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Nimba Harishet Vs. Sitaram Paraji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom458
AppellantNimba Harishet
RespondentSitaram Paraji
Excerpt:
.....code (act x1v of 1882), section 244 - decree--execution--question as to raised and decided in execution proceedings--omission to appeal--fresh suit brought to establish title. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition..........12 b.l.r. 71; and oseemoonnissa khatoon v. ameeroonnissa khatoon 30 cal. w.r. 162 show that the question raised in this suit was one which ought to have been raised in execution proceedings in the former suit, as provided by section 244, code of civil procedure. the decision in abdul rahman v. muhammad yar i.l.r. 4 all. 190 to which we have been referred conflicts with the above decisions; but the decision of the privy council in chowdhry wahed ali v. mussamut jumaee 11 b.l.r. 149 would appear not to have been 'brought to the notice of the court. now, as a fact, the question was raised by the plaintiff in the execution proceedings in the former suit and decided against him, and if he omitted to appeal, he cannot-rectify that omission by a separate suit-arundadhi ammyar v. natesha.....
Judgment:

Charles Sargent, C.J.

1. The decisions in Chowdhry Waked Ali v. Mussamut Jumaee 11 B.L.R. 149; Ameerunnhsa Khatoon v. Meer Mozuffer Hossein Chowdhry 12 B.L.R. 71; and Oseemoonnissa Khatoon v. Ameeroonnissa Khatoon 30 Cal. W.R. 162 show that the question raised in this suit was one which ought to have been raised in execution proceedings in the former suit, as provided by Section 244, Code of Civil Procedure. The decision in Abdul Rahman v. Muhammad Yar I.L.R. 4 All. 190 to which we have been referred conflicts with the above decisions; but the decision of the Privy Council in Chowdhry Wahed Ali v. Mussamut Jumaee 11 B.L.R. 149 would appear not to have been 'brought to the notice of the Court. Now, as a fact, the question was raised by the plaintiff in the execution proceedings in the former suit and decided against him, and if he omitted to appeal, he cannot-rectify that omission by a separate suit-Arundadhi Ammyar v. Natesha Ayyar I.L.R. 5 Mad. 391. We must, therefore, reverse the decree of the Court below, and dismiss the plaintiff's suit, with costs throughout.


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