VOL. I.]

Appeal from.Order—continued.
constitute the applicant a party to the suit with
in the meaning of section 11, Act XXIII of
1861; and, therefore, the applicant has no right
of appeal from an order rejecting the application
made by the Court which passed the decree.
HURO LOLL DASS v. SOORJAWUT ALI, 8 W. R.,
KHATOON
ABIDUNISSA
197, discussed.
AMIRUNNISSA KHATOON, I L. R, 2 Cal., 327;
L. R., 4 Ind. Ap., 66; followed. SOOBA BEEBEE
331
o FUKURUNNISSA BEGUM
Application to enforce a Decroo. See
LIMITATION ACT (IX of 1871), Sch. II,

Art. 167

...

v.

23

Award-continued.

the decree passed by the Court below is in accord-
ance with that award, that judgment is final:
but where it can be shown that there was not in
fact any award on which a judgment could be
based, there is no final decree, and an appeal will
lie. The fact that the arbitrators themselves clearly
doubt the correctness of their decision is a strong
objection to the finality of an award. It is one
which tends to show that the award is not valid;
and on this ground an appeal will lie against an
order granting an application to have an award fil-
ed in Court. SREENATH CHATTERJEE v. KOYLASH
CHUNDER CHATTERJEE, 21 W R., 248; and LALLA
ISHUREE PERSHAD v. HUR BHUNJUN TEWAKEE,
15 W. R., 9 F. B.; 8 B. L. R., 315, discussed.
455
BUNYAD MAHTON v. NATHOO SAHOO

sec.

Application to set aside a sale-Rival de
cree-holders-Act VIII of 1859, sections 256 and
257-Act X of 1871, section 311.] Act VIII.
of 1859, sections 256 and 257, do not apply to
third parties. JOGE NARAIN SINGH v. ВHUG-
BANO, 2 W. R., 13, Mis., followed. KRISHNARAV
VENKATESH V. VASUDEV ANANT, 11 Bom., 13,
dissented from. MUSSAMUT MAINA KOER v.
LUCHMUN BHUGGUT and others
250
... 455
Arbitration. See AWARD
Arrest before Judgment-Property within
Jurisdiction.] The words any portion of his
property" in the latter part of sec. 483 of the
New Code of Civil Procedure, Act X of 1877, mean
any portion of the property of the defendant
which is within the jurisdiction of the Court in
which the suit is pending KEDAR NATH DUTT v.
336
SEEVA VEYANA RANA LUCHMUN CHETTY
Attachment-Section 531, Code of Criminal
Procedure-Possession Attachment-Order of
Magistrate.] It is only when, after recording a
proceeding under sec. 530, Code of Criminal
Procedure, and taking evidence, a Magistrate
decides that neither party is in possession or is
unable to satisfy himself as to which party is in
possession, that he can, under sec. 531, attach
land in dispute. He is not competent summarily
to order attachment without such preliminary Bail. See BAD LIVELIHOOD (1)
proceedings. In the matter of RAM SOONDAREE
DEBEE...

Bad Livelihood-Code of Criminal Procedure,
505-Bad Livelihood-Charge-Notice
of precise matter proved--Witnesses-Bail.] A
person against whom proceedings for bad liveli-
hood have been taken is entitled to have embodi
ed in a charge the precise matter which the Ma-
gistrate considers established by evidence against
him. It is not sufficient to say generally that
there is suspicion. He should be asked to pro-
duce his witnesses, or offered assistance to pro-
cure their attendance He should be admitted to
bail. A Magistrate is not competent to refuse
bail unless the law sanctions such refusal.
the matter of KOOKOR SINGH, Petitioner

...

2.

In

130

Section 505, Code of Criminal
Procedure-Object of Chapter XXXVIII]
The object of Chapter XXXVIII, Code of Cri-
minal Procedure, is the prevention not the
punishment of crime. When a charge of a
specific offence is under trial, proceedings under
Chapter XXXVIII should not be instituted.
JUGGUT CHUNDER CHUCKERBUTTY (I. L. R, 2
Cal., 110), followed. In the matter of UMBICA
PERSHAD, Petitioner

...

