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1870 June 22.

*

Before Mr. Justice L. S. Jackson and Mr. Justice Glover.
BHUBAN MOHAN CHATTOPADHYA (JUDGMENT-DEBTOR) 0. SAUDAMINI DEBI,
FOR SELF AND AS MOTHER AND GUARDIAN OF BEHARI LAL MUKHOPADHYA

AND PYARI LAL MUKHOPADHYA, MINORS (DECREE-HOLDERS).*
Act XIV of 1859, 8. 20—Proceedings to keep alive a Decree-Bonâ fide Proceedings.
The question as to whether proceedings which had been taken to execute a decree had
been taken bona fide to keep alive such decree, is a question of fact, and no special appeal
lies from an order finding that the proceedings taken were taken bona fide.

This was an application made on 15th January 1870, to execute a decree passed on the 13th February 1865. It appeared that the decree had been partly executed in 1865. In 1868, another application was made for execution by the present applicant, as heir of the original decree-holder, and a notice was served on the judgment-debtor in September of that year. After two months it was discovered by the Amla that the applicant had not proved her right to represent the original decree-holder, and the case was removed from the file.

The Moonsiff held “that the decree-holder not having made in fact any arrangement subsequent to the 30th December 1865, up to the time of this petition, for keeping the decree in force, owing to lapse of time the execution of the decree was barred;" and he rejected the application with costs.

On appeal, the Judge reversed the Moonsiff's order. Ile said :—“ It is argued that the notice was not served bonâ fiile, or with a real intention of executing the decree ; but this proposition is not supported by the facts, and it appears to me that there was an intention to execute. It is also argued that the service of notice was invalid, because the application was made without proof of right to represent, but the Court was empowered to admit her to represent, and did admit her to represent, and therefore the proceeding was valid and sufficient. Moreover it appears that she had a right to represent, and the absence at that time of evidence adduced to prove the right cannot affect the right.” The Judge sent the case back to the Lower Court for execution.

The decree-holder appealed to the High Court.
Baboo Purno Chandra Shome for the appellant.
Baboo Kissen Sakha Mookerjee for the respondent.
The judgment of the Court was delivered by

JACKSON, J.-It appears to me that this special appeal is unfounded. The Judge has held that a proceeding had been taken by the plaintiff within three years next preceding his application to execute, such proceeding having been taken bonâ fide with the intention of enforcing his decree. 'The contention before us is, that the proceeding referred to being in

* Miscellaneous Special Appeal, No. 151 of 1870, from an order of the Judge of 24-Pergunnas, dated the 2nd May 1870, reversing an order of the Moonsiff of that district, dated the 12th March 1870.

1870

BHUBAN

MOHAN CHATTOPADHYA

v. SAUVAMINI

DEBI

complete and informal in its nature, was one on which the Court would not have been competent to act, and, in fact, did not act; and that, on such a proceeding, the Judge was not at liberty to infer bona fides on the part of the plaintiff. It seems to me, however, that the question of bona fides, as this Court has usually considered, is a question of fact for the consideration of the Court below. I think it would be impossible to say that, because an application to execute a decree had been defective in some particulars required by law to be contained in that application, or because the application was not accompanied by proof &f the representative character of the applicant, the Judge would be bound, as a matter of law, to say that such a proceeding had not been taken bonâ fide with the intention of executing the decree. I think he is entitled to infer from the whole circumstances of the case, whether the plaintiff, in making that application, really had that intention or no. The Judge in this case has drawn the inference in favor of the plaintiff. I think we are not at liberty to disturb his conclusion. The special appeal must be dismissed with costs.

1870 June 6.

Before Sir Richard Couch, Kt., Chief Justice, and Mr. Justice Kemp.
P. T. ONRAET (JUDGMENT-DEBTOR) v. SANKAR DUTT SING AND OTHERS

(DECREE-HOLDERS).*

Decree, alteration of-Lower Court.
After a decree has been confirmed by the High Court on appeal, the subordinate Court
has no power to make any alteration in it.

