raised which was not taken in the memorandum of
appeal Civil Procedure Code, s. 542.

Section 54ii of the Code of Civil Procedure was intended to confer upon the
Court a power ezeroiseable by it alone ; it was nol intended to enable an appel-
lant to take the respondent by furpri?e by urging matter of which he bad no
notice.

THE facts of this case, so far as they are necessary for the purposes
of this report, appear from the judgment of the Court.
Maulvi Ghulam Mujtaba for the appellants.
Babu Jogindrc Nath Chaudhri for the respondent.

JUDGMENT.

MAHMOOD, J. This is a second appeal, and was admitted by my
late Honorable collegaue Mr. Justice Brodhuist by his order, dated the
10th January 1890.

[382] The appeal is of the nature covered by the jurisdiction of the
single Judges of this Court under rule 1 of the rules of the Court, and it
is now before me for disposal.

The appellant is represented by Mr. Ghulam Mujtaba, holding the
brief of Mr. Madho Prasad, and the respondent is represented by
Mr. Jogindro Nath Chaudhri.

Upon the case being called for hearing, Mr. Ghulam Mujtaba has
frankly admitted that both the grounds taken in the memorandum of
appeal are unsustainable, but the learned pleader has asked me to consider
masters other than those contained in the grounds of appeal. In making
this prayer the learned pleader has relied upon s. 542 of the Code of Civil
Procedure and the cases noted in the margin.

On the strength of these authorities the learned pleader has set forth

(1) Mahabir Tiwari i" this argument matters wholly foreign to the circum-

v. Jhangur. stances mentioned in the memorandum of appeal, and

(2) Dharam Das bas contended that I am bound to decide the appeal

v. NMd Lai Smqh. u?:on gome groun d g other than those mentioned in the

memorandum of appeal.

* Second Apreil, No. 36 of 1890, from a decree of A. Sells, Esq., District Judgeof
Meerut, dated the -26th November 1889, reversing a decree of Maulvi Ahmad Ali.Munsif
.of Bulandshabc, dated the 6th April 1889.

(1) 7 A.W.N, (1887) 213. (2) 9 A.W.N. (1889) 78.

243



13 All. 383



INDIAN DECISIONS, NEW SERIES



[Yol



APPEL-
LATE
CIVIL.

13 A. 381 =
11 A.W.N.
(1891) 147.



To this Mr. Jogindro Nath Ghaudhri objects, on the ground that uo
sufficient cause has been shown why the appellant should bs heard on
matters foreign to the grounds of appeal, and of which the respondeno had
no notice.

I am of opinion that Mr. Jogindro Nath's objection is right. Parties
complaining of judgments and decrees must mention all the grounds of
complaint in the memorandum of appeal, and the provisions of s. 542 of
the Code of Civil Procedure are not meant to relieve them of surjh
necessity.

The Legislature, as I understand s. 542 of the Code of Civil Procedure,
meant to confer upon Courts the power to decide appeals upon grounds
other than those set forth by the appellant in the memorandum of appeal,
and that power is to be exercised by [383] the Court alone, and not to
enable the appellant to take, the respondent by surprise by urging matters
of which he had no notice. Neither of the two rulings cited conflicts
with this view.

The only two grounds taken in the memorandum of appeal having
been abandoned, I have no alternative but to dismiss the appeal, and I do
so with costs.

Appeal dismissed.



13 A. 383 = 11 A.W.N. (1891) 138.

APPELLATE CIVIL.
Before Sir John Edge, Kt. t Chief Justice and Mr. Justice Knox.



KISHUN LAL (Plaintiff) v. MUHAMMAD SAFDAR ALI KHAN AND OTHERS
(Defendants)* [28th April, 1891.]

Execution of decree- Sale in Execution Sale set aside Suit by purchaser for return of
purchase-money Ctvil Procedure Code, ss 295, 315.

Where an auction purchaser seeks to have refunded the price paid by him for
property sold in execution of a decree, on the ground that at the time of pala the
judgment-debtor bad no saleable interest therein, it is competent to him to
proceed by way of a regular suit against the person into whose hands such price
ha? come as such person's rateable share oi the assets of the judgment-debtor
under s. 295 of the Oode of Civil Procedure. He is not limited to the procedure
in the execution department mentioned is s. 315 of the said Code.
Munna Singh v. Gajadhar Singh (1} followed.

