1. The Plaintiff in this case has sued to enforce an agreement embodied in Ex. A, dated 7th October, 1916, to convey to him 1 acre and 68 cents of wet land, which document he alleges was executed by Nambi Kone, the deceased husband of Defendant 1 and father of Defendant 7. The Subordinate Judge has found that Ex. A is not genuine and has dismissed the suit. Against that dismissal the Plaintiff appeals.
2. It appears that Nambi Kone in 1907 instituted a suit for partition against his nephews, Defendant 2, and the father of Defendants 4 to 6, in the Tinnevelly Subordinate Judge's Court. That suit came on appeal to this Court and altogether had a long history. In the end Nambi Kone got a decree for a half share of the property in question, and his share was delivered to him in execution in May, 1916. It is admitted that Nambi Kone employed the Plaintiff to assist him in that suit by attending Court for him both in Tinnevelly and Madras and that the employment went on throughout the history of the suit, Nambi Kone paying the Plaintiff's travelling allowance and batta when he was away from his village for the purpose of the suit.
3. The Plaintiff's case is that in 1907, before Nambi Kone first employed him in that way, Nambi Kone promised him 'proper remuneration' for his services at the end of the litigation. In October, 1916, according to the Plaintiff, Nambi Kone told him that he had decided to transfer to him 1 Kotta of wet land, that is 1 acre and 68 cents, but, as he had to sell some of the land which he had obtained in partition in order to clear off his own debts, he would make the transfer after three years: the Plaintiffs agreed to that, and then Nambi Kone, two or three days later, executed Ex. A to the effect that he would transfer 1 Kotta of wet land out of the wet land which he had got in a certain village to the Plaintiff within three years and in default would pay the Plaintiff Rs. 5,500 with interest at 6 per cent, from the date of default. Ex. A was not presented for registration by Nambi Kone. On the 8th January, 1917, it was presented for registration by the Plaintiff, who says that he did that on hearing rumours that Nambi Kone was not going to carry out the agreement. When the Plaintiff presented Ex. A for compulsory registration, the Sub-Registrar sent a notice to Nambi Kone, who appeared at the Sub-Registrar's Office on the 15th January, 1917, and denied that he ever executed that document. On that the Sub-Registrar refused registration, and the matter was taken to the District Registrar, who held an enquiry and in October, 1917, ordered the document to be registered as a genuine document. Meanwhile unfortunately Nambi Kone died in June, 1917.
4. I have mentioned that the learned Subordinate Judge has found that Ex. A is not a genuine document.
5. His Lordship considered the evidence and concluded:
6. In my opinion this case is not entirely free from doubt. But, taking all the evidence and the circumstances into consideration, I do not think we should be justified in differing from the finding of the learned Subordinate Judge that Ex. A has not been proved to be a genuine document executed by Nambi Kone. In my opinion therefore this appeal should be dismissed with costs, as on that finding it is unnecessary to go into other questions which have been raised in the case.
7. I entirely agree.
8. The case having been set down for being spoken to this day, the Court delivered the following
9. Yesterday in this appeal we upheld the finding of the learned Subordinate Judge that Nambi Kone did not execute Ex. A, and we confirmed the dismissal of the suit as against Defendants 2 to 6. But the Plaintiff has got a decree also against Defendants 1 and 7, and that decree he is trying to execute. The question before us now is whether we should exercise such powers as are given to us by Rule 33 of Order 41 of the Code of Civil Procedure to dismiss the suit against Defendants 1 and 7 also.
10. In the first instance, when this suit came before Mr. Natesa Aiyar as Subordinate Judge of Tinnevelly, he made an ex parte decree against all the defendants. Defendants 2 to 6 afterwards applied to him to set aside that ex parte decree and restore the suit so far as it was against them; and the Subordinate Judge who dealt with that application set aside the whole decree against all the defendants, although for some reason Defendants 1 and 7, who are women, had not put in any application that the decree, so far as it was against them, should be set aside. Against that order the Plaintiff preferred Civil Revision Petition No. 539 of 1924 to this Court. Mr. Justice Odgers, who heard that petition, dismissed it in respect of Defendants 2 to 6; but in respect of Defendants 1 and 7 he was of opinion that the Subordinate Judge should not have set aside the ex parte decree and therefore he restored the decree against those defendants. So far as the suit was against Defendants 2 to 6, it was re-tried by another Subordinate Judge Mr. Quraishi. He found that Ex. A, on which the suit as against all the defendants was primarily based, had not been executed by Nambi Kone and was not a genuine document. Consequently he dismissed the suit as against Defendants 2 to 6, and his dismissal has been upheld by us in appeal.
