The Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. online

the nature of the suit as laid down by the plaintiff herself in
her plaint The first four paragraphs are most important and
tbey run as follows : —

*^ 1. That under a foreclosure decree dated the 21st
*' January 1891, made absolute on the 5th October 1891, the
*' plaintiff is the proprietress of a 6 annas 2 pies share in
*^ village Pura Kharagman included in Paharapur as well as
*' other hamlets and village Paharapur.

«' 2. That on the 17th August 1897, the plaintiff sued
«< the defendants, in the Subordinate Judge's Court, for
'^ possession of the aforesaid hamlet Pura Kharagman, and a
*' decree was passed in her favour subject to her paying the
^* mortgage-money ; but on her appeal to the Court of the
^* Judicial Commissioner, Oudh, it was amended and a decree
" passed in her favour on the 16th September 1901 whereby
*' she became entitled to obtain possession of Pura Kharagman
'^ hamlet of Paharapur without paying any sum of money.
** And thus the plaintiff's right to get the above-named hamlet
** became confirmed.

*^3. That the defendants held unlawful possession of 6
^' annas 2 pies of the aforesaid Pur wa, the share of the plaintiff.



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THE OUDH CASES.



LVoL. vn.



KasQm Eoer

V,

Ifdkbdoota

Khan and

others.



" daring the pendency o£ the sait and they were benefited by
** the profits thereof which, in fact, the plaintiff should have
"got.

"4. That the mesne profits of the share in suit for 3
"years— 1306 to 1308— amount to Rs. 202-5-6 at the rate of
" Rs. 67-7-2 for each year, to get which the plaintiff is entitled
** under law and equity.

By the Provincial Small Cause Courts Act (IX of 1887)
jsection 15, jurisdiction has been given to Courts of Small
Causes to take cognizance of all suits of a civil nature of
which the value does not exceed Rs. 500 except such suits as
are excepted in the second schedule. The point for our
eossideration is whether the suit as framed by the plaintifiE falls
iinder article 31 of that schedule or not. This article 31 runs
as follows : —

'" **(31) — any other suit for an account, including a suit by a
•* mortgagor, after the mortgage has been satisfied, to recover
** surplus collections received by the mortgagee, and a suit for
•' the profits of immovable property belonging to the plaintifiE
•* which have been wrongfully received by the defendant."

The full quotation made from the plaint shows that this
was undoubtedly a suit for the profits of immovable property
belonging to the plaintiff which had been wrongfully received
by the defendant. There has been a conflict of opinion
between the High Courts of Allahabad and Calcutta on the one
side and Bombay and Madras on the other side as to whether
a suit for mesne profits of the nature of this present suit should
be held to be cognizable by a Court of Small Causes, that is,
whether it falls under that article 31 quoted above or not.
The following rulings have been cited before this Court.
[1] Kunjo Behary Singh v. Madhub Chandra Ghose (1), [2]
Prasadi Lai v. Imdad Busen (2), [3] Rameshar Singh v. Durga
Dass (d)^ [4] Antonev. Mahadeo ilnane (4), ^{5] Savarimuthu
V. Aithurusu Sowthar (5).



(1)
(3)



I. L. R., 23 Calc, 884. (2) All. W. N., 1898, 10.

All. W. N., 1901, 128. (4) I. L. R.. 25 Bom., 85.

(5) I. L. R., 25 Mid., 103.



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205



1 have been throDgh all these ralings and have taken them
into my consideration. Looking at the plain meaning of the
words nsed in the latter portion o£ art. 31, 1 am of opinion that
the present suit clearly falls within this latter portion. It was
undoubtedly "(1) a suit for the profits of immovable property
" (2) belonging to the plaintiff and (3) for profits which had
" been wrongfully received by the defendant." Taking then
the simple words of this article in their ordinary and natural
sense, I hold that the jurisdiction of the Small Cause Court
was barred and a suit of the nature of the one brought by tho
plaintiff was not cognizable by it. I consider, therefore, that
section 586 of theCode of Civil Procednre does Hot apply to the
present second appeal and that this second appeal is admissible.



MiifMmmat

Kusum Koer

r.

Mukbdoora

Khan ami

others.



Wells, 0. J. C. — As to whether this appeal lies or not
I agree in tho views of my learned colleague which are
supported by the Full Bench ruling of the Madras High Court
and the Bombay ruling quoted by him, by the Allahabad High
Court in liameshar Si7iffh v. Durga Dass^ and by a strong
minority of the Calcutta High Court in Kunjo Behary Singh v.
Madhih Chandra Ghose.



