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2019 Supreme(Mad) 1693
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. Seshasayee, J.
G. Kalki Rajan & Others - Appellant
Versus
V. Sreenivasan (Deceased) & Others - Respondent
A.S. No. 494 of 2011 & MP. No. 1 of 2011 & Cros.Obj.No. 29 of 2011
Decided On : 29-07-2019
For the Appellants :K. Bijai Sundar, Advocate.
For the Respondents: Radha Gopalan, V. Ravi, Advs.
Headnote:
Civil Procedure Code - Section 96 - Transfer of Property Act - Sec.69 - auction-sale of a suit property - suit property to sale - sale deed - suit property belongs to Srinivasan, the plaintiff. On 24.01.1994, on the security of the suit property, the plaintiff obtained a loan of Rs.75,000/- from the first defendant, and executed a deed of simple mortgage in favour of the latter. The mortgage authorised the mortgagee to sell the property without the intervention of the Court as provided in Sec.69 of the TP Act. On the very next day, on 25.01.1994, the plaintiff obtained another loan of Rs.5.25 lakhs from the first defendant. This loan was not secured. Thereafter, on 25.01.1995, the plaintiff alleges that he had paid Rs.3.63 lakhs to the first defendant – Held, rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under Rule 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities - Therefore, this Court has decided to create a charge on the suit-property for a sum not exceeding Rs.12.0 lakhs in favour of defendants 3 to 6. This is because the exact mortgage amount payable by the plaintiff still remains to be ascertained - Appeal is partially allowed and the decree of the Court below is modified to the extent of creating a charge over the suit property in favour of the defendants 3 to 6 for an amount not exceeding Rs.12.0 lakhs. Since this amount is yet to be determined, this has to be worked out only in a separate suit, if parties do not arrive at a consensus on it. As to the rest, the judgement and decree in O.S.No.12561 of 2010 on the file of Additional District Judge, Fast Track Court No.1, Chennai is hereby confirmed. Cross Objection dismissed since the decree herein passed takes care of the interest of the cross objectors. Consequently, connected miscellaneous petition is closed - Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case – appeal allowed
JUDGMENT :
Prayer in A.S.No.494 of 2011: Appeal find under Section 96 of CPC, against the decree and judgment dated 22.6.2011 on the file of the learned Additional District Judge, Fast Track Court No.1, Chennai, made in O.S.No.12561 of 2010.
Cros.Obj.No.29 of 2012: Cross Objection filed under Section 96 read with Order XLI Rule 22 of CPC, to set aside the findings in the decree and judgment dated 22.6.2011 on the file of the learned Additional District Judge, Fast Track Court No.1, Chennai, made in O.S.No.12561 of 2010.)
1.1 This appeal is preferred by the 3rd defendant against the decree in O.S.No.12561 of 2010 by the Additional District Judge (FTC-I), Chennai. The suit was laid to declare that the auction-sale of a suit property by the first and second defendants under Sec.69 of the Transfer of Property Act (hereinafter the TP Act) is invalid. The suit was decreed. And, the appellant is the successful bidder in the said auction.
1.2 Pursuant to the impugned auction, a sale deed came to be executed in favour of defendants 3 to 6. However, in circumstances to be stated in due course, defendants 4 to 6 were impleaded midway through the trial of the suit.
1.3 The defendants 4 to 6 have preferred their cross objections supporting the appellant. However, none appeared for the cross objectors; but their interest in the appeal is identical to that of the 3rd defendant/appellant.
1.4 The suit was originally laid on the Original Side of this Court in C.S.No.399/1999, and later came to be transferred to the City Civil Court on 18.10.2010.
2. The facts are:
The suit property belongs to Srinivasan, the plaintiff. On 24.01.1994, on the security of the suit property, the plaintiff obtained a loan of Rs.75,000/- from the first defendant, and executed a deed of simple mortgage in favour of the latter. The mortgage authorised the mortgagee to sell the property without the intervention of the Court as provided in Sec.69 of the TP Act. On the very next day, on 25.01.1994, the plaintiff obtained another loan of Rs.5.25 lakhs from the first defendant. This loan was not secured. Thereafter, on 25.01.1995, the plaintiff alleges that he had paid Rs.3.63 lakhs to the first defendant, with an instruction to adjust the said amount firstly towards the secured debt of Rs.75,000/- and then adjust the balance towards the unsecured debt of Rs.5.25 lakhs. Subsequently, the plaintiff was constrained to institute O.S.285/97 before the VIII Assistant City Civil Court, Chennai, for the redemption of the mortgage.
During the pendency of the aforesaid redemption suit, the first defendant brought the suit property to sale by public auction on 03.09.1998 in terms of Sec.69 of the TP Act. This forced the plaintiff to prefer O.S.5326/1998 before the III Assistant City Civil Court, Chennai for permanent injunction, to restrain the first defendant from bringing the suit property to sale. In the said suit, he had also filed I.A.12614 of 1998, for an order of interim injunction for the same purpose.
After hearing both sides, the trial Court passed a final order in this I.A.12614/1998. Ext.D-4 is the copy of the Order and Ext.P-5 is the copy of the decretal Order. In its Ext.D-4 Order, the trial court had passed an Order of injunction, restraining the first defendant-mortgagee from auctioning the suit property, but on a condition that the plaintiff should deposit Rs.2,25,325/- on or before 17.03.1999 without prejudice to his case, and that in case of non-compliance with the condition, the injunction granted would be vacated automatically. On the point of plaintiff’s allegation about repayment of Rs.3.63 lakhs on 25.01.1994 to the mortgagee, the Court had recorded that the plaintiff had not produced any material to establish the same.
Aggrieved by the conditional order passed against him, the plaintiff preferred CMA.No.73/1998 before the IV Additional City Civil Court, with a prayer to stay the operation of the interim conditional order of injunction passed by the trial Court. The CMA
