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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 56 of 155)
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JULY 20,


13 A. 575-
(1891) 158.

before it, the High Court has power a<? ^n apoellate C^art to set right the proceed-
ings of such subordinate Court. Kishna Ram v. Ilinfju, Lai (I) and To'.a Ram
v. Ishur Das ('2) overruled.

[576] THIS was a suit to recover the sum of Rs. 81-3-0 as arrears
of rent, brought by the plaintiff-respondent, against the defendant-appel-
lant in the Court of the Deputy Collector of Ebawah. No question of
the rate of rent due was in issue. The Deputy Collector found that the
defendant was the plaintiff's tenant and decreed bis claim in full. The
defendant then appealed to the District Judge, who entertained the appeal,
and, reversing the decree of the Court of first instance, dismissed the
plaintiff's suit. The plaintiff then appealed to the High Court. The case
came before Young, J., who reversed the decree of the District Judge and
restored that of the first Court. From this decree the defendant appealed
under s. 10 of the Letters Patent.

Mr. J. Simeon, for the appellant.

Munshi Madho Prasad, for the respondent.


STRAIGHT, J. This appeal relates to a suit for rent brought in the
Court of the Deputy Collector of Eiawah for a sum below the value of one
hundered rupees. The first Court decreed the plaintiff's claim, on which
the defendant preferred an appeal to the Court of the District Judge, who
reversed the decision of the first Court and dismissed the plaintiff's suit.
From that decree a second appeal was preferred to this Court, and, relating
to a sum of less than one hundred rupees, it came before Mr. Justice
Young. A preliminary objection was taken to the hearing of the appeal
on the ground that as no appeal lay to the District Judge, a fortiori no
appeal lay to this Court. That proposition had authority in cases to be
found in I.L.B., 4 All. 237 and Weekly Notes 1887, p. 76, to both of
which I was a party, and there are other rulings of mine to a like
effect. I have for some time past, after consultation with the rest of
the Court, come to the conclusion that those rulings were erroneous, and
that when this Court is the Court of appeal from a particular subordinate
tribunal, and that subordinate tribunal acts without jurisdiction in the
trial of a suit or on appeal, this Court has power in the form of an appeal
to set right the proceedings of such subordinate tribunal.

[577] This was the view Mr. Justice Young took of the preliminary
objection in the present case, and, rejecting it, he allowed the appeal,
reversed the judgment, and restored the decree of the first Court. The
only point taken here is that Me. Justice Young was wrong on the ques-
tion of jurisdiction. I think he was right and dismiss the appeal with

EDGE, C. J. I agree.

Appeal dismissed.

(1) 4 A. 237,

(2) 7 A.W.N. (1887), 76.



13 A. 377 = 11 A.W.N. (1891) 169.

Before Mr. Justice Straight. REVI-



[27th July, 1891.3

Criminal Procedure Cede, ss. 133, 136. 140 Act XLV of 1860, s. I8Q Disobedience to 18 *' ^*~
order duly promulgated by j.ul>Vc servant, " A.W.N.

(1891) 169
A person against whom an order undar s. 133 of the Code of Criminal Procedure

is passed, who neglects to take any steps whatever in respect of such order within
the time therein specified, either by way of complience therewith or by way of
objection thereto in the manner prescribed by law, renders himself liable to be
proceeded against under s. 183 of the Indian Penal Code without its being neces-
sary to wait until the order has been made absolute. If puch order ia made
absolute under s. 140 of the Code of Criminal Procedure, further proceedings can
then bo had, under s. 188 cf the Indian Penal Code, against the person disobeying
the order absolute. When an order under s. 133 of the Code of Criminal Proce-
dure has been made absolute under s. 140 ib. its validity cannot subsequently be
questioned. Queen-Empress v. Nurayanct (1) approved.

[F., and Sppr., 31 M. 280 (281) = 18 M.L.J. 21,6 (217) = 3 M.L.T 403(4041=8 Cr. L J.
151 ; K,, 1900 P.L.R. 24 (28) ; D. t 20 A. 501 (503) = 18 A.W.N. 141.]

THE faets of this casa sufficiently appear from the judgment of
Straight, J.

Mr. Ross- Alston, for the applicant.

The Government Pleader (Munshi Bam Prasad), for the Crown.