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206 THE OUDH OASES. [Voi. VU.

SECOND CIVIL APPEAL, No. 309 OP 1903.*



Before Mr. Wells.



j}^^\q At! Raza Khan and another (Defendants) v. Ganqa Din

(Platnttf).



Pre-emption^ suit for — Proprietor in one mahal to pre-empt
land in another mcJial token there has been perfect partition^
rigU of-^Act XVIII of 1876, s. 9.



, That haying regard to the provisions of s. 9 of Act XViU -of 1876, where
there has been a perfect partition in a village, a prqprtetor in one mahal has
a right to pre-empt property in another makmf as against a person who has
nothing to do with the village.



For Appellants. — B. Ptuto Lai.

For Respondent. — B. Ishri Pershad^

Wells, O.J. C. — The only question in this appeal is whether,
when there has been a perfect partition in a village, a proprietor
in one. mahal has a right to pre-empt property in another
mahal as against a person who has nothing to do with the
village. The learned Subordinate Judge has held that he has.
In appeal it is argued that he has not. Reference has been
made to the case of Rae Jainte Panhad t« Sheikh Mir Muham-
med (1). In that case Mr. Toung held that where a perfect
partition has taken place there is no longer one village commu-
nity in the sense of s. 9 of Act XVIII of 1876, but two village
communities, and the right of pre-emption no longer exists to
sharers of one mahal over the lands of another. There has
been no ruling precisely on this point. In Drigbijai Singh v.
Court of nards, Gronda(2) Mr. Spankie expressed his opinion

* Appeal against the decree of Pt. Suraj Naraia, Subordinate Judge,
Lucknow, dated 22ad July 1903 confirming the decree of B. Bhudar Chandar
Ghose, OflEg. Munsif (North) Lucknow, dated 20th March 1903.

(1) Jwala Pershad's Select Cases, App. p. 7 (2) 5 O. C, p. 266.



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207



that this decision o£ Mr. Toang's was not correct. Mr. Scott
also observes, " I can not believe that it was ever supposed
that there are two distinct village commnnities in the same
village." This case was referred to the High Court North-
West Provinces in consequence of a difference of opinion on
another point between the Judicial Commissioners, and Burkitt
J. observed that " the words village community are not any-
where defined in the Act, but the accepted rule in the Oudh
Courts is that they include all persons having an interest in
the village estate, whether as proprietors or under-proprietors,
if resident in the village." Although in Dalip Singh v. Sheo
Nandan (1) matters were a little complicated by the fact that
part of the village remained a joint mahal, it is clear that
Mr. Chamier took the viewUhat partition into separate mahals
did not mean the creation of separate village communities.
The whole law of pre-emption is based on the principle of
excluding strangers. Suppose that ai village of Brahman
zemindars has been divided into two or more mahals by a Khet'
hat partition, it is obvious that if the proprietors of one mahal
sold their estate to certain Khanzada zemindars of an adjoin-
ing village the Brahmin proprietors of the other mahal would
have good reason for objecting to the introduction of such a
discordant element into their midst : and it appears to me per-
fectly clear that such a case was contemplated when s. 9
of Act XVIII of 1876 became law. I must therefore dissent
from the opinion expressed by Mr. Young in the ruling refer-
red to. Having regard to what I have said about the views
of Messrs. Scott, Spankie and Chamier, I see no reason to
accede to the request that I should refer this case to a Bench
of two Judges. I accordingly dismiss this appeal with costs.
(1)7 0. C.l.



Ali Basil

Khan and

another

r,

Ganga Din.



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208 THE OUDH CASES. [Vol. VII.

CRIMINAL APPLICATION No. 77 OP 1904. *



Before Mr. Wells and Mr. Rustomjee.

)AWAN Singh
another (Opposite Party.)



June 16. Sarabdawan Singh {Applicant) v. King-Empbror and



Appellate Courts power o/, to set aside order of Lower Court
putting complainant in possession of land^Code of Criminal
Procedure, s. 423 el. (d) and '«. 622— Indian Penal Code,
s. 447.



The •ocused was convicted of an offence under a. 447 of the Indian
Penal Code and sentenced to pay a fine of Rs. 61. An order was also passed
at the same time under s. 622 of the Code of Criminal Procedure for
putting the complainant in possession of the land in dispute and for removing
certain fencings which had been erected by the accused. The Sessions Judge
quashed the conviction and sentence and set aside the order under a.
622 of the Code of Criminal Procedure.

JJeW, that under s. 423 d. (<0 of the Code of Criminal Procedure the
ScBciong Judge had power to set aside the Order under s. 622 of the Code
of Criminal Procedure.



