Sundaram Chetty, J.
1. C.M.P. No. 2553 of 1930 - This second appeal was filed by the 7th defendant impleading the plaintiff alone as the respondent. The suit was filed by the plaintiff for the recovery of a certain amount by the sale of the hypothecated properties, and if, for any reason, the Court should hold that the plaintiff cannot proceed against the hypotheca, she prays that defendants 8 to 10 should be held liable to pay the suit amount jointly and severally.
2. The facts of the case are briefly these. The plaintiff's father Mahomed Rowther became entitled at a family partition to the mortgage debt due under the original of Ex. B, dated 17th December, 1902 and executed by one Section N. Mahomed Rowther. The plaintiff was a young girl of 2 years when her father died. In 1911 the 8th defendant, who is the plaintiff's mother, thought of remarriage and fraudulently assigned the aforesaid mortgage bond on behalf of herself and the minor plaintiff in favour of the 9th defendant under Ex. G-1. The 9th defendant in his turn assigned it in favour of the 10th defendant. The aforesaid assignment by the 8th defendant is void and ineffectual so far as the plaintiff's share in the mortgage debt is concerned. On the strength of the aforesaid assignment, the 10th defendant filed O.S. No. 99 of 1913 on the file of the Additional District Munsif's Court of Madura impleading the present plaintiff and also defendants 8 and 9 as parties thereto. The plaintiff was then a minor and was not properly represented and the decree in that suit cannot therefore affect her interests. She has therefore filed the present suit for two kinds of relief in the alternative. The first Court dismissed the plaintiff's suit as against all the defendants except the 8th. On appeal by the plaintiff, the lower appellate Court gave a decree in plaintiff's favour for the amount found due to her as against the hypotheca, in the hands of the 7th defendant, dismissing the claim against the 10th defendant. As against that decree, the 7th defendant has filed this second appeal impleading the plaintiff alone as respondent. During the pendency of this appeal, an application was made by the plaintiff (respondent) to add the 10th defendant also as a co-respondent in the appeal. It is C.M.P. No. 2553 of 1930. The reasons for impleading the 10th defendant as a party respondent in this appeal are stated in the affidavit filed in support of that petition. On the 7th of August, 1930, the Master passed an order directing the 10th defendant to be made a party to the appeal. That order was passed without previous notice to the 10th defendant. It is now urged by the 10th defendant, that under the Appellate Side Rules the Master had no jurisdiction to direct the addition of a party as a co-respondent and therefore that order is ultra vires. It appears that such an order is not within the competence of the Master to pass, and accordingly, I allowed that petition to be treated as not disposed of in the eye of law and heard arguments on both sides at great length for the purpose of determining whether the 10th defendant can be added as a co-respondent in the circumstances of this case.
3. Two contentions have been put forward on behalf of the 10th defendant to persuade the Court to dismiss this petition. One is that under Rule 20 of Order 41, Civil Procedure Code, which alone gives the power to an appellate Court to add a party as respondent, the 10th defendant cannot be added, as he cannot be deemed to be interested in the result of the appeal. The second is that the Court's discretion under Rule 33 of Order 41, Civil Procedure Code, should not be exercised in favour of the plaintiff (respondent) by interfering with the dismissal of her suit as against the 10th defendant by the Courts below, regardless of the fact that the 10th defendant has acquired a valuable right on account of the omission on the part of the plaintiff to file either an appeal or a memorandum of objections within the period of limitation.
4. There is, no doubt, that the power vested in the appellate Court under Rule 33 can be exercised in favour of a party not on the record in the appeal, but certainly not against a person not actually a party on the record. The scope of the powers given to an appellate Court by Rule 33 has been fully considered and decided by a Full Bench of our High Court in the case reported in Subraniania Chettiar v. Sinnammal I.L.R. (1930) 53 Mad. 881 : 59 M.L.J. 634. It was held that those powers are very wide and can be exercised in a proper case even in favour of a respondent who has neither appealed nor filed a memorandum of cross-objections. But it is recognised that the exercise of such extraordinary powers is a matter of discretion with the appellate Court which must depend upon the peculiar circumstances of each case. The Illustration to Rule 33 which indicates the type of a case covered by the section is as follows:
A claims a sum of money as due to him from X or Y and in a suit against both, obtains a decree against X. X appeals and A and Y arc respondents. The appellate Court decides in favour of X. It has power to pass a decree against Y.
