1. The appellant in this appeal was defendant 1 in the court of first instance. He was the lessor of certain premises which were taken on lease by defendant 2, in connection with which a sum of Rs. 1,200/- had been paid by defendant 2 to defendant 1, as advance, under a receipt Exhibit A. On August 26, 1949, accounts were settled between the defendants and the receipt Exhibit C was executed by defendant 1 in favour of defendant 2, acknowledging receipt from defendant 2 of the sum of Rs. 3,400/-. The receipt Exhibit A, however, was left in the custody of defendant 2.
2. The plaintiff, claiming to be a transferee of the right to recover the sum of Rs. 1,200/- which had been advanced by defendant 2 to defendant 1, brought the suit out of which this second appeal arises, for the recovery of that amount from both the defendants.
3. The Court of first instance dismissed the suit against defendant 1 but gave the plaintiff the decree which he wanted, against defendant 2.
4. Although the plaintiff did not appeal from that part of the decree by which his suit against defendant 1 was dismissed, defendant 2 preferred an appeal from the decree made against him. The lower appellate Court affirmed the decree made against defendant 2 and in the exercise of its powers under Rule 33 of Order XLI of the Code of Civil Procedure, it also made decree against defendant 1.
5. It is against this decree made against him that defendant 1 appeals.
6. Two contentions are urged before me by Mr. Rama Jois, the learned advocate for defendant 1.
7. His first submission was that the lower appellate Court, having dismissed the appeal preferred by defendant 2, did not have the competence to make a decree against defendant 1. His argument was that since the plaintiff did not appeal from the decision of the Court of first instance, by which it dismissed the suit against defendant 1; it was not competent for the lower appellate Court to make a decree which the Court of first instance did not make.
8. But, Mr, Bangalore, appearing on behalf; of the plaintiff, presented the argument that the provisions of Rule 33 of Order XLI of the Code of Civil Procedure were wide enough to clothe the lower appellate Court with the power to make a decree against defendant 1, which the Court of first instance ought to have made but did not make.
9. Now, it is well settled, as pointed nut by their Lordships of the Federal Court in Hari Shankar v. Anath Nath, AIR 19-19 FC 106, that the provisions of Rule 33 of Order XLI of the Code of Civil Procedure, which are enabling provisions, empower the appellate Court to exercise certain powers in favour of a party who has not filed the appeal, it the circumstances in the case and the interest of justice so require, and that, in a proper case, the appellate Court would have power to vary or reverse a decree, in favour of a parly who has not preferred any appeal or cross-objection.
10. But, Mr. Jois, appearing for defendant 1, urged before me that although the appellate Court might have had power to make a decree against defendant 1, if it had disturbed the decree made against defendant 2, it had no such power if it did not disturb the decree made against defendant 2 but affirmed it.
11. In support of this argument, he drew my attention to the illustration appearing under Rule 33 of Order XLI of the Code of Civil Procedure, which reads:
A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against V.'
The stress of the argument of Mr. Jois was that the illustration referred to a case where the decision of the appellate Court was in favour of the appellant and that the obvious implication of the illustration was that the powers conferred by Rule 33 were not available to an appellate Court where it did not decide in favour of the appellant but decided the appeal against him.
12. This contention would have had force if it had been possible for me to regard the illustration as exhaustive and not merely as illustrative, which Obviously it is.
13. Now, Rule 33 of Order XLI of the Code of Civil Procedure, reads:
'33. Power of Court of Appeal. The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may he exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection:
Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.'
14. It is clear from the language of this rule that if the appellate Court considers that in a particular case, a decree ought to have been made, but has not been made it has clearly the power to make that decree which has not been made by the Court, whose decision is under appeal. If the circumstances of the case and the interest of justice demand the variation of the decree in that way, it is clear that the appellate Court has the power to do so, and, that, precisely is the principle on which the decision of the Federal Court in rested.
