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of the transfer all the witnesses had been examined for the prosecution
and a charge had been framed. After the transfer, the petitioners filed
two petitions, praying that the Magistrate to whose Court the caee had
been transferred would re-summon the witnesses for the prosecution and
have them examined before himself de novo. This the learned Govern-
ment Pleader admits was not done, and he further concedes that, so far
as the evidecce-in-chief of those witnesses was concerned, the Magistrate
acted upon their depositions as recorded before the Honorary Magistrates.

[347] I thick this was a most objectionable course in a case of this
description, and, whether it amounts to an irregularity or an illegality,
which I do not think it necessary to decide, I think that the accused per-
sons were prejudiced, and that the conviction under such circumstances
should not stand. I accordingly set it aside. I am informed that the
petitioners have had nearly three months' imprisonment already ; and,
assuming the facts as stated by the convicting Magistrate to be accurately
stated for this purpose, I do not think it necessary to direct that any fur-
ther proceedings should be taken.

The order as to security is quashed.



* Criminal Revision No. 734 of 1691.
589



14 All. 348



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

FEB. 2.

APPEL-
LATE
CIVIL.

14 A. 347 =

12 A.W.N.
(1892) 20,



14 A. 317 = 12 A.W.N. (1892) 20.

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



GAURI SHANKAR (Defendant) v. BABBAN LAL AND ANOTHER
(Plaintiffs)* [2nd February, 1892.]

Act XIX of 1873 (N W.F. Rent Act\, s. Ml Civil Procedure Code, s, 521 Arbitra-
tion Award delivered after expiration of time allowed by Court,

The principle of the ruling of the Privy Council ia Raja Bar Narain Singh v
Chaudhrain Bhaqivat Kuar (1) ia applicable also to arbitrations under s. 221 of
Act No. XIX of 1878.

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

Mr. C. C. Dillon, for the appellant.
Munshi Jwala Prasad, for the respondents.

JUDGMENT.

EDGE, C. J., and TYRRELL, J. This was a suit for rent in the Revenue
Court. It was referred to arbitration under s. 221 of Act No. XIX of
1873, and in the order of refei ouce the time for delivery of the award was
specified. The award was not delivered until after that time. Although
our attention has not been drawn to any express provision of Act
No. XIX of 1873, similar to that contained in the last paragraph of s. 521
of Act No. XIV of 1882, [348] we think that the principle of the decision
of their Lordships of the Privy Council in Raja Har Narain Singh v.
Chaudhrain Bhagwant Kuar (1) applies. We should say that there was
here no extension of time, and that it was really the acts of the parties
which caused the award not to be made within the time allowed.
However, as s. 221 of Act No. XIX of 1873 enacts that the time for the
delivery of the award shall be specified in the ordar of reference, we must
give effect to it and hold that the award was bad. The proceedings on
the award must be treated as null and void. We set aside those proceed-
ings and refer this case back to the first Court, which will dispose of the
suit according to law. Costs will abide the result.

Cause remanded.



* Second Appeal No. 889 of 1889 from a decree of W. J. Martin, Esq., District
Judge of Mirzapur, dated the 13th April 1889, confirming a decree of Maulvi Muhum-
mad Ismail Khan, Deputy Collector of Mirzapur, dated the 29th January, 1S89.
(1) 18 I.A. 55 = 13 A. 300.

590



KHABAG PRASAD BHAGAT V. DURDHABI RAI 14 All. 349



14 A. 348=12 A.W N (1892) 25.

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



1892

TEB 1



KHABAG PRASAD BHAGAT AND ANOTHER (Plaintiffs] v. DURDHARI EAI
AND OTHERS (Defendants).* [12th February, 1892.]

Jurisdiction Ditmifsal of suit by Munsif on preliminary point Remand by Subordi-
nate Judge on appealFresh appeal before second Subordinate Judge, who disagrees
with the finding (f the former Subordinate Judge.