11. Mr. Krishnaswami Aiyangar for the Plaintiff does not suggest that there would not be something on the face of it inconsistent and anomalous if a decree remained in force against Defendants 1 and 7 based upon Ex. A, which has been found to be a false document. But he contends that in the circumstances we have no jurisdiction under Rule 33 of Order 41 of the Code of Civil Procedure to interfere with the decree which has been made in favour of the Plaintiff against Defendants 1 and 7. First, he objects that the matter is concluded by Mr. Justice Odgers' order. I do not think that is so. Mr. Justice Odgers did not deal with the merits of the suit in any way, and, as he rightly saw, it was not a suit in which the failure of the Plaintiff, if he did fail against Defendants 2 to 6, would necessarily entail failure against Defendants 1 and 7. The basis of the suit, Ex. A, is the common ground against all of them; but the case was not the same against all the defendants in other respects. Mr. Justice Odgers' view was that Defendants 1 and 7 had shown no ground under Rule 13 of Order 9 why the ex parte decree made against them should be set aside and therefore to set it aside in the circumstances of the case, so far as they were before him, was not correct. But his restoration of that decree, so far as I can see, has not given it any greater validity for our present purpose than if it had never been set aside by the Subordinate Judge. Mr. Justice Odgers restored the position of Defendants 1 and 7 to what it was before the Subordinate Judge set aside that decree. He added by his order no force or validity to that decree which was not in it before. That objection of Mr. Krishnaswami Aiyangar in my opinion clearly fails.
12. In regard to Rule 33 of Order 41 generally Mr. Krishnaswami Aiyangar admits that its language is very wide; but he urges that it must be understood with certain limitations. He has quoted cases before us to show limitations which have been recognised in other Courts-for instance, the view taken in some cases that it is only when the appellate Court interferes with the decree appealed against so far as one party is concerned and that interference appears to make it just that there should be further interference in regard to another party, who has not appealed or who is not a party to the appeal, that the appellate Court should exercise its powers under the rule. But it is not necessary for us to consider those cases now. We are guided by the decision of a Fall Bench of this Court in Subramanian Chettiar v. Sinnammal I.L.R. (1930) 53 Mad. 881 : 59 M.L.R. 634. There it was decided that there was no such limitation as that on the powers given to the Court by Rule 33, but that the powers were very wide, though to be used with great discretion. In the particular case before the Full Bench the plaintiff had succeeded in the Original Court to a certain extent: he was not satisfied with his success, and he appealed with the object of obtaining a further success: the defendant against whom the decree had been made did not appeal at all: the Appellate Judge disappointed the plaintiff by not giving him what he wanted and disappointed him still further by dismissing the whole suit, though the defendant had not prayed for that by any appeal or memorandum of objections. The Full Bench held that that was an instance of appropriate use of the power given by Rule 33 of Order 41. As Mr. Varadachari has urged, the reason of the matter appears to be that, when a suit comes before a Court upon appeal, even though the appellant chooses to raise questions touching only a part of the suit, the whole suit is before the appellate Court and is within its control. That is the principle on which Kristnama Chariar v. Mangammal I.L.R. (1902) 26 Mad. 91, Pancho Bania v. Anand Thakur I.L.R. (1923) 2 Pat. 712, Somar Singh v. Mussammat Premdei I.L.R. (1924) 3 Pat. 327 were decided though they were cases concerned with the Limitation Act. Mr. Varadachari has drawn our attention to several cases of this Court illustrating how that principle has been applied. In Krishnasami Naik v. Aiyappa Naik (1914) 1 L.W. 376 a suit was decreed against one of the defendants ex parte and against the other defendants after contest. One of the contesting defendants appealed, and the appellate Court dismissed the suit against all the defendants, including the defendant who had allowed the decree to be made against him ex parte. The learned Judges of this Court held that that was a proper use of Rule 33 of Order 41, and Mr. Justice Seshagiri Aiyar pointed out that one of the objects of the rule was that, if it was found on appeal that a suit was based upon a false claim, then the whole suit could be dismissed even as against those who had not appealed or had not contested the suit. In Subbarayalu Naidu v. Papammal (1915) 29 I.C. 579 and Mukku Venkataramayya v. Mukku Chinniah (1919) 10 L.W. 357 on appeal suits were dismissed against defendants who did not appeal and who were not even made parties to the appeals and it was held that that too was a proper use of the