...

663

See PRACTICE.

-Act XIV of 1859, s. 1- Cause of Action-
Res Judicata.] A., a Hindu of Gya, died, leaving a sister B., and
C., the son of a deceased sister. On A.'s death, B. took posses.
sion of the property left by A. In a suit by C. against B. for
recovery of possession thereof, as heir to bis maternal uncle, the
Court of first instance held that B. should retain possession of the
property during her life-time, without power of waste; and that
on her death, C. should be entitled to the possession thereof. This
was reversed by the High Court on appeal, who held that “the
decree should bave been simply a decree of dismissal” of the
plaintiff's suit.

B. died, leaving an adopted son, D. C. sued D. for recovery of
possession of the property, the subject matter of the former suit,
on the ground that D. was not the adopted son of B., and that C.,
“ who came within the class of bandhus, was entitled to succeed to
the property left by A. and B., there being no nearer heir in
existence."
Held, that section 2, Act VIII of 1859, did not bar the suit.
Baboo Mohan Lal Buaya GYAL v. LACHMAN LAL...

-Res Judicata—Cause of Action.] In execu-
tion of a decree, the right, title, and interest of A. in a certain
property was sold and purchased by B. In execution of another
decree, the right, title, and interest of A. and C. in the same
property was sold and purchased by D. In a suit by A., the sale
to B. was set aside ; but on appeal, the decision of the Court of first
instance was, upon consent of the parties, set aside, and the sale
allowed to stand good. D. sued for possession of the share of A.
and C. in the property purchased by him, and obtained a decree
for possession of the share of C, only. D. now sued to set aside
the sale to B. and for possession of the share of A. Held, that the
suit was not barred by section 2, Act VIII of 1859.
CHANNU LAL Sahu v. ManU LAL

ss. 2, 110—Remand—Non-appearance of Parties.]
When a suit has been remanded by the Appellate Court, and then
dismissed by the Court of first instance for non-appearance of the
parties, the plaintiff is not debarred thereby from bringing
another suit upon the same cause of action against the same
defendant.
RAGHUNATH SING v. RAMKUMAR MANDAL

App
s. 7–Cause of Action.] At a sale for arrears
of rent, A. became the purchaser of a certain patni talook. B.,
whose patni right had been sold, sued for and obtained a decree
for reversal of the sale on the ground of irregularity. In the mean-
time, A. bad committed default, and the patni was again sold for
arrears of rent. The zemindar drew out from the Collectorate the
amount due to him. C., who had bought B.'s right, title, and
interest in his decree, now sued A. for recovery of the surplus pro-
ceeds of sale in the hands of the Collector, and obtained a decrce.

220

...

..

64

, s. 78

Page
He afterwards sued A. for mesne profits for the time during which
he was in possession of the patni talook. This was a suit by C.
against A. for recovery of the amount drawn out by the zemindar,
on the ground that, in consequence of A. having collected the rents
from the talook, which were to go towards payment of the rent due
to the zemindar, and having fraudulently withheld such payment,
he had sustained damage to the extent of the amount taken by
the zemindar.
Held, that the suit was barred by section 7, Act VIII of 1859.
TARINI PRASAD GHOSE O. KHUDUMANI DEBI

184
ACT-1859— VIII, s. 15

508
See HINDU Widow.

s. 17, CL. 2— Recognized Agents.] A recognized
agent, under clause 2, section 17, Act VIII of 1859, cannot prose-
cute or defend a suit in his own name.

A gomasta of a firm ceases to be a recognized agent under
clause 2, section 17, Act VIII of 1859, when the business of the
firm has ceased before the institution of the suit.
MOKHA HARAKRAJ Joshi v. BISESWAR DAS

App. 11
s. 30

App. 15
See STAMP.
ss. 73, 350

371
See PARTIES.

215
See PRISONERS' TESTIMONY ACT.

89. 92, 96-Injunction-Compensation, Suit for-
Limitation Act (XIV of 1859), s. 1, cl. 2.] A. having brought a
suit against B., obtained and issued, on the 24th July 1868, an
injunction against him under section 92, Act VIII of 1859. The
suit was, on the 18th August 1868, dismissed; but no compensation
was awarded to B. under section 96 of Act VIII of 1859, in respect
of the injunction which had been issued against him. A. and B.
both appealed; the former against the decision dismissing his suit,
the latter for compensation. Both appeals were dismissed on the
23rd November 1869,-B.'s, because it was engrossed on a stamp
paper of the value of eight annas only.