Where there are two Subordinate Judges in the same place, one of such Judges
is not competent to overrule the decision of the other. The Court is one,
though there are separate presiding officers. Sura; Din v. Chattar (1) And Ram
Kirpal v. Rvp Kuati (2) referred to.

[R., 32 M. 318 (320) = 2Ind. Cap. 525 (526) = 5 M.L.T. 75 ; 7 M.L-T. 93 (94).]

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

The Hon'ble Mr. Spankie and Munshi Jwala Prasad, for the appel-
lants.

Mr. Amiruddin, for the respondents.

JUDGMENT.

EDGE. C. J., and TYRRELL, J. This suit was instituted in the Court
of the Munsif of Ballia, who dismissed the suit on the ground that the
suit should have been brought in the Revenue Court, and [349] that
consequently he had no jurisdiction. There was an appeal which was
heard by one of the two Subordinate Judges of Ghazipur. He decided
that the suit was a Civil Court suit, and remanded the case under s. 562 of
the Code of Civil Procedure to the Court of that Munsif to be disposed of
on the merits. The Munsif tried the case and passed a decree from which
there was an appeal. The appeal happened to go to the other Subordinate
Judge of Ghazipur, who, holding that the suic was a Eevenue Court suit and
could not have been brought in the Civil Court, allowed the appeal and
dismissed the suit. The plaintiffs have brought this second appeal. It is
contended on their behalf that the second Subordinate Judge of Ghazipur
had no power to question the legal propriety of the order of the other Subor-
dinate Judge. It is really one Court, but there are two Subordinate Judges.
On the other hand, it is contended that the decision of the last Subordinate
Judge was right. We are clearly of opinion that Pandit Bansidhar, the
second Subordinate Judge, bad no power to overrule the decision of Mr.
Lalta Prasad, the first Subordinate Judge, and that he was bound by it.
That point was decided in this Court as far back as 1881 in the case of
Suraj Dm v. Chattar (1) which was a similar case. The principle which
was enunciated by their Lordships of the Privy Council in Ram Kirpal v.
Rup Kuari (2) would apply here, The Full Bench case of Deokishen v.
JBansi (3) does not apply. The order which we must pass in this case is
an order setting aside the decree of Pandit Bansidhar and remanding the
case under s. 562 of tshe Code of Civil Procedure to the Court of the
Subordinate Judge of Ghazipur to be disposed of according to law.



APPEL-
LATE
CIVIL.

14 A. 348 =
12 A.W. N.

(1892) 25.



* Second Appeal, No. 1148 of 1889 from a decree of Pandit Bansidhar, Subordinate
Judge of Ghazipur, dated the 28th August 1889, confirming a decree of Maulvi Abdul
Ghafur, Munsif of Ballia, dated the 16th January 1889.

(1) 3 A. 755. (2) 6 A. 269. (8) 8 A. 179.

591



14 All. 350



INDIAN DECISIONS, NEW SERIES



1892 Mr. Amiruddin's clients, the defendants, will nob be damnified, because,

FEB. 12. should the Subordinate Judge find against them on the merits, they can raise,

in an appeal from his decree, the question of jurisdiction and of the correct-

APPEL- ness of the order of remand of Mr. La,lta Prasad. That they can do so

LATE under s. 591 is amply shown by a judgment of this Court in the case of

OlVlL Bameshur Singh v. Sheodin Singh (1), and by the High Court at Bombay

in the case of Savitri [350] v. Ramji (2). We set aside the decree of

14 A. 818= the Subordinate Judge, and remand the case under s. 562 of the Code of

12 A. W N. Civil Procedure, and direct it to be restored to the file of pending appeals

(1892) 29. in the Court of the Subordinate Judge. Costs will be costs in the cause.

Cause remanded.



14 A. 330-12 A.W N. (1892) 40.

APPELLATE CIVIL.
Before Mr. Justice Mahmood.