5. The view taken by the Calcutta High Court in the decisions reported in Gangadhar v. Banabashil (1914) 22 C.L.J. 390 and Abjal Majhi v. Intu Bepari (1915) 22 C.L.J. 394 is, that though the rule is widely expressed, ordinarily the exercise of the power conferred thereby should be limited to those cases where as a result of the appellate Court's interference with the decree in favour of the appellant, further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience. This is exactly a case covered, by the illustration. But in the Full Bench decision of this High Court referred to above, it has been held that the appellate Court has jurisdiction to interfere in a proper case and pass any decree and make any order which ought to have been passed or made in the suit and that the view taken in the aforesaid Calcutta decisions would be a limitation of the Court's powers which is not warranted by reason of the very wide terms of the rule. But in the present case, it is unnecessary to go farther than the limits placed by the Calcutta High Court in the said two decisions, because this case is exactly covered by the illustration to Rule 33. The plaintiff seeks to recover the suit amount by the sale of the hypotheca in the first instance. That is the primary relief claimed by her. If that relief is denied to her, then she asks for a decree against the 10th defendant who sued on the mortgage and recovered the full amount. She cannot and does not ask for a cumulative relief against the hypotheca and the 10th defendant. A decree for the recovery of the money by sale of the hypotheca precludes her from asking for a personal decree against the 10th defendant. In the present appeal, the 7th defendant, who stands in the shoes of the auction-purchaser, in execution of the mortgage decree obtained by the 1th defendant, attacks the correctness of the decree against the hypotheca and wants the plaintiff's suit to be dismissed as against the hypotheca. If in this appeal the decree against the hypotheca is set aside, then the question of further interference with the decree of the lower appellate Court dismissing the claim against the 10th defendant arises for consideration and in order to do complete justice to the parties in exercise of the powers under Rule 33, a decree may be passed in favour of the plaintiff (respondent) as against the 10th defendant, though the plaintiff (respondent) has not filed any appeal or memo of cross-objections.
6. Relying on the Privy Council decision in V.P.R.V. Chokalingam Chetty v. Seethai Acha (1927) L.R. 55 IndAp 7 : I.L.R. 6 R. 29 : 54 M.L.J. 88 (P.C.) and the decisions in Ma Than May v. Mohamed Eusoof I.L.R. (1931) 9 Rang. 624, Saktiprasanna Bhattacharya v. Naliniranjan Bhattacharya I.L.R. (1930) 58 Cal. 923 and Rukia v. Mewa Lal I.L.R. (1928) 51 All. 63 the learned advocate for the 10th defendant strenuously contended that the Court should not exercise its discretion to add the 10th defendant as a party respondent for the purpose of passing a decree in pursuance of the powers given to it under Rule 33. In Chokalingam Chetty v. Seethai Acha (1927) L.R. 55 IndAp 7 : I.L.R. 6 R. 29 : 54 M.L.J. 88 (P.C.) and Ma Than May v. Mohamed Ensoof I.L.R. (1931) 9 Rang. 624 the main ground for refusing to add a person as a party respondent to the appeal is the fact that the person has acquired a valuable right under that decree, inasmuch as an appeal against him was then barred by limitation. In those cases, the person sought to be added as a party was a necessary party to the appeal, in the sense that the appeal could not proceed in the absence of that person, and as the appellant could have very well filed an appeal against that person also in time, it was thought that he should not be deprived of a valuable right acquired by him, by means of a discretionary power vested in the appellate Court. As I have already pointed out, the facts of the present case are quite different. In the face of the lower appellate Court's decree granting relief to the plaintiff against the hypotheca, she cannot file an appeal against the dismissal of her claim against the 10th defendant. She cannot therefore be blamed for not filing an appeal against that portion of the decree dismissing the suit against the 10th defendant, or for not filing a memorandum of objections for the same relief, so long as the decree against the hypotheca given to her is not set aside. In case the decree against the hypotheca cannot be upheld, this is eminently a not case for the exercise of the powers of the appellate Court under Rule 33, in order to see whether she can at least be given a decree against the 10th defendant or not. The view taken in Saktiprasanna Bhattacharya v. Naliniranjan Bhattacharya I.L.R. (1930) 58 Cal. 923 is not quite in accordance with the decision of a Division Bench of this High Court reported in Ponnuswami Asari