1. These are, an appeal by Sadhu Bam and Bam Swarup, father and son, defendants 2 and 3 and a cross-objection by Mohammad Ali, the plaintiff, from a judgment and decree dated 29th June 1943 of Shri J.N. Bhagat C. J., High Court, Nahan, in civil Appeal No. 2 of 2005.
2. The suit was brought by the plaintiff sometime in Samvat 2003. Defendant 1, Mohammad Khan, had obtained a contract from the Department of Public Works, Nahan, for constructing a part of Bainka Road. Defendants 2 and 3, father and son, were intere9ted in this contract. As a matter of fact, sometime later on, defendant l applied for sanction to the Public Works Department, to assign the benefit of the contract to defendants 2 and 3 and such sanction, it appears from the record, was granted.
3. It was alleged on behalf of the plaintiff that he had supplied labour, under instructions from the defendants, principally from defendant 1 and he had not been paid this amount either by defendant 1 or by defendants 2 and 3.
4. The plaintiff stated in his plaint the various items and the rate of wages and calculated his total claim to be RS. 2260 (rupees two thousand two hundred and sixty) upto 5-9-2001S.
5. The case of defendant 1 was that he had, by a deed, assigned his interest in the contract to defendants 2 and 3. He alleged further that on 16-9-2001, that is, eleven days subsequent to the date for which the claim was made, he applied for sanction for assigning the contract to defendants 2 and 3.
6. Defendants 2 and 3 denied the liability in toto. Their case was that they were financiers, advancing loan to defendant 1 to carry out the contract. They were interested in the sense that if the contract was satisfactorily carried out, defendant 1 would obtain the payment promptly from the Public Works Department and would be able to pay up the advances, which they had made to him. Their further defence was that defendant 1 was not efficient in carrying out the contract of road-building and as their advances were in jeopardy, they proposed the assignment in order to safeguard their interests. In conclusion, they stated that even after the assignment, the construction of the road was not carried out because defendant 1 created difficulties and ultimately the Government contract was abandoned.
7. The learned District Judge found that the plaintiff did not allege that the P. W. D. contract 'was taken by all the three defendants.' In his opinion, Sadbu Bam and his son, Ram Swarup, defendants 2 and 3, were 'financiers', and as such, they were anxious to see that their money might not be lost. The plaintiff's witnesses, Najibuddin, Dasaondi and Inayatullah, were of opinion that 'the contract was in the name of all the three defendants. The learned trial Judge did not believe them on the ground that if the contract was in the name of all the defendants, it should have been proved by the plaintiff by producing the document or calling the Engineer, P. W. D. as a witness. He believed the evidence of Mohammad Eban, defendant 1, who stated that the contract was in his name alone. Finally, he relied upon the order of the State Engineer no. 2044 dated 18-10-2001 (Ex. D-2) giving permission to the contractor, Mohammad Khan, to assign the con. tract to defendant 2, Rightly, he relied upon the documentary evidence in preference to the evidence of the plaintiff's witnesses. He disbelieved the document purporting to be an agreement between the defendants and held as follows : 'The present case relates to claim upto 5-9-2001 and till then Mohammad Khan was the con. tractor.'
8. This was the decision on main issue raised in the suit, namely, 'whether all the three defendants and not defendant 1 alone had taken the Bainha Road contract.' He accordingly decreed the suit in full against Mohammad Khan, defendant 1, holding that the other defendants 2 and 3 were not liable.
9. The plaintiff appealed against this decree to the Chief Justice, 'the appeal seeks a decree against the other two defendants. Mohammad Khan has not been impleaded.' Or in other words, the plaintiff accepted the decree which had been made in his favour, in its entirety, against Mohammad Khan, defendant 1 but appealed on the ground that the other two defendants should be made liable also.
10. The appeal was admitted. Mohammad Khan, defendant 1, did not appeal against the decree made against him. The plaintiff did not implead Mohammad Khan, thereby implying that he was satisfied so far as the total claim was decreed against Mohammad Khan, defendant 1. The conclusion of the learned Chief Justice, Shri J.N. Bhagat, is as follows :
'For the aforesaid reasons, I allow the appeal and sotting aside the order of the learned District Judge dismissing the claim of the plaintiff-appellant against the respondents. I hereby pasa a deceee for Rs. 1500 against them.'