268

130

86 Bank of Bengal-Transfer of Share Certi-
2.
Right to receive Malikana-ficate-Refusal to transfer-Act XI of 1876,
secs. 17, 20, 21.] The language and the evi
Act VIII of 1859, secs. 235, 237, 240] An
attachment of a right to receive malisana from the dent intention of sec. 17, Act XI of 1876,
points to a present debt only as conferring upon
Collector, if made under Act VIII of 1859, sec.
237, is not good, and will not invali ate a mortgage the Bank of Bengal a right to refuse to register
of the right executed while such attachment was
pending. Under that section attachment can be
made only of a specific amunt which may be set
forth in the request as then payable or likely to
become payable to the debtor. NILKANTO DEY v.
412
HURRO SOONDRY DASSEE
Auction-purchaser. SEE SALE IN EXECU-
TION OF DECREE
517
Award—Arbitration—Judgment according to
Award-Act VIII of 1859, secs. 325, 327-
Application to have an Award filed in Court--
Appeal.] Where there has been an award, and

Stockton Iron
a transfer of a share certificate.
Malleable Co.'s case, 2 Ch. D., 101, cited and ap-
proved. In order to entitle a plaintiff to a man-
datory order directing the Bank of Bengal to re-
gister a transfer, the plaintiff must show that he
applied for such registration at a time and under
circumstances when the Bank was enabled and
bound to comply with the request. An appli-
cation made during a time when, in accordance
with Act XI of 1876, section 20, the transfer
books are closed, has no more effect than if it had
MATHOOR MOHUN ROY v.
never been made.
507
BANK OF BENGAL

Bengal Legislative Council. See SPECIAL Commitment.-Homicide-Grievous

...

...

...

AP-

347

Court of Revision. See WITHDRAWAL OF
ORDER
486
Current Account. See PARTNERSHIP. (1) 525
Dayabhaga. See STREEDHUN
318
Declaratory Suit-Confirmation of Title-
Objection first raised in Special Appeal.] Under
the law in force before the Specific Relief Act
(Act I of 1877) was passed, a suit by a plaintiff
in possession for a mere declaration of title would
not lie. Thus, where A, the occupier of
land alleged to be lakheraj, was sued for rent in
the Small Cause Court, and a decree was given
against her: Held, that a subsequent suit by A
for a declaration of her right to hold the land as
lakheraj. would not lie. PADAYALINGAM PILLAY
v. SHANMUGHAN PILLAY and others, 2 Mad., 333,
approved. The High Court is bonnd, in special
appeal, to consider an objection which raises the
question whether a plaintiff is entitled to main-
tain the suit, and to obtain the decree which he
asks for, even though such objection has not been
taken in the memorandum. POROMSHOOK CHUN-
404
DER v. PARBUTTY DASSEE
Decree, Execution of.

Аст

See LIMITATION

23

138

See INTEREST. (1)
Cause of Action-Decree in a previous
Suit-Execution, failure to take out.] Where a
party brings a suit for possession and obtains a
decree which he neglects to execute, no subse-
quent suit on the same cause of action will lie.
GOPI MOHUN Doss v TINCOURI GUPTA 254
Delegation of Powers. See LEGISLATIVE
161
COUNCIL, POWERS OF...

Discharge, Order of-continued.

whether a person has been improperly discharged
by a Magistrate. the High Court, under sec. 297,
Code of Criminal Procedure, is not restricted

only to an error in law, but can order a trial
where prima facie the evidence establishes a
case against the accused to which he should be
required to enter on his defence. The Sessions
Judge was, however, not competent himself
to order the trial or inquiry to proceed; but, as
the order was otherwise a proper order, the
High Court in setting it aside revived it as its
Own order. In the matter of TROYLOKHYA-
NATH MITTER and another

83

429

Dishonour, Notice of. See HUNDI
Divorce-Dissolution of Marriage-Separation
-Desertion.] Where the separation between
husband and wife is the act of the wife, or
where the wife of her own free will assents to
a complete separation, there can be no desertion
of the wife by the husband; nor, until husband
and wife have again co-habited, can the subse-
quent conduct of the husband transform what
was a voluntary separation into desertion by the
husband. The fact that a wife has, for two
years before separation, withdrawn from conju
gal intercourse with her husband, while conti-
nuing to live under the same roof with him,
does not disentitle the wife to charge her husband
with desertion; provided such withdrawal was
brought about by his misconduct, and was a
matter to which he was wholly indifferent.
FITZGERALD VS. FITZGERALD, L. R., 1 P. and
D., 694, discussed and distinguished. WOOD
v. WOOD

Easement-Julkur-Limitation—Act IX of
1871, sec. 27.] A julkur is not an easement
within the meaning of Act IX of 1871, sec.
127. Plaintiffs were proprietors of a certain
lake, the right of fishing in which they let out
to tenauts. In this lake the defendants fished
for eighteen years adversely to, but with the
knowledge of, the plaintiffs: Held, that a suit
to have it declared that plaintiffs were entitled
to the julkur, and that the defendants had no
right to fish therein without their permission,
was barred by limitation. PARBUTTY NATH ROY
CHOWDHRY v. MUDHOO PAROL