STRAIGHT, J. The District Magistrate of Mirzapur made an order
under s. 133 of the Criminal Procedure Code requiring the applicant,
Biahambar Lai, to remove from a public thoroughfare certain stones that he
had placed thereon in such a way as to cause an obstruction within a period
named in such order, or to appear and show cause against the order, or
apply for a jury to try whether the same was reasonable and proper. The
petitioner did neither one [578] thing nor the other. He neither obeyed the
order for removing the stones, nor did he appear on the date fixed to show
cause against the order, nor did he apply for a jury to try whether the same
was reasonable and proper. In other words, ho wholly disregarded and
flouted the Magistrate's order, and it is not surprising therefore that, upon
this being brought to the Magistrate's knowledge, proceedings wore insti-
tuted against him undar s. 188 of the Indian Penal Code for disobedience
to an order lawfully promulgated by a public servant having authority to
make such order. The case was tried before the Joint Magistrate of
Mirzapur, who convicted the petitioner and fined him in the very moderate
amount of 5 rupees. He now comes to this Court in revision and assails
that order upon two grounds, first, that the Magistrate who tried the case
had no jurisdiction under the provisions of s. 487 of the Criminal Procedure
Code, and, secondly, that the District Magistrate's order not having been
made absolute, there could be no offence under s. 188, Indian Penal Code.

As to the first of these objections it proceeds upon a misconception of
the facts. The learned Counsel was instructed that Mr. Holms, the Joint
Magistrate who tried the charge under s. 188, was the Magistrate who

* Criminal Revision No. 352 of 1891.
(1) 12 M. 475.



1891 issued the order under s. 133, but this turns out nob to be so. Mr. Crooke,
JULY 27. ^ Q Magistrate of tha District, was the person who issued such last-

mentioned order.

EEVI- Then I come to the second contention, and Mr. Alston vigorously urges,

SIGNAL fcnafc if effect is given to the views of the two Courts below, the result is

TRIMINAL ^ ia ^ a man can ' oe P un ' s h Q d twice over for the same offence. That does

' not appear to me to bo quite an accurate representation of the mattter. It

13 1. 877 seems to me upon the proper reading and construction of s. 136
11 A.W.N. with those sections that precede it, that where an order has been issued
(1891)169. under s. 133, Criminal Procedure Code, and the person on whom
it has been served does not perform the -act he is directed to do, or do
what is open to him, namely, appear on the date fixed and show cause aginst
the order or apply for the appointment of a jury, he is treating that order
of the authority entitled to make it with contempt, and that for that con-
[579] tempt, he, neither obeying it, nor seeking by finding fault before
the proper tribunal to set right that order nor asking for a jury to say
whether it is right and reasonable, has rendered himself liable to punish-
ment. It should be noted that the words of the section are that " if such
person does not perform such act or appear and show cause or apply for
the appointment of a jury as required by s. 135, he shall be liable to the
penalty prescribed in that behalf in s. 188 of the Indian~Penal Code, and
the order shall be made absolute."

There is a clear and distinct provision as to the conditions precedent
to the penalty that the section imposes, and the words with which the
section closes follow after, viz., "and the order shall be made absolute."
Now it seems to me that in this case the order might have been made
absolute under s. 140, and that after the notice contemplated by that
section and the refusal still by the petitioner to obey thab order, that
would again be punishable, and that the person making it would have the
power to enforce all the remedies provided s. 140. In my opinion when
once an order has been made absolute under s. 136, it is incompetent for
the party against whom that order has been made to go bahind it and
question its validity in any way. In this view there is the case reported
in I.L.R., 12 Mad, 475 (Queen- Empress v. Narayana) with the reasoning
of which I entirely concur. The effect of my view, therefore is, that if,
as I have said, a person to whom an order under s. 133 is issued flouts
that order in the manner contemplated by s. 136, Criminal Procedure
Code, not; only does he render himself liable to the provisions of s. 188,
Indian Penal' Oode then and there, but without any further inquiry or
proceeding that order must be made absolute, and behind that order ha
cannot at any future time go. In this aspect; of tha case I think that this
application for revision faila and I dismiss it.

Appeal dismissed.




13 All, 581

13 A. 580 = 11 A.W.N. (1891) 166.


Before Mr. Justice Straight and Mr. Justice Knox.

KAM KISHEN UPADHIA (Plaintiff} v. DIPA UPADHIA (Defendant}^
[28th July, 1891.]

Second aipeal Plea raised at the hearing which ^was not taken in the memorandum of
appsai Practice.

A plea that the memorandum of appeal in the lower appellate Court was
insufficiently stamped, and that such deficiency was not made good within the
period of limitation is not a plea which can be raised at the hearing of a second
appeal, when it has not been taken in the memorandum of appeal

[R., 15 A, 123 (128) (F.B.) = 13 A.W.N. 47 ; 34 C. 941 (948j = ll C.W.N. 959 (9671 = 6
C.L.J. 237 (246).]

