S.M.S. Subramanian Chettiar vs Sinnammal and Others

Srinivasa Aiyangar, J.—Questions of some difficulty have been raised and argued in this second appeal. The facts, though somewhat

complicated may be very briefly sat out. The plaintiff who is the appellant in this second appeal obtained a money decree against one Subbiah Pillai

and others and in execution of the decree procured the attachment of the suit property in October 1913. The defendant, who had previous to such

attachment got a mortgage of the suit property from the said Subbiah Pillai, filed a suit on the mortgage in November, 1913, and obtained a

preliminary decree in December, 1913, To this suit, the plaintiff was not made a party. The plaintiff, however, in pursuance of the attachment

obtained by him, brought the property to sale and purchased it himself in April, 1914.The 1st defendant, on the other hand, proceeded with his

mortgage decree and at the sale held by the Court'', purchased, the property himself in March, 1916. The plaintiff thereupon filed the suit, from

which this second appeal arises, claiming to be entitled to radeem the suit property from the mortgage, by payment to the defendant of what may

be found due to him, on the mortgage originally in his favour. The Court of first instance decree the plaintiffs claim ; but ho filed an appeal the

refrom, for the purpose of having reduced, is appeal, the amount ho was found liable to pay for redeeming the mortgage. When the plaintiff''s

appeal came up before the appellate Court, the learned Subordinate Judge finding that the plaintiff had no cause of action or right to redeem

dismissed his suit in its entirety, under the provisions of Rule 33, Order 41, Civil Procedure Code. And hence, this second appeal.

The learned Vakil, for the plaintiff-appellant, contended that the lower Appellate Court had not on a proper construction of Rule 33 of Order

41, Civil Procedure Code, any right or jurisdiction to dismiss the plaintiff''s suit in its entirety and even if it bad jurisdiction, the jurisdiction was

liable to be exercised with judicial discretion and that the lower Appellate Court acted improperly, in exercising such discretion and dismissing the

plaintiff''s suit especially when the defendant had filed no appeal, or even Memorandum of Objections against the decree passed against him. As

has often boon pointed out, the terms of Rule 33 of Order 41, Civil Procedure Code, are undoubtedly very wide. It may be of importance?,

however, to note that the terms of the rule are not really as wide as they have been sometimes supposed, or taken to be. It is clear that by the use

of the words ""respondents or parties"" the power was intended to be exercised, by the Court even in favour of parties to the litigation, though they

may not be before the Court of appeal, either as appellants or respondents. But the rule speaks of the power conferred by it, being exorcised in

favour of such parties and not against them, for the obvious reason that, whereas an order may be made in favour of a person, even though he may

not be present, it is against: all principles of justice that a power should be exercised against a person, behind his back and without his having had

an opportunity to be hard, in the matter. I cannot therefore regard as correctly decided such a ease as Nagalla Kottiah v. Nagallah Malliah (1910)

9 M.L.T. 39 where the second Appellate Court passed a decree against a defendant in the original suit, who was not before that second appellate

Court, without hearing him and without even affording him any opportunity to show cause or argue against it. Mr. T.L. Venkatarama Aiyar, the

learned Vakil for the appellant, contended that Rule 33, of Order 41, Civil Procedure Code, should be read and construed as subject to the

provisions of Rule 22 of the said order and the Court Fees Act, Limitation Act, etc. it seams to me that such a contention is obviously untenable,

especially having regard to the provisions of that rule, that the power may be exercised, 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 objections. In support of such a contention, however, the case of Rangam Lai v. Jhundu (1912) 34 All. 32 was cited. No doubt, the

learned Judges in that case, state that in the exorcise of the powers, conferred by Order 41, Rule 33 Courts should not lose sight of the other

provisions of the CPC itself, nor the Court Fees Act, nor of the law of Limitation. I cannot agree that that casa should be read, as though the

learned Judges lay down, that the provisions of Order '' 41, Rule 33, Civil Procedure Code, wore controlled by such provisions as Rule 22 of the

same order. The learned Judges in that case, did not decide that the Court had no jurisdiction to make such an order. The jurisdiction given by