See RIGHT OF WAY
Enhanced Rent. See KABULIAT
Enhancement-Fruit trees-Act VIII (B.C.)
of 1869, sec. 18] In a suit for enhancement of
rent, defendant pleaded that the land was used
solely for fruit trees, and that those trees were
originally planted by the defendant; that conse-
quently, any increase in the value and produc-
tiveness of the land in consequence of the growth
of the trees must be attributable to the agency
of the defendant, and, therefore, by sec. 18 of
Act VIII (B.C.) of 1869, such increase would

2.
Service of notice-Assessment.]
Defendants held 29 be galis and 83 beegahs of
land, the former admittedly as tenants to the
plaintiffs, the latter they claimed to hold rent-
free. Plaintiffs brought a suit for arrears of
rent on the 29 beegahs and the 83 beegahs pur-
suant to a notice of enhancement, service of
which they failed to prove, and the suit was
dismissed on that ground. In special appeal
plaintiffs contended that the suit was for assess-
inent and not for enhancement, and that no
notice was necessary: Held, that having (as by
the Rent Law they were entitled to do) treated
the suit originally as one for enhancement, it was
too late to shift ground in special appeal. Where

Roy

...

...

...

...

the service of notice of enhancement relied on
has not been personal, it will not be valid unless
it appear that an attempt has been made to
effect personal service on all the defendants.
RASH BEHARY MOOKERJEA v. KHETRO NATH
418
Estoppel by conduct-Right of Occupancy.]
If A allows B to deal with an occupancy tenure
as full owner, and by an attempted transfer, to
work a forfeiture thereof without any objection
on his part, A will not be allowed to come in
afterwards and claim a part of the forfeited
holding on the ground that B was only part
owner, and could, therefore. only work a for-
feiture of his own share. SHEIKH MANIRULLAH
v. SHEIKH RAMZAN ALI

Evidence. See REGISTRATION

...

Evidence of splitting of tenure-Rent
suit-Non-joinder of co-sharers.] Where a tenant
has agreed with his landlords to pay a certain
rent for his whole holding, the fact that he has
paid each landlord his proportionate share of
the rent is not conclusive, but merely presump-
tive evidence that, for the original contract,
there has been substituted a separate contract
with each of his lessors. ANOO MUNDUL
SHAIKH KAMALOoDeen
Examination of Accused-Record of ques
tions asked Omission of Magistrate] The
omission of a Magistrate to have recorded in the
vernacular the questions asked in the examin-
ation of the accused person does not necessarity
render that examination inadmissible as evidence.

248

1

2.
Code of Criminal
Procedure, Act X of 1872, sec. 250.] Under
sec. 250 of the Code of Criminal Procedure,
the Court may, from time to time, at any stage
of the case, examine the accused personally; but
293 the Court is not competent to subject the accused
to severe cross-examination. The discretion

328

See CRIMINAL PROCEDURE, CODE

48

given by the law is not to be used for the pur-
pose of driving the accused to make statements
criminating himself; but only for the purpose
of ascertaining from the accused how he is
able to meet facts standing in evidence against
him, so that these facts should not stand against
him unexplained. Virabudra Gaud, 1 Mad., 199,
quoted and folowed. In the matter of CHINI-
BASH GHOSE

436

239
Suit for Arrears of Rent-Ex-parte
Decree-Estoppel] A sued B for the rent of
1278 and got an ex parte decree, which he never
executed, and which became barred by limitation.
A afterwards sued for the rent of 1279, and
tendered the then barred ex-parte decree as evi-
dence of the amount due. On a question which
arose as to its admissibility in evidence, and the
value to be attached to it: Held the ex-parte Execution of decree-Decree passed by an-
decree, though barred by limitation was, for the other Court-Transfer to third Court for Ere-
purposes of evidence, as good as any other cution-Jurisdiction-Procedure-Act VIII of
decree, unless shown to have been irregular, 1859, secs. 285, 286, 290.] A decree obtained
contrary to natural justice, or fraudulentiy ob- in the Court at X was transferred for execution
tained. A decree obtained ex-parte is, in the to the Court at Y, where, after some time, the
absence of fraud or irregularity, binding between case was struck off the file. The decree-holder
the parties for the purposes of evidence and subsequently applied in Y to have the case s-nt
estoppel, as any other decree. MAHARAJAH BIR- for execution to the Court at Z: Held, that
CHUNDER MANICK . RAM KISHEN SHAW, 23 the Y Court had no jurisdiction to grant the
W. R., 128, considered and explained. If a application; that the proper course for the
defendant does not think it worth while to con- decree-holder to pursue was to apply under
test a suit, but allows the plaintiff's evidence, section 290, Act VIII of 1859, to the Court
and the judgment passed upon t, to go unques-where the decree was obtained originally, for

