SATYA RANJAN NAG Vs. KSHITISH CHANDRA PAL

JUDGEMENT

(1.) The facts of this case are peculiar and give rise to an important question of law. The plaintiffs respondents brought a suit against the appellant and several others for declaration of right of way. The suit was decreed against the appellant but dismissed against defendants Nos. 6, 7, 8 and 10 on the ground that summonses were not properly served on them. The appellant who was the defends ant No. 2 in the suit preferred an appeal against the decree to the lower appellate Court, while the plaintiffs filed an application for review before the trial Court against that portion of the order of that Court which purported to dismiss the suit against the defendants Nos. 6, 7, 8 and 10. A few dates will be of importance in considering the question raised. The judgment was delivered on the 15 April, 1920 and the decree signed on the 22nd April, 1920. The defendant No. 2 preferred an appeal to the lower Appellate Court on the 27 May, 1920. The application for review by the plaintiff was granted by the trial Court on the 15 June 1920. The effect of it was that the order of dismissal of the suit against the defendants Nos. 6, 7, 8 and 10 was set aside and the suit against them also was decreed. This has resulted in a slight alteration in the judgment of the Munsif as well as in the decree so far as it related to defendants Nos. 6, 7, 8 and 10. The other portions of the judgment and the decree in which those defendants were not interested were not altered. The appeal be fore the lower appellate Court came on for hearing on the 4 July, 1921. It was objected by the plaintiffs respondents that the appeal could not proceed because the decree was modified on review and the appeal should have been against the altered decree, namely, the decree as it stood on the 15 June, 1920. I may mention here that the plaintiff's have also appealed against the decree of the first Court on the ground that the suit against the defendants No. 6, 7, 8 and 10 was wrongly dismissed. The defendant No. 2 also objected at the hearing of the appeal that the plaintiff's appeal should not have been entertained as it was not preferred against the decree as modified by the review. Whether the defendant was right in his objection or not is not a question which should affect the decision of the present appeal. The learned Subordinate Judge on appeal held that the appeal was incompetent inasmuch as the decree as amended on the 15 June had superseded the original decree and the appeal ought to have been preferred against the decree as amended. The Court of appeal below has for its view relied upon the eases of Kanahialal V/s. Baldeo [1906] 28 All. 240 and Brijbashi Lal V/s. Salig Ram [1912] 34 All. 282.

(2.) It is argued on appeal that the view taken by the lower appellate Court is wrong inasmuch as the amendment of the decree or the alteration made in it, on the 15 June, 1920, did not affect the appealing defendant. The defendant No. 2 the appellant before us was not made a party in the review proceeding. Under Order 47, Rule 4, the opposite party had to be served with notice of the application for review and opposite party in that application were the defendants Nos. 7, 8 and 10. The present appellant was not rightly made a party in the review proceeding because no relief was sought against him. It is argued on behalf of the respondent that the decree is indivisible; and however slight the alteration may be, and whether it affected the right of the appellant or not, the decree so subsequently altered must be taken to be the decree in the suit against which an appeal would lie under Section 96, C.P.C. It appears that in this particular case the facts are totally different from those in the cases which have decided that the decree modified on review is the proper decree in the suit against which an appeal ought to be preferred. In the Allahabad cases above cited the application for review was directed against all the parties to the suit and the modification made in the decree affected all the parties to the suit. It may, therefore, be correct to say that the decree as modified on review was the decree in the suit. This view has been adopted also in this Court in the case of Pyari Mohon Kundu V/s. Kalu Khan [1917] 44 Cal. 1011, but in the present case the circumstances were so peculiar as in my opinion to make the decision in the above cases wholly inapplicable to the present case. Here so far as the determination of the right between the plaintiff and defendant No. 2, was concerned, the decree passed on the 22nd April, 1920, was final between the parties, and the amendment made in the decree on review did not touch that part of the decree which related to the appellant. It would, therefore, seem apparent that the decree so far as defendant No. 2 (the appellant) was concerned is the decree which was passed in the first instance by the trial Court. This question may be looked at from another point of view. If the question of limitation arises in the execution-proceeding, from which date will the time be counted, whether as against defendant No. 2 it would be calculated from the date of the original decree or from the date of the modification made in the decree? It is not necessary for me to decide this question; but on the view that I take, it seems to follow that so far as defendant No. 2 is concerned the period ought to be calculated from the date of the original decree. Some light on this subject may be obtained by a reference to the decision of the Full Bench in the case of Benimadhav Mitter V/s. Matangini Dasi [1886] 13 Cal. 104 (F.B.). There the question directly arose as to what is the date of the decree. By Section 205 of the Code of 1882 it was provided that the decree should bear the date of the day on which the Judgment was pronounced. That section corresponds to Order 20, Rule 7 of the present Code. The Full Bench held that though that is the date of the decree under the law, the date from which the period has to be computed for the purpose of the appeal from the decree must be the date on which the decree was signed. In the present case the decree still bears the date 15 of April, 1920, that being the date when the judgment was pronounced. I submit that if a party who is not affected by subsequent proceedings wants to appeal against the decree, the period must be computed from the date when the judgment was pronounced or the decree signed. I am prepared to go so far as to hold that if the present appellant had preferred on the last day an appeal from the decree as modified on the 16th June, 1920, computing the period from the date the appeal would have been out of time.

(3.) It is contended by the respondent that decree is indivisible. I do not think that there can exist no circumstance in which the decree could be divided. I can mention circumstances in which it is possible to divide up a decree. Take for instance, a decree passed ex parte against A and B., A. applies for re-hearing, but B does not. The decree is not such as to be governed by the proviso to Order 9, Rule 13. The effect of the revival of the suit on the application of A will be to set it aside in so far as it went against him. But the decree as against B will remain unaffected. Suppose the suit proceeds and the suit is decreed as against A also. Now if A wants to appeal he must do it against the decree passed subsequently. But if B wants to prefer an appeal from the decree as against him, he cannot take advantage of the modification of the decree and the subsequent decision of the suit, but he has to prefer an appeal within the period of limitation reckoning from the date on which the ex parte decree was made. So that it is possible that in one suit there may be different decrees against different parties from which different periods will be computed. Another instance may be found, where a suit is decreed against A and B., A appeals making the plaintiff the respondent to the appeal (the other defendant B not being a necessary party to it for the determination of the question raised in the appeal), and that decree against A on appeal is modified. The result will be that there will be two decrees one of the first Court against B and one of the appellate Court against A. If the plaintiff wants to put into execution these decrees he must compute his period from the dates of the decree of the appellate Court as also from the date of the decree in original suit. That a decree can be vacated or varied either in part or in its entirety is beyond dispute. In the case of Bhubaneswari V/s. Ajodhya [1912] 15 C.L.J. 339. Mookerjee, J. observed that an application for review of judgment may be granted in part. It depends upon the circumstances of each case whether the whole suit should be reopened or whether it should be tried only in part. The same view has been adopted in the recent case of Gour Krishna Sircar V/s. Nil Madhab Saha A.I.R. 1923 Cal. 113 in which all the cases on the points have been collected. The result of the view I take of the law in this case is that the judgment of the lower appellate Court is wrong, and must be set aside.