Copyright
Chas. A. Stevens & Bros.

The 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

. (page 9 of 155)
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 9 of 155)
Font size
QR-code for this ebook


45



1890

OCT. 29.

CIVIL

REFER-
ENCE.

13 A. 66 =
10 A.W.N,
(1890) 238.



13 All. 75 INDIAN DECISIONS, NEW SERIES [Vol.

1890 not only at the preliminary part, which is merely instructive, but also at

OCT. 29. the imperative mandate of the Legislature, and it says (s. 5): " Subject

to the exemptions contained in the second schedule, the following instru-

ClVlL ments shall be chargeable with duty of the amount indicated in the first

REFER- schedule as the proper duty therefor respectively," and then follows the

ENCE specification of documents which includes this promissory note of the

4th January 1887, for the sum of Es. 200, payable after not more than

13 A. 66= one year, and bearing interest at 12 per cent, per annum. It is clear

10 A.W.N. that, notwithstanding the absence of a preamble to the statute it is

(1890) 238. nothing other than a penal statute as understood in the law for the

purposes of interpretation. It is also penal by dint of s. 34, viz., that

" no instrument chargeable with duty shall be admitted in evidence

for any purpose by any person having by law or consent of parties

authority to receive evidence, or shall be acted upon, registered or

authenticated by any such person, or by any public officer unless such

instrument is duly stamped : " and then follows a proviso in three clauses

to which I do not wish to refer. These two sections, namely, ss. 5 and 34,

leave to me no chance of doubting that this statute should be interpreted

in the fashion described by my brother, Straight, and indeed in cases of

doubt it is impossible to do otherwise than interpret Acts in favour of the

subject, that is, not in favour of the State.

There are three other sections of the enactment to which I wish to
refer. The first is s. 55, which enables the Governor-General in Council
to make rules consistent with the statute "for regulating the supply and
sale of stamps and stamped papers, the persons by whom alone such sale
is to be conducted, and the duties and remuneration of such persons." The
next section is s. 56, which gives to the Governor-General in Council
power to " make rules consistent herewith to carry out generally the
purposes of this Act," [75] and then comes s. 57 of the enactment which
gives to the rules so made the authority of an Act so soon as they are
published in the Gazette of India.

In this case all these ceremonies or formalities required by these three
sections have been gone through, and in the present case the argument of
Mr. Reid rests mainly on the notification of the Gazette of India in rela-
tion to these matters. The learned Chief Justice and my learned brother,
Straight, have already dealt with these rules so well and so completely in
accordance with my own judgment that, beyond saying this, I wish to say
nothing about them.

But because I have always entertained for Sir Michael Westropp, the
learned Chief Justice of Bombay, as high a respecb as a lawyar and as a
Judge as I entertain for the present Chief Justice of this Court, I wish to
read one passage from a judgment of Sir Michael Weafcropp in the case of
Dowalatram Harji v. Vitho Badhoji (1). Sir Michael Westroop said:

" The imposition of such excessive and minute details would be
pitfalls to the unwary and would, by frequently invalidating documents
press harshly upon the illiterate classes, and overthrow thousands of
honest transactions without producing any such advantageous result, in
the form of revenue to the State, as would compensate it for the dis-
content which would be occasioned. The Legislature has avoided
such stringent details, and it seems to us to have satisfied itself by
legislating against defacement of the impressed stamp, and against such



(1) 5 B. 188 (at p. 195).
46



YII]



SHIB SINGH V. SITA RAM



13 All. 77



a mode of penning the document as would admit of that stamp being
used for or applied to any other instrument."

I have read this passage especially because it might be regarded by
some as obiter dictum, and certainly, from one point of view, I do not
deny that it may be so regarded. No doubt, Chief Justice Westropp
in giving expression to these views felt it his duty to make it
clear in bis judgment that Judges when they are called upon to
interpret, perhaps laxly-worded, statutes, must always remember the
general rules of interpretation, which by dint of their [76] being trained
lawyers they are able to keep present to their minds, in spite of the lax
use of phrases and conjunctions whether disjunctive or conjunctive, and
of the disregard of the proper use of pronouns.

In the present case, if it had not been my good fortune to agree so
entirely with what has fallen from the learned Chief Justice and my
brother, Straight, I should, in view of the rules framed by the Government
of India, have had to think not once, but twice, as to whether or not they
were " consistent " with the enactment within the meaning of ss. 55 and
56 of the Stamp Act (I of 1879).

I am saved from that necessity by the manner in which the case has
been dealt with by the learned Chief Justice and my brother Straight and
I have only to say that I agree with their order.



