NANHA Vs. BAROO AND OTHERS

JUDGEMENT

(1.) THIS second appeal arising out of execution proceedings has been referred to the Division Bench by my learned brother because it involves an important legal question. The facts briefly stated are as follows:

(2.) BARU and others obtained money decrees against Nanu in five suits. On the other hand, Nanu and his brother Hemraj sued Baru and others who had obtained money decrees against Nanu, with the exception of Kalu Ram for possession of certain land. The case for Nanu and Hemraj was that the land belonged to them and the defendants had taken possession of it without any right. The trial Court dismissed the suit but the District Judge on appeal passed a decree in favour of Nanu and Hemraj and the High Court upheld the appellate decree of the District Judge. Baru and others preferred a further appeal to the Judicial Committee of the erstwhile Patiala Slate. By his order dated 7 -11 -1947, the learned President, of the Judicial Committee (Sir Jai Lal, held that, while the decree for possession of the land passed in favour of Nanu and Hemraj should be maintained : "It should be subject to the condition that the decree -holders, Nanu and another, snail not be entitled to execute it unless they have first paid by deposit in the trial Court within fix months from the date of this order the decretal amount of the decrees passed in favour of Baru, etc., against them or have proved to the satisfaction of the Court that they have otherwise satisfied those decrees for money passed against them." and further that "the parties shall bear their own costs of the suit throughout." In pursuance of the law and the practice that prevailed then in Patiala State the case was submitted by the President to His Highness Shri 108 Maharajadhiraj Mahendra Bahadur for orders, and in accordance with the advice tendered by the President of the Judicial Committee - the Ijlas -i -Khas on 21 -5 -1948. passed the final order the operative part of which was identically the same as the concluding part of the order of the Judicial Committee, reproduced above.

(3.) BEFORE dealing with the merits, it is necessary to dispose of a preliminary objection raised by the respondents that Nanu alone cannot prefer the appeal. Counsel's argument is that since the order of the Court below affects Nanu as well as Hemraj and they were both appellants in the Court of the District Judge appeal by Nanu clone is not competent. I have no hesitation in. holding that the contention is wholly devoid of force, it is laid down in Order 41, Rule 4, that when there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. This principle is applicable to second appeals and since the appeal preferred by Nanu proceeds on the ground common to him as well as Hemraj he was competent to appeal from the whole order and when such appeal is before us it is open to the Court to reverse it in favour of both should we consider that such a reversal is called for.