Partition by Collector-Private Partition-
Butwara Proceedings-Cause of Action- Act
VIII of 1859, section 15.] Where there had been
a private partition of an estate, and the several
shareholders had held their lands in accordance
therewith, an application was made by some of
the shareholders to the Collector to have a fresh
partition made as if the whole lands were held
jointly. Plaintiff, who was also a shareholder,
objected, but his objection was overruled. There-
upon he brought a suit for confirmation of the
partition and for an injunction to stay the parti-
tion pending before the Collector. Held, that
the plaintiff's cause of action against the defen-
dants arose upon their moving the Collector to
interfere with the first partition, and that the
period of limitation in respect of such cause of
action was the same as in any other suit for de-
termining the rights of parties to immoveable
property. A Civil Court cannot interfere by in-
junction to restrain a Collector's power of parti-
tion, but where, as between the several share.
holders, the extent and nature of the share of
each has been determined, the latter is bound to
recognize such determination, and to give effect
to it by carrying out the partition if the parties
apply for it. MUSSAMUT BEBEE KHOOBUN vs.
WOOMA CHURN SINGH
453
Partition, Private. See PARTITION BY COL-

...

...

...

Personal Decree. See SALE IN EXECUTION OF
DECREE

473

23

Petition. See MISCONDUCT OF JUDGE
Plaint, Form of-Frame of suit-Secondary
Evidence-Lost Deed-Correct Copy-Trespass
Limitation-Act IX of 1871, cl. 145.] Where
the owner of a tank wishes to bring a suit against
a person for fishing in the tank without his per-
mission, the plaint should be framed for the re-
covery of damages for trespass, and should not be
based on an alleged dispossession by reason of
A copy of
the defendant's fishing in the tank.
a deed which has been proved to be lost should
not be received in evidence, and is of no value as
evidence even when admitted, unless it has first
been proved that the copy produced is a correct
copy of the lost deed. When a person exercises
the right of fishing in a tank adversely for
twelve years, his right to fish becomes absolute
and indefeasible. LUKHIMONI DASI vs. KORUNA
KANT MOITRO...

...

509

2. -Subscription of Plaint-Authorized
Agent-Act X of 1877, section 51-Code of Civil
Procedure]. Under section 51 of the Code of
Civil Procedure, Act X of 1877, the Court may,
in its discretion, admit a plaint which has been
subscribed by an authorized agent of the plaintiff.
MAHARANEE SURNOMOYEE VS. POOLIN BEHARY
MUNDUL
453

357

Partition, Right to. See JOINT FAMILY 534
Partnership. See ARBITRATION
Party to Suit. See FRAUD

...

See

Payment of Rent jointly.
RENT, SUIT For ...
Payment of Rent by Tenant to

See POSSESSION BY TENANT

17

154

15

Pledge of Goods. See CONTRACT ACT, section

178

398

Plenary Powers of Legislation. See LEGIS-
197
LATIVE COUNCILS, POWERS OF...
Possession-Magistrate's inquiry-Code of
Criminal Procedure, sections 530, 533-Local
223 inquiry-Report.] In a proceeding under section
Stranger. 530 of the Code of Criminal Procedure, the Ma-
576 gistrate must decide the fact of possession on
evidence taken by himself, and not according to
the result of a local inquiry made under section
533, unless the parties have consented to be
bound thereby. Per PRINSEP, J.-The local en-
quiry referred to in section 533 should be res-
tricted solely to some question relating to the
features of the property about which the dispute
has arisen; and should not be directed to any
matter which can be proved before the Magis-
trate by oral evidence. BAIKUNT KUMAR, IN
THE MATTER OF

See PRE-
166

...

