Anantakrishna Ayyar, J.
1. The plaintiff instituted O.S. No. 42 of 1927 on the file of the Subordinate Judge of Mayavaram to recover moneys due on hypothecation bonds, dated 20th February 1913 (Ex, A) and 6th October 1915 (Ex. B) executed by the deceased father of defendants 1 and 2, in favour of the plaintiff. Defendants other than defendants 1 and 2 are persons who claim rights (subsequent to A and B) with reference to various portions of the properties mortgaged in favour of the plaintiff. Defendant 8 claimed to haw purchased a, portion of the hypotheca in an auction sale held in execution of a money decree obtained against defendants 1 and 2, and their deceased father and others, after the dates of the mortgage bonds, A and B. Defendants 1 and 2 did not appear in the lower Court. The other defendants raised contentions regarding the validity of the mortgages, A and B. The learned Subordinate Judge found that the mortgages were valid and that the plaintiff was entitled to have the various items included in his mortgages sold in execution to realise the amount decreed to him. Defendant 8 has preferred the present appeal making only the plaintiff as party respondent to his appeal. His complaint in the appeal is that the mortgages in favour of the plaintiff are not valid and that under auction purchase referred to above he has obtained absolute title to the property purchased by him in Court auction. When the learned Advocate for defendant 8 (appellant) opened the appeal the learned Advocate for the plaintiff (respondent) raised a preliminary objection to the effect that the appeal by defendant 8 alone, without making defendants 1 and 2 and also other defendants interested in the various items of properties mortgaged to the plaintiff as parties was incompetent and that the appeal should be dismissed in limine on that ground alone. The learned Advocate for the respondent argued that the appeal preferred by defendant 8 would re-open matters already decided between the plaintiff on the one hand, and defendants 1 and 2 and the other defendants on the other. It was pressed upon us that the plaintiff had already obtained a decree to the effect that the mortgages in favour of the plaintiff are binding on defendants 1 and 2, and that defendant 8 was seeking in this appeal to obtain relief inconsistent with the findings arrived at by the lower Court as regards the binding nature of the mortgages. It was therefore argued that it was not open to defendant 8, without making other persons, concerning whom there was a binding adjudication, parties to the appeal, to claim relief in respect of his purchase in Court auction. In support of that argument, the learned Advocate for the respondent cited two Privy Council cases reported in Chockalingam Chetty v. Seethi Achi 1927 P.C. 252 and Umed Mal v. Chand Mal 1926 P.C. 142.
2. In Chockalingam Chetty v. Seethi Achi 1927 P.C. 252, the Privy Council had to consider whether a plaintiff, who sought relief against several defendants, alleging that defendant 1 did not obtain a valid title to the properties in dispute, that he did not pass any valid title to defendant 2 and that defendant 2 did not pass any valid title to defendant 3 could maintain an appeal in which only defendant 3 had been made respondent. The first Court, dismissing his suit, held that defendant 1 had as a matter of fact obtained a valid title as against the original owner. The plaintiff claimed relief in appeal, making only the last of the defendants in actual possession of the properties, as party respondent to his appeal. It was pointed out by the Rangoon High Court in the case reported in Chockalingam Chetty v. Seethai Achi 1925 Rang. 108, that having regard to the decree passed by the trial Court upholding defendant 1's title and dismissing the suit as against all the defendants, it was not open to the plaintiff to claim in appeal reliefs inconsistent with that finding, without making defendant 1 a party to the appeal. Their Lordships of the Privy Council upheld that reasoning and held that in the absence of defendant 1 the plaintiff could not get any effective relief as against defendant 3. As we understand the judgment of their Lordships that was a case where the plaintiff sought relief against three defendants, specifically alleging that defendant 1 was never the owner of the property in question but that the sale in his favour was only a colourable transaction, the original owner not having divested himself of his rights in the same when executing the colourable sale deed in defendant 1's favour. The plaintiff also stated that the sale deed by defendant 1 in favour of the 2nd and defendant; 2's sale deed in favour of defendant 3 were also not binding on the plaintiff. In the face of the decree of the first Court dismissing the plaintiff's claim as against defendant 1, their Lordships held that in the circumstances the plaintiff would not be entitled to any relief as against the last of the defendants only in the appeal to which the last of the defendants only was a party. The position in the case before us, in our opinion, is substantially different. In the case before us the plaintiff has obtained a decree against various persons who set up rights to the various items included in the plaintiff's mortgages. The appeal before us is not by the plaintiff whose suit has been dismissed, and who is trying to get relief against others when such relief could not be granted to him so long as the findings arrived at by the first Court against him regarding the title of the alienor of the other defendants subsisted. The case before us