페이지 이미지
PDF
ePub

(d) by determining and declaring the rights of parties otherwise than by an award of compensation"; or

(e) by appointing a Receiver ?. Preventive 6. Specific relief granted under clause (c) of section 5 is relief,

called preventive relief. Relief not 7. Specific relief cannot be granted for the mere purpose

of to enforce enforcing a penal law 3. penal law, Chap. VỊ.

defamatory matter. Though such Chap. VII. Sec. 5 (which was publication is a criminal offence, it is suggested by $ 1881 of the draft N. Y. also an infringement of a civil right. Civil Code)

omits to refer to chaps. III So in India, as in England, the Court and IV. It might well be repealed. may restrain by injunction the com

38 Cal. 168: Draft N. Y. Civil mission of criminal acts affecting Code, $ 1883, which excepts cases of rights of property which the Court is nuisance. See sec. 55 infra. Ill. (e) bound to protect, Gee v. Pritchard, shows that an injunction may be ob- 2 Swanst. 413, and other cases cited tained to restrain the publication of in Daniell, 1578, note (h).

PART II.

OF SPECIFIC RELIEF.

CHAPTER I.

OF RECOVERING POSSESSION OF PROPERTY.

able pro

Suit by

(a) Possession of Immoveable Property. 8. A person entitled to the possession of specific immove- Recovery able property may recover it in the manner prescribed by the of specific Code of Civil Procedure.

perty. 9. If any person is dispossessed 1 without his consent of immoveable property otherwise than in due course of law, he person disor any person claiming through him may, by suit instituted of immovewithin six months from the date of the dispossession, recover able pro

perty. possession thereof, notwithstanding any other title that may be set up in such suit ?

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

No suit under this section shall be brought against the Government 3.

No appeal shall lie from any order or decree passed in any

either wholly or partially. Thus section the plaintiff may sue each of where A trespasses on B's property the persons concerned in the ouster and retains joint possession thereof, and in maintaining the alleged wrongB may sue under this section, for he ful possession thus acquired, whether is dispossessed to the same extent as immediately or mediately, from the A has obtained possession, 3 Mad. plaintiff, 5 Bom. 208. To such a suit 250. The possession of which the brought by a mortgagee against a plaintiff in a suit under this section mortgagor who has forcibly disposhas been deprived must be a juridical sessed the former, it is no answer to as opposed to a physical possession. allege that the mortgage and possesA mere trespasser has not acquired sion thereunder were obtained by the what the law understands by posses- fraud of the mortgagee. The mortsion, and cannot, therefore, have been gagor should sue to set aside the

dispossessed,' 7 Bom. H.C., A.C. J. mortgage and recover possession, 5 87, per Melvill J. See also 5 Bom.

Bom.

446. 446. A jurisdiction in cases of il- 9 This word is not defined. It legal dispossession is given to Mám. would doubtless here be construed as latdárs by Bom. Act III of 1876, meaning the Secretary of State in West & B., 3rd ed., 696, n.

Council ; see 21 & 22 Vic. c. 106, s. In a summary suit under this 65.

suit instituted under this section, nor shall any review of any such order or decree be allowed ?.

(7) Possession of Moveable Property. Recovery 10. A person entitled to the possession of specific moveable of specific moveable property may recover the same in the manner prescribed by property. the Code of Civil Procedure 3.

Explanation 1.-A trustee may sue under this section for the possession of property to the beneficial interest in which the person for whom he is trustee is entitled 4.

Explanation 2.—A special or temporary right to the present possession of property is sufficient to support a suit under this section.

Illustrations. (a) A bequeaths land to B for his life, with remainder to C. A dies. B enters on the land, but C, without B's consent, obtains possession of the title-deeds. B may recover them from C5.

(6) A pledges certain jewels to B to secure a loan. B disposes of them before he is entitled to do so. A, without having paid or tendered the amount of the loan, sues B for possession of the jewels. The suit should be dismissed, as A is not entitled to their possession", whatever right he may have to secure their safe custody.

(c) A receives a letter addressed to him by B. B gets back the letter without A's consent. A has such a property therein as entitles him to recover it from B 8.

(d) A deposits books and papers for safe custody with B. B loses them and C finds them, but refuses to deliver them to B when demanded. B may recover them from C, subject to C's right, if any, under section 168 of the Indian Contract Act, 1872.

(e) A, a warehouse-keeper, is charged with the delivery of certain

[ocr errors]

1 This does not bar a rehearing under sec, 103 of the Civil Procedure Code, 4 Mad. 218.

Mere omission of the party dispossessed to avail himself of the provisions of this section is not acqui. escence in the dispossessor's act so as to deprive him of his right to rely on his previous possession in an action of ejectment against a trespasser, 8 Bom. 375, 376.

