JUDGMENT
K. Sadasivan, J.
1. This civil miscellaneous appeal is by the defendant against the order of remand. The suit against him was for mortgage money. He contended that the suit is barred by limitation. The trial Court held against him; but in appeal before the Subordinate Judge, that finding was reversed and it was held that the suit for mortgage money is barred by limitation; but the learned appellate Judge has remanded the case for consideration of the question whether the property could be recovered by the plaintiff. In the plaint, the B prayer was that in case the A relief, which was in respect of money, was not allowed, he might be given a decree for recovery of the property. This B relief was taken up for consideration by the learned appellate Judge and as that was not specifically considered by the trial Court, he remanded it for consideration by the learned Munsiff. The defendant Is aggrieved by the order of remand as that has been passed in respect of a matter on which there was no appeal.
2. The question for consideration is whether the learned appellate Judge is justified under Order 41, Rule 33 of the Code of Civil Procedure in making the order of remand. It is true that even though in the plaint B relief was also claimed, that was not put on trial. No issue also was raised touching that question. The trial went on, only in respect of the money; in respect of the right of the plaintiff to recover the mortgage money, and on that issue the trial Court held that money could be recovered as it was not barred. Aggrieved by this finding the defendant appealed and even though the point with which the appellate Court was concerned was the right of the plaintiff to recover the mortgage money, the B relief also seems to have engaged the attention of the appellate Judge from the very beginning. Three points were raised for consideration in the appeal and they are :–
(a) whether the suit is barred by limitation ?
(b) whether the plaintiff is entitled to the alternative relief of recovery of property ? and
(c) regarding costs ?
This would show that the parties were really at issue in the appellate Court in respect of the B relief also. Order 41. Rule 33, as it now stands empowers the appellate Court to do complete justice between the parties.
“Order 41, Rule 4 and this rule gives the Court ample power to make the order appropriate to the ends of justice. Under the former rule upon an appeal by one of the parties on a ground common to all, the decree may be varied in favour of all; under the latter rule, the Court has power to make the proper decree notwithstanding that that appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection.” (vide Mulla’s Code of Civil Procedure, 13th Edn., Vol. 2, page 1616).
Illustration (2) given on page 1616 fof Mulla’s Civil P. C.) is instructive so far as the present suit is concerned. The illustration runs :–
“(2) A suit is brought on behalf of the public for (1) a declaration that the public are entitled to use certain locks on a certain river without payment of tolls, and (2) a declaration that the defendant is under an obligation to keep the locks in repair. A decree is passed for the plaintiff awarding the relief as to the use of the locks without payment of tolls, but declaring that the defendant is under no obligation to repair the locks. The defendant appeals. The plaintiff neither files a cross appeal nor objections. The appellate Court finds that the public are not entitled to use the locks without payment of tolls to the defendant. At the same time it finds that the defendant is under an obligation to keep the locks in repair. The appellate Court has power, while declaring by its decree that the public are ‘ liable to pav tolls, also to declare that the defendant is liable to keep the locks in repair, notwithstanding that no appeal or objection was taken to that part of the decree by the plaintiff.” So also in the present case, the trial Court gave a decree to the plaintiff for recovery of the money; but it did not address itself to the question of recovery of property covered by relief B of the plaint. As the decision was in favour of the plaintiff he did not think it necessary to file an appeal. The defendant, on the other hand, appealed and the learned appellate Judge found that the claim for mortgage money could not be granted as it was time barred. But to do justice between the parties the learned Judge went into the other question, covered by the B relief and after hearing the parties on that question he found it expedient to remand the case to the trial Court for a proper and judicial consideration of the question, and entering proper findings thereon. The necessary point was raised as is seen from Para. 2 of the appellate judgment and it was after hearing both sides on the question that the remand was ordered. I see, therefore, no reason to interfere.
3. Learned counsel for the appellant invited my attention to a Bench decision of the Calcutta High Court in Mina Goswami v. Ramendra Nath Dutta, AIR 1967 Cal 230) and argued that the learned Judge has gone wrong in his direction to hold a further enquiry with regard to a matter of which there was no appeal. That was a suit for ejectment, where the defendant had made a counter claim. Ejectment was decreed; but the counter claim was dismissed. The defendant filed appeal against the decree for eiectment. That appeal failed but the question of defendant’s counter claim was remanded to the trial Court though there was no appeal so far as the counter claim was concerned. It was held that :–
“the decree for ejectment did not require any decree for the counter claim. The decree for counter claim was an Independent matter. It did not, nor did the case require setting aside of the decree for dismissal of the defendant’s counter claim. Order 41, Rule 33 had, therefore, no application to the facts and circumstances of the case and the Court had no power under Order 41, Rule 33 or under any other provision of law to direct a remand for further enquiry with regard to a matter on which there was no appeal.”
The Court further held that :–
“the power under Order 41, Rule 33 can only be exercised where the portion of the decree appealed against is so inseparably connected with the portion under appeal, that justice cannot be done and a complete consistent decree cannot be passed unless latter portion is as well interfered with.”
4. That is not the position in the case on hand. Here, justice cannot be done and a complete consistent decree cannot be passed without dealing with B relief also. on the merits. Of course, in the present appeal as was the case in the decision cited, that a Part of the decree was appealed against viz.. the decree for money. In disposing of such an appeal, the appellate Court has power to make further orders with regard to the other part of the claim viz., recovery of the property and mete out justice to the parties. It cannot be said that the appellate Court, in the circumstances, has gone in excess of its jurisdiction and has dealt with matters which it was not competent to deal with under Order 41, Rule 33, Civil P. C.
5. The order of remand is, therefore, proper and in confirmation of, this C. M. appeal is dismissed.