Kulaikada Pillai and Another vs Viswanatha Pillai and Another

Charles Arnold White, C.J.—This is a suit in which the plaintiff claims to recover certain property from the defendants on the ground of an

alleged sale to him by the third defendant, or, in the event of sale being found invalid for the return by the third defendant of the purchase money

paid to him by the plaintiff. The District Munsif held on the ground of linitation that the plaintiff was not entitled to recover the property, dismissed

the claim for possession and gave judgment for She plaintiff against the third defendant for the recovery of the purchase money. The third

defendant appealed. The plaintiff did not appeal against the dismissal of his suit for possession against defendants Nos. 1 and 2. The Subordinate

Judge set aside the Munsifs decree for the recovery of the purchase money and gave a decree for the plaintiff on his claim for possession against

defendants Nos. 1and 2. The third defendant made the plaintiff a respondent to the appeal to the Lower Appellate Court. The plaintiff appealed

and was represented at the hearing of the appeal, but it does not appear whether he took any part in the argument The Subordinate Judge

observes that he did not press in appeal his claim for possession. One thing, however, is quite clear and that is, that he did not file any notice of

objection to the decree u/s 561 of the Code of Civil Procedure. It would seem that before the Lower Appellate Court he was content with the

decree given him by the court of first instance against the third defendant for the recovery of his purchase money. The first and second defendants

have appealed to this court against the decree of the lower appellate court and have made the third defendant and the plaintiff respondents to the

appeal. Before this court the plaintiff supports the decree for possession given him by the lower appellate court. I am of opinion that the decree of

the lower appellate court cannot be upheld.

For the purposes of my judgment I assume that the suit is not bad for misjoinder. This point was raised before us on behalf of the appellant but

the point was not taken before the lower appellate court and I do not think the appellants ought to be allowed to raise it here.

A good deal of argument was directed to the question whether the plaintiff, having regard to the form in which he made his claim, had any right

of appeal against the decree of the District Munsif. The argument on behalf of the plaintiff was that as his claim was in the alternative and he had

obtained a decree on one branch of his claim he had no right of appeal, and that inasmuch as he had no right of appeal, it was not open to him to

give the no-ice required by Section 561, and this being so, the lower appellate court had power to give a decree in his favour, notwithstanding the

fact that the notice required by the section had not been given. I should be disposed to hold that Section 561 only applies where a party has a right

of appeal but who until forced or ""invited"" into Court does not think fit to exercise it. But it is not necessary to decide the question. It seems to me

that where a respondent to an appeal fails to give the notice required by Section 561, it is not open to the appellate Court to grant any relief to that

respondent in a case where the granting of such relief is not necessarily incidental to the relief granted to a party who has appealed. This is

obviously not the case here for the lower appellate court could have given full relief to the appellant before that Court by simply setting aside the

decree which had been obtained against him. This may seem to be a somewhat narrow ground on which to determine a question of jurisdiction, but

the powers of an appellate tribunal are the creature of statute and unless power to give such a decree as was given by the lower appellate court in

this case is to be found in the provisions of the Code, the decree cannot be supported. We are asked to say that the case comes within Section

544 of the Code since before the lower appellate court the plaintiff and the third defendant were equally interested in maintaining the title of the

third defendant to convey to the plaintiff, that before the lower appellate court the third defendant was really in the position of a plaintiff seeking to

make out as against defendants Nos. 1 & 2 his right to convey to the plaintiff, and that the decree appealed against proceeded on a ""ground

common to all the plaintiffs"" I do not think the section can be so construed. Even if it could, it is quite clear that the decree appealed against did not

proceed on a ground common to the plaintiff and the third defendant since it was a decree in favor of the plaintiff against the third defendant.

Neither can it be said that the decree appealed against proceeded on a ground common to all the defendants, since it was not the case of the third

defendant that the plaintiff''s claim for possession as against defendants Nos. 1 and 2 was barred by limitation. The powers of the Court of Appeal

in England are regulated by order LVIII of the Rules of the Supreme Court. Rule 4 of this order is no doubt wide enough to cover a case like the

present. But the powers of this Court are those given by the Code, and under the provisions of the Code, in the absence of the notice of objection

required by Section 561, it seems to me there was no power in the lower appellate court to give the decree which is now before us. As regards the

authorities, in Timmayya v. Lakshmana ILR 7 M.P. 215 the notice required by Section 561 had been given by the party who had been made a

respondent. The case of Soiru Fadmanabh Rangappa v Narayana Rao Bin Vithal Rao ILR 18 B.P. 520 may be distinguished on the ground that

the relief granted by the appellate court to the plaintiff who had not appealed was necessarily incidental to the relief granted to the first defendant

who had appealed as against the second defendant. The case of Hudson v. Basdeo ILR 26 C.P. 109 where a party was added as a respondent to

an appeal where no appeal had been made against him was a decision u/s 559 of the Code and the party was added on the grouud that he was

interested in the result of the appeal."" In the case of Bishunchurn Roy Chowdhry v. Jogendra Nath Roy ILR 26 C.P.114 where the plaintiff was

not allowed to urge his cross objections against the non-appealing defendants, the notice required by S- 561, had in fact been given by him.

In a recent case decided by a Full Bench of the Calcutta High Court Rup Jaun Bibee v. Abdul Kadir Bhuyan ILR 31 C.P. 643 the suit was one

for contribution in which the plaintiff asked for relief against several defendants separately. The court of first instance gave a decree against

defendant No. 1 and dismissed the suit against defendant No. 2. The plaintiff did not appeal. Defendant No. 1 appealed and made defendant No.

