1. There were two suits instituted in the trial Court. One was Haiti No. 1376, which was a suit on a mortgage. The plaintiff's allegation was that defendant 1 had failed to pay the mortgage moneys. The plaintiff therefore prayed for a decree on the mortgage as against defendant 1. Her allegation against defendant 2 was that she had come to know that certain money a had been released by defendant 2 from defendant 1. on account of the mortgage and the plaintiff prayed that should it turn oat that defendant 2 realised any moneys or the whole of the mortgage moneys from defendant 1, then a decree for money on account of the mortgage might be made against defendant 2. The first Court found that defendant 2 had realized a sum of Rs. 100 from defendant 1 and that defendant 1, by such payment, had been released by defendant 2 from the debt in question. The first Court accordingly dismissed the suit as against defendant 1, bur, decreed the suit against defendant 2 for Rs. 100 which had been realized by him from defendant 1, and also passed a decree for a sum of Rs. 100 on account of damages, in as much as, owing to the action of defendant 2, defendant 1 had been released by him from the mortgage debt.
2. Defendant 2 appealed to the lower appellate Court, his appeal being numbered as Appeal No. 32. To that appeal the only respondent was the plaintiff. De-fondant 1 was not made a party respondent to the appeal. The plaintiff how-over preferred certain cross-objections. These cross-objections were lodged within one month from the date of service of notice of appeal on her. But in these cross-objections the case on behalf of the plaintiff was not only directed against defendant 2, who was the appellant in the lower appellate Court, but against defendant 1, against whom the suit had been dismissed by the trial Court and who was not made a party respondent to the appeal. The lower appellate Court came to the conclusion that, inasmuch as the plaintiff had not preferred any appeal against defendant 1, her cross-objections, though in part directed against defendant 1, could not be entertained, as they were out of time and also because no such cross-objections can be allowed against an absent respondent. It may be noted in this connexion that notice of the cross-objections was served upon the absent defendant 1. The lower appellate Court came to the conclusion however on the merits that the decree against defendant 2 for Rs. 200 should not be allowed to stand. The lower appellate Court modified the decree against defendant 2 by reducing it from Rs. 200 to Rs. 100 (the last mentioned amount being the amount which had been realized by defendant 2 from defendant 1), holding that there was no case for the award of damages against defendant 2.
3. Mr. Palit has now, on behalf of the plaintiff preferred an appeal to this Court and this appeal has been numbered S. A. 2276 of 1928. He has in his memorandum of appeal on behalf of the plaintiff made the two defendants-respondents to this appeal and his argument is twofold. In the first place ha argues that the lower appellate Court was wholly in error in not awarding damages against defendant 2. In the second place he argues that the lower appellate Court should not have thrown out the case that, his client sought to make in the cross-objections as against defendant 1, although defendant 1 was not a party respondent in the appeal before the lower appellate Court. He formulates his case against defendant 1 in the following manner: Ha says that for all practical purposes, defendant 1 was a party respondent to the appeal before the lower appellate Court, inasmuch as the cross-objection on behalf of the plaintiff had been served on defendant 1. In the second place, he argues that, by virtue of the combined operation of 0.41, Rules 33 and 20, the lower appellate Court had clear jurisdiction in the matter and should have determined the plaintiff's claim as against defendant 1, although defendant 2, in his appeal to the lower appellate Court, had not made defendant 1 a party respondent thereto. In support of his last contention Mr. Palit has invited our attention to the case of Bejoy Kumar Sen v. Kusum Kumari Debi : AIR1929Cal315 , being a decision of our learned brothers Suhrawardy and Garlick, JJ. But, in our opinion, so far as this last contention is concerned the case is covered by the authority of their Lordships of the Judicial Committee in the two cases to which reference has been made during the course of the argument at the Bar, the case of V.P.R.V. Chokalingam Chetty v. Seethai Acha and the ease of Mahomed Khaleel Shirazi and Sons v. Las Tanneries Lyonnaises A.I.R. 1926 P.C. 34.
4. The whole point resolves itself into a consideration of the precise meaning to be attached to the words 'a party interested in the result of the appeal' appearing in Order 41, Rule 20, Civil P.C., and the words:
the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and 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.
