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Documents citing Fotick Chunder Dey Sircar vs E.G. Foley And Ors. on 23 November, 1887

Sree Raja Bollapragada Venkata ... vs Nenda Seetayya And Anr. on 2 February, 1920

In Fotick Chunder Dey Sircar v. E.G. Foley 15 C. 492 : 7 Ind. Dec. (N.S.) 912 there was no question of enforcing any prior charge. The landlord got a money decree for rent and he attached other properties of the judgment debtor, that is, the properties other than the holding on which the rent had become due. The only question there was whether, though he obtained a money decree merely, he ought to be deemed as having also obtained a mortgage decree for the sale of the holding and whether he should first bring to sale the holding and should not be allowed to proceed against the other properties of his tenant in execution of the mere money decree for rent. The Court held that Section 68 of Act IV of 1832 had no application and the landlord could execute his money decree by attaching and bringing to sale other properties. Having decided the direct point involved the learned Judges proceeded thus : "This, we think, is a sufficient and complete answer to Dr. Banerjee's argument. But we are not prepared to admit that the 'charge' referred to in Section 65 of the Bangal Tenancy Act, 1885, is such a 'charge' as is defined by Section 100 of the Transfer of Property Act." Where the difference lies the learned Judges do not point out. On this vague obiter dictum, I do not think it is possible to bold that Order XXXIV, Rule 14, is not applicable where the charge for rent is sought to be enforced.
Madras High Court Cites 14 - Cited by 8 - Full Document

Sree Rajah Bollapragada Venkata ... vs Menda Seetayya And Anr. on 2 February, 1920

In Fotick Chunder Dey Sircar v. Foley, (1887) I.L.R. 15 Cal. 492. (P.C.) there was no question of enforcing any prior charge. The landlord got a money decree for rent and he attached other properties of the Judgment-debtor, that is, the properties other than the holding on which the rent had become due. The only question there was whether though he obtained a money decree merely he ought to be deemed as having also obtained a mortgage-decree for the sale of the holding and whether he should first bring to sale the holding should not be allowed to proceed against the other properties of his tenant in execution of the mere money decree for rent. The Court held that Section 68 of Act IV of 1882 had no application and the landlord could execute his money decree by attaching and bringing to sale other properties. Having decided the direct point involved, the learned Judges proceeded thus : " This we think is a sufficient and complete answer to Dr. Banerjee's argument. But we are not prepared to admit that, the " charge " referred to in Section 65 of the Bengal Tenancy Act, 1885, is such a charge as is defined by Section 100 of the Transfer of Property Act," Where the difference lies, the learned Judges do not point out. On this vague obiter dictum I do not think it is possible to hold that Order 34 Rule 14 is not applicable where the charge for rent is sought to be enforced.
Madras High Court Cites 14 - Cited by 0 - Full Document

Venkata Lakshmamma Garu vs Seetayya And Anr. on 2 February, 1920

In Fotick Chunder Dey Sircar v. Foley (1886) I.L.R., 15 Cal., 492 there was no question of enforcing any prior charge. The landlord got a money decree for rent and he attached other properties of the judgment-debtor, that is, the properties other than the holding on which the rent had become due. The only question there was whether though he obtained a money decree merely he ought to be deemed as having also obtained a mortgage decree for the sale of the holding, and whether he should first bring to sale the holding and should not be allowed to proceed against the other properties of his tenant in execution of the mere money decree for rent. The Court held that Section 68 of Act IV of 1882 had no application and the landlord could execute his money decree by attaching and bringing to sale other properties. Having decided the direct point involved, the learned Judges proceeded thus:
Madras High Court Cites 15 - Cited by 0 - Full Document

A.M.A. Firm By Managing Partner ... vs Marudachalam Chettiar (Died) And Ors. on 19 December, 1947

10. Even this limited power under Rule 35-A attracts only the procedure laid down under the Revenue Recovery Act for the realisation of the arrears of revenue, but does not carry with it the substantive provision of law relating to the annulling of encumbrances under the Revenue Recovery Act (Section 42 of the Revenue Recovery Act). The effect of Section 85 being only to create a first charge on the property, is there any reason to suggest that it is not a charge springing into existence ' by operation of law ' within the meaning of Section 100 of the Transfer of Property Act? There does not appear, either in the language of Section 100 of the Transfer of property Act or the provisions of the Madras District Municipalities Act any reason for concluding that it does not. Reliance has, however, been placed by the Court below and by the learned Advocate for the respondents before me, on the line of cases where the charges for rent under the Bengal Tenancy Act and under the Madras Estates Land Act have been held not to fall under Section 100 of the Transfer of Property Act. The starting point for this view is the well-known case of the Fotick Chunder Dey Sircar v. Foley (1887) I.L.R. 15 Cal. 492, a decision under the Bengal Tenancy Act, 1885. The landlord in that case obtained a decree for arrears of rent and wished to execute the decree by attachment and sale of the moveable property of the tenant without first proceeding against the tenure on which the rent was a first charge. The contention on behalf of the tenant was, that Section 100 of the Transfer of Property Act as it then stood applied to a charge for rent and that the provisions of Section 68 of the Transfer of Property Act were attracted and that the landlord was not entitled to attach moveable property without first exhausting his remedies against the tenure on which the rent was a charge. The learned Judges held that by reason of the language of Section 100 of the Transfer of Property Act, Section 68 was not made applicable and even if it applied after a decree in a suit the section could have no application. This was sufficient to dispose of the case but the learned Judges went further and added that the charge under Section 65 of the Bengal Tenancy Act was not a charge as defined by Section 100 of the Transfer of Property Act since the Tenancy Act which was intended to benefit a landlord could not be so construed as to deprive the landlord of the rights and remedies enjoyed by an ordinary judgment-creditor. The decision therefore on the point now relevant turned only on the policy of the Tenancy Act.
Madras High Court Cites 25 - Cited by 12 - Full Document

