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Calcutta High Court
Bhutnath Deb And Ors. vs Sashimukhi Brahmani (Alias Deby) … on 5 March, 1926
Equivalent citations: 96 Ind Cas 474
Author: Suhrawardy
Bench: Suhrawardy, Page


Suhrawardy, J.

1. This appeal arises in connection with execution proceedings and the main question considered in the Court below was whether the execution was time-barred.

2. The decree was passed on the 21st of December, 1918, It was a personal decree against judgment debtors Nos. 1 and 2 passed under Order XXXIV, Rule 6, C.P.C. Respondent No. 3 is a transferee from the other two judgment-debtors.

3. The decree-holder’s case is that on the, 26th of January, 1919, Rs. 6 was paid by respondents Nos. 1-2, the judgment-debtors, on the 26th of October, 1919, another sum of Rs. 3 was paid by respondents Nos. 1 and 2, on the 2nd of November, 1920, a sum of Rs. 2 was paid by the second respondent alone, on the 20th of December, 1921, a sum of Rs. 2 was paid by the first, respondent alone and on the 17th of January, 1922, Rs. 33 was paid by the second respondent only. The first application for execution was made on the 10th of November, 1922, and notice under Order XXI, Rule 22 on the judgment-debtors was ordered to be issued on the 24th of November, 1922, and the notice was served. No further steps in execution having been taken, the execution case was struck off and a second application for execution was presented on the 28th of January, 1924, It was objected on behalf of the judgment-debtor No. 2 that the execution was barred under Article 182 of the Limitation Act.

4. The Court of first instance believed the third and the fourth payments, namely; the payments on the 2nd of November 1920 by the second respondent, Mandakini, and on the 20th of December, 1921, by the first respondent, Sashi Mukhi, and held that the execution was not barred by limitation.

5. On appeal, by the first respondent the Subordinate Judge found upon the evidence that the books produced by the decree-holders were not genuine, and for the reasons given by him he disbelieved the oral evidence of the decree-holders. He found that the payment of Rs. 2 by Sashi Mukhi on the 20th of December, 1921, was not proved and hence the execution so far as against her was barred. He further found that, the payment on the 2nd of November, 1920, by Mandakini was also not proved, In the result he dismissed the application for execution.