is one in which a decree has been passed against several defendants and the defendant who felt aggrieved by the decree seeks to have the decree set aside so far as he (the appellant) is concerned. Prima facie and in an ordinary case, a defendant against whom a decree has been passed in favour of the plaintiff would be entitled to prefer an appeal to get rid of the decree against him. Where the presence of other defendants, against whom a similar decree has been passed by the lower Court, would be necessary in the appeal Court, to enable the appellate Court to modify in their favour the decree of the lower Court, though the other defendants had not themselves preferred appeals, is, we think, not the question that we have to decide at present. Provision is made under Order 41, Civil P.C. for enabling Courts to modify decrees, not only in favour of the appellant who approached the appellate Court for relief, but also in favour of others, who though prima facie aggrieved just as the appellant, have either not cared to appeal nor have been made parties to the appeal; so that in our opinion the decision in Chockalingam Chetty v. Seethi Achi 1927 P.C. 252, does not help us in the decision of the case before us. The decision in Umed Mal v. Chand Mal 1926 P.C. 142, also a decision of the Privy Council, does not really help us here, for the only question the Privy Council had to decide in that case was whether the plaint in the case before the Board was properly constituted. The Privy Council held that having regard to the circumstances of the case before them, the plaint to which, a lady Fathima Bi (from whom the other defendants are alleged to have derived title) was not a party was badly constituted and therefore the commissioner was right in revision in interfering with the decision of both the lower Courts and in having dismissed the suit on the solo ground that the suit itself was not properly constituted. The question before us is not whether the suit in the lower Court was properly constituted. It is agreed that there was a proper suit, with all the necessary or proper parties to the same, so that the decision in Umed Mal v. Chand Mal 1926 P.C. 142, also is of no real help to us.
3. The only other case to which our attention was drawn was the case reported in Mathew May v. Mohamed Esuff 1932 Rang. 16. The suit before the Court was one for administration of the estate of a person. The plaintiff was entitled to a moiety, defendant 1 to 1/4th and defendant 8 to the other 1/4th. In working out the decree a Commissioner was appointed and he made certain proposals for actually working out the decree in accordance with the shares decreed to the plaintiff, defendant 1 and defendant 2. The trial Court passed orders on the Commissioner's report. One of the defendants preferred an appeal to the High Court making only the plaintiff party-respondent. The High Court dismissed the appeal on the ground that the relief claimed by the appellant could not; be granted to him in the absence of the other defendant, who was entitled to the remaining 1/4th share. That is the familiar instance of the principle that the Court should not pass orders to the prejudice of persons who are not parties to the proceeding before the Court. It therefore seems to us that the cases quoted on behalf of the respondent are not really useful in the decision of the question which we are called upon to decide at present. On the other hand, a decision of this Court in the case reported in Somasundaram Chettiar v. Vaithilinga Mudaliar 1918 Mad. 794 would seem to be rather useful. There the reversioner filed a suit to recover possession of the estate which had been alienated in fovour of various defendants. Defendant 4 in that case would seem to have alienated the property to the other defendants in the suit. The plaintiff having been given a decree for possession of the estate, one of the alienee-defendants preferred an appeal to the High Court.
4. The learned Judges of the High Court held (as we understand the judgment) that in such cases the appeal by one of the alienees was competent, and that it was quite a different question whether having regard to the findings arrived at by the appellate Court, the appellate Court should exercise the powers vested in it under Order 41, Rule 33, Civil P.C. In the present case, we have not yet arrived at that stage, as already mentioned. The complaint is that the appeal itself is not competent and that we are not entitled to go into the merits of the case. The decision in Subbarayulu Naidu v. Pappammal 1916 Mad. 887, would also seem to support this view. The judgment is very short and the facts do not appear fully from the judgment, but, in so far as we are able to gather, that was a case where the plaintiff's suit was decreed by the first Court; one of the defendants preferred an appeal complaining that the suit was barred under Article 44, Lim. Act. The other defendants were not made party-respondents to the appeal. The appellate Court agreeing with the contentions of the appellant held that the suit was barred under Article 44 and therefore allowed the appeal and also dismissed the whole suit. The plaintiff preferred a second appeal contending: (1) that in fact the suit was not barred under Article 44, and (2) that in any event the lower Court was not entitled to interfere with the first Court's decision so far as the non-appealing defendants were concerned. It is clear that an appeal by an aggrieved defendant is generally, maintainable prima facie, so long as the person in whose favour the decree has been passed, is made a respondent.
