1. These are three connected second appeals by a defendant and they arise out of three suits for the recovery of Rs. 1591/10, Rs. 1064/-, and Rs. 1952/- respectively on the basis of three bonds. In each of the suits, there were 3 defendants, Sant, Devi Singh and Puran Chand. The suits were consolidated by order of the trial Court and evidence was recorded in suit No. 80. Sant, defendant, while admitting receipt of the above sums pleaded that he was only an agent of the other two defendants and he made over the sums to the latter and transmitted their acknowledgments to the plaintiffs.
2. Puran Ohand disclaimed all liability. He alleged that as mukhtiar of Devi Singh, he wrote the letters in question to Sant Ram.
3. Devi Singh categorically denied having authorized Puran Chand or Sant to borrow the monies in question from the, plaintiffs.
4. The trial Court (Sub-Judge Mandi) decreed the suits against Devi Singh, defendant, alone, holding that the sums in question had been borrowed by Sant on behalf of Devi Singh and the same were spent on Devi Singh's work in Saraj.
5. Devi Singh went up in appeal to the learned District Judge of Mandi, who came to the conclusion that Deyi Singh had been wrongly-saddled with the liability of- these bonds. Consequently, he set aside the decrees passed by the trial Court and instead granted the plaintiffs, decrees for the sums in suits, against Sant alone.
6. Sant has now come up in second appeal in all the three suits.
7. I have heard learned counsel for the parties at considerable length. I have also looked into the originals of the three bonds, which were specially summoned from the plaintiffs-respondents. For reasons to be stated shortly, I am of the opinion that the decision of the learned District Judge is right and there is no force in these appeals.
8. The first point argued by learned counsel for the appellant was that the learned District Judge was not justified in granting decrees against Sant, in view of the fact that the trial Court had dismissed the suits as far as, they lay against Sant and no cross-objection had been filed by the plaintiffs against that portion of the trial Court's decrees.
Mr. Kedar Ishwar contended that the only course open to the District Judge was to set aside the decrees against Devi Singh, i.e. the suits should have been dismissed in toto. In this connection, learned counsel for the appellant cited the following rulings:
8a. --'Surendra Nath Ghosh v. Surendra Nath Jordar', 1939 Cal 593 (AIR V 26) (A). There a Division Bench of the Calcutta High Court observed that:
'Where the plaintiff's suit against several defendants is dismissed as against one of them and the plaintiff does not prefer any appeal or cross-objection in the lower appellate Court against the trial Court's decision nor is the point taken as a ground of second appeal to the High Court, it is not proper to give the plaintiff any relief under Order 41 Rule 33 against such defendant against whom the suit was dismissed.'
This ruling, in my opinion, is not applicable to the facts of the present case. In his grounds of appeal to the District Judge, Devi Singh contended that the plaintiffs were in collusion with Sant and Puran Chand defendants and were out to defraud him (Devi Singh). He further pleaded that the sums in question had been appropriated by Sant and Puran Chand defendants and the plaintiffs fraudulently wanted to fasten the liability of these sums on him, i.e. Devi Singh.
In para 17 of the grounds of appeal to the District Judge, Devi Singh states 'The liabilities, if at all, rest with defendants 1 and 3'.
9. In the course of his judgment, the learned District Judge remarks
'Their (i.e. the plaintiffs') learned counsel Shri Vidya Sagar has simply urged that they will be content with decrees against any one of the defendants and he prays that in case it be found that the decrees cannot stand against Devi Singh appellant, the plaintiffs may be granted decrees against Sant defendant-respondent who is the actual borrower.'
10. Thus it is clear that the plaintiffs' position before the lower appellate Court was that failing Devi Singh, they should be granted decrees against Sant defendant. Consequently, the Calcutta ruling, in my view, is not applicable.
11. (b)--'Mt. Jagpati Kuer v. Sukhdeo Prasad', 1942 Pat 204 (AIR V 29) (B). There Meredith and Shearer JJ. indicated that:
'Order 41, Rules 4 and 33 are in wide terms and' do give the appellate Court ample power to pass such orders as it may deem just and proper and necessary to do full justice, having regard to all the circumstances of the case but they must not be so applied as to disregard other provisions of the law, such as those contained in the Limitation Act and the Court-fees Act.
Therefore a right of appeal after it has lapsed should not be handed out gratuitously to persons, who have themselves neglected to avail off it, especially when they have not asked for it, and the interests of the case do not require it for the purpose of doing justice to the person, who has appealed. Such a case is not one, for the application by the Court of the powers which Order 41, Rule 4 and Order 41, Rule 33 confer upon it.'
This ruling, again, is not applicable to the facts of the present case. As pointed out by me, while dealing with the Calcutta ruling above, the plaintiffs definitely requested the learned District Judge to grant decrees against Sant, failing Devi Singh.