[F,, 5 C.W.N. 240 ; R., 23 A. 355 ; 12 C.P.L.R. 49 (51) ; 7 M.L.T. 232 = 6 Ind. Gas.
29!.]

THE facts of this case sufficiently appear from the judgment of the
Court.

Pandit Sunder Lai, for the appellant.
Mr. W.M. Colvin, for the respondents.

JUDGMENT.

EDGE, C. J., and KNOX, J. This was a suit brought to recover pur-
chase-money which was paid by the plaintiff, and which had been
distributed after payment amongst certain creditors of the firm of Lichmi
Narain. The defendant No. 1 was one of those creditors. Lachmi
Narain's firm failed. There was a large number of decrees obtained by

* First Appeal No. I5'/ of 1889, from a decree of Maulvi Muhammad Abdul Qaiyum,
Subordinate Judge of Bsreilly, dated the -21st June 1889.

(1) 5 A. 577.



244



YII]



KISHUN LAL V. MUHAMMAD SAFDAR ALI KHAN /3 All. 385



creditors under whioh property of the firm was from time toti'iae brought
to sale and assets realized. On the 20kh November 1885, a property of
Lachrni Narain's firm was sold in [384] execution of a decree. On the
5th May 1886, that sale was set aside on the objection of the judgment-
debtor. On the 20fcb September 1886, the purchasers at that sale filed
their suit to have it declared that the sali was good. Oa the 7th March
1887, the Subordinate Judge, in whose Court that suit was, dismissed it.
The purchasers appealed to this Court, and, on the 14th May 1888, this
Court decreed the relief prayed for, holding that, as the defendants there
had filed a confession of judgment, the plaintiffs, purchasers, were entitled
to a decree. On the 10th Septemper 1888 those purchasers obtained
possession. Now we come to the connection of the plaintiff here with the
property. On the 20th September 1886 the same property was sold
in execution of another decree which had been obtained against the
firm of Lachmi Narain and was purchased by the plaintiff for Rs. 21,125
which included the charges in connection with the sale. On the 4th
December 1886 the sale of the 20tb September 1886 was confirmed.
On the 20th September 1886 the plaintiff paid in one-fourth of the
purchase-money. The sum paid on that day, Rs. 5,235, was paid into
the treasury of Bareilly to the account of the Subordinate Judge of that
place under the head of Civil Court's deposit. Money is not received in
the treasury without the authority of the proper officer given for the pay-
ment of the money. On the llth October 1886 the balance of the pur-
chase-money was paid, and of that the sum of Rs. 15,843 was similarly
paid into the treasury to the account of the Subordinate Judge. The
authority for payment of the money out of those sums indicated the tran-
sactions out of which those payments arose. Those indications are mere-
ly indications for the purposes. of the Subordinate Judge's Court. The
defendant No. 1 here was entitled to a rateable proportion of the assets
which were realized after tha 7fch July 1885. That is, in the case of each
realization he became, under s. 295 of the Cods of Civil Procedure, entitled
to his rateable share. The total amount of the money due to him was
Rs. 36,166. The total amount of his rateable shares came to Rs. 10,569-3-0,
and this sum of Rs. 10,569-3-0, which represented his rateable shares in
some J 2 realizations, was paid to him out of the treasury on the orders of the
Subordinate [385] Judge's Court. The money was paid out in two sums ; one
of Rs. 5,334-3 under voucher numbered 331, the other of Rs. 5,235 under
voucher numbered 326. The last voucher carrying back a reference by num-
bers shows that in the book of the Court the sum of Rs. 5,235, which had
been paid in on the 20th September 1886, was accounted for. As a matter
of fact, that Rs. 5,235 did not represent the defendant's rateable share on
the money which was realized by the sale to the plaintiff, but represented
his share on that money plus, in part, his shares on the other realizations.
The plaintiff here has sued the defendant to recover that sum of Rs, 2,235
and interest, on the ground that, owing to the decree of this Court having
made valid the previous' sale, there was no saleable interest of the judg-
ment-debtors in the property which he bought. In the 8fch paragraph of
the plaint it is alleged that the judgment-debtor had no saleable interest
in the village Saidour, and that the plaintiff got nothing as consideration
for the monoy paid by him. The written statement did not traverse
that allegation, but raised certain defences, such as that the sale to
the plaintiff was still subsisting. We must, consequently, on the plead-
ings, take it to be admitted that at the time of the sale of the 20th
September 1886, there was no saleable interest of the judgment-debtors in



1891

APRIL 28.

