S. Acharya, J.
1. The sole unsuccessful defendant in both the courts below has preferred this appeal.
2. The plaintiff's suit is for realisation of Rs. 1,600 on the averment that the defendant on 11-6-56 borrowed a sum of Rs. 800 from the plaintiff on the registered mortgage deed (Ext. 2) whereby the plaint Ka schedule properties were mortgaged in favour of the plaintiff.
3. The defence case was one of denial of execution of any mortgage deed in favour of the plaintiff and passing of any consideration thereunder. Her case is that she is a Purdanashin lady, and taking advantage of the absence of her husband from the village, the plaintiff and P.W. 3 on false pretexts and misrepresentation got the said document signed and registered by the defendant.
4. The trial court decreed the plaintiffs suit for Rs. 1,600 on the finding that the impugned mortgage deed (Ext. 2) had been duly executed by the defendant; it had been validly attested as per the requirement of law, and that the defendant received Rs. 800 as loan under the said mortgage deed.
5. The appellate court has confirmed the trial court findings that the defendant executed the said document (Ext. 2) and received Rs. 800 from the plaintiff as loan under the said document. It however, finds that valid attestation of the said document could not be duly proved and so the plaintiff in this case would not be entitled to a mortgage decree, but as advancement of a loan of Rs. 800 on the said document is established in this case, the plaintiff would be entitled to a simple money decree for realising Rs. 1,600 from the defendant. On the said finding the decree of the trial court was modified accordingly, and the defendant's appeal was dismissed.
6. Mr. R. N. Das the learned counsel for the appellant, contends that the court below could not have allowed the plaintiff to realise Rs. 1,600 from the defendant by granting a simple money decree, as by the time the suit was instituted the plaintiff could not have asked for the recovery of the loan on the basis of a simple bond for money, as the time limit for such a suit is only 3 years as prescribed under Article 55 of the Limitation Act. Mr. Das submits that as a mortgage decree cannot be passed in this suit on the basis of the finding of the court below that Ext. 2 was not duly attested, the simple decree for money passed by the court below could not have been passed by that court and the same cannot be allowed to be executed, as a suit on the latter basis was barred by limitation. In reply to the above contention and submission of Mr. Das, Mr. Pal, the learned counsel for the plaintiff-respondent, submits that the finding and conclusion of the court below that the plaintiff is not entitled to & mortgage decree as due attestation of Ext. 2 has not been proved in this case are entirely illegal as the said finding and conclusion have been arrived at on a wrong notion of the law of attestation as laid down in Section 3 of the Transfer of Property Act and the provision of Section 68 of the Evidence Act. He contends that on the evidence and materials on record due attestation of the said document as required under the law is amply established, and the trial court arrived at the said finding on a proper and correct appreciation of the evidence an record and the law applicable to this aspect of the matter, and the appellate court's finding is entirely wrong and illegal as it is based on misconception of the law of attestation, and so, the impugned decision is liable to be set aside. Mr. Pal contends that once the mortgage decree passed by the trial court in favour of the plaintiff is confirmed the suit cannot be held to be barred by limitation, as the time limit prescribed for a suit on a mortgage deed is 12 years as provided under Article 62 of the Limitation Act.
6-A. Mr. Das for the appellant concedes that if the mortgage decree passed by the trial court is confirmed, then the question of the maintainability of the suit cannot be challenged on the ground of limitation. Mr. Pal for the respondent also concedes that if the said document is held not to be a mortgage deed but only a simple promissory bond for repayment of money, then the plaintiff cannot realise his claim against the defendant as this suit on that basis would be barred by limitation as per Article 55 of the Limitation Act which prescribes a period of 3 years for such a suit from the time the money became due for payment. Mr. Das, however, contends that the finding of fact of the court below that Ext. 2 was not duly attested cannot be interfered with in this second appeal, and more so as the respondent has not preferred any appeal or cross-appeal against the said finding. In reply to this, Mr. Pal contends that the said finding of the court below is vitiated by a substantial error or defect in the procedure and is patently illegal, and so it has to be set aside in this appeal. He further contends that if this court finds that an illegal decree has been passed in this case, then in the interest of justice it has the power under Order 41, Rule 33, C.P.C. to pass any order or decree as the justice of the case may require.
7. In view of the above submissions and contentions it has at first to be seen as to whether the finding of the court below, that valid attestation of Ext. 2 has not been duly proved in this case, is vitiated by a substantial error or defect in the procedure, in which case, without doubt, the said finding of the appellate court can be set aside in the second appeal.