13 A. 76 = 10 A.W.N. (1890) 199.
APPELLATE CIVIL



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



SHIB SINGH (Defendant) v. SITA EAM (Plaintiff)*
[13th May, 1890.]

Execution of decree Attachment of debt Order prohibiting creditor from recovering
debt Suit for rent under attachmmtCivil Procedure Cade. s. 263 (a- Act XV of
1877 (Limitation Act, s, 15) Injunction or order staying a suit.

S. 268, clause (a] of the Civil Procedure Code, does not mean th<*t, while 9 debt
is under attachment, the parson to whom the debt was originally owing, should be
barred from bringing a suit in respect of it. What it prohibits is the recovery of
the debt, and the payment of it by the debtor to the creditor.

Semble. An order of attachment under s. 268 of the Civil Procedure Code is
not an injunction or order staying a suit within the meaning of s. 15 of the Limi-
tation Act; (XV of 1877).



[F., 14 A: 162 (167) ; Appr.. 17 A. 198 (211)
Ind. Gas. 886 (890) ; 10 Ind. Gas. 569 ;



= 22 LA. 31 (P.O.) = 6 Bar. 551 (557) ; R
142 P.R. 1894.]



THE plaintiff in this case, Sita Earn* was zemindar and lambardar of a
village Laha Alampur, and the defendant Shib Singh was his tenant. The
suit was for recovery of Rs. 2,027-11-4, arrears of rent, under s. 93 fa) of
the North- Western Provinces Rene Act (XII of 1881), and was instituted
in the Court of the Assistant [77] Collector of Aligarh. It aupeired that
the rent for 1291 fasli, one of the years in respect; of which rnt was
claimed, had been attached, by an order passed on the 2nd Ausu^, 1886,
in execution of a simple money decree held against the plaintiff by Kumar

Second Appeal, No. 892 of 1888, from adecreecf H. P. Evans, E-q., DISTICC Judge
of Aligaih, dated the 6th March 1888, confirming a decree of Mttulvi Muhammad
Karim, Assistant Collector of Aligarh, dated the 30td March, 1837.

47



1890

OCT. 39,

CIVIL
REFER-
ENCE.

13 A. 66 =
10 A.W.N.
(1390) 238,



13 All. 78 INDIAN DECISIONS, NEW SERIES [Vol.

1890 Daryao Singh. The order of attachment was passed under s. 268 (a) of
MAY 13. the Civil Procedure Code. On behalf of the defendant it was contended

that the effect of this order was to bar the present suit so far as it sought

APPEL- recovery of the rent for 1291 fasli.

LATE The Court of first instance disallowed this plea, observing : " Though

CIVIL. kbe ren ^ was attached i Q execution of a decree against the plaintiff, he has

yet a right to sue. The attachment means that the money should not be

ISA. 76= paid to the plaintiff. The plaintiff is by'all means competent to sue." The

10 A.W.N. Court decreed the claim. On appeal by the defendant, the District Judge of

(1890) 195, Aligarh concurred in the view taken by the Assistant Collector. He said :

" The second ground of appeal is that, under the provisions of s. 268 of

the Civil Procedure Code, the rents of 1291-92 fasli having been attached,

the respondent could not sue for them. This is untenable. The creditor is

not barred from suing for the debt, whatever effect s. 268 might have in

preventing his taking out execution of the decree. The District Judge

dismissed the appeal. The defendant presented a further appeal to the

High Court."

Mr. A. H. S. Reid for the appellant.

Babu Jogindro Nath Chaudhri for the respondent.

JUDGMENT.

EDGE, C.J., and BRODHURST, J. This was a suit for rent. The
plaintiff, it appears, was lambardar, but whether he was suing as the
agent of the co-sharers, or as the zemindar, and himself entitled to the rent
sued for, does not appear. That question may have an important bearing
in the execution department. The rent in question bad been attached by
one Kuar Daryao Singh, on the 2nd August 1886, for a debt by the present
plaintiff to him. It is contended that by reason of s. 258 of the Code of
Civil Procedure that attachment so long as it existed barred a suit by the
plaintiff for the rent which was attached. That contention is mainly
based on cl. (a) of s. 268 of the Code of Civil Procedure. If the
[78] legislature bad intended that, whilst a debt was under attachment,
the person to whom the debt was originally owing should be barred from
bringing a suit in respect of it, we would expect the Legislature to have
used some such words as : " During the existence of the attachment no
suit shall be brought by the creditor against the debtor in respect of the
debt attached. " What s. 268 prohibits is the recovery of the debt and
the payment of it by the debtor to the creditor. The debtor had an easy
course provided for him under s. 268, as under that section he could have
paid the money into Court and thus have avoided liability in this suit.
That was not done here. Mr. Chaudhri contends, and we think with
force, that if his client, the plaintiff, had not brought the suit when he did,
a suit subsequently brought might be barred by limitation. On the other
hand, Mr. Reid for the defendant-appellant says that the case would come
within s. 15 of the Limitation Act. We do not think the case would be
within s. 15 of the Limitation Act. We think it would be to read a good
deal into s. 268 of the Code of Civil Procedure if we were to hold that an
order of attachment under that section was equivalent to an injunction
or an order staying a suit. The point seems to be a novel one, and, giving
it our best attention, that is the opinion at which we have arrived. We
express no opinion as to what may be the result of any proceedings in
execution. We dismiss the appeal with costs.

