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T.M. Pambayan Ambalam (Dead) and ors. Vs. K.R. Veeranan Ambalam and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1129 of 1971
Judge
Reported inAIR1975Mad261
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rules 4 and 33
AppellantT.M. Pambayan Ambalam (Dead) and ors.
RespondentK.R. Veeranan Ambalam and anr.
Appellant AdvocateR. Gopalaswami Iyengar and ;M. Srinivasan, Advs.
Respondent AdvocateA. Varadarajan, Adv.
DispositionAppeal partly allowed
Cases ReferredC. K. Kunjandi v. Chinnavava
Excerpt:
.....will dispose of the entire suit it was held in that case that a finding on that question in an appeal filed by one of the defendants alone will ensure for the other defendants as well. this is clearly a case which will come under either rule 4 or rule 33 as the suit was for specific performance of particular agreement, and if that agreement was found to be not genuine, the suit could not be decreed against any person......but it is seen from the provisions that the powers under rule 4 could be exercised only when the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants. rule 33 is a little wider than rule 4 in the sense that it is not only in cases where the decree appealed from proceeds on any ground common to all but also in cases where the result of interference in favour of the appellant necessitates the readjustment of the rights of the other parties as given in the illustration to that rule itself. i may at this stage refer to a few of the decided cases where this principle was applied, in thirumala chariar v. athimoola karyalayar, : air1933mad529 the suit was for specific performance of an agreement to sell. the suit was filed against the legal.....
Judgment:

V. Ramaswami, J.

1. The plaintiff is the appellant. He filed the suit for recovery of a sum of Rs. 2329-67 being the principal and interest due on a promissory note executed by the two defendants who are the respondents herein. The promissory note is dated 4-5-1959. The plaintiff relied on an endorsement of payment of a sura of Rs. 350 made on 27-4-1962 and signed by the defendants as saving the suit from the bar of limitation. The first defendant filed a written statement which was adopted by the second defendant in which it was stated that the promissory note was executed as security in connection with certain lease of a coconut thope and it was not supported by consideration. It was also pleaded that the signature of the defendants in the endorsement dated 27-4-1962 was a forgery and that therefore, the suit is barred by limitation.

