APPEAL, EXECUTION OF DECREE MADE ON

See PRACTICE.

Page
605

FROM COMMISSIONER OF INSOLVENT COURT... 179
See STATUTE 11 & 12 VICT., c. 21, s. 73.

TO PRIVY COUNCIL, PETITION OF-Delay in
Transmission-Power of High Court to strike it off the File.]
Until a petition of appeal to the Privy Council presented to the
High Court has been admitted and allowed, a party has no right
of appeal to the Privy Council. If the petition is allowed to remain
on the file of the Court, and is not prosecuted within a reasonable
time, the Court has power to order its removal from the file.
GOBARDHAN BARMONO v. SRIMATI MANI BIBI

...

UNDER s. 15, LETTERS PATENT. See PETITION OF
APPEAL UNDER S. 15, LETTERS PATENT.

WAIVING OBJECTION IN COURT BELOW,
EFFECT ON

See PRACTICE.

76

570

AUTHORITY OF AGENT OF COMPANY. See AGENT.
AWARD

...

See APPEAL.

...

App. 75

Submission-Completion-Delivery-Act VIII of 1859,

No

-
ss. 315, 318, 320.] By an order of Court, of January 17th,
1867, a suit was referred to two arbitrators, under section 312,
Act VIII of 1859, who were to make their award in writing,
and submit the same to the Court within three months.
order for enlarging that time was made. The first meeting of
the arbitrators was held on May 22nd, 1867, and four subsequent
meetings were held, at which all the parties attended, and evidence
was taken; at the last of which meetings, namely, on 27th July, an
objection for the first time was taken on behalf of the defendant
that the time limited by the order of reference had expired, but
the arbitrators proceeded with the reference. The award was
made on 12th August 1867, and remained with one of the arbitra-
tors until his death in August 1868. Subsequently it was pro-

duced by the other arbitrator, on the application of the parties to
the suit, and delivered to the successful party, by whom it was
brought into Court on the 10th May 1870, and judgment was
moved for in accordance therewith. Held, that the arbitrators had
authority to make the award. The award was properly submitted
to the Court. Section 320, Act VIII of 1859, does not make it
necessary for the arbitrators to submit the award to the Court per-
sonally. Submission to the Court, under section 320, is not neces-
sary to the completion of an award under sections 315 and 318.
Although an arbitrator may deliver his award to one of the
parties, he ought not to hand over with it the proceedings,
depositions, and exhibits.

S. M. JAGATSUNDARI DASI v. SONATAN BYSAK

BENAMI HOLDER, CREDITORS CLAIMING AGAINST
See BENAMI PURCHASE IN CHILD'S NAME.

Page

357

Suit for Confirmation of Possession and
Declaration of Title-Review-Decree—Declaratory Decree-Res
Adjudicata.] A. brought a suit for a debt against B., obtained a
decree, and attached certain land in execution. C. intervened,
claiming the property as his; but, on the 28th March 1868, his
claim was disallowed, on the ground that, in two suits previously
brought against C. and others for possession of the same property,
on the 30th December 1863, by X. and Y., whose interest had,
pending the suit, been purchased by B., it had been decreed that
the land belonged to B. The decrees in these suits were dated 13th
and 19th January 1864; they were in favor of B., and ran in his
name alone. C. had purchased a moiety of the property at an auc-
tion-sale on the 7th March 1859; X. and Y. claimed under a pre-
existing mortgage over the same property, the equity of redemp-
tion under which had been foreclosed.

C. now brought a suit against A. and B. for confirmation of his
possession, and a declaration of his title to the property. He alleg-
ed that B. was his servant, and had purchased the interest of X.
and Y. in the property benami for him; that he (C.) had made the
purchase with his own money in the name of B.; that the suits
originally brought by X. and Y. had really been compromised;
that while the decrees of the 13th and 19th January 1864 were
nominally in favor of B., they were really in his (C.'s) favor; and
that the suit brought by X. and Y. had been allowed to proceed in
B.'s name, in order that C.'s title might be strengthened by a decree
in his favor, B. being only nominally the decree-holder. C. also
stated that, since his purchase on 7th March 1859, he had always
been in possession, and he dated his cause of action from the 28th

234

546

Page

March 1868, when his claim to the property which had been
attached by A. in his suit against B. was disallowed.

The Subordinate Judge gave a decree in favor of the plaintiff C.
B. alone appealed to the High Court.