Appeal dismissed.

48



YII] SOHNA V. KHALAK SINGH 13 All. 80

ISA 78 = 11 AWN. (1891) 1.
APPELLATE CIVIL.



APPEL-

Before Mr. Justice Mahmood.

__ LATE

CIVIL.

SOHNA (Objector) v. KHALAK SINGH AND ANOTHER (Petitioners).*

[20fch May, 1889.] 13 A. 78-

Jurisdiction Exercise by Subordinate Judge of jurisdiction of District Court Appeal 10 A.W 5 N,
Bengal Civil Courts Act (XII of 1897), ss. il3. 24 Power of Appellate Court to add (1890) 1.
respondent Limitation Civi' Procedure Code, s. 559 Minor Guardian
Bengal Minors Act (XL of 1858), s. 7.

The words in s. 24 of the. Bengal Civil Courts Act (XII of 1887) " subject to
the rules applicable to like proceedings when disposed of by the District Judge,"
include the rules relating to appeals. Therefore orders passed under that section
by a Subordinate Judge in proceedings under the Bengal Minors [79] Act (XL
of 1858; transferred to him under s. '23 (2) (b) of the former Act, are appealable
to the High Court and not to the Court of tho District Judge.

The power of an appellate Court to make a person a respondent, under s. 559

of the Civil Procedure Code, is not affected by the Limitation Act (XV of 1877).

In exercising its powers under s. 559 of the Civil Procedure Code, an appellate

Court is competent to make a person a respondent who, in the original suit, was

arrayed nn the same side with the appellant.

The grant of a certificate under s. 7 of the Begal Minors Act (XL of 1858)
should not be based exclusively on considerations of propinquity of relationship
without regard to the other circumstances of the case affecting the interests of
the minor and the fitness of the person appointed.

[Appl., 14 A. 154 (F.B.) (156) ; R., 4 O.C. 241 ; 11 O.C. 208 (211).]

THE facts of this case are stated in the judgment of the Court.
Pandit Moti Lai Nehru, for the appellant.
Munshi Madho Prasad for the respondents.

JUDGMENT.

MAHMOOD, .!.- -This is a first appeal from order arising out of a
litigation commenced under the Minors Act (XL of 1858) in respect of the
guardianship of the person and property of a minor girl, Musammat Bakhta-
wari, daughter of one Sirdar Singh, deceased. The proceedings began with
an application made by one Khalak Singh on the 8th September 1887, pray-
ing that be might be appointed guardian of the person and property of the
minor. The application was opposed by one Bachcha Singh who claimed
the certificate of guardianship in preference to the petitioner, Khalak
Singh, and, his objection being allowed, the certificate was granted to him
on the 7th January 1888, by the Subordinate Judge of Cawnpore, to
whom the case appears to have been transferred under s. 23 of the Civil
Courts Act (XII of 1887).

From the order of the Subordinate Judge an appeal was presented to
this Court by Khalak Singh (Case No. 19 of 1888) and it came on for hear-
ing before me sitting here as a single Judge, and was disposed of by me
on the 26th April 1888. For the reasons stated by me in my judgment
of that day, I decreed the appeal, and, setting aside the Subordinate
Judge's order of the 7th January, 1888, remanded the case to his Court
for trial de novo. On that occasion I held inter alia that the Subordinate
Judge had misapprehended [80] the relative propinquity of the parties
to the minor, and that in granting the certificate of guardianship

* First appeal No. 167 of 1888 from an order of Maulvi Shah Ahmadullah, Sub-
ordinate Judge of Cawnpore, dated the 18th August 1888.

49
A VII-7



13 All. 81 INDIAN DECISIONS, NEW SERIES [Vol.

1889 to Bachcba Singh he had omitted to notice the salutary rule contained

MAY 20. in s. 27 of the Acb prohibiting "the appointment of any person other than
a female as the guardian of the person of a female."

