UNIKKALI Vs. VASANTHI

JUDGEMENT

(1.) THE 2nd defendant in O. S. No. 1647 of the District court of Quilon is the appellant in this case. THE suit is on Ext. A promissory note executed by defendants 1 and 2 on 22. 12. 1107 for Rs. 100 in favour of the krishnan Vydian. THE suit was filed on 21. 12. 1113. At first the 1st defendant alone contested the suit. His plea was that the amount under Ext. A had been discharged. This plea was repelled by the court and the plaintiffs were given a decree. In appeal filed by the 1st defendant the decree of the trial court was confirmed. Subsequently the 2nd defendant filed a petition to set aside the exparte decree against her. THE decree was set aside as against her and the suit was restored to file. She also contended that the liability under Ext. A had been discharged. This time the trial court accepted the plea and dismissed the suit with costs. In appeal filed by the plaintiffs the District Court set aside the decree of the trial court and allowed the suit.

(2.) IN this second appeal the only question that arises for consideration is whether the liability under Ext. A has been discharged. Before considering the evidence relating to the plea of discharge it is necessary to refer to certain circumstances. Defendants 1 and 2 are Kaniyans and the 1st defendant has taken to astrology as his profession. As knowledge of sanskrit was necessary for the study of astrology he approached Krishnan Vydian for this purpose and Krishnan Vydian who was well versed in Sanskrit took him as his pupil. After some time the 1st defendant decided to go to Ceylon to try his fortune there. It was for this purpose that he borrowed Rs. 100 from krishna Vydian, and his mother the 2nd defendant executed Ext. A promissory note in favour of Vydian. It is admitted the 1st defendant earned a decent income in Ceylon and that he sent about Rs. 1000 from there to Krishnan Vydian by money orders. He returned to his native place in Kumbhom 1108. It is contended that he then settled accounts with Krishnan Vydian and after setting off the amount due to vydian under Ext. A got back the balance amount reserving, however with Vydian rs. 332 for the purpose of purchasing a property. On 1. 9. 1108 he took Ext. III sale deed for a property from one Kochunni Ismail. That sale deed was written in the handwriting of P. W. 2 who is the son-in-law of Krishnan Vydian i. e. the husband of the 2nd plaintiff. Krishnan Vydian is an attestor to it. The ready cash consideration for Ext. III is Rs. 343 and it is stated in the document that it was the balance amount left with Krishnan Vydian for payment to the 1st defendant out of the money sent by the 1st defendant to Krishnan Vydian by money orders from Ceylon. Two facts are clear from this statement, namely that the 1st defendant was sending money to Krishnan Vydian from Ceylon and that on 1. 9. 1108 there was a balance of Rs. 343 due from Krishnan Vydian to the 1st defendant. If this statement is true there is every reason to believe that it is after setting off the amount due to Vydian under Ext. A that Rs. 343 was found due to the 1st defendant from Krishnan Vydian. It is difficult to believe that it was without taking into account the money due to Krishnan vydian under Ext. A that it was stated in Ext. III that the balance amount due to the 1st defendant from Krishnan Vydian was Rs. 343. There is no reason to believe that this statement is not true in view of the fact that Ext. III was written in the handwriting of Krishnan Vydian's son-in-law and that Krishnan vydian himself is an attestor to the document. It is also significant that this statement is inserted in the document at the end after all the terms have been mentioned. It would seem that the sentence was inserted at the instance of krishnan Vydian for the purpose of making it clear that there was no further amount belonging to the 1st defendant in the hands of Krishnan Vydian. IN the light of the statement in Ext. III it is difficult to believe that the amount due to Krishnan Vydian under Ext. A was not taken by him from the amounts sent to him by the 1st defendant.

(3.) ANOTHER question for decision is whether in view of the fact that the original decree in the case was set aside only as against the 2nd defendant this court is competent to dismiss the suit as against the Ist defendant also. We are of opinion that 0. 41 R. 33 C. P. C. empowers us to dismiss the suit as against Ist defendant also although the decree against him was not set aside by the trial Court when the suit was restored to file on the application of the 2nd defendant although he is not a party to this second appeal. 0. 41 R. 33 empowers the appellate court 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 of objection. We think that this is a fit case in which we should exercise this power. Reference may be made in this connection to a decision of the Madras high Court reported in 65 Madras Law Journal 15 (Thirumala v. Athimula ). That was a case in which A obtained an exparte decree against B and C. B applied to set aside the exparte decree and it was set aside as against both B and C. In revision filed by the plaintiff the High Court confirmed the order as to B but reversed the order setting aside the exparte decree against C. When the suit against B was tried it was found that the document on which the suit was filed was not genuine. In appeal the High Court dismissed the suit not only against B but also against C although C was not a party to the appeal. In Krishnaswami naik v. Anjappa Naik (AIR 1915 Mad. 227) a suit was decreed against one of the defendants exparte and against the other defendants after contest. One of the defendants that contested appealed and the appellate court dismissed the suit against all the defendants including the one against whom the decree was passed exparte. In second appeal the High Court held that it was a proper exercise of the power conferred on the appellate court by O. 41 R. 33. The reason of the rule is that when an appeal comes before the court the whole suit out of which the appeal arises is within the control of the court and the court has ample discretion to pass any decree or order for preventing the ends of justice being defeated. In view of our finding that the liability under Ext. A has been discharged we do not think it proper to allow the decree against the 1st defendant to stand.