rule. In Somasundaram Chettiar v. Vaithilinga Mudaliar I.L.R. (1916) 40 Mad. 846 the suit was by reversioners to recover property after setting aside a number of alienations in favour of different alienees. The plaintiffs got a decree; some of the alienees appealed in separate appeals; other alienees did not appeal at all. But the suit was dismissed as against all the alienees including those who had not appealed. That perhaps is a more extreme application of Rule 33 of Order 41, because it will be seen that the suit, though the plaintiff according to our usual procedure was allowed to bring his suit against a number of alienees, was in essence a bundle of suits, and yet, when the basis of those suits was found to fail, the appellate Court gave the benefit of that decision to the alienees who had not appealed and who were in a strict view of the position defendants in different suits from those in which the appeals came before the Court. In Jawahar Bano v. Shujaat Husain I.L.R. (1920) 43 All. 85 a decree was made in the Trial Court against three defendants. Two of them appealed, and one did not. The appeals of the two appellants who preferred appeals were dismissed; but the suit as against the other defendant, who had not troubled to appeal and who was not a party to the appeals, was, perhaps to his surprise, dismissed. Those are instances to show the extent of the powers of an appellate Court under Rule 33 of Order 41, powers to be exercised on the principle that, when an appeal comes before the Court, the whole suit out of which the appeal arises is within the control of the Court.
13. But Mr. Krishnaswami Aiyangar has raised a further objection. He has urged that, however wide the powers under Rule 33 of Order 41 may be, they must be controlled by Section 107 of the Code, under which an appellate Court is to exercise, so far as may be, the same powers as the Trial Court. He urges that in the present case the Subordinate Judge, Mr. Quraishi, who tried the suit as against Defendants 2 to 6 after the ex parte decree against them had been set aside, could certainly not have interfered with the ex parte decree made by his predecessor against Defendants 1 and 7. To the proceedings before Mr. Quraishi, as Mr. Krishnaswami Aiyangar urges, Defendants 1 and 7 were not parties; they could not have appealed to this Court against any decision that Mr. Quraishi might have made in that trial; they are not parties to this appeal before us. Mr. Krishnaswami Aiyangar contends that, if we were to interfere with the decree which has been made against Defendants 1 and 7, we should be doing something which Mr. Quraishi, the Judge of the Original Court, could never have done, and we should thereby be transgressing the provisions of Section 107 of the Code. As he urges, the ex parte decree against Defendants 1 to 7 is a different decree from that which has come before us on appeal, made by a different Subordinate Judge on a different judgment. As he points out, there appears to be no reported case in which Rule 33 of Order 41 has been applied in those circumstances. But does the fact that one Subordinate Judge made an ex parte decree at one stage of this suit against Defendants 1 and 7 and another Subordinate Judge at a latter stage of the same suit dismissed the Plaintiff's claim as against Defendants 2 to 6 really affect the matter? As Mr. Justice Bhashyam Aiyangar pointed out in Kristnama Chariar v. Mangammal I.L.R. (1902) 26 Mad. 91 when an appeal is brought against only part of a decree of a Trial Court, the suit is not split into two parts by that: the suit remains one suit, the whole of which is before the appellate Court. In my opinion it would be a strange thing to say that, because two decrees were made in this suit at different stages, therefore the suit had somehow got split into two, so that, when the appeal of the Plaintiff in regard to Defendants 2 to 6 came before us it could only be a part of the suit which was before us and not the whole. Mr. Krishnaswami Aiyangar has tried to put an interpretation assisting him upon the words of Rule 33 itself, which empowers the appellate Court 'to pass or make such further or other decree or order as the case may require'. He suggests that 'case' in that sentence does not mean the whole suit, where the appeal is on part of a suit and that within the meaning of that rule the proceedings before the Subordinate Judge who made the ex parte decree against Defendants 1 and 7 were one case, disposed of by one judgment, and the proceedings before Mr. Quraishi after restorations against Defendants 2 and 6 were another case. I do not think that there is any justification for so interpreting the rule. Here we have different decrees made by the same Subordinate Judge's Court at different stages, but made in the same suit. If we are now to dismiss the suit as against Defendants 1 to 7, we shall be doing nothing which the Subordinate Judge's Court could not have done as a Trial Court, and in my opinion we shall be offending in no way against the provisions of Section 107 of the Code of Civil Procedure.
