CHENPAGA ALIAS PANKAJAMMAL Vs. THANGAMMAL

JUDGEMENT

(1.) DEFENDANTS 2 to 5 in O.S.No.39 of 1977, Sub Court, Chengalpattu are the appellants in the second appeal. That suit was instituted by deceased Thangammal for a declaration of her title to the A and B Schedule properties and for recovery of possession from the appellants and others with past and future mesne profits Thangammal claimed the suit properties through her husband Kannan Iyengar. On the other hand, with reference to A schedule properties, the appellants claimed that their predecessor-in-title, one M.K.Seshadri Iyengar, purchased the A schedule properties from Kannan Iyengar himself under two documents, Exs.B-1 dated 4.5.1951 and B-2, dated 25.9.1951. Insofar as B schedule properties are concerned, the appellants pleaded that they were purchased benami in the name of Kannan Iyengar.

(2.) ON a consideration of the oral as well as the documentary evidence, the trial Court found that the A schedule properties absolutely belong to the deceased M.K. Seshadri Iyengar, through whom the appellants claim and that B schedule properties were not purchased benami in the name of Kannan Iyengar, but belonged to him and therefore, after his death, his wife Thangammal would be entitled to the same. In view of the conclusions as arrived at, Thangammal's title to the B schedule properties alone was declared and the suit in respect of A schedule properties was dismissed.

(3.) WHETHER O.41, R.33, Code of Civil Procedure, could be resorted to may next be considered. The scope of this provision has been considered by a Division Bench of this Court, reported in Vanukuri Krishna Reddi v. Kota Rami Reddy, I.L.R. 1954 Mad. 1126: (1954)2 M.L.J. 559: 67 L.W. 346: 1954 M.W.N. 531: A.I.R. 1954 Mad. 848. The circumstances under which a Court may resort to the exercise of the power under O.41, R.33, Code of Civil Procedure, have been set out therein. Three classes of cases are stated as illustrations. The first is where as a result of interference in favour of the appellant, it becomes necessary to re-adjust the rights of other parties. The second is where the question of settling mutual rights and obligations between the same parties is involved. The third is when the relief prayed for is single and indivisible, but it claims against a number of defendants. These classes of cases, as pointed even in the judgment are merely illustrative, but not exhaustive. The facts of the present case do not even fall under any one the aforesaid illustrations. It is also necessary to bear in mind the caution administered by the Division Bench with reference to the application of the very extensive power under O.41, R.33, C.P.C. At page 1139, the Division Bench has pointed out that despite the extensive nature of the power, one principle has to be taken as well established and that is in a case when a party having a right to appeal fails to do so, relief should ordinarily be refused to him under O.41, R.33, Code of Civil Procedure. In Commissioner of Income-Tax, Assam v. Panbary Tea Co. Ltd., A.I.R. 1965 S.C. 1871, considering the scope of O.41, R.33, Code of Civil Procedure, the Supreme Court pointed out that that provision does not confer an unrestricted right to re-open decrees which had become final and that if in substance there are two decrees which had become final and that if in substance there are two decrees which can stand apart from the other, and one of them is allowed to become final, it would not be open to the other party to the litigation to invoke the powers of the appellate Court under O.41, R.33, Code of Civil Procedure and pray for the passing of the order in the appeal in favour of the party not appealing, as to give to the latter, the benefit which has not been claimed. In this case, as seen already, Thangammal never filed any appeal or cross-objection with reference to that part of the decree negativing her title to the A schedule properties and that had been allowed to become final. Under those circumstances and on the principles of the Division Bench of this Court and the Supreme Court, referred to above, there is no scope at all for invoking 0.41, R.33, Code of Civil Procedure, in favour of Thangam-mal, and on this short ground, the decree of the lower appellate Court, insofar as A schedule properties are concerned, cannot be sustained.