2 a respondent. The lower appellate court allowed the appeal of defendant No. 1 and gave the plaintiff a decree against defendant No. 2 instead

of against defendant No. 1.On a reference to a Full Bench the decree of the lower appellate court was upheld but the judgment was expressly

limited to the case of a suit for contribution. The Full Bench declined to answer the general question referred to them. The question whether an

appellate court can give relief to a respondent who has not given the notice required by Section 561 of the code was not considered.

I think the decree of the lower appellate court for possession by the plaintiff as against defendants Nos. 1 and 2 must be set aside. The

appellants must pay the costs of the third defendant before this court. We make no further order as to the costs of this appeal.

Subrahmanya Aiyar, J.

The appellant before us brought the suit out of which the appeal arises in the District Munsif''s Court for the partition and delivery of certain

lands setting up title thereto under a purchase from the third defendant who was himself vendee of the same from the widow of a deceased brother

of the first and second defendants. The plaintiff also prayed that in the event of its being found that his vendor had no right to convey the lands the

latter may be directed to refund Rs. 300, the price paid by the plaintiff. The District Munsif being of opinion that defendants Nos. 1 and 2 had for

the statutory period held adverse possession of the share of their deceased brother as against the widow dismissed the suit for partition and

delivery of the lands and gave a decree to the plaintiff for Rs 300 against the third defendant. This defendant preferred an appeal against the decree

so given against him, implicating as respondents not only the plaintiff but defendants Nos. 1 and 2 also. The plaintiff preferred no appeal against so

much of the decree of the District Munsif as related to the dismissal of the suit for the lands nor preferred any memorandum of objections in the

matter u/s 561 of the Civil Procedure Code. The Subordinate Judge who heard the appeal having differed from the Munsif with reference to the

question of adverse possession by defendants Nos. 1 and 2 reversed practically the whole decree, dismissed the suit for money as against the third

defendant and decreed the claim for land as against first and second defendants. The question in the present appeal of the first and second

defendants is whether it was competent to the Subordinate Judge to reverse so much of the decree of the Munsif as was in their favour.

There can be no doubt that when in an appeal, the conclusion of the Appellate Court with reference to matters properly arising before it is such

as to render any portion of the decree of the lower court not made the subject of the appeal inconsistent with such conclusion it would be not only

anomalous to leave such portion of the decree in force while setting aside only so much of it as was comprised in the appeal, but it might also

involve a breadh of the rules as to resjudicata. Take for instance, a suit brought on a bond for a sum of money and a decree given for the whole

amount claimed, but an appeal is preferred only in respect of part of the amount decreed. If the Appellate Court should find that the whole claim

was barred by limitation, it could not for that reason properly reverse the decree in so far only as it was appealed against for the decree so far as it

has not been appealed against carries with it the assumption that there is no bar by limitation and a decree resting on such assumption being final

would preclude a finding by any other court to the contrary with reference to any claim based on the same right and between the same parties. It

would seem, therefore, that in cases such as that supposed, the only consistent course is to dismiss the appeal or to reverse the whole decree.

How then does the matter stand with reference to the provisions of our Civil Procedure Code. In instances falling within Section 544 of the

code, the provisions thereof fully enable an Appellate Court to avoid anamolies. In other cases also, the desirable result could be brought about if

the court in which the appeal is pending takes the precaution of requiring a memorandum of objections being presented to it. This course will meet

all cases so far as this Presidency is concerned inasmuch as according to the decisions of the court, such a memorandum may legally be filed even

when the question arises as between the co-respondents only. Nor would there be any obstacle on the score of its late presentation since it would

be a legitimate ground to excuse the delay that the admission of the memorandum is required to do complete justice as between all the parties to

the litigation. The difficulty can only arise when, as in the present case, the Appellate Court has failed to have this necessary precaution adopted.

The absence of a provision corresponding to Rule 4 of order No. LVIII of the English Supreme Court Rules would, where Section 544 has no

application, seem to preclude the modification by the Appellate Court of the decree of the lower court in favour of a party who has filed neither an

appeal nor a memorandum of objections except as part and parcel of relief necessary to be granted to an appellant. The language of Section 574

of the CPC is wide enough to cover such an exception and Soiru Padmanabl Rangappa v. Narayana Rao Bin Vithal Rao I.L.R.18 B.P. 520 is a

case that goes to support the view. It may be added that even with reference to the English practice it was hold by Jessel M.R. and. Cotton and

Brett L.J. J. in In re Cavander''s Trusts L.R. 16 Ch. D. 271 that a respondent who wishes to have the decree appealed against varied with

reference to a matter in which the appellant has no interest must himself file a notice of appeal.

As to Rup Jaun Bibee v. Abdul Kadir Bhuyan ILR 31 C.P. 643 and the cases approved of therein, they are apparently in conflict with the

above view of the effect of provisions of the Code of Civil Procedure, bearing on the point and if it is correct it would follow that the Subordinate

Judge had no power to reverse the decree as against the first and second defendants inasmuch as such reversal was not necessary to give relief to

the appellant before him viz., the third defendant who was disentitled to ask for anything more than the reversal of the decree directing him to

refund the price, since having sold the land, the right to claim present possession thereof, had passed away from him so as to disentitle him to claim

delivery.

I concur in the order proposed.