2.
Act VIII of 1859, sec.
270-Decree of Subordinate Court-Execu-
tion.] A decree was passed by the Subordinate
Judge, and in execution of that decree, a sale
of certain property was held and conducted by
the Nazir of the District Judge: Held, that.
in reference to that sale, the District Judge had
no jurisdiction to pass any order under the pro-
visions of sec. 270, or any order respecting
the re-sale of the property. NOBO KISHORE
DASS v. PROTAP CHUNDER BANERJEA

3.

534

Exe-

Rent Decree for less
than 500 rupees-Act VIII (B. C.) of 1869,
sec. 58-Limitation-Application for
cution-Fresh Application.] The true con-
struction of Act VIII (B.C.) of 1869, sec.
58, is that execution shall not issue unless a pro
per application for execution is made within
three years from the date of the judgment.
RHEDHOY KRISHNA GHOSE v. KOYLASH CHUN-
DER BOSE, 13 W. R (F. B.) 3, cited and fol-
lowed. LALLA RAM SAHOO v. DODRAJ MAHTON,
Circular Order
20 W. R., 395, dissented from.
of the 10th of July 1874, discussed. SREE-
MUTTY GOLUCK MONY DEBIA v. MOHESH CHUN-
149
DER MOSA

4.

...

See HINDOO LAW 49

-Limitation Act IX of 1871, Sch. II.
Art. 167.] Act IX of 1871, Sch. II, Art.
167, allows three years from the date of a pre-
vious application for execution, whether that
previous application has been bona fide or merely
colourable, provided it was made whilst the de-
cree was in force.
A Judge is not, therefore,
competent to go into the question whether a pre-
vious application is colourable or not; but he is
competent to decide whether or not any decree
was alive at the time such previous application
was made. ESHAN CHUNDER BOSE v PRANNATH
ROY, 22 W. R., 512; 14 B. L. R., 143; RоHI-
NEE NUND N MITTER v. BuUGWAN CHUNDER
Roy, 22 W. R., 154, explained. BEMUL DASS
v. IKBAL NARAIN, 25 W. R., 249; and BISSES-
SUR MULLICK V. MAHATAB CHUNDER, 10

Execution-continued.

W. R., 9, F. B., cited. ANNODA PROSHAD RAI v.
408
SHEIKH KURPAN ALI

Struck off in Default. See
LIMITATION...

475

Application for Heirs of Judg.
ment-debtor-Act VIII of 1859, secs. 203, 210,
211.] Where an application is made and grant-
ed under sec. 210, Act VIII of 1859, and pro-
perty is attached which is claimed by the heir
as his self-acquired property, the Court should
proceed under sec. 203, without requiring any
fresh application to be made under that section.
RAM CHUND CHUCKERBUTTY v. MADHUB
NARAIN ROY

...

359

...

368

347

Appeal-Security for Costs-Act VIII
of 1859, secs. 204, 342.] Where security is
demanded and taken, under Act VIII of 1859,
sec. 342, before decree, for the purpose of secur-
ing to the respondent his costs, in the event of
his being successful, the security may, under
Act VIII of 1859, sec. 204, be enforced against
the surety or his representatives, in execution of
the decree dismissing the appeal. Procedure to
be followed in such cases stated. RAM KISHEN
DASS v. HURKHOO SINGH, 7 W. R., 329, and
GUJENDRO NATH ROY v. HEMANGINEE DASSEE,
13 W. R., 35; 4 B. L. R., 27, App., cited and
distinguished. CHATTERDHARY LALL v. RAM
BELASHEE KOOER
Execution Purchaser-Constructive notice—
Contribution.] Per KENNEDY, J.—An execution
purchaser takes subject to all equities affecting
the judgment-debtor, and will be bound by
constructive notice in the same way as an ordi-
v. JERVIS, 22
nary purchaser. KINDERLY
Beavan, 1, and BREWER v. LORD OXFORD, 6 De
G. M. & G., 507, cited and followed. If a
decree d clares a lien over A's property, for a
certain sum in favour of B, and subsequently A
sells part of this property to B, and part to C,
B cannot sue to enforce his lien against C's pur
chase without bringing his own into contribu-
tion. RAM LOCHUN SIRCAR v. RAMNARAIN...296
Ex-parte Decree. See APPEAL..
2.