Rule 33 is recognised and when the learned Judges refer to the other enactments I take it that they do so, merely for the purpose of indicating that

on the mere pretence of an appeal by one party, the Court should not indulge in a roving retrial and make any order it pleases and that the

discretion vested in it should be exercised judicially, having duo regard to the fact that generally speaking, parties should, for the purpose of getting

relief from Court, observe certain conditions, with regard to the filing of appeal objection as and so forth. I regard the case of Rangumlal v. Jhandu

(1912) 34 All. 32 as only an authority for the position that, in the circumstances of the case before the Court, there having been no excuse or

justification for the defendant not having filed any objection or appeal, against a portion of the decree to which ho had submitted, the lower

Appellate Court erred in exorcising its discretion in his favour. That decision is, at any rate, clear authority for the position that, in any case, in

which there are grounds justifying a party in not filing an appeal or Memorandum of Objections, judical discretion may properly be exercised in his

favour. It seems to me that the principle underlying Order 41, Rule 33, is essentially this. The appellate Court has no doubt to confine itself to the

appeal before it. In many cases, it would be possible to dispose of the subject-matter of the appeal, either with regard to the persons entitled or

parties liable, or with regard to the subject-matter, without any examination whatever of the grounds, on which other portions of, the case might

have been dealt with and disposed of in the Court of Instance. Cut it may and docs often happen, that a respondent, when called upon to support

the judgment of the lower Court supports is, or able to do so, not on the ground on which the lower Court has based it, bat on more fundamental

grounds, which may go to the very root of the case of the appellant. Then, it becomes necessary for the Court of appeal, for the purpose of

deciding the appeal to give its decision on these more fundamental grounds. If in coming to a conclusion, on such fundamental grounds, the Court

finds that the result of giving effect to its decision, on the fundamental question or questions involved, would be to render illogical or illegal that

portion of the decision of the lower Court which has not been appealed against, then, subject to the Court not making an order against a party

behind his back, the Court is empowered to make the decision as a whole logical and consistent. In such cases, a Court of appeal is bound, from

sheer self-consistency, to give effect to its own decision and carry it out to its logical conclusions. Otherwise, it will involve a Court of law stultifying

itself and not being able to give effect to its decision logically. I wish, however, to guard myself against being understood, as defining the entire

scope of the rule. But at any rate, most of the cases that arise under the rule will be found to fall under this class. Further, the Court is not bound to

do a thing in every case, in which it has the power to do so, and it is here that the question of judicial discretion comes in. There may be, no doubt,

cases where no excuse or justification whatever could be found for a, party not having preferred an appeal, or Memorandum of Objections; but

oven in such cases, Courts of law might feel called upon to interfere under the provisions of Order 4l, Rule 33, Civil Procedure Code. But it is not

however necessary to decide that point. There can be no doubt that at any rate in eases where such excuse or justification is found Courts of law

should be more ready to exercise the powers given under the rule. In the case before me, the question of the plaintiff''s right of suit was raised, by

or on behalf of the defendant-respondent, in the course of the defendant-respondent resisting the plaintiff''s appral for reducing the mort'' gage

amount. If the plaintiff had no right A to redeem at all, it followed that no question could arise of the amount he had to pay for redeeming the

mortgage. On this question of the plaintiff''s right to redeem, n the lower Court came to the conclusion D that ho had no such right. It was of

courses open to the lower Appellate Court, to have dismissed the plaintiff''s appeal on that finding. But if the lower Appellate Court should have

contended itself with t dismissing the appeal, it would have been e a case of that Court, not giving legal or a logical effect to its finding that the

plaintiff a had no right of action, a case therefore of, the Court stultifying itself. Then the question arises, why was it that defendant did 1 not file any

appeal or Memorandum of Objections. In the case before me I have no hesitation whatever in coming to the b conclusion that no such appeal or