Mr. R. E. Twidale for the appellant.
Baboos Chandra Madhab Ghose and Lakhi Charan Bose for the respondents.
The judgment of the Court was delivered by

Couch, C. J.-In this case, the decree of the lower Court was modified by this Court, on a Regular Appeal, and the decree so modified has become the decree of the High Court. The alteration which has been made in it by the lower Court, is not an alteration to correct a clerical error, but is a material alteration in the decree by awarding interest on the amount of wasilat awarded. After the decree has come up on appeal and been confirmed by this Court, the lower Court has no power to make any alteration in it even to correct a clerical error. The proper course would be to apply to the High Court whose decree it has become ; but I cannot consider this alteration as the correction of a mere clerical error ; far from being so, it is a very important alteration in the decree. I held (and I continue of that opinion) in the case of Bhaneeshankar Gopal Ram v. Rughonath Ram Mangal Ram (1), that after a decree is confirmed by the High Court on appeal, the Subordinate Court has not the power of making any alteration whatever in it. We must reverse the order with costs.

* Miscellaneous Regular Appeal, No. 55 of 1870, from a decree of the Subordina te Judge of Bhaugulpore, dated the 27th November 1859.

(1) 2 Bom. H. C. Rep., 106.

1870 June 24.

Before Mr. Justice L. 8. Jackson and Mr. Justice Glover.
LAKHI KANT DAS CHOWDHRY (PLAINTIFF) v. RAM DYAL DAS AND OTHERS

(DEFENDANTS).*

Limitation-Mesne Profits-Cause of Action. The cause of action in respect to mesne profits accrues on the date on which, but for the fact of dispossession, the plaintiff would have been entitled to receive them.

This was a suit to recover mesne profits. It was instituted on 25th September 1867 (10th Aswin 1274). The claim was for mesne profits from the commencement of 1268 (12th April 1861) down to 18th Aswin 1273 (3rd October 1866). The Courts below held that the plaintiff could not recover mesne profits for the time prior to 10th Aswin 1268 (26th September 1861), that being more than six years from the date of suit.

The plaintiff appealed to the High Court.

Baboos Kalimohan Das and Kasi Nath Sen, for the appellant, contended that the suit was not barred, and cited Bisnoo Chunder Biswas v. Troylucknath Banerjee (1), Maharaj Koer Rumaput Sing v. Furlong (2), and Dwarkanath Doss Biswas v. Manick Chunder Doss (3).

Baboo Bansidhar Sen for the respondent.

Jackson, J.—The plaintiff, special appellant, urges two grounds of special appeal, both of which appear to me to be valid. The first ground is, that the Court below has erroneously decided the question of limitation.

The suit was for wasilat. It was commenced on the 10th Aswin 1274 (25th September 1867), and the wasilat claimed was for a period of five years five months and eighteen days, commencing with the commencement of the year 1268 (12th April 1861).

The Judge, on appeal, has held, in concurrence with the opinion of the Court of first instance, that the suit in respect of wasilat for the five months and ten days was barred by limitation; and he conceives that the limit of wasilat, which the plaintiff is entitled to recover, would be from the 10th Aswin 1268 (26th September 1861).

In respect to a plaintiff who has been dispossessed from immoveable property to which he was entitled, the cause of action as to wasilat accrues, it appears to me, on the date on which the plaintiff, but for the fact of dispossession, would have received such wasilat, and when, consequently, it has been or might have been received by the defendant; and the plaintiff is entitled to recover, on any cause of action so accruing, at any time within six years next preceding the commencement of the suit, that is, in this case, on or after the date before mentioned in the year 1861 (1268). It would, of course, depend upon local custom what proportion of the yearly rent is paid at particular times ; and if, therefore, on or after the 10th Aswin 1268 (26th September 1861), the rent of the whole year or any particular kist of the rent would have been receivable, the plaintiff would have been entitled to recover accordingly.

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* Special Appeal, No. 15 of 1870, from a decree of the Judge of Backergunge, dated the 22nd September 1869, affirming a decree of the Subordinate Judge of that district, dated the 13th April 1868. (1) 6 W. R., Mis., 28. (2) 3 W. R., 38.

(3) 9 W. R., 200.

Before Mr. Justice L. S. Jackson and Mr. Justice Glover,

1870 June 15.

BHUBAN CHANDRA SHOME (DEFENDANT) v. RAMDAYAL SHAMANTA

AND OTHERS (PHAINTIPFS).*

Special Appeal-Objection not taken in the Courts beloro.

The High Court allowed objections to be taken by a defendant which had not been taken in either of the lower Courts.