APPEL- The case having thus been sent back to the Subordinate Judge's

LATE Court, two female objectors appeared on the scene desiring to take pard in

CIVIL. kh litigation as objectors to Khalak Singh's application, and as claimants

of the guardianship of the minor girl Musammat Bakhatwari. One of

13 A. 78= these objectors-claimants was Musammat Batasia, a sister of Khalak

11 A.W.N. Singh, and the other was Musammat Sohna, both of whom appear to

(1890) 1. have been made parties to the litigation which (as Mr. Moti Lai on behalf
of the aopellant has put it) then stood arrayed representing the original
petitioner Khalak Singh as the plaintiff, and the original objector
Bachcba Singh as the opposite party along with Musammat Batasia and
Musammat Sobna. The parties being thus arrayed, the learned Sub-
ordinate Judge by his order of 18th August 1888, granted the certificate
of guardianship to Musammat Batasia, and disallowed the claims of the
petitioner Khalak Singh, and also of the objectors Bachcha Singh 'and
Musammafc Sohna.

It is from this order that this appeal was preferred only by Musam-
mat Sohna, on the 6th November 1888, and to the appeal she made only
Khalak Singh a party respondent. But on the 9bh February 1889, she
applied to this Court that the name of Musammat Batasia might be added
as a party respondent to the appeal, and notice having been issued, this
Court directed that the name Musammat Batasia be added as a party
respondent to the cause, subject to such objections as to limitation as she
might be advised to take when the appeal came on for disposal. This
order was made on the loth March 1889.

The case having thus come on for hearing before r>ie t Mr. Madho
Prasad, who appears for Musammat Batasia, has raise! three preliminary
objections to the effect that, so far as Musammat Batasia is concern-
ed, the appeal is not maintainable. The first of [81] these objec-
tions is that inasmuch as the case had been transferred to the
Subordinate Judge and has been disposed of by him, this appeal from
bis decision could lie only under s. 28 of the Minors Act (XL of 1858),
and that it therefore lay to the District Judge and not to this Court under
the purview of that section. The second objection is that the judgment
now under appeal being dated the 18th August 1888, and the appeal being
preferred only against Khalak Singh on the 6th November 1888, the
appellant's application of the 9bh February 1889, praying for the addition
of Musammat Batasia as a party respondent tc the appeal, was barred
by limitation, and that the order of this Court dated the 15bh March
1889, could not therefore be passed, and can be contested at this stage.
The third objection is that inasmuch as in the lower Court, after the remand
of the case, both Musammat Sohna, the present appellant, and Musammat
Batasia were arrayed on the same side as objectors to the application of
Khalak Singh, they cannot be arrayed opposite to each other in appeal.

All these points are contested by Mr. Moti Lai, on behalf of the
appellant, and I wish to dispose of them before entering upon the merits
of the case.

Upon the first point I am of opinion that the effect of the transfer
of the case to the Subordinate Judge was to invest him with the same
jurisdiction as that possessed by the District Judge in whose Court the
application for certificate was originally filed. The terms of s. 28 of Act
XL of 1858, like some other parts of that enactment, are not specifically

50



YII] SOHNA V. KHALAK SINGH 13 All. 83

clear, but the interpretation which I put upon them is that they do not 1889
in themselves intend to lay down any rules as to the tribunals which are MAY 20.
to hear appeals under that section, but leave the matter to other provi-
sions of the law regulating jurisdiction as to hearing of appeals. In the APPEL-
present case such provision is to be found in the Civil Courts Act, XII LATE
of 1887, and s. 24 of that enactment lays down, after referring to the CIVIL

previous section (whinh includes clause (b) relating to transfer of '

proceedings under Act XL of 1858) goes on to say that such proceedings 13 A. 78-
shall ba disposed of by the Subordinate Court "subject to the rules 11 A.W.N.
[82] applicable to like proceedings when disposed of by the District Judge," (1891) 1.
I am of opinion that the words which I have just quoted and emphasized
include the rules relating to appeals, and since an appeal from a District
Judge would lie to this Court, therefore an appeal from an order of the
Subordinate Judge, when proceedings under Act XL of 1858 have been
transferred to him also lies to this Court, and not to the Court of the
District Judge. I aou fortified in this view by the significant circumstance
that in the proviso to the first clause of s. 24 of the Civil Courts Act (XII
of 1887, the Legislature has specially provided that appeals from the
order of a Munsif when such proceedings are transferred to him, shall
lie to the District Judge, subject again to an appeal to this Court under
clause (2) of the same section. The Legislature could not therefore have
intended that proceedings transferred to a Subordinate Judge should stand
upon the same footing, for purpose of appeal, as those of a Munsif. Nor
can I hold that if the appeal lay to the District Judge, the Legislature
intended that the judgments or orders passed upon such appeal should be
final and exempt from appeal to this Court. Tbe present appeal was
therefore rightly instituted here.