11. The result of the appeal, therefore, is that the plaintiff who had obtained a decree in its entirety in the trial Court, obtains a decree for Rs. 1500 against defendants 2 and 3. This is a strange proposition that has come before this Court. Further, if the decree of the learned Chief Justice were put in execution, the result will be that the plaintiff will have two decrees to execute, one decree for Rs. 2260 against defendant 1 (who was not a respondent in the High Court) and the other for Rs. 1500 against defendants 2 and 3, so that in the place of the plain, tiff's total claim Rs. 2260 (rupees two thousand two hundred and sixty), be is now in a 'position to realise Rs. 3,760 (Rupees three thousand seven hundred and sixty), more than what he asked the Court to give judgment for.
12. This curious consequence has resulted from an erroneous view of the law because the High Court failed to determine whether the plaintiff had any right to appeal after his claim had been decreed in full by the trial Court.
13. An appeal under Section 96, Civil P. C. may be preferred by any party to the suit adversely affected by the decree (Krishna Chandra v. Mohesh, 9 C. W. N. 584). The question whether a party is adversely affected or not is a question of fact to be determined in each case according to its particular circumstances. It is clear that if the plaintiff's claim is decreed in its entirety, the plaintiff cannot appeal from the decree. In case the plaintiff's claim is decreed in its entirety, but one of the issues is found against him, the plaintiff can not appeal against the finding of that issue, for his claim has been decreed in full. Secretary of State v. Swaminatha Kaundan, 37 Mad. 25: (12 I. C. 167). The reason given by the Right Hon'ble Sir Dinshaw Mulla, P. C., in his famous commentary on the Civil Procedure Code, is that the very fact that the decree is entirely in the plaintiff's favour, notwithstanding a finding adverse to him on one of the issues, shows that the plaintiff after obtaining the benefit of the decree in its entirety, could not challenge its invalidity upon a certain adverse finding on an issue only.
14. The principle of approbate and reprobate, as laid down in Lissenden v. C. A. V. Basog Ltd., 1948 A. C. 412, (House of Lords) is that the petitioner may not only accept any benefit, but he can also reprobate if he has been denied a portion of the benefit which he has claimed. But when he accepts the full benefit which he has claimed, he will be precluded from challenging its validity.
15. When there are two or more defendants, it may happen that a suit is dismissed against one of them or in other words, the decree on the face of it may be entirely in favour of the plaintiff. Can the plaintiff appeal against that decree without making the defendant a party against whom the suit was decreed in full, on the sole ground that the other defendant against whom the suit has been dismissed should also be held liable for his claim? He cannot. Such a decree impliedly negatives the right claimed by him against the other defendant. His claim is fully satisfied and ha has to realise the claim from the defendant against whom the decree has been made, but if this defendant against whom the suit has been fully decreed, cornea on appeal challenging the decree, the plaintiff can rightly feel that his decree is in danger. As a respondent, he has then a right either to argue that the other defendant against whom the suit is dismissed should also be made jointly or severally liable for his claim provided the latter ia a party in the appeal; See Chocklingam v. Seethai, A. I. R. (14) 1927 P. 0. 252 : (6 Rang. 29) which seems to have overruled the case of KanjiMall v. Durga Prasad, A. I. R. (12) 1925 ALL. 555 : (47 ALL. 597), cited at the Bar, or, he can in a cross-objection, claim the same relief from the other defendant against whom the suit waa dis. missed vide Midnapore Zemindary Co. Ltd. v. Naresh Narain, 48 I. A. 49 : (A. I. R. (9) 1922 P. C. 241).