THE plaintiff-appellant claimed a declaration of right and maintenance
of possession in respect of a certain zemindari share by cancelment of
certain Settlement Court's decisions. He obtained a decree in the Court
of first instance. The defendants appealed ; and the Court of appeal (the
Subordinate Judge), finding that the plaintiff-respondent had been out of
possession for more than twelve years before suit, decreed the appeal and
dismissed the plaintiff's claim. The plaintiff then appealed to the High
Court, and there a plea was sought to be raised in his behalf which had
not been taken in the memorandum of appeal, namely, that the de-
fendant's memorandum of appeal in the lower appellate Court had not
been properly stamped, and that the deficiency in stamp had not been
made good within the period of limitation.

Mr. J.Simeon, for the appellant.

The Hon'ble Mr. Spankie, for the respondent.


STRAIGHT, J. (Knox, J. concurring). I have had an opportunity of
consulting the learned Chief Justice upon the question raised by the
learned pleader for the appellant which was not taken in his memoran-
dum of appeal, viz., that by reason of the fact that the memorandum
of appeal presented to the appellate Court was insufficiently stamped
on the date upon which it was presented, there was no appeal
at that time before the Court, and the subsequent cayraent of the
deficiency did not cure the defect and save the bar of [581] limitation.
My brother Knox and I, in common with the learned Chief Justice,
are agreed that where a question of this kind is not specifically
taken in the memorandum of appeal, involving as it does primarily
a matter of Court-fees and^the other incidental inquiries that necessarily
arise in regard thereto, it should not be entertained. That being so, wa
have to consider whether there is any ground for this appeal. The learned
pleader has not seriously contended that the finding of the learned Judge
that the plaintiff-appellant was never in possession of the property to
which he seeks a declaration of his title, is not strongly in favour of the
view that the plaintiff had no title in respect of which he could claim to
have a declaration. The appeal is dismissed with costs.

Appeal dismissed.

* Second Appeal No. 424 of 1889 from a decree of Rai Lalta Prasad, Subordinate
Judge of Ghazipur, dated the llth January 1889, reversing a decree of Maulvi Muham-
mad Abdul Ghafur, Munsif of Ballia, dated 10th November 1887,



JULY 28.


13 A. 580 =
11 A.W.N.
(1891) 166.

13 All. 582




JULY 30.


ISA. 581 =
11 A.W.N.
(1891) 193.

13 A. 581 = 11 A.W.N. (1891) 193.

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

TULSA (Plaintiff) v. KHUB OHAND (Defendant) .*
[30th July, 1891.]

Mortgage Prior and subsequent mortgages Rights of persons advancing money ij fay
off a prior mortgage Suit, to sell mortg aged prcptrty tinder mortgage Form, of
decree to be given.

Where in a suit to bring certain irnmoveable property to sale under a mortgage
it was found that the predecessor in interest of one of the defendants had advanced
money upon a mortgage of the same immoveable property in order to save a
portion thereof from sale under two prior mortgages : held that such defendant
was entitled to the benefit of the payment so made, and that the proper decree
in the suit should be that the plaintiff could only bring that portion ot the pro-
perty in suit to sale on payment to the said defendant of the money advanced as
aforesaid, with interest from the date of payment to the date of the receipt of
the final decree by the Court of first instance together with proportionate costs ;
such payment to be made within 90 days from the ascertainment of such amount
and tbe receipt of the final decree by the Court of first instance ; otherwise the
plaintiff to be absolutely debarred from all right to redeem that particular portion
of- the property mortgaged.

[R., 33 C. 1133 = 4 C.L.J. 121 = 10 G.W.N. 1010 ; 2 C.L.J. 202 (214); 12. C.P.L.R. 70.]

THE faofca of this case are fully given in the judgment of the Court.
Pandib Sundar Lai and Babu DurgaGharan Banerji, for the appellant,
[582] Babu Jogindro Nath Chaudhri, for the respondent.


EDGE, C. J., and STRAIGHT, . J. The suit out cf which this second
appeal has arisen was brought on the 8bh of February 1882, by Khub
Chand against Musammat Tulsa and Bhupal upon an hypothecation bond
which had been executed by Bhupal in favour of Khub Chand on the 15th
of June 1872, and by which Bhupal had hypothecated, amongst other
things, his ancestral zemindari share of 1 biswa, 6 biswanais, 16f kach-
wansis in mauza Salempur, Pironda. The plaintiff by his suit sought to
bring the mortgaged property to sale.

