Reported in : 119Ind.Cas.43
.....by rule 22 does not support his contention as the order of reference expressly excepts cases where the omission to issue notice is due to the fact that sub-rule (2) of rule 22 has been applied, as it has been in the present case.5. it is also argued that if the view taken by the district judge that the order does not amount to a decree is wrong the appeal must be allowed and the case remanded to the lower appellate court. that would no doubt be necessary in a case where any question of fact has to be investigated. but in this case if the decision is clearly right in law, there is no need to send the case back because it may have been based upon a debatable point of law.6. the question whether the order amounts to a decree and is, therefore, appealable was also argued before me on both sides. the order passed is no doubt one which falls within the terms of section 47 as an order relating to the execution of the decree. but it is not an order relating to the execution of the decree which amounts to a decree as defined in section 2 of the civil procedure code. the order to have the force of a decree must not only relate to a question which falls within section 47 but it must.....
Tag this Judgment! Ask ChatGPTReported in : (1929)31BOMLR988
.....from the learned counsel appearing for the parties.5. the precise question which i have to decide is not covered by authority.6. the following fact appear from the pleadings. the plaintiff's claim is in respect of moneys under a promissory note passed by the defendant, and to enforce his charge on the car pledged to laduck. he prays for a declaration that there is a valid charge in his favour on the car to the extent of the amount due to him. the plaintiff further prays for the appointment of a receiver, and that the car may be sold by and under the directions of the court, and the sale proceeds applied towards the payment of the plaintiff's claim, in para. 4 of the written statement the defendant admits what she calls an agreement of hypothecation in favour of laduck but in para, 5 she admits that the car was hypothecated to him. in her writing of september 1, she states the car continued to be mortgaged to laduck. it seems to me on the correspondence, the promissory note and the pleadings that the transaction between the plaintiff and the defendant was one of pledge. if then the plaintiff is a holder in due course, he is undoubtedly entitled to a charge on the said car.....
Tag this Judgment! Ask ChatGPTReported in : (1929)31BOMLR79; 117Ind.Cas.333
.....a juror. but 'pestonji' as the name of the father of mr. jehangirjt was given through mistake. instead of that, the name is jehangirji dinshaw. this fact should be made known to your honour and hence this application.accordingly the name of the juror was corrected.6. it seems that the applicant raised no objection in the trial court to the procedure followed by the magistrate in accepting two of the nominees of the opponent as members of the jury instead of nominating such jurors himself. the point was raised by the applicant before the sessions judge in appeal, but was not seriously pressed there. the point is now taken in this court in revision.7. it is not shown that the appointment of the two nominees of the opponent on the jury has resulted in any apparent injustice to the applicant. the jury including the applicant's nominees were unanimous in modifying in the applicant's favour the conditional order of the magistrate by requiring that the mill should be closed from 9 p. m. to 6 a. m. instead of from 7 p. m. to 7 a. m. it is not shown that the nominees of the opponent were in any sense his partisans. they were members of a different community from his and were not residents.....
Tag this Judgment! Ask ChatGPTReported in : 113Ind.Cas.462; (1929)56MLJ157
.....under section 197 of the criminal procedure code and, secondly, he would then have been acting within his rights in evicting the complainant. the facts upon which it was successfully contended in the lower court that he had ceased to be president are briefly these. it appears that the members of the board had split into two parties, one supporting the president and the other hostile to him. on the 15th january, 1927, the board by 10 votes to 8 passed a token resolution reducing the education budget by one rupee as a protest against the president's administration. in consequence of this, on the 16th february, the president sent to each member separately a tender of his resignation in the terms of ex. ii. the next meeting of the board was fixed for the 25th february, and the subject of this resignation was put down on the agenda as resolution or item no. 92. at the meeting one of the members proposed that this item should be advanced in position and disposed of before the other intervening items, but the president disallowed the proposal for want of notice. thereupon the opposite faction withdrew and field a separate meeting outside at which they passed a resolution accepting.....
Tag this Judgment! Ask ChatGPTReported in : AIR1929Mad471
.....the other creditors of their lawful rights to share rateably in the assets. what the dominant intention was is always regarded as a pure question of fact, and the court has therefore to decide as a question of fact what was the dominant intention of these insolvents when they made these transfers. the learned trial judge has decided that in the present case the dominant view of the insolvents was to stave off those creditors, who were bringing most pressure to bear upon them, to tide over a difficult time and save their credit in order that they might still carry on their trade and avoid bankruptcy and that therefore there was no fraudulent preference. the argument before us centred on the point whether these preferences are due to pressure brought to bear on those insolvents by these three creditors.4. after hearing the appeal fully argued on both sides i am not able to hold that the learned judge's finding was wrong. a number of cases both in english and indian law reports have been cited before us. i do not think it necessary to consider them in detail. preference under the section imports voluntary act, that the transferrer was free to do one thing or another, whichever he.....