For Applicant.— B. Ishri Dayal.

For Crown. — The Government Pleader.

For Oppositb Varty^JHo one. Jang Bahadur inperson.
Wblls, 0- J. 0. AND RusTOMJBE, 0. A. J. C— This is an
application for revision on behalf of one Sarabdawan Singh who
was origmally convicted by a Deputy Magbtrate of an offence
under s. 447 of the Indian Penal Code and sentenced to pay
a fine of Rs. 51, or in default to undergo rigorous imprison-
ment for one month. An order was also passed at the same
time under s. 522 of the Code of Criminal Procedure for put-
ting the oompkinant in possession of the l and m dispute and

For revision of the order of C. H. Roberts Esq., Sessions Judge, Pyrabad,
dated 16th April 1904, setting aside the ord<» of Pundit Manick Lai Joshi.
Deputy Magistrate, 1st Class, Sultanpur, dated 12th February 1904



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THE OUDH CASES



209



for removing certain fencing which had been erected by the
applicant in this case.

Against this conviciion and sentence an appeal was pre-
ferred to the Court of the learned Sessions Judge of Fyzabad.
He qnaslacd the conviction and sentence and set aside the
order passed under s. 522 of the Code of Crimtaal Procedure.

In the present application for revision filed before us it
is contended that the learned Sessions Judge acted contrary
to law in interfering with the order passed under s. 522 of
the Code of Criminal Procedure and in support of this conten-
tion the mling given in Indian Law Report, 25 Calcutta, 630
(Ram Chandra Uistrjf v« Ifobin Mirdha) has beea cited as an
authority*

From the date given in the margin of this ruling we see
that the order was passed on January 3rd 1^98. At that time
the Criminal Procedure Code in force was Act X of 1882, The
present Criminal Procedure Code (Act V of 1898) came into
force Itam the first day of July 1898. Anew clause (d) has been
added to s. 423 in the present Code which allows the appellate
Court to ^ make any amendment or any consequential or in-
• cidental order that may be just or proper." The former
clause (if) has been converted into paragraph (2) in the present
Oode. It is clear then that under the law as it stands in tho
present Code of Criminal Procedure, the appellate Court has
wider powers than it had under the old law and this new
clause (d) justified the learned Sessions Judge^s setting aside
the order passed under s. 522 of the Code of Criminal Procednre.

Under similar circumstances the Calcutta High Court held
in a case which was decided since the passing of Act V of
1898 that an appellate Court could interfere in appeal with
the order passed by a Magistrate under b. 106 of the Code of
Criminal Procedure.

We are of opinion therefore that the ruling cited has no
force under the law as it stands at present. This application
for revision is accordingly dismissed.



Sarabdawan
Singh

«.
King-
Emperor
aad aaother.



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210 THE OUDH CASES. [Vol. VII.

SECOND CIVIL APPEAL, No. 294 OF 1902.»



Before Mr. Wells and Mr, Chamier.



1904.

July 15. Shitab Singh and another (Defendants) v. Shdlm Bihaui

and on bis death his minor son Janki Saran (Plaintiff).



Security for due performance of appellate decree^ suit for
enforcement of — Code of Civil Procedure ss. 253 and 545.



The appollants having executed a sccoritj bond under s. 545 of the Code
of CiYil Procedure in favour of the respondent, it was held that the respondent
could enforce the bond by suit and was not bound to proceed in the execution
department.



For Appellants.— Mr. J. S. Misra.
For Respondent. — B. Ram Chandra.

Wells, 0. J. C. — This was a suit to recover from the
appellants the amount of a security bond which tliey had exe-
cuted under s. 545 of the Code of Civil Procedure in favour
of the respondent. The Mnnsif applied s. 253 and after
considering all the authorities, was oE opinion that the plaintiff
ought to have proceeded in the execution department and
not by a separate suit. The District Judge held that it was
optional to the plaintifiE to proceed either by suit or execution
and that there was nothing to prevent the plaintiff getting
the relief he claimed by suit.

Section 253 provides that whenever a person has before
the passing of a decree in an original suit^ become liable as surety
for its performance, the decree may be executed against him
in the same manner as against a defendant.

* Against the decree of E. A. Kendall Esci, District Judge, Gonda, dated
12th May 1902, reversing the decree of B. Thakur Prasad. Mansif, Gonda^
daled 21th January 1902.



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THE OUDH CASES.



