Legal Thesaurus

Obiter Dicta

An opinion of law not necessary to the decision.

The question whether a suit can be instituted in one district for setting a decree passed by a court of another district has been the subject of many decisions. The result of the actual decisions (ignoring what are mere obiter dicta) may be thus stated:

A suit to set aside a decree obtained by fraud in Court M, where nothing is done beyond transferring the decree for execution to Court N, can only be maintained in Court M, the Court passing the decree. (29 A 418). Where, however, a decree passed by Court M is transferred for execution to Court N where an application for execution of the decree has been made by the decree holder (65 IC 318), or the property of the judgment-debtor is attached in execution by Court N (36 A 564); or the judgment-debtor is arrested by Court N in execution of that decree (39 A 607) the case is different. The judgment-debtor can sue in Court N, for a declaration that the decree was obtained by fraud and for injunction restraining the decree-holder from executing the decree. Similarly if the attached property has been sold, the suit would be for the usual declaration for setting aside the sale and for possession. (5 CWN 559).

A contemporaneous oral agreement to reconvey, or allow redemption of property conveyed by a deed of absolute sale is inadmissible to show that the transaction was one of mortgage. [Milkumar v. Totomal, 1939 S 200; Putti Sesha Aiyar v. Kuppachar, 49 IC 699; Muhammad Mir, etc., v. Faiz-ul-Hasan, etc., 74 PR 1918]. It is, however, apprehended that Privy Council decision in Maung Kin’s case (44 IA 236) does not set at rest the controversy in all its aspects. Firstly, however considered the decision of the Privy Council on this point in Maung Kin’s case may be, it is no more than an obiter dictum, as the actual decision of the case proceeded on another ground, namely, that section 92, Evidence Act does not apply to a transaction with a third party. The Calcutta High Court has described the decision of the Privy Council on this point as merely an “expression of opinion” [Madhab Charan Das v. Rajani Mohan Das, 64 IC 583], which is another name for an obiter dictum. Secondly, whilst, according to the Privy Council decision, evidence of the acts and conduct is inadmissible between A and B when A, intending merely to mortgage his property to B, conveys it to him by a deed of out and out conveyance, the result is otherwise in proceedings between A and C, or B and C, when A grants to B out and out conveyance intending it to be a mortgage and C accepts from B an out and out conveyance knowing that the transaction between A and B was merely that of mortgage. [See Ganu v. Bhau, 42 B 512; Maung Than Gyaung v. Mating Pyu, etc., 5 R 836; Malakyi v. Ko Po Nyein, etc., 114 IC 676; Ma Mi v. Maung Aung Dun. etc., 6 R 376; See however Talakchand Bheraji v. Atmaram Khesav Vaidya etc., 77 IC 342].

But there are obiter dicta on two points, viz., (1) there is no right of private defence save as against the perpetrators of offences under the Penal Code; and (2) forcible defence of a right in actual enjoyment by forcible exercise of such right is enforcing a right within the meaning of clause 4, section 141, Indian Penal Code.

 

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