APPEL-
LATE



181. 383=
11 A.W N
(1891) 138.



13 All. 386



INDIAN DECISIONS, NEW SERIES



[Vol.



1891

APRIL 28.

APPEL-
LATE
CIVIL.

13 A. 883 =

11 A.W.N.
(1891) 138.



that in such a
for recovery of



the property. We must deal with this case on the basis that the
judgment-debtors had, within the meaning of s. 315 of the Code of Civil
Procedure, no saleable interest at the time of sale to the plaintiff.

It is contended, amongst other things, that the plaintiff's remedy, if
any, was to obtain repayment of the purchase- money under s. 315 of the
Code through the Court which bad executed the decree. There is, in our
opinion, a good deal to be said in support of that contention, but we
are bound by the decision of the Full Bench of this Court in re
Munna Singh v. Gajadhar Singh (1), in which it was distinctly held
suit as this the purchaser can sue the decree-holder
the purchase-money, and that he is not limited to
the procedure in the execution department mentioned in [386]
s. 315. We were referred to the case of Eunhi Moidin v. Tarayli
Moidin (2), in which the procedure was that the person who sought repay-
ment of money proved in a suit that the judgment-debtor had no saleable
interest, and, under s. 315, went to the proper Court to obtain redress of
payment. The Subordinate Judge tried this case and dismissed the
plaintiff's claim.

In our opinion, according to the Full Bench ruling to which we have
above referred, we must give the plaintiff a decree for the rateable share
received by the defendant of the Es. 21,000, speaking roughly, thah the
plaintiff paid in respect of the purchase. We cannot give the plaintiff the
full amount of Es. 5,235 because, with exception of Es. 1,016 the
defendant received nothing out of the moneys paid by the plaintiff in
respect of the purchase of the 20th September 1886. The Es. 1,016 is
accepted as representing the rateable share of the plaintiff's money which
the defendant No. 1 received.

We reverse the decree below and give the plaintiff a decree for
Es. 1,016 with proportionate costs, dismissing his claim as to the balance
with proportionate costs. We do not allow interest, as we think there
was no real foundation for making a claim for the whole of money.

Appeal decreed.



13 A. 386 = 11 A.W.N. (1891) 143.

APPELLATE CIVIL.
Before Mr. Justice Straight and Mr. Justice Tyrrell.



MAHABIR PBASAD MISR AND OTHERS (Plaintiffs] v. MAHADEO

DAT MISR AND OTHERS (Defendants').*

[29fch April, l'89l.]

Act X of 1873 \0alhs Acti, ss. 10 and 11 Referee's depositions inadequate (or decision of
question referred Appeal aft*.r death of referee Practice.

Where a cause bad beeu decided under the provisions of as. 10 acid 11 cf the
Oatbs Act (Act X of 1673) with reference to tbo depositions of a person appointed
by agreement of the parties as referee, and where, after the death of tbe referee,
on an appeal being preferred ngainsc the decree so based upon those depositicrs,
it was found that tbe said depositions did not lulJy cover tbe questions in issue
between the parties.

" Fust Appeal, No. 146 of 1889, from a decree of Maulvi Ahmad Ha:an, Officiat-
ing Subordinate Judge ol Gorakhpur, dated the 16th May 1889.

(1)5 A. 577, (2) 8 M, 10J.



246



YII] MAHABIR PEASAD MISB V. MAHADEO DAT MISR 13 All. 388



[387] Beli, that the oase should be remanded to the lower Court for disposal
according to the usu^l procedure.

[R. 16Ind,Cas. 733(734).]