Virabadran Chetty And Ors. vs Nataraja Desikar on 22 July, 1904

The Indian Procedure Codes in declaring the circumstances under which a commission may be issued seem to have accepted (Sections 388 and 386 of the Civil Procedure Code) the rules that governed the practice in English Courts and adopted the ground under which alone the depositions of witnesses could bo given in evidence at the hearing; and in addition regard being had to the peculiar conditions of Indian society, further empowered a Judge to issue commission to examine witnesses exempted from attendance in Court under Sections fi40 and 641 of the Civil Procedure Code. Section 640 exempts certain women, while under Section 641 the Government must notify the exemption from attendance oE any person in their opinion entitled to that privilege on account of his rank, tfo power to exempt is given to the Courts. The enactment of those elaborate provisions in the place of the simple and comprehensive rule of English Law that an order may issue u where it shall appear necessary for the purposes of justice " seems to show that the Courts have not the absolute discretion or inherent power claimed for them on behalf of the respondent and a Judge is not therefore justified in issuing a commission except when authorized by the provisions of the Code. The case of Gopal Chunder Sircar v. Karnodhar Moochee and Ors. 7 W.R.C.R. p. 349 is also in favour of this view. It is not to fee understood that where these conditions exist the Judge is bound to issue a commission; where such examination may result in injustice to any or where it is not calculated to permit of the evidence being fairly tested or where the application is made to avoid cross-examination before the court, a commission need not be issued. " Even if the Court should be of opinion that the refusal of a commission will prevent the evidence of the witness from being given at all, yet if the non-attendance of the witness before the tribunal which has to decide the case and the consequent inability of the tribunal to observe demeanour and hear the answers of the witness shall lead to injustice towards one of the parties, the commission ought to be refused."
Madras High Court Cites 5 - Cited by 9 - Full Document

Royzuddi Sheik vs Kali Nath Mookerjee on 27 April, 1906

In the first place as pointed out in the case of Fotick Chunder Bey Sircar v. Foley (1887) I.L.R. 15 Calo. 492 the charge referred to in Section 65 of the Bengal Tenancy Act is not such a charge as that defined by Section 100 of the Transfer of Property Act, and does not require to be enforced in the fame manner; the only consequence, which follows from the provision that rant is a first charge upon an undertenure, is that a sale held in execution of a decree for arrears of rent produces the effects described in Chapter XIV of the Bengal Tenancy Act. In the second place, the present suit is in no sense a suit to enforce the original rent charge. It is in substance, as it is in form, a suit to enforce the rights of the plaintiff under the instalment bond by which, in lieu of the original liability, a new liability was substituted. Besides, if the plaintiff had sued to enforce the rent charge, his claim" would be tarred by limitation and as regards a portion of the claim, which had ripened into a judgment-debt, he would be rest icted to the remedy by execution and could not have recourse to a fresh suit. The third ground taken on behalf of the appellant cannot, therefore, be successfully maintained.
Calcutta High Court Cites 6 - Cited by 20 - Full Document

Sital Chandra Majhi vs Parbati Charan Chakrabarti on 18 August, 1921

750 : 10 C.L.J. 640 is based upon a misapprehension of the true effect of Section 65, which only intends what is explicitly laid down in subsequent sections of the Act, that is, those in Chapter XIV, namely, that the charge should be enforced by the sale of the tenure or holding free of incumbrances, and if in any case the decree for rent either has not been or cannot be enforced by the sale of the tenure or holding, the charge created by Section 65 cannot been forced in any other way : Soshi Bhusan Guha v. Gogan Chunder Shaha 41; Fotick Chunder Dey Sircar v. E. G. Foley 15 C. 492 : 7 Ind. Dec. (N.S.)
Calcutta High Court Cites 19 - Cited by 6 - Full Document

Corporation Of Calcutta vs Kumar Arun Chandra Singh And Ors. on 5 June, 1934

5. Section 100, Transfer of Property Act, purports to deal primarily with the incidence of the security, and not with the method of enforcing it, and declares that the provisions therein before contained which apply to simple mortgages, shall apply to charges only "so far as may be." That all the provisions there in before contained do not apply to charges and that Section 100 was not intended to apply to some statutory charges was decided in Fatick Chunder v. Foley 15 C. 492. It is not easy to understand why charges created by operation of law have been included within the provisions pf Section 100. But for the fact that there are some other sections in the Act which refer to such charges, one would have thought that they had been included by inadvertence because the Transfer of Property Act, 1882, is "an act to amend the law relating to the transfer of property by act of parties."
Calcutta High Court Cites 10 - Cited by 3 - Full Document
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