B., on the 16th December 1869, then instituted a suit against A.
in the Small Cause Court, for damages in consequence of the injunc-
tion which A. had caused to issue against him in his suit.

Held, that B. was not debarred, by section 96 of Act VIII
of 1859, from instituting a suit against A. for damages, there not
having been an award of compensation under that section. The
cause of action accrued from the time at which the plaintiff was
first damaged by the wrongful injunction; continued as long as the
injunction remained in force; and limitation began to run as soon
as the injunction was at an end.
NANDA KUMAR IAHA O. GAUR SANKAR

App.
ss. 175, 179

252
See COMMISSION.

167
See Act XVI of 1864, s. 51.
8. 205

... 382
See EXECUTION.

, 8. 194

...

...

Page

ACT-1859

223

...

...

paid out of Court.] A., a judgment-debtor, paid to B., the
decree-bolder, a sum of money by way of compromise, in full satis-
faction of the decree. B. failed to certify this payment to the
Court, and afterwards executed her decree for the full amount.

In a suit by A. against B. for recovery of the amount previously
paid out of Court, in satisfaction of the decree, held that, notwith-
standing section 11 of Act XXIII of 1861, the suit was maintain-
able.

GUNAMANI Dasi o. PRANKISHORI Dasi
ACT–1859–VIII, ss. 208, 284, 285, 287, 290— Assignee of a Decree-

Execution, Power of the Court to which a Decree has been trans-
mitted for.] The assignee of a decree should apply to the Court
which passed the decree, and not to the Court to which the decree
had been forwarded under section 285, Act VIII of 1859, for execu-
tion, for the purpose of being substituted in the place of the origi-
nal decree-holder.

The word “Court” in section 208, Act VIII of 1859, does not
include the Court to which a decree has been transferred for execu-
tion

SAEO NARAYAN Sing v. HARBANS LAL

a

tho

497

s. 217

App. 65

691

See 'DISMISSAL OF PetitioN FOR NON-APPEARANCE.

85. 221, 232, 240, 242, and 351
See OFFICIAL ASSIGNEE.

s. 230— Evidence-Title- Possession.]. On an ap-
plication under section 230, Act VIII of 1859, in the investigation
of the matter in dispute, the Court may go into the question of
title. It is open to the applicant to give evidence of title beyond
mere possession, and the decree-holder may prove his title to the
property.

Radha PYARI DEBI CHOWDHRAIN 0. NABIN CHANDRA Chow.

DHRY

708

App. 27

386

155

...

s. 233-Seizure of Moveable Property-Mode of
Executing Warrant against Moveable Property — Removing Locks.]
Under section 233, Act VIII of 1859, a Nazir, authorized to exe-
cute a warrant by attachment of moveable property, has power to
remove locks put by the judgment-debtor on the doors of godowns,
or other places where his property is stored, and put his own locks
thereon, for the purpose of attachment and safe custody of the
property.
SODAMINI DASI v. JAGESWAR SUR

, ss. 233, 234 ...
See Execution.

ss. 236, 265
See MOVEABLE PROPERTY.

. 271
See REDEMPTION, EQUITY OF.
ss. 273, 280

App.
See Act XXIII OF 1861, s. 8.

-, ss. 276, 278 ...
See SubsISTENCE MONEY.

S. 281—“ Bad Faith."] Bad faith in section 281,
Act VIII of 1859, means bad faith not only in respect of the appli-
cation, but includes bad faith on previous occasions.

Smith v. Boggs

380

...

Page

...

...

357

...

...

...

75

...