6. Two points have been raised on behalf of the decree-holders in this appeal.

7. Firstly, it is contended that the Court below should not have considered the payment made by Mandakini on the 2nd of November, 1920,as she was neither an appellant nor a respondent before it. It is argued that if the Court acted under Order XLI, Rule 33 the Court was not justified in passing an order in favour of a party who was not made a respondent in the appeal; and, in support of this view, reliance has been placed on the cases of Jogesh Chandra Banerjea v. Sarada Kumar CKakravarti 49 Ind. Cas. 834 : 23 C.W.N. 223, and Haridas Dey v. Kailash Chandra Bose 44 Ind. Cas. 480. The first case is not decided on the construction of Order XLI, Rule 33, and is based upon its own particular facts. The second case, decided by the same Judges who were parties to the first case, no doubt, supports the appellant’s contention. Fletcher, J., laid down the proposition broadly thus: “That section” (Order XLI, Rule 33) “does not apply to a person who was not a party to the appeal. These non-contesting defendants were not parties to the litigation in the lower Appellate Court. Obviously, on first principles, the learned Judge in that Court could not vary the decree of the Court of first instance as regards their rights and liabilities as adjudicated on by that Court.” In my humble judgment, the restriction to the operation of Rule 33 put by the learned Judge is not borne out by the wording of the section or the principle underlying the enactment. Order XLI, Rule 33, is in these words: “The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require.” I pause here to comment that if the section had ended here there would have been no limitation to the right of the Court to pass any order which on its finding should have, been passed. The section goes on: “and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and 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.” The net result of the enactment is that the Appellate Court may pass any order it thinks fit in appeal though the appeal does not extend to the whole of the decree appealed against and though the power is exercised in favour of any respondent or any party who has not objected before it to the decree. By the use of the expression “respondents or parties” in the section I understand that the Appellate Court may pass an order in favour of the respondents who have not, appealed and it may similarly decide any, question in favour of a party by which I understand a party to the suit and who is not a respondent in the appeal. Otherwise there was no sense in using the words “respondents or parties.” The learned Judges, in the cases above referred to may have been induced to form the opinion they did in view of the illustration attached to the section; but it is hardly necessary to say that the illustration does not limit the section and is not intended to illustrate its full scope. The view that appeals to me is supported by the decision in the “case of Ambika Charan Chakrabarti v. Sasitara Debt 30 Ind. Cas. 868 : 32 C.L.J. 61. The section should be given a broad and generous interpretation in view of the fact that it is intended to secure consistency in the administration of justice and avoid anomalies which may result if the Court is held to be helpless in giving effect to its own decision, to the full extent. Where the rights of parties depend on the same obligation e.g., a contract, and where the Court finds that the contract is genuine or not genuine it may give effect to its finding by holding all the parties liable under the contract or by exonerating all the parties who are sought to be made liable, without consideration as to whether such parties are before it or not. But the power which the Court is vested with under this section must be exercised in the interest of and for the furtherance of justice where, as has been observed in the case of Ganga Dhar Muradi v. Banabashi Padhari 24 Ind. Cas. 208 : 22 C.L.J. 390, “as the result of the Appellate Court’s interference in favour of the, appellants, further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience.” In the view that I have taken I am sceptic about the propriety of, giving the section such a narrow construction as not to make it applicable to cases where there may be disregard of the provisions of other Statutes such as the Court Fees Act, as has been observed in Abjal Majhi v. Intu Bepari 32 Ind. Cas. 494 : 22 C.L.J. 394 : 20 C.W.N. 542, and Akimannessa Bibi v. Bepin Behari Mitter 32 Ind. Cas. 499 : 22 C.L.J. 397 : 20 C.W.N. 544, as the section is expressly made applicable to appeals as to part of the decree. As to substantive law like the Law of Limitation other and different considerations will arise. In accordance with the above observations I should have felt inclined to hold that the determination of the question as to the payment by Mandakini on the 2nd of November, 1920, was not necessary in order to give relief in the appeal by Sashi Mukhi, for it is apparent that, even if that payment was believed, it would not have under Section 21 of the Limitation Act extended the period of limitation against Sashi Mukhi. I would have given effect to the contention of the decree holders that the Court of Appeal below should not have dismissed the entire application for execution but should have allowed the execution to proceed as against Mandakini, the respondent No. 2; but I find from a perusal of the judgment of the learned Judge that he was invited by the decree-holders to decide the factum of the alleged payment on, the. 2nd of November 1920 by Mandakini. The idea in the Court below of the legal advisers of the decree-holders was apparently that a payment by one judgment-debtor would stop limitation running as against the other judgment-debtor. It might have been a mistaken view of the law but it was at the invitation of the decree-holders that the Judge went to decide that question and it was found that the payment on that date was also not proved. Having come to that finding, I cannot say that he acted illegally in dismissing the decree-holders’ application for execution in toto.

8. Secondly, it is urged that the Court of Appeal below should have considered the payment alleged to have been made on the 17th of January, 1922. That payment was made more than three years after the decree which had been passed on the 21st of December, 1918, but the second payment which is alleged to have been made by respondents Nos. 1 and 2 on the 26th of October, 1919, would make the subsequent payment in time to save-the decree. It is, therefore, submitted that the Court below having found that the fourth payment was not proved should have enquired into the last payment before holding that the application for execution was barred. It appears that there is no express finding by the learned Subordinate Judge with regard to this payment but it appears that the first Court did not consider this alleged payment and in the lower Appellate Court the learned Subordinate Judge has disbelieved all the evidence that was brought forward to support this payment in connection with the consideration of the fourth payment, and it further appears that this last payment was never pressed before the learned Judge nor was he invited to express any definite opinion upon it. The judgment of the Subordinate Judge where he deals with the question begins with these words: “Now, the main question in this case is whether any payment was made by judgment-debtor No. 2 on the 5th Pous 1328 B.S., i.e., 20th December, 1921.” Then he goes on to consider the evidence and observes that the evidence consists mainly of one witness, namely, Jasoda Nandan Hazari, who States that he made entries in the books in 1328 B.S. of the fourth and the fifth payments. He discusses the decree-holder’s evidence and comes to the conclusion that the books of account filed on behalf of the decree-holders are fabricated and that the witness Jasoda could hot have written the books. In these circumstances, I think it will serve no useful purpose to ask the learned Subordinate Judge to consider the last payment. Evidently his opinion is that the books filed by the decree-holders in support of the alleged payments could not be relied upon and that the oral evidence such as was adduced before him was of persons who were either their servants or directly related to them.