BANDHU BHAGAT (Decree-holder) v. SHAH MUHAMMAD TAQI
(Judgment-debtor).* [15th February, 1892. J

Civil Procedure Code. & 511 Unverified sulahnamah Execution of decree Mortgigt,
redemption of Decree not specifying remit of non payment of mortgage Debt
within the time prescribed thereby for payment Limitation Act XV of 1877
(Indian Limitation Act), sch. ti, art. 119,

Where an application purporting to contain the terma of a compromise was
presented to the High Court by one of the parties to an appeal before it, but on
the so-called sulahnamah being sent down to the lower Court for verification, it
was found that the attendance of the parties for that purpose could not ba
procured : Held that the High Court was not justified in passing a decree under
s. 577 of the Code of Civil Procedure in accordance- with the terms of the unveri-
fied sulahnamah,

Where a deciee for redemption of mortgage stated that the amount due under
the mortgage should be paid within four months, bat omitted to sure what the
result would be if the mortgage debt was not so paid : Held that it was competent
to the decree-holder to execute such a decree at any time within the period of limi-
tation prescribed by art, 179 of the second schedule of Act XV of 1877.

[Diss., 14 A. 529; 16 A. 65 ; R., 18 Ind. Gas, 48 = 53 P.W.B. 1913 ; 44 P.L.B.
1913 ; D., 7 A.L.J. 778 = 6 Ind. Gas. 857 (858).]

[N. B - Another point re these same execution proceedings came before the
High Court at Allahabad-see 8 A. W. N. (1888) 119. Ed.]

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

Mr. Abdul Eaoof, for the appellant.
The respondent was unrepresented.

JUDGMENT.

MAHMOOD, J. In this case there is a peliminary matter which must
be stated before I proceed with the judgment upon the merits of the appeal.

The case being a pending case upon the files of this Court, an applica-
tion bearing date the lObh of March 1890, and purporting to [351] have
been signed by the respondent, Shah Muhammad Taqi, was presented to

* Second Appeal, No. 1241 of 1889, from a decree of J.J, MiLaan, Esq , Disriot
Judge of Azamgarh, dated the 24th June 1889, confirming a decree of Bai Kulwant
Prasad, Subordinate Judge of Azamgarb, dated the 17th July 1888.

(1) 12 A. 510. (2) 14 B. 232.

592



YII]



BANDHU BHAGAT V. SHAH MUHAMMAD TAQI 14 All. 352



my brother Tyrrell on the llth of March 1890 ,and his order upon the
application bearing that date was ; " Send to the Court below for verifica-
tion." The application seems to have been so sent down, but it appears
from the letter of the District Judge of Azamgarh, dated the 3rd of May
1890, "that several adjournments were granted at the request of their
vakils for the appearance of the parties, but none of them has attended,
and their vakils now say that they have heard nothing of them of late."

Upon this state of things the report of the District Judge came up
before my brother Straight, who, by his order of the 9th of May 1890,
directed that the application called the sulahnamah be sent back and the
case put up before the Court.

The case appears then to have bean put up before my brother Tyrrell,
who in his ordar of the 30fch of Aoril 1891, which is upon the original
application of compromise, said : " Send down again for verification."

This also has been done, and the learned District Judge has returned
the sulahnamah, again unverified, and he adds that " the pleaders were
directed bo produce the parties on the 6^h of June, 1891, but as the
latter did not appear, the 13th of June was fixol. OQ that date they were
again absent, and notices were consequently issued fixing the llth of
July 1891 for their appearance. One of these notices was served on the
person of Bandhu Bhagat and the other was fixed on the door of Muham-
mad Taqi's house, but in spite of such service none of the parties has
appeared, nor is there any likelihood of their appearance."

Mr. Abdul Raoof, who appears for the judgment-debtor appellant,
has contended that the proceedings takaa by the lower Court are suffi-
cient to enable ma to acceob the unverified sulahnamah of the lOoh of
March 1890, and that in consequence of these circumstances I am bound
to act under s. 577 of the Cede of Civil Procedure and to make a decree
in the terms of the sulahnamah.

