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In Re: Petition of Nasibun and ors. and Vs. Preosunker Ghose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal534
AppellantIn Re: Petition of Nasibun and ors. and ;nasibun and ors.
RespondentPreosunker Ghose
Excerpt:
bond - stamp act (xviii of 1869), section 2, clause 5--definition of bond--promissory note. - .....on certain dates. the argument addressed to us is, that this instrument is not a promissory note but a bond. the definition of a bond as given in the stamp act, xviii of 1869 (which governs the case) is as follows: 'bond includes every instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be.' the argument addressed to us has turned upon this language only; but we may observe that this language does not contain an exhaustive definition of the term 'bond.' the word 'includes' has an extending force, and does not limit the meaning of the term to the substance of the definition. we have in the instrument now before us a promise to pay money, and,.....
Judgment:

Field, J.

1. The question in this case is, whether the Judge of the Small Cause Court at Jessore is wrong in holding that a certain instrument is a promissory note, and requires to be stamped as such. It appears that the plaintiffs, who obtained this rule, had a decree against the defendant; that this decree was being executed; that the parties came to a compromise; and that the instrument with which this rule is concerned was executed thereupon. The instrument, leaving out the immaterial portions, runs as follows.

2. Now this instrument recites the fact of the decree having been under execution and the fact of the execution-proceedings having been struck off. It then recites that 'you,' that is the mukhtar, in whose favour the instrument was executed 'having spoken to the decree-holders, will adjust the decree' (for this we take it, is the proper signification of these words) and then the instrument goes on to state that the amount will be paid by instalments on certain dates. The argument addressed to us is, that this instrument is not a promissory note but a bond. The definition of a bond as given in the Stamp Act, XVIII of 1869 (which governs the case) is as follows: 'Bond includes every instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be.' The argument addressed to us has turned upon this language only; but we may observe that this language does not contain an exhaustive definition of the term 'bond.' The word 'includes' has an extending force, and does not limit the meaning of the term to the substance of the definition. We have in the instrument now before us a promise to pay money, and, according to our construction of the instrument, there is no condition that this promise or obligation shall be void if a specified act is performed, or is not performed. The plaintiffs' vakeel contends that the words mean stay the execution of the decree, and that the sentence in which these words occur is to be construed as a condition precedent to the payment of the money, that if the decree be not stayed, the money will not become payable. Now, in the first place, it is admitted on both sides, that the decree never was executed after the date of this instrument, and it appears to us, that if the decree-holders had sought to execute the decree, they could have been restrained from doing so. We consider that this instrument was to all intents and purposes a complete adjustment of the decree; and that, if the judgment-debtor had applied to the Court under the provisions of Section 258 of the Code of Civil Procedure, the instrument must have been treated as an adjustment of the decree, and it would have been the duty of the Court to make an entry accordingly in its register. We think, therefore, that the payment of the money did not depend on any condition, that the promise to pay was absolute, and that the instrument is a promissory note. There is a further passage in the instrument upon which one of the arguments addressed to us has been based. That passage is as follows: Now, it is said that this shows that it was not the intention of the parties to treat this instrument as a promissory note, and that this was really an agreement to execute a subsequent document. If this argument can prevail, the necessary result will be, that the plaintiffs' suit must fail, because this suit has not been brought to compel specific performance of any agreement to execute a subsequent document, and a suit of this nature must, we may observe, have been brought, not in the Small Cause Court, but in the regular Civil Court. The present suit has been brought not with the object of obtaining specific performance, but for the purpose of recovering the amount set out in the agreement; and this being so, it appears to us that the plaintiffs themselves have treated the instrument as one which entitles them to recover the amount set forth therein. Having regard, however, to the fact that this instrument was executed in favour of the mukhtar, we think that the reasonable meaning of this latter passage is, that as soon as the decree would be adjusted, the judgment-debtor would execute another document in favour of the decree-holders themselves instead of the note in favour of the mukhtar. In the present suit, the mukhtar has been joined as a plaintiff, and this being so, the suit was in proper form. Under these circumstances, we think that this rule must be discharged with costs.


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