Upon the second point, which relates to the question of limitation,
Mr. Madho Prasad relies upon the ruling of this Court in the case of
Ranjit Singh v. Sheo Prasad Ram (1), where Stuart, C.J., and Spankie, J.,
in interpreting s. 32 (.read with s. 582) of the Civil Procedure Code
(Act X of 1877), whilst holding that the appellate Court was competent
to add a respondent to the appeal, laid down the rule that such appellate
Court was not competent to pass a decree against such added respondent
if the appeal with reference to the date of the addition of such respondent
was barred under s. 22 of the Limitation Act (XV of 1877). The learned
pleader also relies upon the ruling of the Calcutta High Court in The
Corporation of the Toion of Calcutta v. Anderson (2) where it was
held, inter alia, that the fact that the plaintiff's attorney on being
served with notice of appeal, failed to notice that a party who had
been a defendant in the Court below had not been made a respondent in
[83] the appeal, coupled with the fact that the application made by the
plaintiff to make such defendant a party respondent after the period of
limitation had expired, was not made at the earliest opportunity possible,
is not a sufficient ground under s. 5 of the Limitation Act for non-prose-
cution of the appeal within the period allowed. On the other hand,
Mr. Moti Lai argues that the present case is not governed by s. 32 of the
Civil Procedure Code, but by s. 559 which is independent of s. 32, and that
the ruling of this Court in Ranjit Singh v. Sheo Prasad Ram (1) does not
apply because it does not deal with the provisions of s. 559. The
learned pleader also argues that the provisions of s. 559 impose a
duty or confer a power upon the Court, and any action under that section
is there fore exempt from any limitation such as that contemplated by the
(1)2 A. 487. (2)100.445.

51



13 All. 84



INDIAN DECISIONS, NEW SERIES



[Vol.



1889 Limitation Act (XV of 1877), and that therefore the order of this Court

MAT 20. dated the 15th March, 1889 adding Musammat Batasia as a party respon-
dent to the appeal, though made after the lapse of the period of limitation,

APPEL- was not ultra vires, being an action which the Court could have taken
LATE suo motu irrespective of the appellant's application. Further, the learned

OlVlL. pleader argues upon the authority of a ruling of my brethren Brodhurst

and Tyrrell in Jamna v. Ibrahim (1) that even if the order of 15tb

13 A. 78= March 1889, whereby Musammat Batasia was made a respondent to

11 &.V.N. the appeal, be taken to be the date of the appeal against her, the provi-

(1891) 1. sions of s. 5 of the Limitation Act (XV of 1877) would entitle her to
the benefit of the discretionary power, as here the circumstances of
the case indicate that the name of Khalak Singh was by a mere clerical
error and accident entered in the memorandum of appeal as respondent,
instead of the name of Musammat Batasia in whose favour the lower
Court had passed the order granting the certificate of guardianship com-
plained of in this appeal.

I am of opinion that so far as the question of limitation in this case
is concerned, it rests upon the solitary question whether the action of
a Court of justice under s. 559 of the Civil Procedure Code, is subject to
any such rule of limitation as would fall within the purview of the
Limitation Act (XV of 1877). Now I entertain no [84] doubt that the
powers under s. 559 of the Code of Civil Procedure may be exercised by a
Court suo motu, so long as that Court is seized of the case, and is em-
powered by the Civil Procedure Code to secure that the parties to the
appeal are properly arrayed. That section occurs in the appellate Chapter
XLI, and is independent of s. 32 of the Code.

In the case of Dhan Singh v. Basant Singh (2) in dealing with a
cognate question (which related to the action of the Court under s. 206 of
the Civil Procedure Code), I referring to the ruling of this Court in Gaya
Prasad v. Sikri Prasad (3), went on to say :

" On a former occasion in the case of Eaghunath Das v. Raj Kumar (4)
I respectfully expressed my inability to accept that ruling, holding, as
I did then, and still do, that under a proper interpretation of the preamble
and s. 4 of the Limitation Act (XV of 1877) the rule of limitation is con-
fined to the litigants and is inapplicable to acts which the Court may or
has to perform suo motu. And I think that this view is supported by the
principle upon which the rulings in Roberts v. Harrison (5), Vithal Janardan
v. Vithojirav Putlajirav (6) and Kylasa Goundan v. Ramasami Ayyan (7)



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 9 of 155)