2. The trial court rejecting the defence held that the suit promissory note was supported by consideration and that the signature of the defendants in the endorsement is that of the defendants and not a forgery, in that view he held that the suit is not barred by limitation and decreed the suit as prayed for. The first defendant alone preferred an appeal impleading the plaintiff and the second defendant as respondents in the appeal. The lower appellate court held that the promissory note was supported by consideration but differing from the finding of the trial court held that the signature of the first and second defendants on the endorsement dated 27-4-1962 was a forgery and that, therefore, that endorsement could not save the suit from the bar of limitation. In that view the lower appellate court allowed the appeal and set aside the decree against the defendants and dismissed the suit. In this appeal the learned counsel for the appellant sought to challenge the finding that the signature of the defendants was a forgery. But I am unable to permit him to challenge that finding as it was a finding on a question of fact and it could not be stated that it is not supported by any evidence or that the finding was perverse. The learned counsel, therefore, proceeded on the assumption that the signature of the defendants in the endorsement was not the signature of the defendant. It was the contention of the learned counsel that the lower appellate court had no jurisdiction to go into the question of the genuineness of the signature of the second defendant in an appeal filed by the first defendant alone, though the second defendant was a party in the appeal. According to the learned counsel the decree as against the second defendant could not be challenged in the appeal and that the decree against him had become final. He therefore wanted to sustain the decree as against the second defendant at least. The powers of the lower appellate court in an appeal filed by one of the defendants alone is to be found in Order 41, Rule 4 and Rule 33. Under Role 4 where there are more defendants than one in a suit and the decrees appealed from proceed on any ground common to all the defendants, any one of the defendants may appeal from the whole decree and thereupon, the appellate court may reverse or vary the decree in favour of all the defendants. A similar power is also contained in Rule 33 which provides that the appellate court shall have powers to pass any decree and make any order which ought to have been passed or made and to pass or to make such or further decree or order as the case may require and this power may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection, This power also could be exercised by the court notwithstanding that the appeal is as to part only of the decree. These two rules are not mutually exclusive but they are complementary to each other. But it is seen from the provisions that the powers under Rule 4 could be exercised only when the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants. Rule 33 is a little wider than Rule 4 in the sense that it is not only in cases where the decree appealed from proceeds on any ground common to all but also in cases where the result of interference in favour of the appellant necessitates the readjustment of the rights of the other parties as given in the illustration to that rule itself. I may at this stage refer to a few of the decided cases where this principle was applied, in Thirumala Chariar v. Athimoola Karyalayar, : AIR1933Mad529 the suit was for specific performance of an agreement to sell. The suit was filed against the legal representatives of the owner. The defence was that the agreement was not genuine. This being a common question in which all the defendants are interested and a finding on that will dispose of the entire suit it was held in that case that a finding on that question in an appeal filed by one of the defendants alone will ensure for the other defendants as well. This is clearly a case which will come under either Rule 4 or Rule 33 as the suit was for specific performance of particular agreement, and if that agreement was found to be not genuine, the suit could not be decreed against any person. In Krishna Reddi v. Kami Reddi : AIR1954Mad848 a Division Bench of this court, after referring to the wide and unlimited jurisdiction of the courts to pass a decree against a party who has not preferred an appeal under Rule 33, referred to the principles in accordance with which that jurisdiction will have to be exercised and formulated the principles as falling under three different categories. One is where as a result of interference in favour of the appellant it becomes necessary to re-adjust the rights of other parties as set out in the illustration to Rule 33. The second class of cases is where the question is one of settling mutual rights and obligations between the same parties and the third class of cases is where the relief claimed is single and indivisible but is claimed against a number of defendants. But they hastened to add that these three classes of cases cannot be taken to be exhaustive enumeration of the class of cases in which the courts could interfere under Order 41, Rule 33. It is not necessary, therefore, to refer to all the other decisions cited by the learned counsel for the appellant which all deal with questions where a common point on a question of fact was involved. Coming to the case on hand, if the finding of the lower appellate court on the question as to whether the promissory note was supported by consideration was that it was not supported by consideration, the learned counsel for the appellant would concede that that would dispose of the suit itself and the benefit could be given to the second defendant who did not file an appeal. But according to the learned counsel the question whether the endorsement was genuine or not is not such a common question. The signature of both the defendants may be true or both may not be genuine or either one of them may be genuine. Each of the defendants is interested only in the defence that his signature is not genuine and not in the question whether the signature of the other was genuine or not, because unless it is established that his signature is not genuine, he is not entitled to be relieved from the liability. Sections 18 and 19 of the Limitation Act, 1963, deal with the effect of acknowledgment and effect of payment on account of a debt. An acknowledgment in writing signed by the party against whom the right is claimed gives a fresh period of limitation from the time when the acknowledgment was so signed under Section 18. if payment on account of a debt appears in the handwriting of the person making the payment such payment also would give a fresh period of limitation under Section 19. But these two provisions are subject to Clause (2) of Section 20 which provides that where there are more than one executant the written acknowledgment should be signed by every one of them and the period of limitation could not be extended against a person who had not signed except in cases where the person who signed proves that the payments or the acknowledgment was made by him as an agent for all the executants. But in the case of more than one promisor and when the acknowledgment was made only by one of them, the decree could be made against the person who acknowledged alone and the suit need not necessarily be dismissed as against all. This has been so held in Thayammal v. Muthukumarasami, AIR 1929 Mad 881. That was a case where a mortgage was executed by three persons. There was an endorsement of payment by only two of the mortgagors. In an appeal filed by the mortgagors against the decree obtained by the mortgagee this court found that the endorsement was made only by two of the defendants and that will not save the bar of limitation as against the mortgagor who did not sign the endorsement. The decree of the lower court was, therefore, set aside in so far as the mortgagor who did not sign the endorsement but confirmed as against the mortgagors who signed the endorsement. This decision was followed by this court in C. K. Kunjandi v. Chinnavava AIR 1941 Mad 110. Therefore, in this case if the signature of the second defendant was found to be genuine, a decree could have been made against the second defendant alone though the suit against the first defendant is dismissed. The second defendant alone is interested in establishing that his signature is not genuine in order to relieve himself of his liability. The finding of the lower appellate court that the signature of the first defendant is not genuine also does not necessitate the grant of relief to the second defendant as the relief asked for against them is not alternative, and, no question of readjustment of the rights of the parties also would arise. In fact, it was not necessary for the lower appellate court to go into the genuineness of the signature of the second defendant in order to give any relief to the first defendant who was the appellant. The lower appellate court, therefore, erred in going into that question and dismissing the suit in its entirety. The second defendant had also not appeared in this case or before the lower appellate court. He also did not examine himself as a witness in the trial court. The question whether there was a proper or justifiable excuse for the second defendant for not filing an appeal and asking for relief in the appeal filed by the first defendant does not, therefore, arise.

3. The second appeal is, therefore, allowed in part and the judgment and decree of the lower appellate court in so far as it sets aside the decree as against the second defendant is set aside and the suit is decreed as against the second defendant alone and dismissed as against the first defendant. The first defendant will be entitled to his costs in this second appeal. No leave.


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