5. As their Lordships point out in the circumstances such as have happened in this case, is it possible to say that the defendant, against whom the suit had been dismissed by the trial Court and who has not been made a party to an appeal preferred against that decree before the lower appellate Court, is still interested in the result of the appeal If he cannot be considered to be a person who is still interested in the result of the appeal or if ho cannot be considered to be a person who may be affected by the result of the appeal, within which expression is included the determination of the appeal itself as also the determination of any cross-objection which may be preferred by the respondent who is a party to the appeal, then it must follow that the 'powers of the Court, however ample they may be within the ambit of Order 41, Rule 20, land Rule 33, cannot be used to the detriment or prejudice of the person against [whom the suit has been dismissed in the [trial Court and against whom no appeal had been preferred before the lower appellate Court. It is true that the case of Mahomed Khaleel Shirazi A.I.R. 1926 P.C. 34 has been noticed in the judgment of Sahrawardy, J. and Garlick, J. in the case of Bejoy Kumar Sen v. Kusum Kumari Debi, but it does seem to us that the matter has been put beyond all doubt by the decision of the Privy Council in the case of V.P.R.V. Chokalingam Chetty v. Seethai Acha. The powers under Order 41, Rule 33, may no doubt, be exercised in favour of an absent respondent. That is illustrated by the case of Bhutnath Deb v. Sashimukhi Brahmani A.I.R. 1926 Cal. 1042. But we are not aware of any authority which has gone so far as to lay down in definite terms that such powers may be exercised, as stated above, to the detriment or prejudice of an absent respondent, against whom in the lower Court[ the suit had been dismissed. For these; reasons we are of opinion that there is no substance in the second contention of Mr. Palit. We are of opinion that it is impossible for us to interfere with the judgment and decree of the lower appellate Court as against defendant 1.
6. With reference to Mr. Palit's first contention that the lower appellate Court should not have interfered with the decree which awarded damages as against defendant 2, it is sufficient to point out that on the facts found, there is really no case of damages as against defendant 2.
7. The result therefore is that on both the points the judgment of the lower appellate Court must be affirmed and this appeal No. 2276 of 1928 must be dismissed with costs.
S.A. No. 2277 of 1928
8. The second suit between the parties is a suit for accounts. This was numbered in the first Court as Suit No. 1337. The appeal arising thereout is Appeal No. 31 in the lower appellate Court. The second appeal to this Court is Appeal No. 2277 of 1928. The short facts, so far as this appeal is concerned, are these: Defendant 1 acted as agent of the plaintiff in the matter of the realization of certain debts due to the plaintiff. The plaintiff's allegation is that, on three several dates, namely, on 9th September 1920, 26th June 1920, and 20th January 1921, defendant 1 had realised considerable sums of money from her debtors, but he withheld payments of these moneys from her. In the plaint she states that after her husband's death she made inquiries that these moneys had bean realized and that defendant 1 had not paid to her the same. Demand is said to have been made on her behalf on some data in 1331 B.S., which would correspond with some date in 1925. The plaintiff's suit has been dismissed on the ground that it is barred by limitation under Article 62, Lim. Act. As far as we can judge from the materials before us, namely, the judgment of the trial Court and the vary short judgment of the lower appellate Court on this point, it is by no means clear that the plaintiff's case does not come within the purview of Article 90, Dim. Act. In our opinion there is ample foundation for the contention that the case does come within the purview of Article 90. But before any definite pronouncement can be made, the facts have got to be investigated and elicited. It does not appear from the materials on the record, so we are informed by the learned advocate for the plaintiff, that the data or time when the fact of defendant 1 having withheld these moneys from the plaintiff became known to the plaintiff can be ascertained. That date must be ascertained before Article 90, Lim. Act, can be invoked.
9. We therefore set aside the judgment and decree of the lower appellate Court and remit the matter to that Court for ascertainment of the data or dates bearing on the question referred to above and after such ascertainment to determine the case and dispose of the appeal according to law.
10. The costs of this appeal will abide the result of the decision of the lower appellate Court.