1877 claim. This petition to the Deputy Commissioner was, in MUSSUMAT fact, an appeal against the Extra Assistant Commissioner's order dismissing the petitioner's claim. JAMOTI GADALO The Deputy Commissioner thereupon took up the case, heard the petitioner's witnesses, and gave her an order for maintenance of her child, being of opinion that the Extra Assistant Commissioner had overlooked the question as to whether the defendant was the father of the child, and had decided only the question whether she was the wife of defendant. The following judgment of the High Court' was delivered by JACKSON, J. JACKSON, J. :— We entirely concur with the Judge. It is clear that the Extra Assistant Commissioner, who first heard the woman's complaint, went fully into the question of the paternity of the child, indeed, that was the principal question to which he addressed himself. Even if this had not been so, the complainant's remedy would have been application to a superior Court. The Deputy Commissioner had no jurisdiction to entertain the complaint de novo, and his order is quashed. 1 JACKSON and Mc DONELL, J. J. Mortgage Bond-No mention of specific property-Vagueness. A simple covenant not to alienate the obligor's property until payment of a debt and interest does not constitute a mortgage. SPECIAL APPEAL from a decree of the first Subordinate By a bond entered into by plaintiff and defendant in February 1866, defendant covenanted to pay a certain sum with interest, and there provided that "till the payment of the amount I will not transfer any property by conditional sale or mortgage." The question was, whether this bond amounted to a mortgage of the whole or any part of the defendant's property. For Appellant: Baboo Amarendro Nath Chatterjee. For Respondent: Mr. R. E. Twidale and Moonshee Mahomed The judgment of the Court' was delivered by GARTH, C.J.: In this case we think that the Subordinate Judge has taken a wrong view of the so-called instrument of mortgage. We consider that it did not amount to a mortgage at all; but that it was merely a covenant not to alienate any property of the debtor until payment of the money advanced. The case decided by the Full Bench, which has been relied upon by the respondent, and which is reported in 5 B. L. R. 264: 13 W. R. 82, F. B., is in our opinion an authority in favor of the view which we now take. 1 GARTH, C.J., and BIRCH, J. GARTH, C.J. 1877 GUNNU v. LUTAFUT HOSEIN AND Judgment. GARTH, C.J. The instrument before the Court in that case referred to a specific property by name; and there were expressions in the instrument which led the Court to think that the parties intended that property to be pledged. case expressly says that, if the bond for payment of money, But the Chief Justice in that question there had been whether a with a simple covenant not to alienate the oblig or's property until payment, constituted a mortgage, he thought that question should be answered in the negative. Now here we have precisely that case. We have simply a covenant, that the debtor, the person borrowing the money, will not part with any of his property until payment of the debt; and we have no such expressions as those which, in the Full Bench case, induced the Court to hold that the instrument amounted to a mortgage. Those expressions were :-"Should we make all these transactions with respect to the said lands" (that is, the particular lands which were mentioned in the bond), "the instrument relating thereto shall be deemed invalid, and as executed in favor of nominal parties for evading payment of the money covered by the said land." In the absence of any such expressions here, we think that the Full Bench decision does not apply, and that this deed merely amounted to a general covenant not to part with any of the debtor's property. The result will be that the decision of the Subordinate Judge will be reversed, and the judgment of the Moonsiff restored, with costs in this Court and in the Court below. Section 296, Code of Criminal Procedure-Notice to party accused—Order directing commitment. Before a Court of Session can, under Section 296, Code of Criminal Procedure, direct a Magistrate to commit the accused in a "Sessions case" which has been improperly dismissed under Section 147, it is bound to give the accused person notice of the application for such an order, so that he may show cause why it should not be passed-Bundhoo, 22 W. R., 67; Nowab, 24 W. R. 70, followed. APPEAL PPEAL from the order of the Sessions Judge of Rungpore, convicting and sentencing the Appellants under Section 330 of Indian Penal Code. The points taken by the Appellants are sufficiently stated in the judgment of the High Court', which was delivered by KEMP, J: These parties have been convicted under Section 330 of the Penal Code by the Sessions Judge of Rungpore, and have been sentenced to various terms of imprisonment. The objection taken by the learned Counsel, Mr. Ghose, who appears for the appellants, is that the direction of the Judge for the committal of the prisoners under Section 330 of the Penal Code, was without jurisdiction, and that the committal and trial ought to be quashed. The original complaint was made of offences under Sections 323, 342 and 383, the last being the section defining the offence punishable under Section 384. The complainants were examined, and the case was made over for trial to the Deputy Magistrate, Mr. Rattray. Mr. Rattray recorded evidence in the case, and expressed a very decided opinion that the case was a false case, and that the evidence, to use his own language, was fabricated. He dismissed KEMP and MORRIS, J.J. KEMF. J. 1877 DWARKA NATH BHUT- KEMP.J. the case under Section 147, Criminal Procedure Code. Upon this, one of the complainants, named Fool Nushyo, petitioned the Judge who was holding the Sessions at Bograh on circuit, and the Judge, AND OTHERS without giving notice to the parties who were accused, directed Judgment. the Deputy Magistrate to commit the accused for trial under Section 330. The Judge, in his order directing this committal, observes that the case is a Sessions case, and had not been sufficiently inquired into. Now the complaint has been dismissed under Section 147 of the Code of Criminal Procedure; and, although under that section the dismissal of a complaint does not prevent subsequent proceedings, it has been held by this Court, in decisions to be found in Vols. XXII. and XXIV of the Weekly Reporter, pages 67 of Vol. XXII, and 70 of Vol. XXIV, that before a Sessions Court can direct the committal of a party against whom a complaint has been dismissed by the Magistrate, that Court is bound to give him notice of the application for such committal, and an opportunity of showing cause why the committal should not be made. That course of procedure has not been followed in the present case; and further, if the Judge was of opinion that the case had been dismissed without sufficient enquiry, he ought to have proceeded under Section 298, which directs that, if the Court of Session is of opinion that a further inquiry should be made into a case which has been dismissed under Section 147 it may direct the Magistrate, or any other officer subordinate to the Magistrate, to make such further enquiry into the complaint which has been so dismissed. We think, therefore, that the order of the Judge, directing the committal of the petitioners, is bad in law and without jurisdiction. We, therefore, quash the proceeding, set aside the sentence, and direct that the prisoners be released. |