8. In this case, P.W. 1 is the plaintiff. P.Ws. 2 and 3 are the attesting witnesses and P.W. 4 is the scribe of Ext. 2, the document in question. On a perusal of the discussion of the evidence on record in the impugned judgment on which the said finding has been arrived at, I find that the court below has discarded the evidence of P.W. 3, one of the attesting witnesses, on the finding that he turned hostile to the plaintiff and sided with the defendant. With regard to P.W. 2, the other attesting witness, the court says that as this witness did not see the defendant signing the said document, he cannot be said to have attested the document as required under the law. That finding is based entirely on a wrong notion of the law of attestation. Under Section 3 of the Transfer of Property Act, it is not essential for an attesting witness to actually see the executant sign the document in question. It is sufficient if the attesting witness receives from the executant a personal acknowledgment of his signature or mark in the document in question and he (the attestor) signs the said instrument in the presence of the executant. P.W. 2 was present when the said deed was written. He states that he and the other attesting witness both signed the said document in the presence of the executant. From his evidence it is quite clear that he saw P.W. 4 writing that document in the presence of the defendant and the other attesting witness, and thereafter the contents of the said document were read over to the defendant. After the signature of the defendant was affixed on that document, he (P.W. 2) and the other attesting witness signed the same as attesting witnesses on being asked by the defendant to do so. From his evidence it is quite clear that though he might not have seen the executant actually signing that document he (P.W. 2) signed the said document in the presence of the executant after he (P.W. 2) received from the executant a personal acknowledgement of her signature on the said document. So the essential ingredients to constitute valid attestation of the document are satisfied. The veracity of this witness has not been doubted; rather the court below has relied on his evidence in arriving at the finding that the defendant executed the said document and took a loan of Rs. 800 from the plaintiff on the said document. His evidence regarding attestation of the document is corroborated by the evidence of the scribe (P.W. 4) and that of the plaintiff. It is not the law that two attesting witnesses must be called to the court to prove due attestation of the document as the court below appears to think. Section 68 of the Evidence Act lays down that a document required by law to be attested, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its attestation, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. The exemption for not calling an attesting witness to prove the execution of such a document, as made in the proviso to Section 68, is not applicable to this case, as the executant has denied to have executed that deed as a mortgage deed. The plaintiff also does not seek the aid of the said exemption. He has examined the attestors and the scribe of the said deed to prove execution of the said document. The evidence of the attestors has already been discussed. P.W. 4, the scribe, apart from corroborating the evidence of P.W. 2, the attestor, has also testified to the fact that he wrote that document at the instruction of the defendant, thereafter he read over the contents of the same to her, whereafter she signed the document in his presence. He has also stated that the attesting witnesses signed in the presence of the defendant. He has proved the signature of the executant. The court below appears not to have attached any importance to his evidence as he has not stated in his deposition that he signed the document in the presence of the defendant. P.W. 4 is the scribe and not the attestor of that document, and so it was not essential for him to make the above statement. The court below has found that due execution of the document as a simple money bond has been proved in this case.
On the evidence on record I am satisfied that not only due execution but attestation of that document as required under the law has also been satisfactorily proved in this case.
On the above discussion it is evident that the finding of the court below that valid attestation of the document in question has not been duly proved' was arrived at due to entirely a wrong notion and gross misconception of the law of attestation. So, such a finding cannot be allowed to stand.
9. On the above finding that Ext 2 was validly executed and attested and on the concurrent findings of the courts below that the defendant actually took Rs. 800 as loan from the plaintiff and executed that document on mortgaging certain properties as mentioned therein, the plaintiff will be entitled to a mortgage decree of Rs. 1,600, which amount has actually been decreed by both the courts below, though on different bases as stated above.
