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1962 Supreme(Ori) 73
HIGH COURT OF ORISSA
R. K. Das, J.
P. RAMMURTY - Appellant
Versus
A. KALPO PATRA - Respondent
Second Appeal 282 Of 1960
Decided On : NOVEMBER 26, 1962
B.K.PAL, P.V.B.RAO, P.V.Ramdas, Y.S.N.MURTY
The appellate court's power to vary or reverse a decree in favor of a non-appealing party under Order 41, Rule 33 C. P. C. is not absolute and must be exercised with due regard to the circumstances of each case and with due consideration of other provisions of the Code, such as Order 41, Rule 22.
Headnote:
CIVIL PROCEDURE CODE - ORDER 41 RULE 33 - APPELLATE COURT JURISDICTION - VARIATION OR REVERSAL OF DECREE IN FAVOUR OF NON-APPEALING PARTY - CONDITIONS AND LIMITATIONS - EXERCISE OF DISCRETION - INTERPRETATION OF ARTICLE 47 OF THE LIMITATION ACT - APPLICABILITY TO NON-PARTIES IN POSSESSION PROCEEDINGS.
Fact of the Case:
Plaintiff filed a suit for declaration of title and recovery of possession of certain plots of land. The trial court dismissed the suit against defendants 1 to 4 and 6, but granted an equitable relief for the refund of consideration of Rs. 300/- from defendant no. 5. The plaintiff did not appeal against the dismissal of his suit, but defendant No. 5 filed an appeal challenging the order for refund of consideration money. The appellate court set aside the judgment of the trial court and granted a decree for declaration of title and recovery of possession in favor of the plaintiff.
Finding of the Court:
The appellate court erred in exercising its jurisdiction under Order 41, Rule 33 C. P. C. to grant a decree in favor of the plaintiff, who had not filed an appeal against the dismissal of his suit. The appellate court's power to vary or reverse a decree in favor of a non-appealing party is not absolute and must be exercised with due regard to the circumstances of each case and with due consideration of other provisions of the Code, such as Order 41, Rule 22. In this case, the plaintiff's right to appeal against the dismissal of his suit had been extinguished by limitation, and there was no other compelling reason to grant him relief under Order 41, Rule 33.
Issues: 1. Whether the appellate court had jurisdiction to grant a decree in favor of the plaintiff, who had not filed an appeal against the dismissal of his suit? 2. Whether the appellate court properly exercised its discretion in granting relief to the plaintiff under Order 41, Rule 33 C. P. C.
Ratio Decidendi: 1. The appellate court's power to vary or reverse a decree in favor of a non-appealing party under Order 41, Rule 33 C. P. C. is not absolute and must be exercised with due regard to the circumstances of each case and with due consideration of other provisions of the Code, such as Order 41, Rule 22. 2. In this case, the plaintiff's right to appeal against the dismissal of his suit had been extinguished by limitation, and there was no other compelling reason to grant him relief under Order 41, Rule 33.
Final Decision: The appeal was allowed, the judgment of the lower appellate court was set aside, and the trial court's decree was restored.
R. K. DAS, J.
( 1 ) THIS appeal by defendant-1 is directed against the appellate decree passed by the Additional District Judge, Ganjam, allowing the plaintiff's claim for declaration of title and recovery of possession in respect of some of the suit plots.
( 2 ) THE disputed plots, (except plot No. 396/ 9) along with some other plots such as plot Nos. 406/6 and 406/19 were allotted to the defendant No. 5 by a compromise decree (Ext. L) of the court of the Subordinate Judge of Berhampur. Defendant No. 5 on 12-1-49 sold the above undisputed two plots along with some other plots comprising an area of one acre to defendant-1 for a consideration of rs. 600/- under a registered sale deed, Ext. A. Defendant-5, however, had no interest in the other plots sold along with the above two plots, nor did they form part of Ext. L. The suit plots however (excepting plot No. 396/9) were allotted to defendant No. 5 in the said decree. Again on 11-4-51 defendant No. 5 sold the suit plots along with plot No. 396/9 comprising an area of 90 decimals to plaintiff for a consideration of Rs. 300/under ext. 1. Plot No. 396/9 had however been previously sold by defendant-3 (husband of defendant-5) on 23-6-48 in favour of defendant No. 6, daughter of defendant No. 1. On 12-7-51 defendant-5 executed and registered a deed of rectification (Ext. B) saying that the plots other than plot Nos. 406/6 and 406/19 were noted by mistake in the sale-deed, Ext. A in place of the suit-plots. According to her, she really intended to sell the suit plots under Ext. 1 but some other plots were wrongly entered in Ext. A and in fact in respect of those other plots she is not the real owner. Accordingly on 2-8-51 she cancelled the sale-deed (Ext. 1) executed in favour of the plaintiff by a deed of cancellation (Ext. C) on the ground that no consideration did ever pass under Ext. 1 and there was never any delivery of possession and the property was not intended or sale to the plaintiff as the same was already sold to defendant I and possession delivered in pursuance of the sale.
( 3 ) THE plaintiff and defendant No. 1 both claimed to be in possession of the suit plots which gave rise to a proceeding under Section 145, Cr. P. C. (Misc. Case No. 30/51 ). The learned Magistrate by his order dated 22-5-52 declared possession of defendant-1 and restrained the plaintiff from interfering with his possession until evicted in due coarse of law. The plaintiff, therefore, has filed the present suit on 5-0-52 basing his claim on sale deed, Ext. 1, against defendants 1 to 4, defendants Nos. 2 to 4 being tenants in respect of the suit land for declaration of his title and recovery of possession and also for mesne profits including a sum of rs. 60/-which was kept in deposit in the Section 145 proceeding in the Court of the Magistrate, First Class, Ghumsur.
( 4 ) THE suit was mainly contested by defendant No. 1. He contended that he had purchased the suit property on 12-1-49 under Ext. A and bad been in possession throughout and though by mistake the suit lands were not entered in his sale-deed, Ext. A, the vendor had actually effected the delivery of possession to him as it was the contention of the parties that the property in suit was also meant to be sold. Defendant-5 having once sold the property to him, had no right to execute another sale-deed in favour of the plaintiff and as such the plaintiff had not acquired any title or interest under the subsequent sale-deed in his favour and the plaintiff was not in possession of the same.
( 5 ) THE trial court decreed the suit of the plaintiff in respect of plot No. 396/9 and dismissed his claim with respect to the rest. On appeal, however, the judgment of the trial court was set aside and the suit was remanded to enable the plaintiff to add defendants 5 and 6 as parties to the suit and to make an alternative prayer for refund of the consideration money of Rs. 300/-from defendant-5, which were complied with by the plaintiff after remand.