Held, that C., not having been disturbed in his possession, and
seeking a declaration of his title only and no relief, should have
stated clearly and precisely what that title was; that as against A.,
who had not appealed, the decision of the Subordinate Judge was
final; that as between B. and C. the matter was res adjudicata;
that C. could not go behind the decrees of the 13th and 19th Janu-
ary 1864, which had been passed in favor of B., and show that the
purchase by B. and subsequent decrees were really benami for C.
and in his favor. A decree, until it is set aside, is, as between the
parties to it, conclusive both as to the rights of those parties and
the character in which they sue.

On application for review of judgment, held, a party applying for
a review of judgment must show that there is good and sufficient
cause for granting the review before he can be heard to argue that
the decision is erroneous. In so showing cause (first), no point
can be raised, which has been already discussed and decided on the
original hearing of the appeal; and (secondly) no new point, which
has not been raised at the hearing of the appeal, can be argued on
the application for review.

BHAWABAL SING v. MAHARAJA RAJENDRA PRATAP SAHOY
BAHADUR

...

BENAMI PURCHASE IN CHILD'S NAME-Presumption-Credit-
ors claiming against Benami-holder-Strictness of Proof.] Al-
though a purchase by a Mahomedan with his own money of an
estate in the name of his son raises a presumption of the son's name
being used benami for his father, proof that the father's object was
to affect the ordinary rule of succession as from him to that pro-
perty is sufficient to give, as respects strangers, a title to the son
independent of and adverse to the father.

Where bonâ fide creditors of the ostensible owner of property are
claimants on that property, the Court will require strict proof on
the part of any one seeking to have it declared that he held it only
benami.

RUKNADAWLA NOWAB AHMED ALIKHAN v. HURDWARI MULL

App.

59

167

App.

46

App. 46

BOTTOMRY__BOND-HOLDER-Ship, Sale of—Master's Lien for
Wages-Priority.] The charterer of a ship advanced money to
enable her to complete the voyage, and obtained as security a
"bottomry bond" signed by both the master and owner. On the
completion of the voyage, the charterer got the ship arrested and
sold, and the money was brought into Court. Before any order
had been made for the payment of the proceeds out of Court, the
master also had got the ship arrested at his suit for wages due, but
no decree had been obtained. Subsequently, the charterer, without
notice to the master, obtained an order of Court for the payment of
the proceeds of sale to satisfy his bottomry bond. Thereupon, the
master applied to restrain the charterer from taking the money out
of Court, until the claim for wages had been first satisfied. Held,
that the master had a lien on the proceeds for wages due to him at
the time of the sale of the ship, prior to that of the bottomry
bond-holder, and that he was entitled to have the proceeds retained
in Court until the hearing of his claim.

IN THE MATTER OF THE SHIP "PORTUGAL"

BREACH OF AGREEMENT..

See CAUSE OF ACTION.

See CONTRACT.

Page

258

...

...

App.. 46

BROTHER, PROMISE BY, TO GIVE SISTER IN MARRIAGE 395

CASE COGNIZABLE BY SMALL CAUSE COURT, INTER-
FERENCE OF HIGH COURT IN

See JURISDICTION.

App. 91

Suit to Recover Money advanced on a Bond
before the Money became due-Failure to register a Bond-Breach
of Agreement.] A. executed a bond in favor of B., but failed to
cause the registration of the same. Before the amount secured by
the bond became due, B. sued A. for recovery thereof, on the
ground that, as A. had agreed to get the bond registered, but failed
to do so, B. was entitled to recover the amount advanced by him.
Held, that B. had no cause of action.

GURU PRASAD ROY v. RAI BABOO DHANPAT SING...

CERTIFICATE, CONVICTION BY MAGISTRATE
PRACTISING IN REVENUE COURT WITHOUT

See ACT XX of 1865, s. 34.

OF ADMINISTRATION.

See PARTIES.

App.

46

See ADMINISTRATION.

371

COMMISSION-Examination de bene esse-Evidence-Act VIII of
1859, ss. 175, 179.] A de bene esse examination of a witness
about to leave the jurisdiction of the Court must be taken by
the Court, unless the parties consent to the evidence being taken
under a commission.

COMPANY, AUTHORITY OF AGENT OF. See AGENT.
COMPANIES' CLAUSES CONSOLIDATION ACT

195

App.

CONTEMPT OF COURT-Penal Code (Act XLV of 1860), 8. 174
-Code of Criminal Procedure (Act XXV of 1861), s. 171—

321

395