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Bohra Partap Chand Vs. Chuni Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1940All225
AppellantBohra Partap Chand
RespondentChuni Lal and anr.
Excerpt:
- - in the absence of any provision in the civil procedure code or in any other enactment which showed clearly that the high court had no power to make the decree it had passed, and the whole decree being before it, the high court had jurisdiction to make the decree which should have been made by the first......lal. after the expiry of the period of limitation provided for an appeal the appellant made a cross-objection and impleaded both chunni lal and piare lal as opposite parties. the court below came to the conclusion that chunni lal was not liable for the payment of interest and allowed his appeal. the court below further held that no decree could be passed against piare lal because the decree in favour of the latter was never appealed against and had become final. the plaintiff has now come to this court in appeal. it has been argued that under rule 33, order 41 it was open to the court below to pass a decree against piare lal, although the latter was no party to the appeal.2. there is no doubt that under this rule the appellate court has been given very wide powers to do complete.....
Judgment:

Mohammad Ismail, J.

1. This is a plaintiff's appeal arising out of a suit brought for recovery of Rs. 60 on account of interest under a bond dated 23rd November 1932. It appears that one Dungar Singh executed a sale deed in favour of Chunni Lal with respect to certain property on 23rd November 1932. Chunni Lal, in order to raise money to satisfy the sale consideration, executed a mortgage of the same property in favour of Bohra Partap Chand, the plaintiff in the suit. In the mortgage deed it was provided that the mortgage money would be realized from the hypothecated property only and that Chunni Lal would not be personally liable for the repayment of the money. Piare Lal, defendant first party, brought a suit to pre-empt the sale which was decreed on payment of Rs. 300 to Bohra Partap Chand, plaintiff, and Rs. 200 to Piare Lal, vendee. The decretal amount was deposited by Piare Lal, the pre-emptor. No provision in the decree was made for the repayment of interest pendente lite to the plaintiff under the mortgage deed. The plaintiff therefore brought a suit for recovery of the interest against Piare Lal and Chunni Lal. The relief in the plaint was sought against Piare Lal only. The trial Court decreed the suit against Chunni Lal and exempted Piare Lal from liability. Chunni Lal appealed against the decree and impleaded only the appellant Bohra Partap Chand as a respondent. No appeal was made by the plaintiff against that part of the decree which exempted Piare Lal. After the expiry of the period of limitation provided for an appeal the appellant made a cross-objection and impleaded both Chunni Lal and Piare Lal as opposite parties. The Court below came to the conclusion that Chunni Lal was not liable for the payment of interest and allowed his appeal. The Court below further held that no decree could be passed against Piare Lal because the decree in favour of the latter was never appealed against and had become final. The plaintiff has now come to this Court in appeal. It has been argued that under Rule 33, Order 41 it was open to the Court below to pass a decree against Piare Lal, although the latter was no party to the appeal.

2. There is no doubt that under this rule the Appellate Court has been given very wide powers to do complete justice between the parties. Under this rule, the Appellate Court enjoys discretionary power to pass such decree as ought to have been passed by the trial Court. This power however can be exercised only in favour of a party to the suit who was not impleaded in the appeal. It is not permissible under this rule to pass any decree against a party who has not been impleaded as a respondent in the appeal. Learned counsel for the appellant has cited several authorities in support of the contention that the Court below could pass a decree against Piare Lal although the latter was no party to the appeal made by Chunni Lal. In Tricomdas Cooverji Bhoja v. Gopinath Jiu (1916) 3 AIR PC 182, their Lordships of the Judicial Committee held that:

In the absence of any provision in the Civil Procedure Code or in any other enactment which showed clearly that the High Court had no power to make the decree it had passed, and the whole decree being before it, the High Court had jurisdiction to make the decree which should have been made by the first.