ENHANCEMENT

OF

21

Payment on delivery. See BREACH OF CON-

287

an

Legislative Council, &c.-continued.
Act of the Imperial Parliament which created it,
and it can do nothing beyond the limits which
circumscribe these powers. But, when acting
within those limits, it is not in any sense
agent or delegate of the Imperial Parliament, but
has, and was intended to have, plenary powers
of legislation, as large, and of the same nature,
as those of Parliament itself. When a question
arises whether the prescribed limits have been
exceeded, the established Courts of Justice must
of necessity determine that question; and the
only way in which they can properly do so, is by
looking to the terms of the instrument by which,
affirmatively, the legislative powers were created,
and by which, negatively, they were restricted.
If what has been done is legislation within the
general scope of the words which give the power,
and if it violates no express condition or res-
triction by which that power is limited, (in which
category would be included any Act of Parlia-
ment at variance with it,) it is not for any Court
of Justice to inquire further, or to enlarge con-
structively those conditions and restrictions.
When plenary powers of legislation exist as to
particular subjects, whether in an imperial or in
a provincial legislature, they may be well exercis-
ed either absolutely or conditionally; and the
Indian Legislature has power to legislate con-
ditionally on the use of particular powers, or on
the exercise of a limited discretion by a per-
son in whom it places confidence. The Governor-
General in Council could not, by any form of
enactment, create in India, and arm with legis-
lative authority, a new legislative power, not
created or authorized by the Council's Act; but
nothing of that kind has been done or attempted
in Act XXII of 1869. THE QUEEN VS. BURA
HANGSEH and BOOK SINGH ...
197
Letter. See PRACTICE
Letters Patent of 1865. See LEGISLATIVE
COUNCILS, POWERS OF
Liabilities of Shipowners for goods after
being landed. See CARRIER BY SEA 585
Lien, Waiver of. See JURISDICTION
Life Interest. See JURISDICTION

...

...

Limitation-continued

of the application for execution (5th September)
in 1874. Held, also, that the fact of the appli
cation for execution in 1874 having been granted
did not prevent the Court from looking behind,
to see if the decree were barred. KALLY PRO-
SUNNO HAZRA VS. HEERA LAL MUNDAL, I. L. R.,
2 Cal., 468; and BISSESSUR MULLICK VS. MAHA
RAJAH MAHATAB CHUNDER, 10 W. R., F. B., 8,
followed. ISHANA DABIA v. GRIJA KANT LA-
HIRY CHOWDHRY

573
See REVENUE AUCTION SALE 151

2-
Execution of Decree-Intervenor
-Act VIII of 1859, sec. 246-Act IX of 1871,
Sch. II., Cl. 15.] In execution of a decree ob-
tained by A against B, certain property was at-
tached. C intervened, claiming the property as
his, but an order was passed under section 246,
Act VIII of 1859, disallowing the claim. More
than twelve months from the date of the order
C brought a suit for establishing his right to
the property. Held, that the suit was not barred
by the provisions of Cl. 15, Sch. II, Act IX of
1871. KOYLASH CHUNDER PAUL CHOWDHRY VS.
PREONATH ROY CHOWDHRY...

·Execution of Decree-Sale in Er-
ecution-Setting aside Sale-Revival of Pro-
ceedings in Execution-Act IX of 1871, Sch. II.
Art. 167.] A decree-holder, in execution of de-,
cree, sold some property belonging to his judg
ment-debtor on the 2nd of October 1871, and the
execution proceedings were struck off on the 26th
of February 1872. The judgment-debtor brought
a suit, and had the sale set aside on the 14th of
May 1873. On the 22nd of December 1874, the
decree-holder again applied for execution. Held,
that the application must be taken as one to
revive the former proceedings of 1871, and that
execution of the decree was not barred by limi
tation. BABOO PYAROO TUHOBILDARINEE VS.
STUD NAZIR HOSSEIN, 23 W. R., 183, cited and
followed. ISHWARI DASSEE VS. SHAHA ABDOOL
KHALEH
46
4-
375

93

197

-Execution of Decree-Execution
-Proceedings barred by Limitation—Kistbundi
-Act IX of 1871, Schedule II, Art. 167.] A
Limitation-Execution of Decree-Acknow-decree-holder having arrested his judgment-debe
ledgment-Act IX of 1871, section 20-Act IX
of 1871, Sch. II., Art. 167.] Application for ex-
ecution of a decree against the heir of the judg-
ment debtor was made on the 26th July 1871.
On the 30th November of the same year the
debtor applied by petition for two months' time.
The application for execution was struck off for
default. A subsequent application for execution
was made on the 5th September 1874, and now
again on the 22nd September 1877. Held, that
the petition of the 30th November 1871 was not
an acknowledgment within the meaning of sec-
tion 20 of Act IX of 1871, so as to save limita
tion, and that the decree was barred at the date

tor in execution of the decree, the latter was re
leased from arrest on agreeing to pay the amount
of the decree in monthly instalments of tes
rupees. The execution proceedings were then
struck off the file in September 1873, and the
judgment-debtor continued to pay until October
1876, when he ceased. The decree-holder the
applied for execution of the decree against the
property of the debtor. Held, that execution
was barred by limitation, because more tha
three years had elapsed from the date of the
last application to enforce or keep in force the
decree. HURRONATH BHUNJO VS. CHUNNI LALL
161
GHOSE

Limitation-continued.

