1. On the 28th of May, 1897, live properties were usufructuarily mortgaged in favour of two ladies, Aminat-un-nissa and Gafur-un-nissa. The money agreed to be advanced by the first-named lady was Rs. 27,500, and by the second Rs. 1,500. The way in which the detail of the consideration money was made up was that one sum of Rs. 13,000 was left for payment in respect of two mortgages dated the 21st July, 1893; a sum of Rs. 4,200 under a mortgage of the 19th September, 1892; another sum of Rs. 4,000 under a subsequent mortgage, and a final payment of Rs. 6,300 by the promissory-note of the mortgagees. In fact, none of the three, first-named sums of Rs. 13,000, Rs. 4,200 and Rs. 4,000 were ever paid by the mortgagees, but there is a definite finding that Rs. 6,800 were paid to the mortgagors by the mortgagees in May. 1897.
2. The plaintiff asked for a declaration that the property Ibrahimpur was not subject to any charge created under the mortgage-deeds and there was an alternative prayer that if there was any charge it was limited' to Rs. 987-1-9 and there was a prayer, in its nature formal, that any other relief which under the circumstances of the case can be granted to the plaintiff may also be granted to him.
3. The matter was tried in the Court of the Subordinate Judge of Saharanpur and he came to the conclusion, that no redemption decree could be granted, but he found in favour of the plaintiff that the particular property had been freed from any, charge upon it.
4. The plaintiff did not appeal, and when the matter came before the District Judge of Saharanpur he disagreed with the lower Court that the sum of Rs. 6,800 had never been paid by the mortgagees and that finding of fact is not, of course, appealable to this Court nor has, quite properly, any argument been put forward to show that that finding of fact was wrong. He went on to consider whether the mortgage as regards this particular property had been redeemed and he came to the conclusion that the mortgagees had paid back the loan of Rs. 6,800 and, having gone into details in respect of that, was satisfied that nothing was due to the mortgagees. Having reached that point he had to consider what should be done and he decided that the suit for declaration was barred by limitation. The ca3e, therefore, was in this position that the plaintiff, having asked for a declaration which the lower Appellate Court found was barred by limitation, and it having been found in his favour that there was no encumbrance on the property, the question arose as to what in the circumstances was the proper thing to do.
5. Before the District Judge gave any decision the case stood in this way that the plaintiff1 had succeeded partially in the lower Court; he had not raised any cross-objection nor had he appealed independently on the matter decided adversely to him, namely, redemption. The learned District Judge was of opinion that he could proceed under Order XXXIV, Rule 9 and that he could direct the defendants to re-transfer to the plaintiff that part of the mortgaged property which was the subject of, the action.
6. Looked at from any practical point of view the decision is a3 good as can be conceived because the plaintiff had right upon his side from the outset. There had been a breach of contract in 1897 when the mortgagees got possession of the mortgaged property on a promise by them that they would pa> the Rs. 21,200 to which we have referred above. It is common ground that they never made any attempt to pay any part of that, nevertheless they remained in possession of the whole of the property throughout. The effect of the possession was that by the date of the institution of this suit the Rs. 6,300 which had been advanced on promissory-note had been completely extinguished and the plaintiff was asking in those circumstances that they property should be re-transferred to him. It is said that that cannot be done because, having regard to the language of Order XLI, Rule 33 and the caution as to the application of that section which is contained in the case of Rangum Lal v. Jhandu 11 Ind. Cas. 640 : 32 A. 32 : 8 A.L.J. 1111 we must not in this case allow the relief, which the District' Judge has granted the plaintiff because if we did so we would be acting in Contravention of the provisions of Order XLI, Rule 22. There are, however, passages in that judgment which show that the circumstances of each particular case must be borne in mind, and at page 35 Page of 34 A.--[Ed] the following observations are to be found:
The object of Rule 33 is manifestly to enable the Court to do complete justice between the parties to the appeal. Where, for example, it is essential in order to grant relief to an appellant that some relief should at the same time be granted to the respondent also, the Court may grant relief to the respondent, although he has not filed an appeal or preferred an objection. Of such cases the illustration to the rule is a type.
7. Reference was made to the English case of Attorney-General v. Simpson (1901) 2 Ch. D. 671 : 70 L.J. Ch. 828 : 85 L.T. 325 : 17 T.L.R. 768. In our opinion the language of Order XLI, Rule 33 is wide enough to support the decision of the District Judge. He, very wisely chose what, in our opinion, was the proper course. He could, had lie been extremely technical, have said that as the respondent had tiled no cross objection and had not independently appealed that, therefore, he could not grant the relief to which, in his opinion, the respondent was most justly entitled. Had he done that it is possible that on a strict construction, of Order XLI, Rule 33 we might-have upheld that, but we should have held that grudgingly and taken the view that it was an unfortunate decision. This decision is in consonance with justice, equity and good conscience and it is, in our opinion, one which must be upheld.
8. We, therefore, dismiss this appeal with costs and fees on the higher scale.
9. The cross objection is also dismissed.