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Chalasani Subbarayudu Vs. Kalagara Venkata Subbarao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 175 of 1962
Judge
Reported inAIR1966AP343
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 33
AppellantChalasani Subbarayudu
RespondentKalagara Venkata Subbarao and ors.
Appellant AdvocateM. Sitharama Rao, Adv.
Respondent AdvocateY.B. Tata Rao and ;D. Venkatappaiah Sastry, Advs.
DispositionAppeal allowed
Excerpt:
.....civil procedure, 1908 - plaintiff filed suit for recovery of certain amount on basis of promissory note - trial court passed decree in favour of plaintiff and another decree to settle disputes between defendants - defendants not satisfied with second decree appealed before appellate court - appellate court considered both decrees passed by trial court - set aside decree passed in favour of plaintiff in exercise of its power under order 41 rule 33 - power under order 41 rule 33 can be exercised in case where as result of interference in favour of appellant it becomes necessary to readjust rights of other parties - no such necessity deduced from case - held, appellate court not justified in exercising power under order 41 rule 33 - decree passed by trial court restored. - - without..........involved in this case is whether the lower appellate court was justified in setting aside the decree passed in favour of the plaintiff against defendants 8 to 12 by the trial court particularly when no appeal was filed by defendants 8 to 12, in an appeal preferred by the 1st defendant against the plaintiff confining the scope of the appear to that of scaling down of the amount decreed against him by the trial court. the necessary facts are that the plaintiff instituted a suit for the recovery of rs. 5,000 on the foot of a promissory note dated 18-7-1955 alleging inter alia that the 1st defendant executed the promissory note in favour of the 8th defendant. the 8th defendant transferred the promissory note on 16-3-1958 to the plaintiff. he impleaded defendants 2 to 7 who are the sons.....
Judgment:

Gopal Rao Ekbote, J.

1. The short question involved in this case is whether the lower appellate Court was justified in setting aside the decree passed in favour of the plaintiff against defendants 8 to 12 by the trial Court particularly when no appeal was filed by defendants 8 to 12, in an appeal preferred by the 1st defendant against the plaintiff confining the scope of the appear to that of scaling down of the amount decreed against him by the trial Court. The necessary facts are that the plaintiff instituted a suit for the recovery of Rs. 5,000 on the foot of a promissory note dated 18-7-1955 alleging inter alia that the 1st defendant executed the promissory note in favour of the 8th defendant. The 8th defendant transferred the promissory note on 16-3-1958 to the plaintiff. He impleaded defendants 2 to 7 who are the sons of the 1st defendant on the ground that they are also liable as the loan was obtained for the benefit of the joint family. Defendants 9 to 12 were impleaded on the ground that along with the 8th defendant, they being the members of the joint family are also liable. This suit was resisted by the 1st defendant on various grounds. The only question which was raised by the 8th defendant in his written statement was that the plaintiff did not give him any notice of dishonour of the promissory note and that therefore he and his sons are not liable.

2. The trial Court decreed the plaintiffs suit against defendants 1 and 8 personally and also gave a decree against the joint family property in possession of defendants 8 to 12. The trial Court also gave a decree in favour of the defendants Nos. 8 to 12 against defendants 1 to 7 observing that in case they pay the amount, they can recover the same from defendants 1 to 7.

3. The 1st defendant preferred A. S. 58/60 limiting the scope of his appeal to the scaling down of the debt on the foot of the promissory note alleging that it was the renewal of a previous promissory note and that the trial Court did not consider this question. A. S. 59/60 was filed by defendants 2 to 7 against defendants 8 to 12, as they were aggrieved by the fact that no decree in favour of defendants 8 to 12 could be passed as was passed by the trial Court.

4. The appellate Court considered both these appeals together. It is relevant to note here that the plaintiff was not a party to A. S. 59/60. He was however made a party in the 1st defendant's appeal, A. S. 58/60.

5. The 1st defendant and the plaintiff presented a joint memo agreeing to the scaling down of the debt. The 1st defedant's appeal therefore was partly allowed and the trial Court's decree was accordingly modified. A. S. 59/60 filed by defendants 2 to 7 was allowed, and the provisional decree granted in favour of defendants 8 to 12 was set aside.

6. While delivering judgments in both these appeals curiously the lower appellate Court considered the question as to whether notice of dishonour of the promissory note after it was presented by the plaintiff was given to the 8th defendant. I have already mentioned that this ground was taken by the 8th defendant in his written statement but was negatived by the trial Court. The 8th defendant did not file any appeal against the decree passed against him. Nevertheless the Court considered this question and holding that no notice of dishonour was given, set aside the decree passed in favour of the plaintiff against the 8th defendant personally. Consequently the decree which was given against the joint family property in possession of defendants 9 to 12 also was reversed. It is this portion of the judgment that is now attacked in this second appeal by the plaintiff.

7. The principal contention of the learned Advocate for the appellant is that this was not a proper case to exercise the powers conferred under Order 41 Rule 33 C.P.C. His complaint is that the plaintiff was not called upon to meet that point as there was no appeal filed by the 8th defendant, and that it was unnecessary to consider that question in order to dispose of the two appeals before the lower appellate Court. I find sufficient force in this contention. It is true that Order 41 Rule 33 C.P.C. is couched in a very wide language and confers wide discretion on the appellate Court. It has discretionary power under that Rule to pass such decree or order as ought to have been passed, or as the nature of the case may require notwithstanding that the appeal is as to part only of the decree, or that the party in whose favour the power is proposed to be exercised has not preferred any appeal, or filed any cross-objections. It has now however been fairly settled that this Rule s not free from exceptions and certain limitations. Normally in order to avoid a decree against him a party must prefer an appeal, or file cross-objections as the case may be. If he omits to adopt this normal course, the power under Rule 33 of Order 41 must be exercised with care, caution and restraint. No hard and fast rule can be laid down as to the circum-stances in which this power can be exercised. But one broad principle which now has been firmly settled is that this power can be exercised in a case where without setting aside other part of the decree no effective disposal of the appeal can be made; in other words, as Venkatarama Ayyar, J., observed in Krishna Reddy v. Rami Reddy : AIR1954Mad848 '. where as a result of interference in favour of the appellant it becomes necessary to re-adjust the rights of other parties.'

It is not disputed that no such necessity existed in this case. Without disturbing the decree passed in favour of the plaintiff against the 8th defendant individually and against the joint family properly in possession of defendants 9 to 12 the two appeals before the lower appellate Court could not have been effectively disposed of. No question of re-adjustment of mutual rights of the parties arose in this case. The scope of the two appeals as mentioned earlier was limited; in one appeal it was limited to the question of scaling down and in the other whether a provisional decree of the character given by the trial Court could be passed in favour of defendants 8 to 12. I am therefore satisfied that there was no occasion for the lower appellate Court to draw upon this extraordinary power vested in it under Order 41 Rule 33 C.P.C. and it was not in the interests of justice necessary to reverse the decree passed in favour of the plaintiff against defendants 8 to 12 This second appeal therefore is allowed, that portion of the judgment of the lower appellate Court set aside and that of the trial Court restored subject to the modification which the appellate Court has made in the amount of the decree. In effect there will be a decree in favour of the plaintiff against defendants 1 and 8 personally and against the joint families of defts 8 to 12 as was originally given by the trial court. In the circumstances of the case, however, I make no order as to costs. No leave.


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