KULAIKADA PILLAI Vs. VISWANATHA PILLAI

JUDGEMENT

(1.) This is a suit in which the plaintiff claims to recover certain property from the defendants on the ground of an alleged sale to him by the third defendant, or, in the event of sale being found invalid for the return by the third defendant of the purchase money paid to him by the plaintiff. The District Munsif held on the ground of linitation that the plaintiff was not entitled to recover the property, dismissed the claim for possession and gave judgment for She plaintiff against the third defendant for the recovery of the purchase money. The third defendant appealed. The plaintiff did not appeal against the dismissal of his suit for possession against defendants Nos. 1 and 2. The Subordinate Judge set aside the Munsifs decree for the recovery of the purchase money and gave a decree for the plaintiff on his claim for possession against defendants Nos. 1and 2. The third defendant made the plaintiff a respondent to the appeal to the Lower Appellate Court. The plaintiff appealed and was represented at the hearing of the appeal, but it does not appear whether he took any part in the argument The Subordinate Judge observes that he did not press in appeal his claim for possession. One thing, however, is quite clear and that is, that he did not file any notice of objection to the decree under Section 561 of the Civil P. C.. It would seem that before the Lower Appellate Court he was content with the decree given him by the court of first instance against the third defendant for the recovery of his purchase money. The first and second defendants have appealed to this court against the decree of the lower appellate court and have made the third defendant and the plaintiff respondents to the appeal. Before this court the plaintiff supports the decree for possession given him by the lower appellate court. I am of opinion that the decree of the lower appellate court cannot be upheld.

(2.) For the purposes of my judgment I assume that the suit is not bad for misjoinder. This point was raised before us on behalf of the appellant but the point was not taken before the lower appellate court and I do not think the appellants ought to be allowed to raise it here.

(3.) A good deal of argument was directed to the question whether the plaintiff, having regard to the form in which he made his claim, had any right of appeal against the decree of the District Munsif. The argument on behalf of the plaintiff was that as his claim was in the alternative and he had obtained a decree on one branch of his claim he had no right of appeal, and that inasmuch as he had no right of appeal, it was not open to him to give the no-ice required by Section 561, and this being so, the lower appellate court had power to give a decree in his favour, notwithstanding the fact that the notice required by the section had not been given. I should be disposed to hold that Section 561 only applies where a party has a right of appeal but who until forced or "invited" into Court does not think fit to exercise it. But it is not necessary to decide the question. It seems to me that where a respondent to an appeal fails to give the notice required by Section 561, it is not open to the appellate Court to grant any relief to that respondent in a case where the granting of such relief is not necessarily incidental to the relief granted to a party who has appealed. This is obviously not the case here for the lower appellate court could have given full relief to the appellant before that Court by simply setting aside the decree which had been obtained against him. This may seem to be a somewhat narrow ground on which to determine a question of jurisdiction, but the powers of an appellate tribunal are the creature of statute and unless power to give such a decree as was given by the lower appellate court in this case is to be found in the provisions of the Code, the decree cannot be supported. We are asked to say that the case comes within Section 544 of the Code since before the lower appellate court the plaintiff and the third defendant were equally interested in maintaining the title of the third defendant to convey to the plaintiff, that before the lower appellate court the third defendant was really in the position of a plaintiff seeking to make out as against defendants Nos. 1 & 2 his right to convey to the plaintiff, and that the decree appealed against proceeded on a "ground common to all the plaintiffs" I do not think the section can be so construed. Even if it could, it is quite clear that the decree appealed against did not proceed on a ground common to the plaintiff and the third defendant since it was a decree in favor of the plaintiff against the third defendant. Neither can it be said that the decree appealed against proceeded on a ground common to all the defendants, since it was not the case of the third defendant that the plaintiff's claim for possession as against defendants Nos. 1 and 2 was barred by limitation. The powers of the Court of Appeal in England are regulated by order LVIII of the Rules of the Supreme Court. Rule 4 of this order is no doubt wide enough to cover a case like the present. But the powers of this Court are those given by the Code, and under the provisions of the Code, in the absence of the notice of objection required by Section 561, it seems to me there was no power in the lower appellate court to give the decree which is now before us. As regards the authorities, in Timmayya V/s. Lakshmana I.L.R.,7 M.P. 215 the notice required by Section 561 had been given by the party who had been made a respondent. The case of Soiru Fadmanabh Rangappa v Narayana Rao Bin Vithal Rao I.L.R., 18 B.P. 520 may be distinguished on the ground that the relief granted by the appellate court to the plaintiff who had not appealed was necessarily incidental to the relief granted to the first defendant who had appealed as against the second defendant. The case of Hudson V/s. Basdeo I.L.R., 26 C.P. 109 where a party was added as a respondent to an appeal where no appeal had been made against him was a decision under Section 559 of the Code and the party was added on the grouud that he was "interested in the result of the appeal." In the case of Bishunchurn Roy Chowdhry V/s. Jogendra Nath Roy I.L.R., 26 C.P.114 where the plaintiff was not allowed to urge his cross objections against the non-appealing defendants, the notice required by S- 561, had in fact been given by him.