10. Mr. Das contends that as the plaintiff has not preferred any appeal or cross-appeal against the decision of the court below granting only a simple decree for money in his favour, he is not entitled to ask for a mortgage decree in this appeal, and as the simple money decree passed by the court below has become final so far as the plaintiff is concerned, it cannot be changed, modified and altered in any manner so as to confer any benefit on the plaintiff. Mr. Pal in reply contends that the court while decreeing the plaintiff's money claim in full has, on a gross misconception of the relevant law, given an incorrect nomenclature to the said decree, and so this is a fit case in which the Court in the interest of justice should apply its discretionary power under Order 41, Rule 33. C.P.C. to set aright the illegality so committed by the court below. Mr. Pal further submits that as the plaintiff's money claim in this suit was allowed in toto by the appellate court, the plaintiff, a lay man, did not scrutinise the basis on which the said claim was allowed, nor could he know the legal consequence of the decree passed in his favour, and so he did not and could not take steps to prefer any appeal or cross-appeal in this case. Mr. Pal urges that as gross illegality has been committed by the lower court due to his ignorance of the relevant law, this court should pass the lawful decree which ought to have been passed in this case, and this court has the power to do so notwithstanding the fact that the plaintiff has failed to file an appeal or cross-objection against the said grossly illegal finding. He in support of his submission has cited the decisions in Koksingh's case reported in AIR 1976 SC 634, in that case their Lordships of the Supreme Court, on referring to the decisions reported in AIR 1937 Cal 10 (Radhika Mohan v. Sudhir Chandra) and AIR 1969 SC 1144 (Giani Ram v. Ramji Lal) have, in effect, observed that if an appellate court is of the view that any decree which ought, in law, to have been passed was in fact not passed by the court below, it may pass or make such further decree or order as the justice of the case may require. It is also held therein that even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a correct decree in favour of the respondent in that case, the trial court found that no decree could be passed for enforcing the charge against the property as the said property was held in occupancy right by the appellant, but that court gave a personal decree against the appellant for a particular amount. The appellant appealed against the said decree to the High Court and the respondent did not prefer any appeal or cross-appeal. In that appeal the High Court nullified the personal decree on the ground of limitation, but on the materials on record found that the respondent was entitled to enforce the charge on the property, and accordingly granted a decree on that basis. The above-mentioned observations were made by the Supreme Court in an appeal against the said decree passed by the High Court. The said observations squarely apply to this case so far as the point in question is concerned. Similar view has been taken in the decision reported in AIR 1969 SC 1144 cited by Mr. Pal. In that case the three sons, two daughters and the widow of the last male owner of the property filed the suit claiming possession of the entire property from the alienee. The suit was decreed by the trial court in favour of the sons only to the extent of a half share of the suit property. In appeal the district court granted & decree for possession of the entire property only in favour of the three sons. On an appeal by the defendants the High Court of Punjab set aside the decree passed by the district court and restored the decree of the trial court. The High Court held that if the widow and the daughters were entitled to any share in the property, they disentitled themselves to that right as their claim to the property had been dismissed by the trial court and the first appellate court and they did not prefer any appeal or cross-objection against that decision It appears from the reported decision that only the sons preferred the appeal to the Supreme Court. In that case their Lordships observed that once the claim of the contesting respondents to retain the property after the death of the last male owner is negatived, it would be perpetrating grave injustice to deny to the widow and the daughters their share in the property to which they are in law, entitled. Observing thus their Lordships held that the case was one in which the power under Order 41, Rule 33, C.P.C. ought to be exercised and the claim not only of the three sons but also of the widow and the two daughters ought to be decreed. Their Lordships further state--
'...... The expression 'which ought to have been passed' means 'which ought in law to have been passed'. If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the Subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require.''
In Panna Lal's case reported in AIR 1963 SC 1516, it has been held that Order 41, Rule 33 empowers the appellate court to give relief to any of the respondents as the case may require. It is further held that if a party who could have filed a cross-objection under Order 41, Rule 22, C.P.C. has not done so it cannot be said that the appellate court can under no circumstances give him relief under the provisions of Order 41, Rule 33, C.P.C.
In the decision reported in AIR 1931 PC 234 (B. Iswarayya v. Swarnam Iswarayya), on the appeal preferred by the husband, the court, while dismissing the wife's claim for maintenance and expenses for the education of the children, held that the court below was justified to take the view that complete justice could not be done unless the amount ordered to be paid to the wife for alimony was increased, and it accordingly increased that amount. The wife had not preferred any cross-appeal in that case.
In Narendranath Mohapatra's case reported in AIR 1956 Orissa 32 it has been held that as the lower appellate court went completely beyond its jurisdiction to modify the decree passed by the trial court by bringing in properties extraneous to the suit, the High Court can interfere under the provisions of Order 41, Rule 33, C.P.C. In that decision, the learned Judge referred to the Full Bench decision of the Madras High Court reported in AIR 1930 Mad 801 (FB) where it has been held that the illustration given to Rule 33 is merely illustrative and not exhaustive; but nevertheless the powers of the court are wide enough to be exercised in fit cases for the sake of meting out substantial justice to the parties. No hard and fast rule can be laid down to limit the exercise of powers under Order 41, Rule 33, C.P.C.
In the Division Bench decision of this Court in Kora Rana's case (AIR 1958 Orissa 81) it has been observed:
'Doubtless, Rule 33 of Order 41 confers a wide and unlimited jurisdiction on the court of appeal to pass a decree in favour of a party who has not preferred a cross-appeal or objection; but that does not mean that the other provisions of the Code should be completely abridged or abrogated. Circumstances may arise where the appellate court in exercise of its powers under Order 41, Rule 33, to do complete justice between the parties, may vary or reverse the decree passed by the trial court: but the general principle underlying the Civil Procedure Code should always be strictly followed.'
The reference relating to other provisions in and general principles of the Civil Procedure Code in the above observation does not cramp the observations made therein regarding the unlimited jurisdiction under Order 41, Rule 33, C.P.C.