12. (c)--'Bir Singh v. Budhu Ram', 1950 Pat 346 (AIR V 37) (C). There Das and Sarjoo Prosad JJ. were of the view that:
'Though Order 41 Rule 33 is in very wide terms, it must not be interpreted in such a way as to abrogate the other provisions in the Code with regard to the filing of appeals, cross-objections, etc. As an ordinary rule, an appellate Court must not reverse or vary a decree in favour of a party who has not preferred any appeal or cross-objections against it and this general rule should hold good notwithstanding the enactment of Rule .33.
The illustration to the rule gives some indication of the class of cases in which Rule 33 will apply; for example, it applies to cases where, as a result of interference in favour of the appellant, further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience.'
This ruling, if any thing, goes in favour of the plaintiffs. In his statement under Order 10, Rule 1, O. P. C., made on 28-6-50, Mr. I. D. Abrol, Advocate for the plaintiffs, prayed that failing Devi Singh and Puran Chand, decrees may be passed against Sant, This case is identical with the illustration to Order 41; Rule 33 which runs 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 are respondents. The appellate Court decides in favour of X. It has power to pass a decree against Y.'
On the same analogy, the plaintiffs in the present case claimed sums of money from Devi Singh and Puran Chand and failing them, from Sant. The trial Court granted decrees against Devi Singh. Devi Singh appealed to the District Judge and the plaintiffs as well as Puran Chand and Sant, were impleaded as respondents. The District Judge decided in favour of Devi Singh. Therefore, on the analogy of the illustration to Rule 33 Order 41, he had power to pass decrees against Sant.
13. (d)--'Pooma Jai Ammal v. Subbammal', 1953' Mad 566 (AIR V 40) (D). There, it would appear that the memo, of cross-objection was filed in the High Court by defendant 1, while she did not file an appeal against the judgment of the trial Court decreeing the suit against her. Under those circumstances, a learned Judge of Madras High Court remarked:
'For the first time she has filed a memorandum of cross-objections here which, in effect, is only an appeal against the decree of the trial Court invoking Order 41, Rule 33, Civil P. O.
I do not think that provision is meant to be exercised in favour of a party who did not choose to file an appeal against the judgment of the trial Court and allowed it to become final. Therefore Order 41, Rule 33, Civil P. C. does not avail him. Even otherwise this is not a case in which this Court would exercise its discretion under Order 41, Rule 33 Civil P. C.'
14. Here, as already remarked, the facts are different. The plaintiffs obtained a decree in the trial Court against one of the defendants. That defendant appealed to the District Judge and latter while accepting the appeal granted the plaintiffs decrees against another defendant. Such a course is expressly provided for by the illustration (cited above) to Order 41, Rule 33.
15. In this connection, learned counsel for the plaintiffs cited two rulings:
16. (1)--'Keshwar Sao v. Guni Singh', 1938 Pat 275 (AIR V 25) (E). There the facts were similar to those of the present case. The plaintiffs sued two sets of defendants and claimed relief against first set or in the alternative the second set. The trial Court granted decrees against the first set of defendants. The plaintiffs did not appeal. The defendants first set, however, appealed and the appellate Court passed a decree against the defendants second set. Under those circumstances, Wort and Varma JJ. held that:
'The powers of the Appellate Court are governed by Order 41, Rule 33 and are sufficiently wide to empower it to pass such a decree.'
(2)--'B. Ponnari Bao v. B. Lakshmi Narasamma', 1938 Mad 322 (AIR V 25) (P).
There a Division Bench of Madras High Court, following--'Subramanian Ohettiar v. Sinnamai', 1930 Mad 801 (PB) (AIB V 17) (G), observed that:
'The Appellate Court has power under Rule 33 of Order 41 to vary the decree of the lower Courts; although the variation may benefit a party who has not appealed, but the Court will exercise a wise judicial discretion in using such power.'
17. In view of the provisions of Order 41 Rule 33, Civil P.C., and the authorities cited above, I am of the opinion that the learned District Judge was well within his rights in granting decrees against Sant, while setting aside the decrees granted by the trial Court against Devi Singh--although no cross-appeal or cross-objection was filed by the plaintiffs.
18. That brings us to the evidence on the record (After discussing the evidence, the judgment proceeded):
In view of all what has been said above, I consider that the learned District Judge was justified in setting aside the decrees against Devi Singh and in passing decrees against Sant under the provisions of Order 41, Rule 33. These appeals must, therefore, fail.
19. There remains the question of costs. The controversy in this Court has centred between Sant Bam appellant and Devi Singh respondent 3. In my view therefore, the appellant is liable to pay costs to respondent 3 in this Court while the other respondents should bear their own costs. .
20. I dismiss all the three appeals. Devi Singh respondent 3 will get his costs of these appeals fromthe appellant. Other respondents will bear theirown costs. This order will be read in all the threeappeals.