MADAN LAL Vs. GAJENDRAPAL SINGH

JUDGEMENT

(1.) This appeal is by the plaintiffs. It arises out of a suit for sale of property mortgaged under a mortgage-deed dated 3 May 1912 executed by one Ganeshi Lal, defendant 1. in favour of Paras Ram, father, of the plaintiff-appellants for Rs. 900. There are three sets of defendants, namely Ganeshi Lal, defendant 1, first party, his sons, defendants 2 to. 5, second party, and defendants 6 to 13, subsequent transferees of the mortgaged property, third party. The respondent Gajendrapal Singh is one of the subsequent transferees. He was the only defendant to contest the suit. He did so on the ground that the mortgage by Ganeshi Lal in favour of the plaintiffs was invalid for want of consideration and also of legal necessity. The trial Court rejected this defence and decreed the suit in favour of the plaintiff-appellants. Gajendrapal Singh respondent appealed. The District Judge of Bulandshahr came to a finding that the actual consideration paid for the mortgage was Rs. 550 but that even for this sum there was no legal necessity. Accordingly he allowed the appeal and set aside the decree of the trial Court. He set aside that decree not only as against Gajendrapal Singh the appellant but as against all the defendants, that is to say as against the rest of the defendants who had not contested the suit.

(2.) The plaintiffs, i.e., the first mortgagees, have filed this second appeal to the High Court, asking for the restoration of the trial Court's decree as against all the defendants. But they have impleaded only Gajendrapal Singh out of the defendants. This respondent has raised as a preliminary objection to the appeal the contention that this is not permissible. The decree of the lower appellate Court is a decree against all the transferees. Indeed a decree in favour of the plaintiffs must inevitably be a decree against all or none of the co-transferees.

(3.) In reply to this objection counsel for the appellants invokes Order 41, Rule 33, which enacts that an appellate Court shall have power to pass any decree which ought to have been passed, and that this power may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.