14. If we have therefore jurisdiction to use Rule 33 of Order 41 in this case, the application of it is not very difficult. If a number of defendants are sued upon an alleged common liability, and some of them allow an ex parte decree to be made against them, but against others a decree is made after contest, and the contesting defendants appeal, it may well not be in any way necessary or appropriate that the decree against those defendants who did not contest the matter should be set aside merely because the contesting defendants have succeeded on appeal. But here the whole suit against all the defendants is based upon Ex. A, whatever may be the variations in the Plaintiff's case against individual defendants. If Ex. A is not a genuine document, the Plaintiff has no true case against any of the defendants. After a full trial it has been found by the Subordinate Judge that Ex. A is not a genuine document, and that finding we have upheld on appeal. In those circumstances it would surely be illogical and unjust that, while the suit has been dismissed against Defendants 2 to 6, the decree against Defendants 1 and 7 should be allowed to stand. That 'decree can stand only on a finding that Nambi Kone executed Ex. A. That is the necessary foundation of the decree. But that foundation has now been destroyed. If the decree against Defendants 1 and 7 is still to stand, then it must stand upon a foundation which is no longer there. In my opinion in the circumstances it is necessary in the ends of justice that we should exercise our powers under Rule 33 of Order 41 and dismiss the Plaintiff's suit against Defendants 1 and 7 also.
15. I am of the same opinion. It is unnecessary to look beyond the Full Bench ruling in Subramanian Chettiar v. Sinnammal I.L.R. (1930) 53 Mad. 881 : 59 M.L.J. 634 to see what is the extent of the Court's power under Order 41, Rule 33. That ruling has established that in a proper case the appellate Court has ample discretion to make any decree or order to prevent the ends of justice from being defeated. It is conceded that the present would be a proper case for the Court to act under Rule 33 if it has the power.
16. Rule 33 imposes no conditions. The Court may exercise its power in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. If the word 'parties' means only persons who were parties to the decree or part of a decree from which the appeal is made, there might be some force in the contention that Plaintiff's appeal being against the decree in so far as it was in favour of Defendants 2 to 6, therefore Defendants 1 and 7, not being affected by that part of the decree, would not be entitled to the benefit of the Court's interference under Rule 33. But there is no apparent reason why the word 'party' should not be given its ordinary significance, namely, as meaning a party to the suit. Defendants 1 and 7 were undoubtedly parties to the suit in which the decree under appeal was made, and they were still parties to the suit notwithstanding the ex parte decree against them and their neglect to have that decree set aside. Their inability to appear and file objections in the appeal would clearly not, under the terms of the rule, debar them from having the benefit of Rule 33. With regard to the argument based on Section 107, Civil Procedure Code, I am of opinion that the section does not cut down the appellate Court's discretionary power under Order 41, Rule 33.
17. There is the direct authority of Krishnasami Naik v. Aiyappa Naik (1914) 1 L.W. 376 that the appellate Court can exercise its power in favour of a defendant who was ex parte at the trial; and, following that precedent, I think we are at liberty to exercise the power in favour of Defendants 1 and 7 in the present suit.