Memorandum of Objections was filed, by the defendant-respondent, merely because there I was about the time, when it was open to him to have

filed such an appeal or Memo-I randum of Objections, a decision of this, Court in Venkata Sitaramayya v. Venkataramayya (1914) 37 Mad. 418

in which it was definitely held by two learned Judges that an attaching decree-holder has not only a right to redeem a mortgage on the attached

property, but is also a necessary party to a mortgage suit. It was not, till several years later, in fact till about the date, when the plaintiff''s appeal

came up for hearing before the lower Appellate Court, that the report appeared of the decision of this Court in Chamiyappa Tharagan v. Rama

Ayyar AIR 1921 Mad. 30 which the decision in Venkata Sitheramayya v. Venkata-ramayya AIR 1921 Mad. 30 was refused to be followed. It

seems to me, therefore, that there was sufficient excuse, or justification in the circumstances for the defendant-respondent, not having preferred an

appeal or Memorandum of Objections. If such excuse or justification should exist, there is no reason whatever, why an Appellate Court should not

exorcise its discretion and give legal and logical effect to its finding on a particular question, raised before it. That is what the lower Appellate Court

has done. At any rate, the lower Appellate Court having exercised the discretion vested in it and the circumstances being such that it cannot

possibly be said that discretion was exorcised improperly, I do not feel called upon to interfere and reverse the decision of the lower Appellate

Court. A very large number of cases was cited before me, on both sides. I have not thought it necessary to refer to them, in detail, because most of

the cases contain no useful discussion of any principles capable of application to other cases. In a later case, in Allahabad, that of Jawhar Bano v.

Shujaat Husain Beg AIR 1921 All. 367 the learned Judges recognise that at any rate in cages where there is sufficient reason for a respondent

neglecting either to appeal, or to file objections, the Court may interfere under the provision of Order 41, Rule 33, Civil Procedure Code. In

Debendra Narain Sinha v. Narendra Narain Sinha 24 C.W.N. 110 the learned Judge recognised the extensive jurisdiction of the Court, under

Rule 33 of Order 41, Civil Procedure Code. It seems to me that there was no warrant for limiting the very wide terms of the rule, in the manner in

which the learned judges are reported to have done, in the ease of Eamachandra v. Madho Prasad (1916) 5 Pat. L.W. 213. I may refer also to

three Madras cases, that have been cited before me. In the case of Gopala Iyengar v. Mummachi Reddiar AIR 1923 Mad. 392, the learned

Judges speak of orders, under Rule 33 of Order 41, being made, out of consistency, and state that the more fact that a party has not appealed is

not sufficient to refuse relief to him. In the case of Subburayalu Naidu v. Papammal (1915) 29 I.C. 579 on a finding of limitation by the lower

Appellate Court, the decree against a defendant, who had not appealed, was also set aside. In the case of Rama Aiyar v. Vanamamalai Aiyar

(1915) 27 I.C. 336 Mr. Justice Sadasiva Aiyar, in second appeal, imposed a condition of payment of a sum of money, on the plaintiff, before he

could obtain possession, even though the defendant had not preferred an appeal for obtaining such relief.

I have therefore come to the conclusion that the lower Appellate Court not only had jurisdiction to dismiss the plaintiff''s suit, under the

provisions of Rule 33 of Order 41, but that, in the circumstances of the case, there was no improper exercise of judicial discretion by that Court.

But it has been argued before me, by Mr. T.L. Vonkataramai Aiyar learned Vakil for the appellant, that the decision of the lower Appellate

Court to the effect that plaintiff had no right of suit, because he, had no right to redeem is wrong. The plaintiff was not only attaching creditor of the

suit property, but became purchaser of that property, at the execution sale, long before the purchase by the defendant under his mortgage decree.