We are not concerned with the case of Bhupal. He is not a party
to this appeal. Musammat Tulsa defended the suit as to 15 biswansis of
the 1 biswa, 6 biswansis, 16f kachwansis zemindari share on the ground
that she had a prior lien. The circumstances upon which her claim of
lien depends are as follows:

By two bonds, dated respectively the 22nd of December 1865,
Bhupal had hypothecated the 15 biswansis in question to Desraj.
Desraj died, and after his death his widow and his son, Khub Chand,
obtained on those bonds decrees for sale of the 15 biswansis share. The
sale was fixed for the 20th of July 1877. In order to satisfy the amounts
of those decrees and thus save the 15 biswansis from sale, and for other
purposes, Bhupal, on the 10th of July 1877, borrowed Bs. 1,200 from Bal-
deo Das, and, in consideration of the moneys advanced, executed on that
date a bond in favour of Baldeo Das hypothecating his proprietary rights

Second Appeal No. 1141 of 1888 from a decree of H. F. Evans, Esq., District
Judge of Aligarb, dated 23rd April 1833, reversing a decree of Babu Abinash Chandar
Banerji, Subordinate Judge of Aligarb, dated 3th October 1885.



in the zamindari share of 1 biawa, 12 biswansis, which included the 1891
15 biswansis in question. Ife was expressly stated in the bond of the lOfch of JULY 30.

July 1877 that the Eg. 1,200 was borrowed partly to satisfy those two

decrees. On the 12th of July 1877, Bhupal, out of that Es. 1,200 paid APPEL-
into Court, in the one suit, Eg. 204-4-6, and in the other, Es. 295-11-6, LATE
in all Es. 500, and thua satisfied the two decrees and saved the 15 bis- f IvrT

wansia share from sale. Baldeo Das died before the commencement of '

the suit. Hia widow,- Musammat Tulsa, has vested in her such rights 13 A. 581 =
and interests as Baldeo Das acquired by the mortgage of the 10th of July 11 A.W.N.
1877. (1891) 193,

[583] On the above facts the Subordinate Judge dismissed the
plaintiff's claim to have the 15 biswansia share brought to sale. On
appeal) the District Judge set aside that portion of the decree of the
Subordinate Judge which exempted the 15 biswansis share from sale and
decreed their sale, but provided that a sale of the 15 biswansis share
should only be resorted to in the eventoof the proceeds of a sale of the
balance of the 1 biswa, 6 biswansis, 16f kachwansis, that is, 11 biswan-
sis, 16f, kaehwansis being found insufficient to discharge the amount due
to the plaintiff under the mortgage of the 15th of June 1872. The defend-
ant, Musammat Tulsa, has appealed.

Mr. Durga Gharan Banerjee for the appellant and Mr. Jogindro Nath
Chundhri for the respondent respectively cited many authorities, all of
which, with one exception, have been considered, since this appeal was
argued, in the Full Bench case of Matadin v. Kazim Husain (1). The
exception was an unreported decision of this Court of the 27th of March
1888, in the case of Musammat Deva Kuar v. Bhojraj and Debi Sahai*

Mr. Jogindro Nath Chandhri contended that the reported cases relied
upon by Mr. Durga Charan Banerji were not in point, as they were
either cases in which a mortgagee had subsequently to his mortgage
acquired the equity of redemption, or cases in which a purchaser of the
equity of redemption had redeemed a mortgage. As to the unreporfced
case be admitted that it was in point but contended that it was not
supported by authority. He pointed out that it was Bhupal and not
Baldeo Daa who on the 12th of July 1877 paid the Es. 500 into Court in
satisfaction of the two decrees, and contended that if it was the intention
of Bhupal and Baldeo Das, that the prior liens should be kept alive as
shields for Baldeo Das, BalHeo Das would have obtained an assignment
of the two decrees. The District Judge had in hia judgment referred
to the case of Mohesh Lai v. Mohant Baiuan Das (2), and applied it by
drawing the inferences which their Lordships of the Privy Council
drew on the facts of that case, pointing out. however, that there [584]
was in that case no intermediate incumhrance. In our opinion that
fact made the case of Mohesh Lai v. Mohant Bawan Das in applicable
to this case. In that case their Lordships of the Privy Council, after
referring to the rule enunciated by the Master of the Eolls in Adams v.
Angell (3), are reported (at page 71 of the Eeporfc) to have said : "apply-
ing that rule to the present case, it must be presumed, in the absence of
any expression of intention to the contrary, that Mangal, who, when he
borrowed the money to pay off Lachmi Narain's mortgage, claimed to be
the owner of the estate and was stated on the face of the bond to be so,

* Second Appeal No. 1608 of 1686.
(1)13 A, 432. (2) 101. A. 62 = 9 C. 961. (3) L,R. 5 Ch. D. 634,

A VII-47

13 All. 585



1891 intended that the money should ba applied in paying off that mortgage,

JULY 30, an ^ m extinguishing the charge, there being no intermediate incumbrance.