THE facts of bhig case sufficiently appear from the judgment of the
Court.

Mr. T. Conlan and Mr. W. M. Colvin, for the appellants.

The Hon'ble Mr. Spankte and Munshi Jwala Prasad, for the respond-
ents.

JUDGMENT.

STRAIGHT, J. (TYKRELL.J., concurring). This is a somewhat peculiar
case. It will be convenient to state a few facts by way of preliminary to
the order I am about to make in this case. The suit was brought by the
plaintiffs, appellants, against the defendants upon the ground that their
fathers and the ancestor of the defendant Mahadeo Dat Misr had been mem-
bers of a joint and undivided Hindu family in possession of joint and un-
divided immoveable property, that in 1881, in consequence of some mis-
understanding, separation of food and residence had taken place ; that
subsequently the defendants had by their improper action deprived the
plaintiffs of their share in the joint enjoyment of the joint family property ;
and they sought to have that joint possession and enjoyment restored to
them as before.

It is not necessary to discuss the statements contained in the written
statement of the defendants ; it is enough to remark that, on the 27th
March 1889, a petition was filed by the plaintiffs and the defendants in
the Court of the Subordinate Judge of Gornkhpur, stating that they had
mutually agreed to be bound by the deposition of Maharaja Udai Narain
Mai, the owner of the raj of Manjholi in the manner contemplated by
as. 10 and 11 of the Oaths Act. A commission was issued for the exami-
nation of the Maharaja, and on two occasions, that is, on the 8th April
1889, and on the 29th April 1889, questions were put to him to which
replies were given. Upon the strength of those depositions the Subordi-
nate Judge of Gorakhpur passed a decree in favour of the defendants,
holding that the answSrs given by the Raja precluded the claim of the
plaintiffs and established the separate proprietary title of the defendants
to the property in respect of which the suit had been brought for declara-
[388]tion of the plaintiffs' joint interest therein. It is against this decree
that this first appeal has been preferred, and the contention on the part
of the appellants, firstly, was that a proper construction of the Raja's
deposition showed that the plaintiffs had succeeded in establishing their
joint title to the property in dispute. Mr. Colvin, who argued the case on
behalf of the appellants, contended that the answers contained in these
depositions were so hazy and ambiguous that they were wholly insuffi-
cient to justify the decision of the Court below. Mr. Spankie for the
respondents strenuously urged that, at least as to some of the points, the
statements of the Raja were specific enough, and that, according to the
last answer given by him in his second deposition, it was clear that the
defendants did acquire and were in sole proprietary possession of the
property in suit. I cannot agree with this latter contention. Both my
brother Tyrrell and myself have perused more than once the two deposi-
tions of the Raja, and we think that they do not convey to our minds any
clear or precise expression or statement as to the nature of the rights of
the several parties in the property in suit. It is at least abundantly clear
that at the time the property in dispute came into possession of the parties,

247



1891

APBIL 29,

APPEL-
LATE
CIVIL.

13 A. 386 =
11 A.W.N.
(1891) 143.



13 All. 389



INDIAN DECISIONS, NEW SERIES



[Vol.



1891

APRIL 29.

APPEL-
LATE
CIVIL.

13 A. 386 =
11 A W.N.
(1891) 143,



either by gifb or purchase, they were members of a join!; and undivided
Hindu family. That being so, the presumption would be that the property
so acquired would be the property of the jont and undivided Hindu family
until the contrary was proved. Before passing such a decree as has been
made in the present case, upon the strength of the statements of the Raja,
it was essential that his statements should have been very clear and definite
in respect of the specific title acquired by the respective parlies as to the
several properties in dispute. These depositions do not couvey to our
minds any such impression, and although I should always be strongly
disinclined to assist a party to an agreement under the Oaths Act in
getting out; of it, yet I am bound to see that the object of the parties
when they entered into it has been satisfactorily accomplished by the
deposition of the referee, and, if that object has not been accomplished,
then that a further deposition should be obtained or, if that is impossible,
as is the case here, owing to the Raja's death, that the question should be
tried in the ordinary way by the Court.

