1877 LAKHESSUR course of our decisions during these many years is wrong, it seems to me that it is a matter for the Legislature, and that it is too MUSSUMAT late for us now,. for the first time, to say that the Act was made without jurisdiction, in so far as it touches the High Court as regards the right of appeal or otherwise. As to the particular issue arising in Section 102, it seems to me also to be concluded by the numerous decisions of the Court ('all taking the same view of the law) ending with the Full Bench case of Brojo Misser, which was heard in March 1874 (21 W. R., 320; 13 B. L. R., 376). The question in that case was whether an Additional Judge was a District Judge within the meaning of Section 102. The majority of the Court held that he was, and there that under that Section no appeal lay. Mr. JUSTICE JACKSON held that he was not, and therefore that the appeal did lie. But the report of that case does not shew that any of the Judges doubted the effect to be given to Section 102, or conceived that, in cases falling within that Section, there could be any appeal from the decision of the District Judge. I consider that the matter referred to us has already been settled by these cases. MARKBY, J. : I concur in the judgment of MR. JUSTICE MACPHERSON. L. S. JACKSON, J. :— In answering on my part the question referred to the Full Bench, I have little to add to the reasons which I gave in referring this case. These reasons, to my thinking, have not been answered. It is suggested that the question raised here has been 1 For Example :— Doyal Chand Sahui vs. Nobin Chunder Adhikaree, 16 W. R., 235; 8 B. L. R., 180. Eshwar Chunder Sen vs. Bipin Beharee Roy, 16 W. R., 61, 132; 8 B. L. R., 188. Moonshee Mahomed Manoor Meer vs. Sreemuttee Jaibunna, 19 W. R., 200; 10 B. L. R., 29, App. Poorno Chunder Roy, vs. Krishto Chunder Singh, 23 W. R., 171. Nobokrishto Coondoo vs. Nazir Mahomed Sheikh, 19 W. R., 201; 10 B. L. R, 30, App. KOER v. SOOKHA Judgment. МАСРНЕК SON, J. MARKBY, J. L. S. JACK- 1877 КОЕК v. SOOKHA Judgment: JACKSON, J. virtually decided by a long course of practice, and also by the MUSSUMAT ruling of the Full Bench in the case of Brojo Misser against LAKHESSUR Mussamut Ablakhi Misrain, and that we ought not, whatever our view might have been, if the question were now raised for the first time, to disturb such a course of practice. It seems to me that although it is extremely desirable to maintain a long-settled ruling in regard to matters on which the security of titles depends, or even when to arrive at a contrary decision would disturb the practice of inferior Courts, it is not necessary to do so in the present instance, where no man's title can be affected, nor can any possible inconvenience arise by the mere admission of the present appeal. It seems to me that, in the first place, the question has not been expressly raised and decided by a Full Bench; secondly, that, if, as I think, the law allows an appeal, we are not competent to deprive the Appellant of his right merely out of deference to the practice of the Court; and, thirdly, that to persist in an error merely because that mistake has been committed for several years, is a course in which I am not prepared to concur. I would admit this Special Appeal. GARTH, C.J. GARTH, C. J.: But for the long course of practice, which has prevailed in this Court since the year 1869, and the Full Bench decision in the case of Brojo Misser vs. Mussamut Ablakee Misrain and others,' I should have been disposed to hold, with Mr. JUSTICE JACKSON, that a special appeal lay in a case like the present. But I think it so extremely important, that the rules of law prescribed by this Court should be settled and uniform, that I am unwilling to disturb a course of practice which, as it seems to me, has been confirmed by a Full Bench decision. It is true, that in that case the point now before us was not directly argued, because apparently it was not considered arguable, but the decision of it appears to me to have been involved in the Full Bench judgment, because the Court there held that under circumstances similar to the present, a special appeal does 121 W. R., 320; 13 B. L. R., 376. not lie from an Additional Judge to this Court any more than from a District Judge. That ruling does not, in my opinion, virtually determine the question now referred to us. The Special Appeal will, therefore, in conformity with the judgment of the majority of the Court, be dismissed with costs. 1877 6 MUSSUMAT v. SOOKHA ОЈНА. Judgment. GARTH, C.J. 1877 July 6. [CRIMINAL REVISIONAL JURISDICTION.] IN THE MATTER OF OKHIL CHUNDER PETITIONER. BISWAS Sections 491, 494, Code of Criminal Procedure-Evidence taken before party concerned-Section 530-Proceeding necessary. A proceeding under Section 530 Code of Criminal Procedure, must be recorded by the Magistrate stating the grounds of his being satisfied of the existence of a dispute regarding land, &c., likely to induce a breach of the peace, before he can order a person to be retained in possession thereof. A Magistrate cannot bind over a person to keep the peace unless he has adjudicated on evidence taken in the presence of that person that a breach of the peace is probable. If such person fails to attend on a summons duly served, a warrant should issue (Section 494); the order for security cannot be passed ex parte. THIS HIS was a case referred under Section 296 of the Code of Criminal Procedure by the Session Judge of Chittagong for the orders of the High Court as a Court of Revision. On the report of a Police Officer that a breach of the peace was imminent regarding certain land, the Magistrate issued a summons under Section 491 of the Code of Criminal Procedure, and on the non-appearance of the party summoned proceeded to order him to furnish certain security to keep the peace, and he also directed the opposite party to be retained in possession of certain land in dispute until ousted in due course of law. The judgment of the High Court' was delivered by PRINSEP, J. PRINSEP, J. :— The order of the Magistrate demanding security to keep the peace from Okhil Chunder, and directing Sarut Chunder to be retained in possession of the disputed land must be set aside, because it was passed in the absence of Okhil Chunder (see Sections 494, 496) and because no proceedings had been taken under Section 530, Code of Criminal Procedure. ROMESH CHUNDER MITTER and PRINSEP, J.J. Mitacshara-Joint Hindoo family-Execution of decree-Sale of share of one member-Purchaser can compel partition. Even if a member of a joint Hindoo family living under Mitacshara law cannot encumber his share in the joint property without the consent of his co-sharers, where he has contracted a lawful debt, the creditor can enforce his decree by selling the right and interest of the debtor, but though the purchaser acquires a lien on the property to that extent, he can only compel the partition which the debtor might have compelled, had he been so minded, before the ailenation of his share took place. Fall Bench judgment of the Calcutta High Court, 12 W. R., 1 F. B.; 3 B. L. R., 31, F. B., Sudaburt Persad Singh vs. Phoolbash Koer, explained. The rule in Bengal is thus made similar to that in Madras and Bombay. THIS was an appeal from the judgment of the Calcutta High Court (PHEAR and AINSLIE, J.J.) which is reported in 20 W. R., 174; 12 B. L. R., 100. The facts of this case are fully given in the following judgment of the Privy Council:-' The respondent in this case is the only son of one Toofani Singh, and the family being governed by the law of the Mitacshara, is joint in estate, in the strict sense of the term, with his father. On January 28th, 1863, the father being indebted to the appellant to the amount of Rs. 5,000, executed to him a Bengali mortgage bond for securing the repayment of that sum, with interest at the rate of 12 per cent. per annum. The appellant afterwards put this bond in suit, and on May 30th, 1864, obtained a decree against Toofani Singh for the sum of Rs. 6,328-13-8. 'SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONtague E. SMITH, SIR ROBERT P. COLLIER. VOL. I. G |