The single Judge decision reported in AIR 1965 Orissa 53 (Panchei Bewa v. Banehhanidhi Padhan), cited by Mr. Das, firstly is based on the facts of that particular case, and secondly the learned Judge's view on this point was expressed without taking into consideration the previous decision of this Court on this point reported in AIR 1956 Orissa 32.
The observations made in AIR 1939 PC 86 (Anath Nath Biswas v. Dwarka Nath Chakravarti), cited by Mr. Das, are not applicable to the present case, as in that case the respondents without filing any cross-objection to the decree of the trial court claimed that the revenue sale I should be set aside for want of jurisdiction or irregularity, which relief was prayed for on averments entirely different from those on which the trial court's decree proceeded and upon principles different from those on which the decree had been passed. The court on those facts did not like to grant the relief asked for as that would have surely prejudiced the parties who succeeded in the court below, as they did not have any notice of the new averments on which the said relief was claimed.
The observations on the point in the decision reported in (1974) 2 Cut WR 853 (Ekadasi Pradhan v. State of Orissa), cited by Mr. Das, has to be read with circumspection and without losing sight of the law as laid down by the Supreme Court in AIR 1976 SC 634 (supra), AIR 1969 SC 1144 (supra) and AIR 1963 SC 1516 (supra). In the abovementioned decision of this Court ((1974) 2 Cut WR 858) while this Court observed that if a 'party who is aggrieved by a decree wants to get rid of it, he has to prefer an appeal against the same and if he fails to do so, no relief can ordinarily be granted to him under Order 41, Rule 33, C.P.C.'. After stating as above, it is said that 'This rule is however, subject to certain exceptions', and so saying instances of some exceptional cases have been given. So that decision also says that where an aggrieved party has not preferred an appeal or cross-appeal, he cannot ordinarily ask for a relief under Order 41, Rule 33, C.P.C., but the court in some cases can grant relief under that Rule. The examples of such cases given in the said decision are certainly not exhaustive. Apart from the said cases, there may be many other cases in which the court in the interest of justice, or to extirpate grave injustice, or to do substantial justice to the parties or to do complete justice between the parties, may feel impelled to exercise its jurisdiction under Order 41, Rule 33, C.P.C. and pass any order or decree as the justice of the case may require, though the party benefited thereby has not preferred any appeal or cross-appeal for getting such a relief.
In the decision reported in AIR 1969 SC 1316 (Raghunath v. Kedarnath), cited by Mr. Das, the scope and ambit of the provision of Order 41, Rule 33, C.P.C. have not been discussed.
11. As per the law on the point as laid down by the Supreme Court and by our and other High Courts as mentioned above, one is impelled to take the view that if a party aggrieved by a decree or any finding in the judgment wants to avoid the same, he should prefer an appeal or a cross-appeal against such decree or finding; and if he fails to do so, he, as of right, cannot invoke the provisions of Order 41, Rule 33, C.P.C. But the court in fit cases as indicated above may pass or make such further decree or order as the justice of the case may require even though the party benefited thereby has not preferred any appeal or cross-objection.
12. In the present case, the appellate court on a reappraisal of the evidence on record has upheld the finding of the trial court that the defendant on executing Ext. 1 had in fact taken a loan of Rs. 800; and on that finding it has decreed the plaintiff's claim of Rs. 1,600 against the defendant. After arriving at the aforesaid findings, the appellate court due to gross misconception of the relevant law has granted a simple money decree for the realisation of the said amount instead of a mortgage decree to which the plaintiff is legally entitled. By that the plaintiff is visited with unwarranted consequence as he would not be able to realise his decretal dues on the simple money decree illegally granted by the court below. The plaintiff is a lay man who was not expected to know the legal implications and consequences of the said decree. He must have felt satisfied as he found that the court granted him a decree for the full amount claimed by him. Possibly because of the above reasons he did not take any step to prefer an appeal or cross-appeal against the defective and illegal decree granted in his favour to realise his full claim in the suit.
In the above facts and circumstances I feel impelled, in the interest of justice, to exercise my power under Order 41, Rule 33, C.P.C. to set aright the said illegality committed by the court below and to pass the lawful decree as the justice of the case would require. On the facts established in this case the plaintiff will be legally entitled to a mortgage decree, as passed by the trial court. So the simple money decree illegally passed by the court below in favour of the plaintiff is set aside and it is held that he is entitled to a mortgage decree for Rs. 1,600 against the defendant. The decree passed by the court below be modified accordingly.
The appeal preferred by the defendant is dismissed, and the impugned judgment and decree stand modified as specifically stated above.
13. In the circumstances, each party will bear his own costs of this appeal.