5. It is possible that in particular cases the result of allowing an appeal may be to prejudice the rights of other parties to the suit; but the case before us is not one of that description. The appellant-defendant 8 complains that the purchase by him of two items of the mortgaged properties was valid and that the plaintiff as prior mortgagee was not entitled to any relief as against those two items. The circumstances that there, are other defendants interested similarly in several items of properties, which they have either taken in mortgage or purchased, who are also aggrieved by the decree passed by the trial Court, is per se no ground for not allowing a person in the position of defendant 8 from preferring an appeal with respect to the only items, in which he is interested. All persons who are likely to be prejudicially affected by the appeal being allowed should be parties to the appeal. In this case neither defendants 1 and 2 nor the other defendants, would be prejudicially affected. Defendants 1 and 2 did not appear in the lower Court, but were declared ex parte. It is possible that the Court, should it allow the appeal of defendant 8, may have to consider whether the discretion given to it under Order 41, Rule 33, should or should not be exercised in favour of all the other defendants also in the circumstances, but also that is quite a different matter; and such questions will arise only when there is a properly constituted appeal in which the Court agreeing with the appellant should think it necessary to consider the further question whether, it should modify the decree of the lower Court in favour of the non-appealing defendants. It is only at a later stage that the question would arise as to the extent to which it would further modify the decree of the lower Court, in favour of the non-appealing defendants also, having regard to the finding arrived at by it and having regard to all the circumstances of the case.
6. The learned advocate for the respondent in his reply drew our attention to another Privy Council case reported in Kaleel Shirazi & Sons v. Les Lanneries Lyonnaises 1926 P.C. 34. We have carefully read that judgment. There the plaintiff applied for a relief against A and B, but got relief only against A and as against B the suit was dismissed, though it would appear that B also was directed to pay the plaintiff's costs. But there was no appeal by the plaintiff. A and ,B would seem to have preferred an appeal to the appellate Court, the result of which was. a modification of the lower Court's decree so far as A was concerned. The plaintiff did not ask the appellate Court, to grant him more reliefs than had been granted to him by the trial Court. The plaintiff preferred an appeal to the-Privy Council and there sought relief as against B against whom he had obtained no relief in India except as to costs. The Privy Council held that without having preferred an appeal to the High Court, it was not open to the plaintiff to appeal to the Privy Council in these circumstances. In our view the decision in Kaleel Shirazi & Sons v. Les Lanneries Lyonnaises 1926 P.C. 34, does not cover the case like the one we have got before us. In the case in Badri Narayan v. E.I.Ry. Co. 1927 Pat. 23, the plaintiffs obtained a decree in the lower Court. The defendant prefer, red an appeal making some only of the plaintiffs (decree-holders) parties to his appeal. The Court held the appeal to be incompetent, because no relief could be granted to the appellant which would prejudice the other plaintiffs (decree-holders) who were not made party respondents to the appeal.
7. In our view a defendant in the position of defendant 8 before us would be entitled to prefer an appeal so far as the: items with which he was concerned were sought to be exonerated from the decree passed by the lower Court. To such an appeal we do not think that it is necessary either that defendants 1 and 2 or the other alienees of other items should be made parties in the circumstances. In our view the preliminary objection is not sustainable and we overrule the same and we direct the appellant to proceed with the appeal on the merits. On the merits it was argued on behalf of defendant 8 that the mortgages (Exs. A and B) were not binding upon defendants 1 and 2 or their alienees.
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8. On the whole we think that defendant 8 should not have been made liable for more than one-twelfth of the costs of the suit. We therefore modify the decree of the lower Court by substituting Rs. 200 for Rs. 400 as the costs directed by the learned Judge to be paid by defendant 8 personally. As the appellant has substantially failed in this appeal, we think that he must pay the respondent-plaintiff's costs of this appeal. With the above modification the appeal will be dismissed and in the circumstances with costs.