211



The Calcutta High Conr4; in a series of rnlings, terminat- ^^nd^anothlr^

Ing with that in Surjoo Das v. Balmakand Das (1) has held r.

that a security bond given by a third party for the due per- ^ToJh^^

formance of a decree of the appellate Court cannot be enforced ^^^^ ^**

'^* minor son

in execution of that decree, but must be enforced by separate Jauki Sarao.

suit. The Bombay High Court in Jamsedji v. Batoabhai (2) has

held that the payment may beenforced in execution of decree,

following previous decisions of the Court, the principal one

being that of Mr. Justice .West in the case of Venkapa Naik

V. Baslingapa (3) in which he indicated that the use of the

words '4n an original suit" in s. 253 appeared to be superfluous.

The Madras High Court has taken the same view as Bombay.

So also has the Allahabad High Court in Janld Kuar y.

Sarup Rani (i).

In Behari Lai v. Jagnandan Singh (5) it was held that the
liability of a person who had become surety after the passing
of a decree could not be enforced under s. 253 of the Code of
Civil Procedure. But from the facts of that case as stated it
is not ol^r that the security was given under s. 545 or 546
of the Civil Procedure Code; it would seem to have been as a
matter of private arrangement. Thus the case does not really
throw any light on the question under consideration.

While the High Court of Calcutta holds that the liability
of a surety must be enforced by a separate suit and the other
High Courts hold that it can be enforced in execution of the
decreet there is no authority for the proposition that the enforce-
ment must be by execution of decree and cannot be by separate
suit. I think that there is nothing in the law which prevents a
separate suit being brought and I do not think that the plaintiff
shQold be refused the relief he sought, to which he was clearly
entitled under the latest Calcutta ruling when he brought
the suit, because, according to the views of the other High
Courts about s. 253, Civil Procedure Code, the applicability



(1) I. L. R., 23 Cal.. 212. (2) I. L. R., 25 Bom., 409.

13} I. L. R., 12 Bom., 11 at p. 414. (4) I. L. R., 17 All., 99.
(5) I. L. L., 19 All., 247.



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212 THE OUDH CASES. [Vol. VII.

MfdTmi^CT of which in any but original smis ia somewhat open to

%ih ii V^^^^^f h® ^^*^ proceed in execntion.
deathh^* I therefore without dissenting from the views of the Bom-

tninorson boy and Alkbabad High Courts woald dismiss the appeal with
#an]iii 8aian.

costs^

Chamier, a. J. C. — I also think that the appeal should be
dismissed. Possibly the plaintiff might have enforced the bond
in the execution department but I find no provision in the
Code of Civil Procedure which bars a regular suit upon the
bond. I agree to the order proposed by my learned colleague^



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Vol. VII.] THE OUDH CASES. 2\^

EXECUTION OP DECREE APPEAL, No. 25 OF 1903.*



Before Mr. Spankie ami Mr. CKamier.



Abdul Wahid Khan (Decree-^holder) v. Mirza Muham- 1903.
MAD Bakab Ali Khan (Judginent-debtor). July 2.



Execution of decree — Property not comprised in the decree j
decree-holder taking possession of by independant action and no4
through court executing decree — Jurisdiction of court — Code
of Civil Procedure^ s. 244.



Where the decree-holder bas obtained pofiseasioQ of land throagh the conrl
ezecating the decree and not by his own act, the qnestion whether such lands
are covered by the decree raises a question as to the ezecntion of the decree,
and the ooort can under section 244 of the Civil Frooedore Code determine
that question and if it determinQS it in favour of the judgment-debtor, can
restore possession of the lands to him. B\}t if the decree-holder has obtained
possession of the lands by his own act and not through the court executing
the decree the question as to whether the lands are covered by the decree is
not one relating to the execution of the decree, and the court executing the
decree has no jurisdiction xmdet section 244 to determine such question.

In an application purporting to be made under section 244, Civil Frooo'
dure Code, the judgment-debtor alleged that the decree-holder who had
obtained a decree for possession of a certain share in some houses and shops, In
the course of execution proceedings taken for tbe delivery of possession, dis-
possessed him of some property not comprised in the decree and prayed that
that property should be restored to him. The Subordinate Judge found that
the decree-holder obtained possession of that property by his own act and not
through the court executing the decree and that the property was not comprised
in the decree, and directed that it should be restored to the judgment-debtor.

neld^ that possession of the property in dispute having been obtained
simply and solely through the acts of the decree-holder the court executing
the decree had no jurisdiction to detormine whether the property was com-
prised in the decree or not, and that consequently it had no jurisdiction under
section 244 to entertain the judgment-debtor's application.

* Against the decree of Pandit Suraj Narain, Subordinate Judge, Lucknow,
dated 30th March 1903.