Such variation may be necessary for the purpose of dismissing a suit against persons against whom decrees have been made but which have not been appealed against. Likewise, variation may be necessary in order to make a decree against a person against whom none has been made but the interest of justice requires that it should be so made. Indeed, the illustration appearing under the rule is an instance of that kind.
It does not appear to me to be correct to understand Rule 33 or the illustration appearing under it as empowering the appellate Court to exercise power under that rule only in cases where it allows either wholly or in part the appeal presented to it. There can be no principle on the basis of which the scope of Rule 33 could be restricted in that way. If the appellate Court has power to vary a decree in cases where wholly or in part it disturbs the decree appealed against, notwithstanding the fact that one portion of the decree is not appealed against, in the absence of an express provision to the contrary, it would not be right to think that the appellate Court docs not possess the power to do so, even in cases where the appeal preferred to it does not succeed.
The power of the appellate Court under Rule 3-3 does not, in my opinion, depend at all to any extent on the fate of the appeal which was actually preferred to it. The power conferred on the appellate Court by that rule is available to the appellate Court in all cases where the circumstances or the interest of justice justify the exercise of that power irrespective of the decision 'in the appeal itself, in so far as it relates to the appellant who preferred it.
15. Now, in this case, the lower appellate Court considered that the interest of justice required the making of a decree against defendant 1 also-although the plaintiff himself had not complained against that part of the decree by which the suit against defendant 1 was dismissed. In the view that I take--and it would indeed be rendering the provisions of Rule 33 entirely nugatory if the contention-urged by Mr. Rama Jois to the contrary is accepted--the fact that the plaintiff did not appeal from the-decree by which his suit against defendant 1 was dismissed was no reason whatsoever for declining, jurisdiction under Rule 33, if circumstances otherwise justified its exercise.
16. Likewise, the argument addressed on behalf of defendant 1 that the dismissal of the appeal-preferred by defendant 2 was a bar to the exercise of jurisdiction by the lower appellate Court to make a decree against defendant 1 as well is, I think, insubstantial.
17. The question, therefore, is whether it is open to defendant 1 in this second appeal to contend that this was a case in which the decree made by the lower appellate Court against defendant 1 was beyond its competence or to contend that this was not a case in which the variation of a decree in that way was demanded by the interest of justice. If I come to the conclusion that this was not at all a case to which Rule 33 had any application, it would, of course, have been open to me to set aside the decree made against defendant 1. But, it appears to the difficult for Mr. Jois to present the case for defendant 1 in that way.
18. Now, the claim made by the plaintiff was to recover a sum of Rs. 1,200/- which had been advanced by defendant 2 to defendant 1, in connection with a lease which was created by him. According to the case of defendant 1, this advance was also included in the sum of Rs. 3,400/- in respect of which Exhibit C was executed by defendant 2 in his favour on August 26, 1949. Although that story of defendant 1, which was believed by the Court of first instance, was not accepted by the lower appellate Court, the necessary implication of that finding of the lower appellate Court was that Exhibit C did not include tbe advance paid under Exhibit A, and that defendant 2 was entitled to recover from defendant 1 the advance paid under Exhibit A.
The plaintiff's case was that he became entitled to this sum of money by reason of a transaction under which defendant 2 transferred the right to recover that amount from defendant 1 to the plaintiff. As I understand the judgment of the Court of first instance, it did not disbelieve the case of the plaintiff that there was a transfer of that right. The lower appellate Court also came to the conclusion that the plaintiff had become entitled to recover that amount from defendant 1.
19. In the suit brought by the plaintiff in those circumstances, it is clear that he was entitled to a decree both against defendants 1 and 2 for the recovery of the sum referred to in Exhibit A. Against defendant I, he was entitled to a decree for that sum since he was a transferee of the right to recover that sum. Against defendant 2, he was entitled to a similar decree since he had not been successful in his attempt to recover that amount from defendant 1 out of court.