[352] I am of opinion that the powers conferred by that section upon
Courts of appeal are powers which require that parties should be in accord
with each other at the time when the decree is pronounced by the appel-
late Court. The use of the word " may," which is significant in the sec-
tion, is also important, because it indicates discretion in a Court and does
not force the Court to pass a decree in any manaer which goes beyond
the scope of its discretionary power.

There is, therefore, nothing to bind me sitting here as a Judge in a
second appeal (though I concede that by dint of s. 58SJ, s. 577 is, mutatis
mutandis also applicable to second appeals) that in a case such as this I
should act upon che document which is before me, dated the 10th of March
1890, and bearing the order of my brother Tyrrel 1 , dated the llth of
March 1890, and another order, dated the 30i;h of April 1891.

The reason why I think that in this case I should not act upon this
document is simple. As I have already staged, repeated attempts have
been made by orders of this Court to obtain from the parties the
verification of the sulahnamah or deed of compromise, and it followed
that these attempts have failed, and because they have failed there is no
necessity for me to act under s. 577 of the Code of Civil Procedure,
because the failure has been due to the negligence of the parties to attend
to verify the compromise at which they arrived. I regard the document
therefore as useless for the purpose of disposing of the case.

Then comes the hearing, which after the expression of my opinion
I gave to Mr. Abdul Baoof for the appellant ; the respondent, for whom



1892

FEB. 15,

APPEL-
LATE "
CIVIL.

14 A. 350=
12 I.W.H..

(1892) 40,



A VII 75



593



1* All. 353



INDIAN DECISIONS, NEW SERIES



[Yol.



1892

FEB. 15.

APPEL-
LATE!

CIVIL.

14 1. 350 =

12A.W.N.
(1892) 40,



the name of Mr. Jokhu Lai appears, being absent altogether. The appeal
has been heard therefore ex parte upon the merits.

Now upon the merits the facts of the case are simple. The respondent,
Shah Muhammad Taqi, decree-holder, obtained against the appellant,
Bandhu Bhagat, on the 5th of February 1887, a decree for redemption
of certain properties which are admitted by Mr. Abdul Raoof to have been
usufruotuarily mortgaged to the appellant. In that decree there was a
period fixed for redemption, and [353] it was four months, that is to say, a
period which would end on the 5th of June 1887.

In the decree so made, whilst fixing the period of four months, there
was no condition such as that which is contemplated by the last paragraph
of s. 92 of the Transfer of Property Act, to the effect that if such pay-
ment is not made on or before the day fixed by the Court, the plaintiff
should be absolutely debarred of all rights to redeem the property.

The decree thus framed was evidently a decree which, if it was
finally framed and gave even a wrong order as to debarring redemption if
payment of the mortgage money was not made within the time limited
by it, would be binding upon ma sitting here as a Judge dealing with
execution of the decree. But the decree did not say so, and the decree
therefore must stand as it stands without any such exception or inter-
pretation as that contemplated by the last paragraph of s. 92 of the
Transfer of Property Act (IV of 1882).

It is probably in consequence of the decree not having been properly
framed that this litigation began. It began in an application made on the
29th of May 1888 by the decree-holder, respondent, for redemption, and
on the 1st of June 1888 the money required for redemption is admitted by
Mr. Abdul Raoof to have been deposited in Court.

The question then is simple. Whether a condition as to deposit was
or was not valid in law for the purpose of preventing redemption which
had been decreed in favour of the respondent on the 5th of February 1887 ?

I am of opinion that in the absence of any limits contained in the
decree, a Court executing the decree is not justified nor bound to go beyond
its terms. Here the decree fixed four months, but; did not fix what the
result would be if within that period the money was noh deposited. And
since it did not do so, it follows that the ordinary law regulating the limit
for execution of decrees would apply, that is to say, the rule contained in
art. 179 of sch. ii of the Limitation Act (XV of 1877).