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214



THE OUDH CASES.



[Vol. VIL



Abdul Wahid
Khan.

r.

Mirza

Muhammad

Bakar Ali

Khan.



For Appellant. — Mr. E. Manvel and M. Zahur Ahmad.

For RbspoKDENT. — Messrs, St, (?. Jackson and Mohammad
Siddique^ and Babas Ram Nath and
Gokul Pershad.

Spankib, a. J. 0. and Chamibr, A. J. 0. — The decree-
holder in this case obtained a decree for possession oE a certain
share in houses and shops in Nayagaon and in Bazar Jhanlal.
The judgment-debtor, alleging that the decree was tor possess-
ion of a share in houses and shops specified in List A attached
to his application and that in the course of execution
proceedings taken for the delivery of possession the decree-
holder cunningly, dishonestly and forcibly disturbed his
possession of property specified in List B attached to his
application, by collecting rents on and after the 11th July,
1902, a fact which came to his knowledge on the 20th July,
1902, and that the decree-holder had dispossessed him of the
property specified in List B, applied to the Court executing the
decree that he might be put in possession of the property
specified in List B. The property specified in list A consists
of houses and shops in Nayagaon and Bazar Jhaulal and in
List B of houses and shops in Ehayaliganj, Nayagaon
and Bazar Jhaulal. The application was made on the 7th
August, 1902.

It was admitted on behalf of the judgment-debtor at the
hearing of the application that he had been dispossessed in
execution of the decree of the property specified in List B
but the Subordinate Judge found that the decree-holder
obtained possession of that property by his own act and not
through the court executing the decree. He therefore held
that the application was within time, being governed by art.
178 and not by art. 165, sch. ii, Indian Limitation Act, 1877.
He found that the property specified in List B was not com-
prised in the decree, and directed that it should be restored
to the judgment-debtor*

It did not occur to the Subordinate Judge's mind that, if
the decree-holder had obtained possession of the houses and



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THE OUDH CASES.



215



shops specified in List B by his own act and not through
the court executing the decree, he had not jurisdiction to
entertain the application. Under cl. (c), section 244, Civil
Procedure Code, all questions arising between the parties to
the suit in which the decree was passed or their representa-
tives, and relating to the execution, discharge, or satisEaction
of the decree, or to the stay of execution thereof, must
be determined by the court executing the decree. Where
the decree-holder has obtained possession of lands through
the court executing the decree and not by his own act,
the question whether such lands are covered by the decree
is a question as to the execution of the decree, and the
court can under section 244, determine that question and
if it determined it in favour of the judgment-debtor, can
restore possession of the lands to him. This proposition is
supported by Biru Makata v. Shayama Churun Khavoas (1) and
Select Case No. 299. But if the decree-holder has obtained
possession of the lands by his own act and not througb
the court executing the decree the question as to whether
the lands are covered by the decree is not one relating
to the execution of the decree, and the court executing the
decree has no jurisdiction under section 244 to determine such
question. This proposition is supported by the case of Mudhun
Mohun Singh v. Kanyee Doss Chucherbutty (2) which has been
followed in several cases.

The question then is whether the court executing the
decree had jurisdiction to determine whether the property
specified in List B is comprised in the decree or not. The
Subordinate Judge's finding that on the 7th June, 1902,
possession was delivered to the decree-holder through the
court executing the decree of the property specified in List A
only and not of the property specified in List B is not disputed.
Subsequently to that date the decree-holder commenced to
distribute sarkhats to, and to collect rents from, tenants of
houses and shops specified in List B. The Subordinate Judge

<1) 1. L. R., 22 Calc, 483 (2) 12. B. L, B., 201.



Abdul Wahid
Khan

r.

Mirza

Muhammad

Bakar Ali

Khaiu



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SM



THE OUDH CASES.



tVoL. VIL



Abdal Wabid
Khan

r.

Mirsa

Muhammad

Dakar Ali

Khan,



appears to hnvo found that the acts of the decree-holder which
were dpne^^ behind the back" of the jadgment-debtor did not
dispossess the judgment^ebtor of the property specified in
List B, and ii was argued in this court that this finding waa
correct. The finding and the argument are inconsistent with
the admission in the jndgment-debtor^s application that the
decree-holder ^^ dispossessed the applicant of the property
** situate in Khayaliganj and certain property in Bazar
" Jhanlal and Nayagaon,*^ and his counsers admission that the
judgment-debtor had been "wrongly dispossessed'* of the
property specified in List B. But the point is not material to
the question under consideration^ namely, the jurisdiction of