20. If the finding of the Court of first instance that the amount referred to in Exhibit A was also included in the receipt Exhibit C was not a correct finding, it is obvious that the plaintiff would have been entitled to a decree as prayed for by him against both the defendants and it is, in my opinion, very probable that the Court of first instance would have made that decree had it not reached the conclusion that there was an adjustment of the amount referred to in Exhibit A, when Exhibit C was executed by defendant I in favour of defendant 2.
If, as the lower appellate Court did, the finding of the Court of first instance in regard to the adjustment pleaded by defendant 1 was reversed, the question is whether the reversal of that finding did not, in the circumstances, make it necessary for the lower appellate Court, in the interest of justice, to make a decree against defendant 1, although none had been made against him by the Court of first instance, and the plaintiff himself had not appealed from the dismissal of his suit against defendant 1.
This was a case in which the appeal preferred by defendant 2 must be regarded as an appeal complaining not only that a decree had been made against himself but also as further complaining that the decree had been made only against him. Defendant 1 was primarily responsible and liable to the plaintiff for the payment of the amount which had been paid by defendant 2 to him and which still remained unadjusted.
The decree in such a case should mainly be made against defendant 1 and it would have been open to defendant 2 if a decree had also been made against him and had been executed, to claim reimbursement from defendant 1 in that regard. If the lower appellate Court had omitted to make a decree against defendant 1 but had merely affirmed the decree of the Court of first instance only against defendant 2, although it found as it did that defendant 1 was as much liable for the suit claim as, defendant 2 was, any claim made by defendant 2 for reimbursement which lie was clearly entitled to make would have been met with the argument that the suit against defendant 1 having been dismissed and that decree not having been reversed by the lower appellate Court, defendant 2 could not claim such reimbursement.
The hardship to which defendant 2 would have been exposed if such a situation is allowed to emerge, by the refusal of the exercise of the powers conferred on the appellate Court by Rule 33 of Order XLI of the Code of Civil Procedure, would, in my opinion, be sufficient ground for its exercise. This was clearly therefore a case in which the interest of justice justified the exercise of that power.
21. The contention of Mr. Rama Jois to the contrary has, therefore, to be negatived.
22. It was next urged by Mr. Jois that the plaintiff was not entitled to a decree in this case against defendant 1 since the right to recover the amount advanced by defendant 2 to defendant I under Exhibit A was not an actionable claim.
23. Now, the definition of an 'actionable claim' as contained in Section 3 of the Transfer of Property Act,, reads:
'3. Interpretation clause. In this Act unless there is something repugnant in the subject or context,-- ***** 'actionable claim' means a claim to any debt,other than a debt secured by mortgage of immovableproperty or by hypothecation or pledge of moveableproperty, or to any beneficial interest in moveableproperty not in the possession, either actual or-constructive, of the claimant, which the Civil Courtsrecognize as affording grounds for relief, whethersuch debt or beneficial interest be existent, accruing, conditional or contingent.'
24. The amount under Exhibit A. was advanced on February 21, 1948. Exhibit C was executed on August 26, 1959. The transfer of the right to recover the advance was, according to the plaintiff made on October 15, 1949, That part of the plaintiff's case was believed by the lower appellate Court. The position, therefore, is that on October 15, 1949, on which date the plaintiff claimed to have become entitled to the advance paid by defendant 2 to defendant 1, that sum of money had become a debt payable by defendant 2 to defendant 1, and, therefore, an actionable claim, capable of being transfer-red in favour of plaintiff, as it was done.
25. In my opinion, there are thus no grounds for disturbing the decree made by the lower appellate Court.
26. This appeal, therefore, fails and is dismissed.
27. But, in the circumstances of the case and having regard to the fact that the plain tilt was able to get a decree against defendant 1 without having appealed from the decree by which his suit against him was dismissed, I do not consider this to be a case in which I should order the payment of any costs by defendant 1 to the plaintiff in this appeal, and, that, is the direction which I make in regard to costs.
28. Appeal dismissed.