179

10

ACT—1859–VIII, ss. 315, 318, 320

See AWARD.
ss. 324, 325

App.
See APPEAL.

s. 342
See StatutE 11 AND 12 Vict., c. 21, s. 73.
s. 350

App.
See STAMP.

s. 355— Evidence, Reception of, in Appellate Court,
though not produced in Lower Court.]
MAHARAJA JAGADINDRA BANWARI GABIND BAHADUR v. BHA-
BATARINI DASI

App.
IX
See Acts of GOVERNMENT OFFICIALS.
X
See REVENUE COURT.

...

54
312

234

...

47

-, s. 4

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

App.
See Act VIII or 1865 (B.C.), s. 16.

s. 13-Notice-Special Appeal.] In a suit for en-
hancement of rent, it was objected, on behalf of the defendant, in
special appeal, that service of notice had not been proved. Held,
the question was one of fact, and the objection ought therefore to
have been taken in the Court of first instance.
C. J. DUMAINE 0. UTTAM SING

App.
-, ss. 86, 99
See MoveABLE PROPERTY.
XI, ss. 5, 33
See PARTITION.
XIV

App.
See Right OF WAY.

See MUTUAL DEALINGS.

s. 20. See EXECUTION OF Decree.

Execution Limitation Proceeding.] So long as
an actual bonâ fide contest is going on in Court between a decree-
holder and the judgment-debtor as to the judgment, there is a pend-
ing.“ proceeding ” within section 20 of Act XIV of 1859, and the
period of limitation must be computed from the Court's decision.

Page

611

The decision in the case of Ram Sahaye Singh v. Degun Singh
commented on and approved of.

MAHARAJA DHIRAJ Mahtab CHAND BAHADUR, MAHARAJA OF

BURDWAN v. BULRAM Sing BABOO
ACT—1859-XIV— 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 bonâ 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 bonâ
fide.
BHUBAN MOHAN CHATTOPADHYA V. SAUDAMINI DEBI

ss. 20, 22—Limitation-Summary Dceision.] An
order of a Court dismissing an application for execution of a decree,
on the ground that it is barred by the Law of Limitation, is not a

summary decision” within the meaning of section 22, Act XIV
of 1859. It is an order within the meaning of section 20 of that
Act.
MAHARAJA DHIRAJ MAHTAB CHAND Roy BAHADUR 0. BA-

CHARAM HAZRA
1860—XXVII, s. 4

See PARTIES.

On a ref
proceeding
and that, t.
out jurisdic
Magistrate
Magistrate,
and trial.

THE Q
ACT—1861-X-

See

App. 59

See

m

See

ss. 407, 426.
-1862-VI

See 1

162

371

App. 21

100

See ADMINISTRATION.
-XLV, s. 174

See CONTEMPT OF COURT.
-1861-XXIII, s. 8-Act VIII of 1859, ss. 273, 280.] Section 8
of Act XXIII applies only to applications made under section 273
of Act VIII of 1859, not to applications made under section 280.

SMITH v. Boggs

App. 21

223

See JURISDICTION.

-X, s.

See ST
-1863-XX

See Su

--XXI,
Value of Decr
administration su
in value of the

P
of the amount de

Held that, un
appeal lay in the
Privy Council.

Hawaii v. II
-1864—III (B.
judicata—Limitati
Possession of Lar
suit, one of the
against the Chairn
of his share. The
ants in the suit.
Limitation. After

present suit for-
tion that his tenant
in consequence of
Commissioners.

Held, that the su
and that section 87,

Semble.-Act III

...

691

70

:

See OFFICIAL ASSIGNEB.
-XXV

App:
See CRIMINAL PROCEDURE CODE.

Chap. XI
See Criminal PROCEDURE Code.

s. 36. See CRIMINAL PROCEDURE CODE, s. 36.
s. 62. See Criminal PROCEDURE Code, s. 62.

-Nuisance, Removal of-Power of Magis-
trate.] Under Section 62 of the Code of Criminal Procedure, a
Magistrate has no power to issue an order, ex parte, to cut down
trees, on the representation of a party, supported by the report of
the Police, that the existence of the trees was a nuisance.
THE QUEEN v. Ram CHANDRA MOOKERJEE