- It is obvious to us that if there had been in that case an intermediate

APPEL- incumbrance their Lordships would not have held that there must have

LATE been any such presumption, and that they would have held that there

CIVIL, must, unless the contrary appeared, have been the opposite presumption.

The judgment of their Lordships of the Privy Council in Gokal Dass Gopal

18 A. 581 Dass v. Bam Bux Seochand (1), appears to place that question beyond

11 A.W.M. doubt.

(1891) 193.

cagQ jj. wag O i ear i y t fch e interests of Bhupal and Baldeo Das
that the liens created by the mortgages of 1865 and 1869 and the decrees
upon those mortgages should nob be destroyed but should continue
for their respective benefits as shields against the mortgage of 1872.
There is nothing to show that in satisfying those decrees Bhupal or Baldeo
Das intended to destory those liens. Indeed the contrary may be inferred
from the statement in the bond of the 10th of July 1877, to which we
have referred.

The observations of their Lordships on Toulmin v. Steere 12) reported
at page 133 of L. E. 11 I. A., show that no inference is to be drawn from
the fact that there was no formal transfer of the decrees of 1877 and no
intention to keep the liens alive ever formally expressed. In GokulDoss
Gopal Doss v. Bam Bux Seochand '3), their Lordships of the Privy Council
are reported (at p. 134), to have [585] said : " The ordinary rule is that a
man having a right to act in either of two ways shall be assumed to have
acted according to his interests. In the familiar instance of a tenant for
life paying off a charge upon the inheritance,, he is assumed, in the absence
of evidence to the contrary, to have intended to keep the charge alive.
It cannot signify whether the division of interests in the property is by
way of life-estate and remainder or by way of successive charges. In each
case it may be for the advantage of the owner of a partial interest to
keep on foot a charge upon the corpus which he has paid."

Such protection as justice, equity, and good conscience, according to
the passage just quoted from the judgment of their Lordships of the Privy
Council, as applied to the facts of this case, affords to Bhupal or afforded
to Baldeo Das, Musammat Tulsa, as the representative of Baldeo Das the
mortgagee of 1877, is entitled to.

The plaintiff, so far as the 15 biswansis are concerned, did not admit
Musammat Tulsa's right of lien ; what he asked was that the 15 biswansis
should be sold. He has not made out a case for the relief which he asked.
We, however, have come to the conclusion that the plaintiff should have
a decree entitling him to bring the 15 biswansis share to sale upon pay-
ment to Musammat Tulsa of the Us. 500 and interest at the rate of 6
per centum per annum thereon with proportionate costs in all Courts.
Applying the analogy of the Transfer of Property Act, we allow the plain-
tiff 90 days from the date when the amount of the principal sum of
Es. 500 and the interest thereon calculated at the rate of 6 rupees per
centum per annum from the 10th of July 1877 to the date of our decree
has been ascertained and our final decree has been received in the Court of
first instance for payment of such principal and interest with the propor-
tionate costs of this suit in all Courts. If the payment be not made
within such 90 days, this suit will stand dismissed with costs, so far as

U) 11I.A. 126-10C. 1035.

(2) 3 Her. 210.




13 All. 586

the claim to bring to sale the 15 biswansis is concerned and the plaintiff 1891
will be absolutely debarred of all rights to redeem the 15 biswansis in JULY 30.
question. To that extent we vary and modify the decree below. As the -
plaintiff did not seek the proper [586] relief and obsolutely denied APPEL-
Musamrnat Tulsa's right of lien, we do not allow him any costs as against LATE
Musammat Tulsa. CIVIL

MAHMOOD, J. I agree entirely wifch the first portion of the judgment
delivered by the learned Chief Justice, namely, the portion which ends ** * 88 * =
where the decree in the case begins. I also agree with him as to the ** A.W.H,
latter portion of the judgment so far as it deals with the decree to be U891) 191.
made in this case, because I understand that the learned Chief Justice
and my brother Straight are of opinion that the judgment of the majority
of the Full Bench of this Court in Second Appeal No. 1210 of 1888*
requires such a decree. I <im bound by the majority of this Court, and
I therefore agree also in the decretal order.

Decree modified,

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 56 of 155)