MADHAVAN ACHARI Vs. MEENAKSHI

JUDGEMENT

(1.) C. R. P. No. 1323 of 2000 is filed against the order in i. A. No. 203 of 2000 in A. S. No. 49 of 1995 and C. R. P. No. 1331 of 2000 is filed against the order in I. A. No. 202 of 2000 in A. S. No. 48 of 1995 of the Sub court, Payyannur. These two applications were filed by the petitioners herein under 0. 47, R. 1 of the Code of Civil Procedure. The appellants are the applicants in the above said petitions. The court below disposed of the appeals a. S. Nos. 48 and 49 of 1995 as per the common judgment dated 8th September, 1999. Defendants 1 to 8 and 11 in O. S. No. 184 of 1987 on the file of the munsiff's Court, Payyannur are the appellants in A. S. No. 48 of 1995 and defendants 1 to 11,14 and 15 in O. S. No. 186 of 1987 on the file of the same court are the appellants in A. S. No. 49 of 1995. The main ground alleged in the review Petition is that while disposing of the appeal the court below has not considered the written notes of argument submitted by the counsel for the appellants and also the decision mentioned in the argument note. It is also stated that the court has not properly appreciated Ext. B1 document. Fresh document produced by the respondents and marked as Exts. A33 to 39 are not valid and binding on the plaint schedule property. The court below failed to appreciate the evidence adduced by the appellants. Even though the respective respondents have not filed any appeal against the decree and judgment in O. S. No. 184 of 1987 and 186 of 1987, the Appellate Court declared the title which was refused by the Munsiff's Court. In both the applications, grounds raised are the same.

(2.) THE third respondent in I. A. 202 of 2000 and second respondent in I. A. No. 203 of 2000 filed counter statement resisting the review petitions filed by the petitioner. According to them, the Review Petition is not maintainable. In effect, the petitioners want to rehear the appeals on merits and the petitions are liable to be dismissed in limine. THE court below after hearing both sides dismissed both the petitions by a common order. Against the said order, these two revision petitions are filed by the petitioners in the review petition. O. S. No. 184 of 1987 was filed by the respondents as plaintiffs for a decree for permanent prohibitory injunction against the defendants therein and O. S. No. 186 of 1987 was filed for declaration and injunction. THE court below after taking evidence decreed O. S. No. 184 of 1987 and 186 of 1987 except declaration of title of the plaint schedule properties sought for in the plaint. Against both the judgment and decree the defendants filed A. S. No. 48 of 1995 and A. S. No. 49 of 1995 before the Appellate Court. THE appellate Court while disposing of the appeal found that plaintiffs in O. S. No. 186 of 1987 have title over the plaint schedule property therein. THE argument of the learned Counsel for the petitioners is that even though the plaintiffs therein have not filed any appeal against the finding of declaration of title, the court below without any justification entered into a finding that the plaintiffs have title over the plaint schedule property. Now the only grievance of the petitioners is that the Appellate Court has granted reliefs to the contesting respondents in respect of the title which was declined in O. S. No. 186 of 1987. THE respondents herein have not filed any appeal against the said finding. As per the decision of the Supreme Court in K. Muthuswami Gounder v. N. Palaniappa Gounder (AIR 1998 SC 3118), O. 41, R. 33 enables the Appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii)such party or parties may not have filed an appeal. THE necessary condition for exercising the power under the rule is that the parties to the proceeding are before the court and the question raised properly arises of the lower court and in that event the Appellate Court could consider any objection to any part of the order or decree of the court and set it right. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under 0. 41, R. 33, C. P. C. and each case must depend upon its own facts. THE rule enables the Appellate Court to pass any order/ decree which ought to have been passed. THE general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the Appellate court must not vary or reverse a decree/ order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding 0. 41, R. 33, c. P. C. However, in exceptional cases the rule enables the Appellate Court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. THE power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeal. It is true that in the Original Suit the respondents have sought for a declaration and injunction but the injunction alone was granted by the Munsiff's Court. It is true that the respondents have not preferred any appeal against the finding of title by the Munsiff's Court. THE Appellate Court on the basis of the additional documents produced before it found that the respondents have title over the property claimed by them. THE said finding was entered by the Appellate Court on the basis of documentary evidence. So, if at all the petitioners are aggrieved by the judgment and decree passed by the Appellate Court, they are at liberty to challenge the same by filing second appeal. THE mere fact that the respondents have not challenged part of the finding against them before the Munsiff's Court, the Appellate court is not precluded to enter into the finding with the materials on records. THE Judgment produced by the petitioners would show that the court has considered the dispute between the parties and entered into a finding that the respondents are having title over the property as per the "marupat" of the year 1924. In paragraph 18 of the common judgment, the lower court has considered the "marupat" dated 17th December, 1924 and the recital regarding the same in Ext. A1 partition deed dated 2nd January, 1963 and the subsequent documents. THE Munsiff's Court declined the declaration because of the non production of the "marupat" of the year 1924. Sufficient discussions were made by the Appellate Court and held that the plaintiffs in O. S. No. 186 of 1987 have established their title over the plaint schedule properties. In such circumstances, it cannot be found that there is any error apparent on the face of the record. A considered judgment has been passed by the Appellate Court and if at all the petitioners herein are aggrieved by the judgment passed by the appellate Court, they are entitled to seek appropriate remedy before appropriate forum. THE petitioners herein filed I. As. under 0. 47, R. 1 C. P. C.