A suit lies under this section where the plaintiff's possession has been partially, as well as where it has been wholly disturbed, 3 Mad. 250.

* And the defendant has no option to retain the property upon paying

its value. So in England since the
C. L. P. Act, 1854, sec. 78.
• Bullen & Leake, p. 414.
5 Lord Buckhurst's Case, i Co. Rep.

The illustration assumes that B is not a beneficiary. Otherwise his trustee would be entitled to the deeds. See the Trusts Act, sec. 31, supra,

• The bailor must pay or tender before he becomes entitled to the possession.

? Donald v. Suckling, L. R., IQ. B. 585.

Qlirer v. Oliver, 8 Jur., N. S. 511: 11 C. B., N. S. 139.

p. 853

as owner,

cases:

goods to 2, which B takes out of A's possession. A may sue B for the goods

11. Any person having the possession or control of a par- Liability ticular article of moveable property, of which he is not the of person owner, may be compelled specifically to deliver it to the person sion, not entitled to its immediate possession, in any of the following to deliver

to person

entitled to (a) when the thing claimed is held by the defendant as the immediate agent or trustee of the claimant;

possession. (6) when compensation in money would not afford the claimant adequate relief for the loss of the thing claimed 3 ;

(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;

(d) when the possession of the thing claimed has been wrongfully transferred from the claimant 4.

Illustrations of clause (a)--A, proceeding to Europe, leaves his furniture in charge of B as his agent during his absence. B, without A's authority, pledges the furniture to C, and C, knowing that B had no right to pledge the furniture ', advertises it for sale. C may be compelled to deliver the furniture to A, for he holds it as A's trustee 6.

of clause (6)—2 has got possession of an idol belonging to A's family, and of which A is the proper custodian. Z may be compelled to deliver the idol to A ?.

of clause (c)-A is entitled to a picture by a dead painter and a pair of rarė China vases. B has possession of them. The articles are of too special a character to bear an ascertainable market-value. B may be compelled to deliver them to A %.

1 This illustrates Expl. 2-A having As to the plaint and decree in a temporary right to the present pos- suits under this section, see the Code session of the goods. As to the de- of Civil Procedure, sched. iv, no. 103, cree in suits under this section, see and sec. 260. the Code of Civil Procedure, secs. 208, 5 If C had not this knowledge, the 259, and as to the measure of damages, Contract Act, sec. 178, would apply. Mayne, Dam. p. 389.

6 Wood v. Rowcliffe, 3 Hare, 3 Wood v. Rowcliffe, a Phill. 882.

3 This includes two classes of Eng- i Pusey v. Pusey, 1 Vern. 273. lish cases, (a) where the thing in 8 Duke of Somerset v. Cookson, 3 question is unique, where there is, P. W. 389: Lowther v. Lowther, 13 over and above the market value, a Ves. 95: Falcke v. Grey, 4 Drew. 653. pretium affectionis (Fry, 28), and (6) English Courts of Equity have comwhere, though it is not unique, it pelled delivery also of family paintpossesses a special and peculiar value ings, family plate, a gold snuff-box, to the plaintiff (Fry, 30). In the farm-stock, mortgage-deeds, account. latter class of cases the Court will books, jewels, masonic regalia. A enjoin the possessor of the article not ship is probably within this principle, to sell it, North v. G. N. Ry. Co., a Fry, 28, note 6. Giff. 64.

304.

CHAPTER II.

OF THE SPECIFIC PERFORMANCE OF CONTRACTS.

Cases in which specific performance enforceable.

(a) Contracts which may be specifically enforced. 12. Except as otherwise provided in this chapter, the specific performance of any contract may in the discretion of the Court be enforced

(a) when the act agreed to be done is in the performance, wholly or partly, of a trust 3 ;

(6) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done ;

(c) when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or

(d) when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done.

Explanation.- Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer moveable property can be thus relieved 4.

Illustrations of clause (a)- A holds certain stock in trust for B. A wrongfully disposes of the stock. The law creates an obligation on A to restore the same quantity of stock to B, and B may enforce specific per formance of this obligation

of clause (6)—A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare China vases. A may compel B specifically to perform this contract, for there is no standard for ascertaining the actual damage which would be caused by its nonperformance

of clause (c)-A contracts with B to sell him a house for Rs. 1000.

? i.e. an agreement enforceable by s Forest v. Elwes, 4 Ves. 497: law; supra, p. 547

Pooley v. Budd, 14 Beav. 34. This * See infra, sec. 22.

illustration is repealed by the Trusts s whether express, constructive, or Act, II of 1882, wherever that Act resulting, supra, p. 946.

is in force. + 1 Sim. & St 610.

Falcke v. Grey, 4 Drew. 651.

« 이전계속 »