v. Palaniandi Mudali (1919) 11 W. 602. The somewhat narrow view taken by the Calcutta High Court as to the scope of Rule 22 of Order 41, Civil Procedure Code, has not been adopted by our High Court in the Full Bench decision in Munisami Mudaly v. Abbu Reddy I.L.R. (1912) 38 Mad. 705 : 27 M.L.J. 740. According to this Full Bench decision, it is open to a respondent under Rule 22 to file a memo of cross-objection against any other respondent, whether the appellant was interested in it or not. In Ponnuswami Asari v. Palaniandi Mudali (1919) 11 L.W. 602 the learned Judges held that the appellate Court has jurisdiction under Order 41, Rule 20 to add a person as a co-respondent, in order to enable the respondent already on record in the appeal to file a memo of cross-objections against him. The treat the person sought to be added as one interested in the result of the appeal within the meaning of Rule 20, because the expression 'the appeal' should be understood in the broad sense so as to include all the proceedings in the appellate Court whether those involved in the disposal of the appeal proper or also those involved by the memo of objections. If the appellate Court has jurisdiction under Rule 20 to add a person as a co-respondent in order to sustain the memo of cross-objections to be filed against him, according to the decision in Ponnuswami Asari v. Palaniandi Mudali (1919) 11 L.W. 602 there is no difficulty in holding that the appellate Court has jurisdiction under Rule 20 to add a person as a party respondent for the purpose of exercising the powers vested in it under Rule 33, though no appeal or memo of cross-objection has been filed. In the present case, if the 10th defendant was originally made a respondent in the appeal itself, there can be no question that under Rule 33 the dismissal of the suit as against him can be interfered with by the appellate Court if the decree against the hypotheca has to be set aside. The relief that could be obtained against him by way of cross-appeal may be obtained under Rule 33, even without filing the memo of objections. That being so, the principle of the decision in Ponnuswami Asari v. Palaniandi Mudali (1919) 11 L.W. 602 can well-nigh be extended to the present case also. The decision in Saktiprasanna Bhaitacharya v. Naliniranjan Bhattacharya I.L.R. (1930) 58 Cal. 923 proceeds on the narrow view of the scope of Rule 22 of Order 41, Civil Procedure Code, adopted by the Calcutta High Court in some of its decisions. That is why it was held that a memo of cross-objections filed against one who was not already a party respondent was liable to rejection. It may be reasonably urged that the 10th defendant in this case is one interested in the result of the appeal, because the relief which the plaintiff (respondent) may ask the Court to give her as against the 10th defendant in exercise of the powers under Rule 33 is one contingent on the result of the appeal. Even if Rule 20 is deemed to be strictly not applicable to the present case, the appellate Court has power to add parties under Order 1, Rule 10, Civil Procedure Code, read with Section 107. In Ponnuswami Asari v. Palaniandi Mudali (1919) 11 L.W. 602 this view has been expressed by Krishnan, J., who points out that Rule 20 does not exhaust the appellate Court's power to add parties. The decision of the Patna High Court of Sir Dawson Miller, C.J., and Mr. Justice Foster reported in Padarath Mahton v. Hitan Singh (1924) 82 I.C. 600 deals with a case exactly on all fours with the present case. Following the decision in Girish Chander Lahiri v. Sasi Sekhareswar Roy I.L.R. (1905) 33 Cal. 329 Miller, C.J., observes that in a case of this description the ordinary rules of limitation relating to appeals ought not to apply, where in the course of an appeal the Court finds that in order to do justice between the parties it is necessary to bring one of them who was a party to the suit upon the record in the appeal. It has further held that the Court in second appeal has power under Rule 20 to bring parties upon the record in order to carry out the powers granted to the Court under Rule 33 of Order 41. The principle of this decision is in consonance with the view taken by this High Court in Ponnuswami Asari v. Palaniandi Mudali (1919) 11 L.W. 602. I am clearly of opinion that there are adequate grounds for exercising the powers given under Rule 33 in the present case, and on the authority of the two decisions above mentioned, the 10th defendant could be added as a party respondent now under Rule 20, Order 41, Civil Procedure Code. This may be done even under Order 1, Rule 10 read with Section 107, Civil Procedure Code.
7. I accordingly direct the addition of the 10th defendant as 2nd respondent in this appeal. The appeal will be heard on the merits.
8. This second appeal coming on again for hearing the Court delivered the following