[389] We decree the appeal, reverse the decree of the Court below
and remand the case to the Court of the Subordinate Judge of Gorakhpur
for restoration to the file of pending oases and disposal according to law.
Coats of the appeal and costs incurred in the Court below will follow the
result of the suit.

Appeal decreed.



13 A. 389 = 11 A W.N. (1891) 139.
APPELLATE CIVIL.

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



GOBIND NATH TIWARI (Plaintiff) v. GAJRAJ MATI TAUSAYAN AND
OTHERS (Defendants).* [8th May, 1891.]

Suit for declaratory decree Declaration sought that certain yroptrty was joint ancestral
proptrty and not liable to attachment in txecvticncf a certain decree Court ft a
payable on such suit,

" The plaintiffs specified in their plaint as the reliefs sugbt by them :
(1) That it be declared by the Court that the property mentioned at foot is the joint
ancestral property of the plaintiffs and not liable to attachment nud sale in
execution of the decree of the defendant No. 4, dated 4th Drcpmber 1883, apainst
the defendant No. 1. 1 2) That the costs of the suit be also awarded by the
decree. The suit is valued with reference to the amount of the decree and the
valun of the property at Rs. 6,000. (3) That any other relief which the Court
may think the plaintiffs entitled to may also be granted."

Held, that the suit should be deemed a suit for one declaratory decree only,
without consequential relief, and that a court fee of Rs 10 was sufficient.

[R., 16 A. 308 (312) = 14 A. W.N. 109(110j; D., U.B.F. (18971901), Vol. 11,355
(359).]

THE plaintiffs brought their suit in the Court of the Subordinate
Judge of Gorakhpur for a declaration that certain property was joint
ancestral property and not liable to attachment under a decree to which
certain of the defendants were partie?. They paid on their plaint a
court fee of Rs. 10. The Subordinate Judge dismissed the plaintiffs'
claim without going into the merits, on the ground that it was unmain-
tainable having regard, to the provisions of s. 42 of Act I of 1877 (Specific

* First Appeal, No. 138 of }889 from a decree of Maulvi Ahma<3 Hasan, Subordinate
{ i of Gorakhpur, dated the 25th June 1889.

248



YII]



GOBIND NATH TIWARI V. Q. MATI TAUBAYAN 13 All. 391



Belief Act). One of the plaintiffs then appealed to the High Court paying,
as in the Court of first instance, a court-fee of Bs. 10. A preliminary
objection was taken by the respondents that the court- fee in both Courts
was insufficient, and, that being so, the appeal should be dismissed.
Before deciding this objection, [390] however, the Court (Mahmofcd and
Young, JJ.) called for a report from the Taxing Officer of the Court as to
the sufficiency of the stamp. That officer's report was as follows :

EEPOET.

" In F. A. No. 138 of 1889, the suit was dismissed and the plaintiff
is the appellant in this Court.

The relief he claims, as shown by the plaint, is " that the property
is the joint ancestral property of the plaintiff and not liable to attachment.
Q." under a certain decree.

He certainly does nob seek consequential relief, and his case differs
from that of the appellant in F. A. No. 199 of 1887, as in that case the
lower Court had granted consequential relief, or, at least, what used until
more recent rulings to be considered consequential relief.

The only question then is whether he seeks more than one declaration
or uoi.

Certainly, the words of the plaint look as if two separate declarations
were aeked fcr : (1) that the property is the plaintiff's, and (2) that it is
not liable to attachment under a certain decree.

If the second part does not follow necessarily out of the first pro-
position I think that two declarations are asked for and that each should
bear a Es. 10 stamp, for cases are quite conceivable iu which a declaration
that thu property belongs to thejplaintiff might not connote the proposition
that iu was not liable to attachment in a certain case.

If, however, the latter proposition necessarily follows the former and
a declaration that the property is the plaintiff's involves its freedom from
liability to attachment under the decree, I think the fact of the Court
Fees Act being of a fiscal nature and one to be construed strictly, and as
far as possible in favour of the litigant, should be considered, and the two
propositions deemed but one expressed in different manners, and that a
Bs. 10 stamp would be sufficient."

The case then came with this report before Edge, C.J., and Mabmood,
J,, who made the following order :



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 38 of 155)