[354] It was upon this principle that Mr. Justice Oldfield and myself
in Karamat AH v. Inayat Husain (1) held that the right of redemption
cannot be considered as having been barred, and upon this ground we
allowed execution, because the money bad been deposited within the
period allowed by the rule of limitation applicable to the decree, namely,
the period awarded by the Limitation Act. Similar is the effect of the
ratio upon which the judgment of my brother Straight and myself proceed-
ed in Hulas Rai v. Pirthi Singh (2).

Before leaving this point alone I desire to express as clearly and
briefly as I can the reason why the limitations established by a decree
are not to be placed upon the same footing as limitations as to time
or otherwise imposed by the legislature for purpose of the audibility of
causes, ad litis ordmationem. The reason is simple. One is the act
of a Judge, the other is the act of the legislature, and it cannot be that
any Judge by fixing one hour, or one day, or one month, or one hear



(1) 4 A.W.N. (1884) 329.



(2) 9 A. 500.



594



YII] QUEEN-EMPRESS V. MAKHDUM 14 All. 355

for obedience fco his order would render ifc impossible for the party aggriev- 1892

ed feo have his remedy by the ordinary procedure within the time allowed FEB. 15.
by fche Legislature. This view is the principle of what I said in fche Full

Bench case of Kodai Singh v. Jaisri Singh (I). APPEL-

For these reasons I think that upon the findings of the lower Appellate LATE

Court this appeal is not sustainable. I therefore dismiss the appeal, bub CIVIL

\vifcboufc cosfca, as the respondent is not represented. '

Appeal dismissed. J * A - 330= "
12 A.W.N,

(1892) *0.
. 141. 354 = 12 A.W.N. (1892)32.

APPELLATE CRIMINAL.
Before Mr. Justice Straight.



QUEEN-EMPRESS v. MAKHDUM.* [22ad February, 1892.]

Criminal Procedure Code, s$. 195, 476, 487 Aci XLV of 1860, s. 193 False evidence
Jurisdiction Sessions Judge.

A Sessions Judge who has directed the trial of a person for the offence of
giving false evidence committed in the coarse of a judicial proceeding of a
criminal nature before him cannot try the case himself. Empress v. Ganga Din
(2) distinguished.

[R,, U.B.R. (1897-1901), Vol.;l, 127 (130).]

[355] THE facts of this case sufficiently appear from the judgment
of Straight, J.

Mr. W.S. Howdl and Babu Becha Bam Bhattacharji, for the appellant.
The Government Pleader (Munshi Ram Prasad) for the Crown.

JUDGMENT.

STRAIGHT, J. For the purpose of determining fche question of law
that arises before me in this appeal, it is only necessary that I should state
fche following brief facts. Upon the trial before the Sessions Judge of Jhansi
of one Wilayafc Hussain for the offence of giving false evidence contrary to
the provisions of s. 193 of the Indian Penal Code, the appellant was exa-
mined as a witness and deposed to certain facts. The learned Sessions
Judge being of opinion that in his depositions he had been guilty of
giving false evidence under s. 476 of the Code of Criminal Procedure,
adopted fche procedure therein laid down, with the result that the appellant
was committed to his Court fco take his trial for an offence under s. 193
of the Indian Penal Code. The Sessions Judge has tried and convicted
him and sentenced him to a term of 3 years' rigorous imprisonment. The
initial objection taken to that decision is that by s. 487 of the Code of
Criminal Procedure, the jurisdiction of the Sessions Judge was taken
away, and that be had no power to enter upon the trial. A number of
cases have been quoted in the course of the hearing of the appeal, among
them Sundriah v. The. Queen (3), Regina v. Goji Kom Ranu (4), Empress
of India v. Kashmiri Lai (5), Empress v. Gaspar D'Silva (6), Empress v.
Gauri Shankar (7), Empress v. Glna.it Ram (8), Queen-Empress v. Sarat
Chandra Rakhit (9). This last case is a Full Bench decision.

* Criminal Appeal No. 1017 of 1891.

