TUMMALLA ATCHAIAH Vs. VENKA NARASINGARAO

JUDGEMENT

(1.) This is an appeal by the defendant by certificate. It arises out of a suit filed by the plaintiff/respondent for cancellation or setting aside of the registered assignment deed dated 31-10-1957 executed by the latter in favour of the former purporting to transfer the decree in O.S. No. 88 of 1949 on the file of Court of Subordinate Judge, Kakinada, for recovery of the possession of the scheduled properties measuring about 20 to 25 acres of land and for future mesne profits.

(2.) The trial court decreed the suit in part and granted a decree for cancellation of the assignment deed aforesaid on the plaintiff"s paying Rupees 13,000/- to the defendant. Under the decree defendant was required to deliver possession of the suit properties to the plaintiff on the payment of the said sum of Rs. 13,000/-.

(3.) The defendant filed an appeal in the High Court and a cross objection was filed by the plaintiff. In the cross objection the grounds taken were in regard to two matters only, namely, costs and mesne profits. No ground was taken in the cross objection attacking the decree of the trial court in regard to the payment of Rupees 13,000/- and defendant"s liability to delivery possession of the suit properties only on such payment being made. The High Court has, however, varied that portion of the decree of the trial court by exercising its power under Order 41, Rule 33 of the Code of Civil Procedure. The High Court does not seem to be right when it says in its judgment that the cross objection was confined to costs only. After having said so the High Court has granted decree for mesne profits also in exercise of its power under the same provision of law, that is, Order 41, R. 33, C.P.C. The defendant"s appeal was dismissed by the High Court but subject to this finding that a sum of Rs. 7,600/- only had been paid by the defendant to the plaintiff. The High Court has found that the said amount of Rs. 7,600/- was not paid as a part of the consideration of the deed of assignment but under a different and collateral agreement executed by the defendant in favour of the plaintiff for a sum of Rs. 20,000/-. There was many other complications of facts involved in this litigation. It is not necessary for us to give any details of them.