16. Counsel for the plaintiff argued that the decree stated that the suit against defendants 3 and 3 were dismissed and therefore, the plaintiff bad a right of appeal against them only. If the decree stated so, it was no ground of such appeal. The decree that will be put into execution names the person from whom the recovery should be made. The order that the suit against defendants 2 and 3 was dismissed expressed in the decree does not require execution, nor can it be executed by defendants 2 and 8. It was just a part of the statement of judgment and the decree and judgment has been uniformly held by the High Courts in India to have the meaning as follows:
17. In Brojo Gopal v. Amar Chandra, 56 Cal. 135 : (A. I. R. (16) 1929 Cal. 214 F. B.), it was held that
'the mere fact that a portion of the judgment puts in peril the Ghality of a decision in a person's favour, does not itself make that judgment or a decree appealable.'
In Tulja Bam v. Alagappa Chetiar, 35 Mad. 1 : (8 I, C. 340), the Fall Bench of the Madras High Court held that a decree from which an appeal could be brought should be such that the effect would be to realise the total claim of the plaintiff.
18. I am, therefore, of opinion that if the trial Court had passed a decree, eay for Rs. 2,259-15-11 or in other words, one pie less than the actual claim, the plaintiff would then have had every right to go in appeal to the High Court for a decree for this one pie only and he will have right on appeal to make defendants 2 and 3 liable for this paltry sum. But the total claim of the plaintiff was decreed against defendant 1, who did not appeal against the decree. In the circumstances, the plaintiff had no right of appeal. It is argued in this Court that the amount; was not realisable from defendant 1, who had gone to Pakistan. It is not the duty of the Court to look into such consideration in order to admit an appeal from a decree which in against the provisions of law.
19. Further, the plaintiff did not implead defendant 1 against whom he had obtained the decree in full. Or in other words, he clearly in dicated his intention to accept the decree in full against defendant 1. Consequently, defendants 2 and 3, as respondents, could not, assuming that such an appeal was competent, defend themselves against the plaintiff's allegations in the appellate Conn without the presence of defendant 1, whom the plaintiff intentionally omitted to implead. I have therefore, before me two decree, one of the final Court for the full claim of Rs. 2,200 (Rupees two thousand two hundred and sixty) against defendant 1, which the learned Chief Justice has not set aside, and the other of the appellate Court decreeing Rs. 1,500 (Rupees one thousand and five hundred) against defendants 2 and 3. He has kept the first decree untouched. He has only set aside the order of the learned District Judge dismissing the claim of the plaintiff appellant against respondents (defendants 2 and 3).' These two decrees are inconsistent.
20. I would, therefore, hold that the appeal to the Chief Justice, High Court, Nahan, was incompetent. The plaintiff had no right of ap. peal. If defendant 1 had taken the appeal to the High Court, the plaintiff would have got an opportunity of impleading defendants 2 and 3 and of arguing that defendants 2 and 3 were also jointly and severally liable. In conclusion, I have to make an observation pertinent to the pleadings as well as to the reasonings upon which the learned Chief Justice has founded his judgment. The learned trial Court made it clear in his finding on the main issue that there was no relationship between the three defendants by which it could be safely held that they were jointly and severally liable It was not the plaintiff's case to hold these three defendants jointly or severally liable. The pleadings did not ask the Court so to decide. By the 'incompetent' appeal, the plaintiff attempted to achieve this very object. The learned Chief Justice did not hold that defendants 2 and 3 were jointly or severally liable with defendant 1. The absence of defendant 1 against whom the decree was made and who was not impleaded as a respondent in the appeal in the High Court might be conetruei that the plaintiff did not wish to realise his claim fully decreed, from defendant 1 and wanted to realise the decretal amount from defendants 2 and 3, against whom the suit was dismissed.
21. On the face of it, the entire judgment of the learned Chief Justice is based on an erroneous view of the law and mis-application of its provisions. I would, therefore, allow the appeal and recall the judgment and decree of the learned Chief Justice and restore the judgment and decree of the District Judge, Nahan The cross-objection will stand dismissed. In the special circumstances of the case, there shall be no order as to the costs of this appeal in this Court but defendants 8 and 3 will be entitled to the costs of the trial Court. The order staying the execution will stand vacated. I shall advise the ChiefCommissioner to this effect.