It is true that under the provisions of Section 91 of the Transfer of Property Act, an attaching creditor is a person, who is accorded by that statute,

a right to redeem. The right is given to him not because he has otherwise any interest in the mortgaged property, or even because the attachment

creates any such interest in him, but merely because the legislature has thought fit to give such a right. Section 91 of the Transfer of Property Act, in

enumerating persons, who may redeem and sue for the redemption of mortgaged property, included in Clause (f) a judgment-creditor of the

mortgagor, when he has obtained execution by attachment of the mortgagor''s interest in the property. It follows from this that the statutory right

given by Clause (f) of Section 91 of the Transfer of Property, Act, can be exercised only by a person, who answers to the description of the

person, referred to in that clause, namely, a judgment-creditor of the mortgagor, when he has obtained execution, by attachment of the

mortgagor''s interest in the property; and it follows that when a person ceases to answer to that description, or possess that character he ceases to

have the right accorded to him of redeeming the property, The question then is, whether on the date of the institution of the suit by the plaintiff he

possessed such character, or answered to the description in Clause (f), namely, ""a judgment-creditor of the mortgagor, when he has obtained

execution by attachment of the mortgagor''s interest in the property."" Mr. P.E. Srinivasa Aiyangar, the learned Vakil, for the respondent, argued

that by reason of his own purchase the plaintiff had, long before his present suit, shed his character as judgment-creditor and that therefore no right

of redemption could be claimed by him, in his capacity as attaching decree-holder. I find that this is the view of the law taken by the learned

Judges, in the case of Chamiyappa Tharagan v. Rama Ayyar A.I.R 1921 Mad. 30. At the bottom of page 240, the learned Chief Justice says as

follows:

Even if there had been no such decree, the attachment and the attaching decree-holders right of redemption would have come to an end on the 9th

of November, 1908, when he brought the judgment-debtor''s interest to sale and it was acquired by the auction-purchaser, through whom the

plaintiff claims.

I respectfully agree with this view. Whatever right as purchaser the decree-holder may get there can be no doubt that on his purchase he sheds

his character, as attaching decree-holder. He is, in no sense, the purchaser of any right, which is accorded by the statute to the attaching decree-

holder ; because, he is the purchaser, only of the right, title and interest of the judgment-debtor, in the property. If he should make a claim for

redemption, as representing the judgment-debtor, he would be met by the answer that the mortgagor had been made a party to the mortgage suit.

Preferring to follow as I do, the decision in Chaniiyappa Tharagan v. Rama Ayyar A.I.R 1921 Mad. 30 it seems to be sufficient merely to state

that on the date of the suit by the plaintiff, he did not have vested in him, any right to redeem the property and that therefore the lower Appellate

Court was right in finding accordingly. It has also been ably argued, on behalf of the appellant, that on the date on which the defendant as

mortgagee instituted his suit on the mortgage, the plaintiff still held his character as attaching decree-holder and that therefore he was liable to be

made a party to the mortgage suit, under the provisions of Order 34, Rule 1, CPC and that as he was not mtido such a party any decree passed,

or proceedings taken, in the suit, could not possibly bind him. I fail to see how this could possibly help the plaintiff, if on the date of his suit he has

no right to redeem. However that may be, I am inclined to think, following the opinion of the learned Judges, who decided the case of Chaniiyappa

Tharagan v. Rama Ayyar A.I.R 1921 Mad. 30 that in Order 34, Rule 1, Civil Procedure Code, the expression "" Having an interest either in the

mortgage security, or in the right of redemption"" cannot include a person, who has a mere statutory right to redeem given to him, under Clause (f)

of Section 91 of the Transfer of Property Act, and that the expression, in the right of redemption means and refers only to an interest in the estate

itself, which is called the equity of redemption. The observations to the contrary in the case of Venkata Seetheramayya v. Venkata Ramayya

(1914) 37 Mad. 418 have been refused to be followed in the later case of Chamiyappa Tharagan v. Rama Ayyar A.I.R 1921 Mad. 30.

I have therefore come to the conclusion that the lower Appellate Court was right, in deciding that the plaintiff had, on the date of his suit, no right

to redeem and that therefore he had no right to maintain the suit. The second appeal therefore fails and should be dismissed with costs.