9. The result is that, in my opinion, this appeal fails and is dismissed with costs, hearing-fee two gold mohurs.

Page, J.

10. I agree.

11. As regards the contesting respondent-judgment-debtor No. 2, the learned Judge in the lower Appellate. Court has held that the alleged payment of Rs. 2 on the 20th of December, 1921, on her behalf as part payment of the debt was not proved. The learned Vakil for the appellants contends that there is no finding that a subsequent payment of Rs. 33 alleged to have been made as part payment of the, debt on the 17th of January, 1922, has not been proved. In my opinion there is no substance in this contention. It is not contended that this sum of Rs. 33 was paid in cash or currency. What, is contended is that on the 3rd of Magh 1328 B.S. the defendant No. 2 delivered or caused to be delivered to the plaintiffs some paddy, and a witness was forthcoming on behalf of the plaintiffs who stated that that paddy was taken, as part payment of the debt in question. Although it is well established that a payment within Section 20 of the Limitation Act of 1903 need not be in cash or currency, yet, if it is to be in kind the party alleging that the payment was made must prove that there was an agreement between the parties that the payment shall be made in that particular manner. The learned Judge in the lower Appellate Court has disbelieved the evidence of the witness who purported to prove the alleged payment of Rs. 33 by appropriation of paddy, and, in my opinion, in substance there is a finding that no payment on the 17th of January, 1922, for the purpose of limitation was made. That disposes of the appeal so far as the second defendant is concerned.

12. It appears, however, that the plaintiffs in the lower Appellate Court contended that if there was a payment made on the 2nd of November, 1920, by the first defendant, (who did not appeal from the decree passed against her to the lower Appellate Court) the effect of such a payment would be that the plaintiffs’ cause of action would be saved as against both the first and the second defendants. The learned Judge came to the conclusion that none of the alleged payments were proved to have been made and dismissed the plaintiffs’ suit as against both the joint debtors. The learned Vakil on behalf of the appellants has contended that the learned Judge in the lower Appellate Court had no jurisdiction to dismiss the suit as against the first defendant because the first defendant was not a party to the appeal. In my opinion, that is not the true construction to be placed upon Order XLI, Rule 33, C.P.C. In my opinion, it was open to the Court to dismiss the suit notwithstanding that the appeal was not directed against the entire decree and notwithstanding that the first defendant had not filed an objection or an appeal against the decree which had been passed against her, the real position, being that upon a true construction of Rule 33 “no hard and fast rule can be laid down; but I think it may be fairly said that ordinarily the power contained in Rule 33 should be limited to those cases where, as the result of the Appellate Court’s interference with the decree in favour of the appellants, further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience”; Per Jenkins, C.J., in Gangadhar Muradi y. Banahashi Padihari;24 Ind. Cas. 208 : 22 C.L.J. 390. An illustration of the way in which the rule may be utilized is to be found in Ambica Charan Chuckerburtty v. Sasitara Devi 30 Ind. Cas. 868 : 32 C.L.J. 61. Care, of course, must be taken in each case to see that Rule 33 is not utilized as a mode of evading the provisions of other statutory rules or Orders. In this case the Court having found at the appellants invitation that no part payment of any sort or kind was made, in my opinion, it was a proper exercise of the powers entrusted to him under Rule 33 that the learned Judge should have held in the circumstances of the particular case, the entire claim of the plaintiffs should be dismissed. I agree in the order which has been passed.

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