TACHARJEE

11.

...

Lis Pendens-continued.
not appealed. Held, that A's suit was not Right of Redemption.] Defendant, in execution
barred by limitation, as the final decree in the of a money-decree, obtained by him against A in
original suit. within the meaning of Art. 167 of 1872, sold certain property belonging to A on
Act IX of 1871, was the decree as amended by the 10th of September 1874, became himself the
the High Court on the 19th of February 1875. purchaser, and entered into possession. In the
GANGA MOYEE DASSEE VS. SHIB SUNHER BHUT- meantime, on the 10th of July 1874, a person to
430 whom this property had been mortgaged in
Act XV of 1877, Schedule II. 1872, brought a suit on his mortgage, and on the
Art. 171-Code of Civil Procedure. Act of his lien; in execution of this decree the mort-
17th of September obtained a decree declaring
1877, sections 365, 582 and 587-Special Appeal
-Death of Appellant.] A suit was instituted gaged property was sold to the vendor of the
and a decree obtained in the Court of First plaintiff on the 23rd of February 1875. In a
Instance while Act X of 1859 was in force, but suit for possession, Held, that the defendant was
the second decree was made, and the second bound by lis pendens; that, therefore, the plain-
tiff was entitled to a decree for possession; and
or special appeal preferred, after Act X of 1877 that the defendant could not claim to hold the
became law. Pending the hearing of such special land subject to the mortgage. LALA KALI PER-
appeal, on the 21st April 1878, the plaintiff, who
was also appellant, died, and on the 16th August
in the same year, or more than 60 days after
his father's death, his son and sole heir applied
to the Court to be substituted as appellant in
place of the deceased, for the purpose of prose-
cuting the appeal. Held, that the application
was not made under section 365, but under sec-
tion 587 of Act X of 1877, as incorporated with
the former section, and was therefore not barred
by Art. 171, Schedule II, of Act XV of 1877.
Where the language of an Act of Limitation

SHAD V8. BULI SINGH

. 396

134

Local Inquiry. See POSSESSION
Local Investigation-Commission-District
Judge, Powers of] Where a Subordinate Judge,
in a suit depending in his own Court, issues a
co amission for a local investigation at the in-
stance of the plaintiff and with the consent of
the defendant, the District Judge has no power
to interfere with or prevent the execution of
that order. NIRUD KRISTO ROY vs. WUMA
NATH MUKERJEE

Loss by Fire. See CARRIER BY SEA
Lost Deed. See PLAINT, FORM OF

specifies the particular cases for which a period
of limitation is provided, the Court ought not to
interpret that language so as to include cases not
falling within the strict meaning of the words
used. RAM SUNKUR BHADOORY, IN THE MATTER Magistrate.

440

234

See JUDICIAL PROCEEDING

See JURISDICTION

12-
-Agent-Account-Refusal to Ac-
count-Neglect to Account-Mookhtar.] An
account of his receipts and disbursements having
been demanded from a mookhtar, he, on the 3rd
of August 1872, wrote a letter in which he
promised to render full accounts during the en-
Bning vacation. This he neglected, though he
did not refuse, to do. Held, that the limitation
for a suit to compel an adjustment of account
ran from the time when the defendant's promise
to render accounts was broken, and was governed
by Act IX of 1871. Sch. II, Art. 90, (nee Act Merger-Contribution-Putneedar-Zemindar.]
XV of 1877, Sch. II, Art. 90.) HORI NARAIN The putneedar of a mehal which formed a por
GHOSE VS. THE ADMINISTRATOR-GENERAL... 446 tion of a zemindary, purchased the zemindary
rights in the mehal. From the date of his pur
chase he paid no rent as putneedar. Held, that
he could not set up his title as putneedar against
his zemindary co-sharers, in a suit brought by
them for contribution. PROSUNNO NATH ROY
VS. JOGUT CHUNDER PUNDIT

...

-See MORTGAGE

...