(1) 13 A. 376. (2) 7 A.W.N. (1887) 139- (3) 3 M. 254. (4) 1 B. 311.
(5) 1 A. 625. (6) 6 B. 479. (7) 6 A. 42. (8) 6 A. 103.

(9) 16 C. 766,

595



14 All. 356



INDIAN DECISIONS, NEW SEEIES



[YoL



1892 I am of opinion that the contention for the appellant must prevail.

FEB. 22. The offence of giving false evidence is one of those mentioned in s. 195 of
the Code of Criminal Procedure. That offenoe was committed before the

APPEL- Sessions Judge and came under his notice [356] in the course of a judicial

LATE proceeding, that is to say, upon the trial of Wilayat Husain.

CRIMINAL. As Sessions Judge he was the Judge of the Criminal Court, and it is

not pretended that s. 477, s. 480, 'Or s. 485 could have any application to

14 A. 384= the circumstances of this case. Accordingly I hold that there was a

12 A. W.N. direct statutory prohibition to the Sessions Judge trying this case, and

(1892) 32. that in trying it he acted without jurisdiction, which condition of things
no subsequent provision of the Criminal Procedure Code pretends to, or
could, cure. I agree to this extent in the view expressed in the Full
Bench ruling of the Calcutta Court that I have quoted, and it is not neces-
sary for the purposes of this case to enter into other questions. I should
have had no doubt as to the proper conclusion to arrive at upon the ques-
tions of law, but for the ruling of the learned Chief Justice reported in the
Empress v. Ganga Din (1). It is deserving of notice in regard to that case
that apparently the attention of the learned Judge was not directed to
the terms of s. 487, but there is nothing, as far as I can gather, to show
that in that particular case the trial which took place before the Sessions
Judge in the first instance was in his character of Sessions Judge, and I
am disposed to presume, until I am satisfied as to this, that the trial out
of which the prosecution sprang was of a civil character. I allow this
appeal, and setting aside the conviction and sentence, direct that the
commitment be transferred to the Court of the Sessions Judge of Cawn-
pore for disposal according to law.



11 A. 336 = 12 A.W.N. (1892) 42.

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



HAR GOBIND AND- OTHERS (Defendants) v. NONI "BAHU (Plaintiff)*

[23rd February, 1892.]

Evidence Document rejected as inadmissible but allowed to remain on the record
Civil Procedure Code, section 14 il A.

Where a decument tendered in evidence in a Court of first instance was
rejected as inadmissible but was nevertheless allowed to remain on the record of
the case Bel t [337] that the mere fact of the document ramaining on the
record did not make it evidence in the Appellate Court, but it must be tendered
as evidence in the Appellate Court and accepted thereby.

THE facts of this case, so far as they are necessary for the purposes
of this report, appear from the judgment of the Court.

Mr. Amiruddin and Maulvi Mehdi Hasan, for the appellants.
Eabu Jogindro Nath Chaudhri, for the respondent.

JUDGMENT.

EDGE, C. J., and TYRRELL, J. The suit in which this second appeal-
has been brought by the defendants was one to have a mortgage set aside.

* Second Appeal No. 1194 of 1889 from a decree of G. L. Lang, Esq., Commis-
sioner of Jhansi, dated the 20th August 1889, confirming a decree of Babu Baldeo-
Prasad, Deputy Collector of Jhansi, dated the 22nd June 1889.

(1) 7 A. W.N. (1887) 139.



GAUBI DATT V. SHANKAB LAL



14 All. 358



The one question for decision in this suit was as to whether any 'consi-
deration had been paid. The defendants produced and tendered in evi-
dence a document purporting to he a receipt for the consideration. That
document was rejected by the first Court on the ground that it was not
proved as against the plaintiff. The suit was brought on the 26bh of
April 1889, consequently after Act VII of 1888 had come into force. The
document bears an endorsement showing why it was rejectee!. It remains
on the record notwithstanding the provisions of cl. 2 of s. 142A of the



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 89 of 155)