3. It appears that one of the parties on refusing to join as a plaintiff was made defendant 2 and included in his defence a claim for a decree against his co-defendant which the first Court gave him separately from the decree in favour of the plaintiff. The High Court in appeal altered the form of the decree by giving a decree for the entire amount in favour of the plaintiff and declared that for a named portion it was for the plaintiff's share and as to the residue it was for the share of defendant 2. Defendant 2 did not appeal but the principal defendant by his appeal brought the entire decree before the High Court disputing it in to. It would appear that the principal defendant was not affected by the decree of the High Court. The aggregate amount decreed against defendant second party remained unaltered. The facts of this case are entirely distinguishable and do not in any way support the proposition advanced on behalf of the appellant that the Appellate Court has power to alter the decree affecting the rights of a defendant who is no party in appeal. It is an elementary proposition of law that no order can be passed by a Court of law to the prejudice of a person who is no party to the suit. Learned counsel has also referred to several other authorities, namely Bansidhar Kunjilal v. Lalta Parsad : AIR1934All543 , Iswarayya v. Swarnam Iswarayya (1981) 18 AIR PC 234, Secretary of State v. Basti Begam (1987) ALJ 804, Afzal Husain v. Huran Bibi : AIR1929All398 , Subramanian Chettiar v. Sinnammal (1930) 17 AIR Mad 801 and Munisami Mudaly v. Abbu Reddy (1915) 2 AIR Mad 648. The ratio decidendi deducible from these authorities is that when a decree is passed against several persons and one of them appeals against it, it is competent to the Appellate Court to set aside the decree against all of them. In Rukia v. Mewa Lal : AIR1928All746 it was held:

4. The object of Order 41, Rule 83 was manifestly to enable the Court to do complete justice to the parties to the appeal. Where, for example, it is essential in order to grant relief to an appellant that some relief at the same time should be granted to the respondent the Court may grant the relief to the latter even though he has not filed an appeal or preferred an objection.

5. It is manifest that the scope of the rule cannot be extended further. Under this rule no decree could possibly be passed against Piare Lal who was never impleaded in the appeal made by Chunni Lal. Learned counsel contends that in any event the Court below could pass a decree against Piare Lal in cross-objection made by his client in which both Chunni Lal and Piare Lal were impleaded. It is contended that the cross-objection of Piare Lal should be treated as an appeal. In my opinion this contention is untenable. Under Rule 22 of Order 41 of the Code

any respondent, though he may not have appealed from any part of the decree, may take any cross-objection to the decree which he could have taken by way of appeal: provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

6. In the present case, Chunni Lal alone had appealed from the decree of the trial Court. For the determination of the point involved in the appeal of Chunni Lal, it was not necessary to determine the plaintiff's claim against Piare Lal. The law of limitation provided for an appeal against Piare Lal had completely run out and the decree in favour of Piare Lal had become final. In my opinion the appellant had no right to re-open the question that was finally decided against him and in favour of Piare Lal in an appeal which was made solely for the purpose of setting aside the decree passed against Chunni Lal. In Bankey Lal v. Natha Ram : AIR1929All195 Sulaiman J. observed:

I am of opinion that ordinarily in cases where the person against whom cross-objections are filed is not interested in the appeal and is a mere pro forma respondent, no cross-objections can be validly filed against him. This has undoubtedly been the practice of this Court for a considerably long time....

7. In the present case Piare Lal was not impleaded even as pro forma respondent in the appeal made by Chunni Lal. That being so, it is manifest that E. 22 of Order 41 cannot be invoked to the aid of the appellant to enable him to obtain a decree against Piare Lal. In Rajendra Nath v. Moheshata Debi (1926) 13 AIR Cal 533 a Bench of the Calcutta High Court held:

The Civil Procedure Code does not contemplate filing of cross-objection against a person who is not a party to the appeal. It is not open to the Court to add a party to the appeal simply for the purpose of allowing the respondent to make a cross-objection against him.

8. No authority to the contrary has been cited by learned Counsel for the appellant. In my opinion, the Court below was right in holding that the appellant could not question the decree passed in favour of Piare Lal in the cross-objection made by him in the appeal made by Chunni Lal to which Piare Lal was no party. In the result the appeal fails and is dismissed with costs throughout. Leave to appeal under the Letters Patent is refused.


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