74

159

Talook
Mesne Profts-Wasilat—Putnee
Arrears of Rent-Setting aside sale-Durput-
nee.] A zemindar granted a putnee to A, who
Lis Pendens-Purchaser under Money-decree granted a durputnee to B. The putnee was sold
-Decree declaring lien-Mortgage Decree for arrears of rent to C, who entered into posses-

456

Mitakshara Law. See RES JUDICATA... 31
See JOINT FAMILY 534

Joint Hindu family-Alien-
ation by Members of joint family-Alienations
made without necessity-Purchaser at Execution
Sale, Rights of] Where several of the members
of a joint Hindu (Mitakshara) family pledge the
family property for re-payment of a loan, and
the creditor obtains a decree against his debtors,
in execution of which he sells, purchases, and
takes possession of the property pledged, then, in
covery of the property, on the ground that the
a suit by the other members of the family for re-
pledge was made without necessity or for immoral
purposes, the purchaser is entitled to retain so
ment-debtors, and to have that partitioned off
much of the property as belonged to his judg

282

...

446

336

159

Wrongful Possession—Amount
recoverable.] A, having obtained a decree against
B for possession of certain property, instituted
a suit for mesne profits for the time during which
B had been wrongfully in possession. The latter
having proved that he had paid for Government
revenue in respect of the property sums in ex-
from the remainder. DEEN DYAL LALI, Vs. Jag-
ceas of the rents received by him, this suit was
dismissed. Thereupon, B brought a suit against Ind. App., 300;
DEEP NARAIN SINGH, 1 C. L. R., 49; L. R. 4
followed. BABOO SOOMRUN
A to recover the amount so paid in excess of THAKOOR VS. CHUNDER MUN MISSER
the rents received. Held, that such a suit would
not lie, as A had been a trespasser, and must bear Mookhtar. See LIMITATION
the burthen of his own wrong. DOE vs. HARE, Mortgage. See LIMITATION
2 C. and M., 145, cited and followed. TILUOK
See MERGER...
CHAND BABOO VS. SOUDAMINEE DASSEE
3
-Interest, Calculation of] A Foreclosure Proceedings-Equity of Redemption
Merger-Foreclosure- Re-opening
judgment-debtor, who has been kept out of pos-Account.] Where A, who has bought the
session for several years, is entitled not merely to
bare rental, but to compensation for the loss he
has sustained. Under ordinary circumstances,
therefore, in a suit for mesne profits where the
decree-holder has been kept out of possession for
several years, interest should be calculated upon
the rental at the end of each year upon which
it accrued due; and the aggregate of the sums
due for rent and interest thereon for each year
constitute the mesne profits, upon which interest
may be directed by the decree to be paid until
realization. Quare. Whether the definition of
mesne profits" in section 211 of Act X of 1877
contemplates the calculation of interest as above.
HURROO DOORGA CHOWDHRANY VS. MAHARANEE

SHURRAT SOONDERY DABEA
Minor. See FRAUD

...

517

equity of redemption of a mortgage, pays off the
mortgage debt and causes the mortgage to be
assigned to B in trust for A for the expressed
purpose of avoiding merger, no merger will take
240; and ADAMS VS. ANGELL, 5 Ch. D., 634,
place. WATTS vs. SYMES, 1 De Gex, M. & G.,
cited. The owner of certain properties, X, Y
X, Y and Z, to the same mortgagee. Both mort-
and Z, mortgaged first X and Y, and afterwards
gages were purchased by A, who, having previ-
then sought to foreclose Y in a suit on the first
ously purchased the equity of redemption of X,
mortgage. Subsequently A brought a second suit
the second mortgage. On appeal to the High
against the mortgagor for the money due under
Court, both suits were heard together, and it
was held, that, supposing the first mortgage could
be foreclosed separately-which was very doubt-
ful-yet the effect of bringing a second suit would
473 be, under such circumstances, to re-open the
Misconduct of Judge-Refusal to hear Vasanctioned by the Court,) and to make A bring
foreclosure proceedings, (or prevent their being
keel-Appeal-Petition-Ground of Appeal.] X into the account. KALI PROSUNNO GHOSE VS.
Where a party desires or intends to make the KAMINI SOONDERY CHOWDRAIN
misconduct of a Judge a ground of appeal to the
High Court, he ought always to draw the Judge's Mortgage Decree. See LIS PENDENS
attention to that matter, either by presenting a Mortgage of Jote. See ESTOPPEL
petition or otherwise, so that a proper record
may be at once made of the facts which he de- Mortgage Money, Suit for. See RES JUDI.
sires to establish in appeal. JARDINE VS. TARINI
MOHUN SEN, 6 B. L. R, Appendix, 44, distin-
guished. RAM KOOMAR KYBURTO DASS VS. So- Mortgagee of lessee. See LANDLORD AND TE-
NATUN DASS PORAMANICK

See LIMITATION

Minors. See SALE IN

DECREE

17

391

OF

23

465 Motion. See RESTITUTION