Suyambulingam vs S. Sivasundari and S. Thineshraja

G.M. Akbar Ali, J.—The defendant is the appellant. The appeal is preferred against the judgment and decree, dated 10.06.2003, made in

A.S. No. 20 of 2003, on the file of the learned District Judge, Kanyakumari, partly allowing the judgment and decree, dated 12.07.2002, in O.S.

No. 8 of 2001, on the file of the learned I Additional Sub Judge, Nagercoil.

The brief facts of the case are as follows:

The first plaintiff is the legally wedded wife of the defendant and the marriage was solemnized on 20.01.2000 and thereafter, they lived as husband

and wife and they begotten the second plaintiff, a male child. The first plaintiff was given jewels of 55 sovereign and the defendant was given Rs.

1,00,000/- as dowry and however, the defendant and his family members were demanding more money and subjecting the first plaintiff for cruelty

and due to unbearable hardships the plaintiffs went to her parents place. The defendant is not maintaining the plaintiffs and therefore, the suit was

filed for maintenance.

The suit was resisted by the defendant stating that he has filed an application for restitution of conjugal rights and the first plaintiff has deserted

the defendant without any reason and he is ready to maintain the plaintiffs and the amount asked by the plaintiffs is also exorbitant.

On the basis of the rival contention, the learned Sub-Judge, Kanyakumari, enquired into the matter and found that the plaintiffs are entitled for

maintenance and accordingly granted a sum of Rs. 2,000/- per month to the first plaintiff and Rs. 1,000/- to the second plaintiff. Aggrieved by the

same, the defendant has preferred an appeal before the District Court, Kanyakumari in A.S. No. 20/2003. The learned District Judge, after

considering the rival contention, had reduced the maintenance amount to a sum of Rs. 1500/- for the first plaintiff and Rs. 750/- for the second

plaintiff. The first appellate Court has also created the charge over the suit property. Aggrieved by the same, the defendant has preferred the

present second appeal only on the ground that the first appellate Court has erred in creating a charge over the suit property, when the trial Court

has negatived the same relief and the plaintiff has not filed any appeal.

On admission, this Court has framed the following substantial question of law, for consideration:

When the trial Court refused to grant a charge in a suit for maintenance, in the absence of an appeal by the aggrieved party on that issue, whether

the power under Order 41 Rule 33 C.P.C., can be exercised in this case on facts available?

Mr. K. Govindarajan learned Counsel appearing for the appellant pointed out that the trial Court has negatived the relief of creating a charge

over the suit property and the plaintiffs have not preferred any appeal or cross-appeal for creation of such charge. The learned Counsel also

pointed out that the first appellate Court has erred in creating the charge over the property.

Mr. C. Sankar Prakash the learned Counsel for the respondent would submit that under Order 41, Rule 33 of C.P.C., the appellate Court has

power to pass any decree.

I have heard the submissions of the learned Counsel for the appellant as well as the respondents and also perused the material available on

records.

Admittedly, the suit was filed by the plaintiffs for maintenance and also for a charge over the suit properties. The trial Court has granted a sum of

Rs. 2,000/- per month as maintenance to the first plaintiff and Rs. 1,000/- to the second plaintiff. However, the question of creating a charge was

not discussed by the trial Court. The plaintiff has not preferred any appeal against that point. However, the defendant has preferred an appeal and

the first appellate Court has reduced the maintenance from Rs. 2000 to Rs. 1,500/- for the first plaintiff and from Rs. 1500 to Rs. 750/- to the

second plaintiff. However created a charge over the suit property.

Order 41, Rule 33 of C.P.C., reads as follows:

Power of Court of Appeal:- 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 [and may, where there have been decrees in cross-suits or where two or

more decrees are, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such

decrees]:

Provided that the Appellate Court shall not make any order u/s 35A, in pursuance of any objection on which the Court from whose decree the

appeal is preferred has omitted or refused to make such order.

A plain reading of Rule 33 of Order 41 of C.P.C., will show that the appellate Court shall have power to pass any decree which ought to have

been passed and the same can be exercised in favour of or any of the respondents or parties. Though the plaintiff has not preferred any appeal, the

first appellate Court has power to grant a decree, which ought to have been granted. Therefore, creation of the charge over the suit property is not

vitiated and I have no reasons to interfere with the findings of the first appellate Court. The question of law is answered accordingly.

In the result, the appeal is dismissed confirming the judgment and decree dated 10.06.2003 made in A.S. No. 20 of 2003 on the file of the

District Court, Kanyakumari, partly allowing the judgment and decree dated 12.07.2002 in O.S. No. 8/2001, on the file of the first Additional

Sub-Judge of Nagercoil.