Tag this Judgment! Ask ChatGPTReported in : AIR1929Mad496; 113Ind.Cas.455
orderreilly, j.1. the assistant sessions judge found that there was an occurrence in which p.w. no. 7 and the other men against whom the petitioner reported took part, but that the occurrence was. exaggerated by the petitioner into a case of dacoity. the petitioner reported to the village magistrate that p.w. no. 7 and the other men removed the women's. jewels, not stating which particular men. removed them. the assistant sessions judge appears to be of opinion that it is enough to consider the question whether p.w. no. 7 removed the jewels and accepts p.w. no. 7's evidence that he did not do so. but the petitioner's charge would have been substantially true if any of the other men named by: him had taken the jewels, and none of them has been examined in this case. the petitioner produced evidence to show that two of those men removed jewels from the women but sessions judge on appeal. has not considered that evidence. the charge against the petitioner on which. he has been convicted is that he instituted criminal proceedings by his report to the village magistrate against p.w. no. 7 ' and five others ' falsely charging them and knowing that there was no-just or lawful ground for.....
Tag this Judgment! Ask ChatGPTReported in : (1929)31BOMLR448
.....on narandas to apply to be joined as a party, and that it was the plaintiff's business really to have joined him and not to have concealed the fact that he had rights in the property. no doubt, it would perhaps end the litigation if we were to direct that the suit should be remanded for deciding this dispute between narandas and the heirs of bai ujam; but, in our opinion, this would be turning the present suit into one of quite a different nature. it is not, in our opinion, necessary to have this dispute decided before we can give the plaintiff any relief in the suit. we think that in the circumstances of present case, where the plaintiff has borne the brunt of the litigation, presumably to the knowledge of narandas, it would be unfair, after she has succeeded on the main dispute between herself and bai bhuri, that she should be exposed to this further contest before she is given any relief in the present suit. the circumstances under which the claim of narandas is put forward at this late stage are not in our opinion, such as call for any indulgence towards him on our part; and we think the fairest course is to act upon the view taken by this court in maganlal dulabhdas v......
Tag this Judgment! Ask ChatGPTReported in : (1929)31BOMLR62
.....is nothing before me to show what the law of south africa is or to show that the marriage contracted by the applicant is not valid. the facts as at present disclosed show that she is married to a baroda subject and thus she ceases to be a european british subject. moreover the applicant was informed on the last occasion that any application she had to make with regard to these proceedings should be made to the high court. applicant is, therefore, ordered to furnish bail or surrender herself.4. it is contended on behalf of the crown that this court has no jurisdiction to revise the order made by the chief presidency magistrate. it is urged that the act of the magistrate is not a judicial but an executive act and that he is bound, under the terms of section 7 of the indian extradition act, to act in pursuance of the warrant, and that the only discretion he can exercise is that given him by section 8a, which provides that he may, if he thinks fit, after the statement (if any) of the accused person has been recorded, before proceeding further, report the case to the local government and, pending the receipt of orders-, detain such accused person in custody or release him.....
Tag this Judgment! Ask ChatGPTReported in : AIR1929Mad2; 113Ind.Cas.660; (1928)55MLJ838
.....the master held that in those circumstances he had no discretion to allow the case to be restored after those 30 days. it is pointed out that by order 1, rule 7, which is in effect a reproduction of that which appears as order 64, rule 7 of the rules of the supreme court in england, and which repeats similar rules which had been in force for many years, there is a general discretion given to revive a suit, because it says in terms that an enlargement may be ordered although the application for the same was not made until after the expiration of the time appointed or allowed. we have been referred to a series of english cases, the earliest of which is whistler v. hancock (1878) 3 q.b.d. 83, a decision of chief justice cockburn and mr. justice manisty. there an order was made dismissing an action for want of prosecution unless a statement of claim should be delivered within a week. the week expired and nothing was done and it was held that the action was at an end. a similar conclusion was arrived at in king v. davenport (1879) 4 q.b.d. 402, a decision of chief justice cockburn and mr. justice mellor, but it has been held that this case only applied to a state of things were an.....
Tag this Judgment! Ask ChatGPTReported in : AIR1929Mad31; (1929)56MLJ35
.....and under the original side rules it is the arbitrators that have to file the award in court with the submission at the request of the parties.4. order 38, rule 7 of the original side rules says that an arbitrator or umpire desirous of filing an award in court shall present to the registrar a request to file the same, duly stamped, together with the submission to arbitration, and the award or a signed copy there of the said award or copies shall, unless otherwise ordered, be signed by the arbitrator or umpire.5. section 11 of the indian arbitration act says that when the arbitrators or umpire have made their award they shall sign it.6. sub-clause (2) says that the arbitrators or umpire shall, at the request of any party to the submission or any person claiming under him, and upon payment of the fees and charges due in respect of the arbitration and award, and of the costs and charges of filing the award, cause the award or a signed copy of it, to be filed in the court; and notice of the filing shall be given to the parties by the arbitrators or umpire.7. if the indian arbitration act applies, it is clear that the award cannot be made a rule of court because the submission is.....
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