Baboo Bhagabati Charan Bose and Ambika Charan Banerjee for the appellant.

Baboo Mahendra Lal Mitter for the respondents.

Jackson, J.-It appears to me that the decision of the lower Appellate Court in this case cannot be supported with reference to the authorities on the point before us. The suit was for enhancement, and was tried before the Assistant Collector of Burdwan, who, after hearing the evidence on both sides and finding that evidence to be contradictory, ordered an enquiry by an Ameen; and, on the report of that Ameen, made a decree in favor of the plaintiff. The decree made did not confirm, precisely, the rates claimed by the plaintiff, but took, as it were, a middle course between the allegations of the plaintiff and those of the defendant. The Ameen reported that the land of the village in which the defendant's tenure was situated, was divided into four classes ; and he found, not precisely in conformity with the whole of the evidence, but upon such part of the evidence as recommended itself to him that those four classes of land paid certain rates which he stated, and as the greater portion of the lands of the defendant was found to belong to the second of those classes, he reported that the defendant was liable to pay that rate on that quantity of land, and at that rate; accordingly, the decree was given.

The defendant upon this appealed to the Zilla Judge, and the ground that he seems to have taken before the Judge was that the evidence upon which his lands had been found to belong to the second quality or class, was not sufficient to support the finding of the Court below. The Judge, however, affirmed the judgment of the lower Court; and, upon review, only modified his own judgment and the judgment of the Court below, so far as to give the defendant a slight allowance in respect of certain lands alleged to have been taken for public purposes.

The defendant comes before us in special appeal, and for the first time takes the ground that neither the notice nor the evidence given by the plaintiff

* Special Appeal, No. 219 of 1870, from a decree of the Judge of East Burdwan, dated the 25th August 1869, affirming the decree of the Assistant Collector of that district, dated the 31st March 1869.

1870

complied with the provisions of the law, under which enhancement was sought for. That provision was the first clause of section 17, Act X of 1859, which BHUBAN

CHANDRA describes the ground of enhancement as being “ that the rate of rent paid by

SHOME “such a ryot is below the prevailing rate payable by the same class of ryots

RAMDAYAL “ for land of a similar description, and with similar advantages in the places SHAMANTA. " adjacent." Now it is not disputed by the plaintiff, respondent before us, that the notice and the evidence fell greatly short of those requirements; and the only question upon which we have had a doubt is, whether the defendant ought to be allowed to prevail upon this ground taken for the first time in special appeal.

No doubt, if the objection referred only to the notice, we should have been inclined to hold that the defendant, by his silence upon this subject in the Court of first instance, as well as in the Court of Appeal, and by his going to trial contesting the case upon the evidence, had waived that objection. But nothing can get over the want of evidence; and with some reluctance I find myself compelled to follow the decisions which have been repeatedly given upon this point, namely, that a defect of this kind is fatal to a suit for enhancement.

But I think that, upon consideration, it is not unreasonable that such an objection should prevail. In the first place we must bear in mind that the suit brought by the plaintiff before us is one of the commonest kind, and that such suits probably form a very large proportion of the whole number of suits brought in Bengal. It is very little, indeed, to ask from a plaintiff who is seeking, as part of a system, to increase his receipts derivable from his tenants, that he should frame his suit, and also prove his case in exact conformity with the provisions of law which enable him to increase his profits; and, I think, there is no hardship at all, so far as he is concerned, in binding him to an exact observance of the law.

Then, as regards the Court, it appears to me that a Court administering a law like Act X of 1859 is bound to satisfy itself that the decrees it makes are exactly borne out by the provisions of the law.

If the conclusion of the Deputy Collector and of the Judge had been fully and completely stated in this case, it must have amounted to something like the following upon the evidence adduced by the plaintiff and by the defendant ; and the word "evidence," of course, includes admission. “I find that the defendant, who holds a certain quantity of land of a particular description, is paying rent at a rate which is below the prevailing rate payable by the same class of ryots for lands of a similar description, and possessing similar advantages in the places adjacent, and, consequently, by the first clause of section 17, Act X of 1859, he is liable to have his rent enhanced. I find that the measure of enhancement is so much, and consequently I give judgment for the plaintiff at so many rupees and so many annas.” That stated fully, I think would be the conclusion at which the Court would have to arrive before it could give the plaintiff a decree in the present case.

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