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PETITIONER: KOK SINGH

       Vs.

RESPONDENT: DEOKABAI

DATE OF JUDGMENT10/12/1975

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN FAZALALI, SYED MURTAZA

CITATION:  1976 AIR  634            1976 SCR  (2) 963  1976 SCC  (1) 383

ACT:      Code of  Civil Procedure,  O.XLI, r.  33-High Court  if competent to  pass a  decree for  enforcement of charge even when no appeal filed.

HEADNOTE:      The   appellant,   who   bought   property   from   the respondent’s husband, covenanted that in case of non-payment of the  consideration, the amount due would be a charge upon the property.  The respondent,  on the death of her husband, filed a  suit on  the ground that the appellant defaulted to pay the full purchase money of the property. The trial court held that no decree could be passed for enforcing the charge against the  property as  it was  held in occupancy right by the appellant,  but  gave  a  personal  decree  against  the appellant for  a certain  sum. On the appellant’s appeal the High Court  held that the respondent was entitled to enforce the charge  on the  property but  negatived the respondent’s claim for a personal decree.      On appeal  to this Court, it was contended (1) that the Court was  not competent  to pass a decree creating a charge on the  property since  it was  held by  the appellant as an occupancy tenant  and (2)  that as  the respondent  did  not appeal from  the decree  of the  trial court  negativing her claim in  the suit  for a  charge on  the property, the High Court was  wrong in granting a decree for enforcement of the charge.      Dismissing the appeal, ^      HELD: (1)  The High Court was right in holding that the prohibition to  pass a decree for sale or for closure of any right of  an occupancy  tenant in  his holding  was  not  in existence in 1952 when the suit was filed, because, s. 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed. [964 E-F]      (2)Even if  the respondent did not file any appeal from the decree  of the  trial court, that was no bar to the High Court passing  a decree  in favour of the respondent for the enforcement of  the charge.  Under Order  XLI, r.  33 of the Code of  Civil Procedure,  the High  Court was  competent to pass a decree for the enforcement of the charge in favour of

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the respondent  notwithstanding the fact that the respondent did not file any appeal from the decree. [964 G, 965 E]      Radhika Mohan  v. Sudhir  Chandra, A.I.R. 1937 Calcutta 10 and Giani Ram & Others, v. Ramji Lal and Others, [1969] 3 S.C.R. 944, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2354 of 1968      From the  judgment and  order dated the 7th March, 1968 of the  Madhya Pradesh  High Court in First Appeal No. 24 of 1969.      C. P. Lal for the appellant.      S. T. Desai and D. N. Misra for the respondent.      The Judgment of the Court was delivered by      MATHEW, J. One Deojibhai executed a sale deed on 30-12- 1950 in respect of the property in question in favour of the appellant  for   a  sum   of  Rs.   12,000/-.  No   part  of consideration was  paid at  the time of the execution of the sale deed. The appellant promised to pay the amount by 21-5- 1951 and  covenanted that in case of non-payment, the amount due would  be charge  upon  the  property  sold.  After  the execution of  the sale  deed, the  appellant  was  put  into possession of the 964 property and  he paid  Rs.  3,100/-  in  three  instalments. Deojibhai died in 1955 leaving his widow, the respondent and a son  who died  subsequently  leaving  his  widow  Manibai. Manibai filed  a suit in 1956 in the Bombay City Civil Court against Deokabai,  the respondent,  claiming a  share in the property left by her father-in-law, Deojibhai. This suit was compromised and  Deokabai  was  appointed  receiver  of  the estate of Deojibhai with a direction by the Court to realise his assets and to pay a certain amount to Manibai. Deokabai, the respondent, filed the suit from which the appeal arises, on the  basis that  the appellant  defaulted to pay the full purchase money  of the property and that she was entitled to the same with interest.      The appellant  contended that  the charge  could not be enforced against  the property  as it  formed  part  of  his occupancy holding  and that,  besides the sum of Rs. 3,100/- he had  made other payments totalling Rs. 9,500/-. The trial court found that no decree could be passed for enforcing the charge against  the property  as it  was held  in  occupancy right by the appellant, but the court gave a personal decree against  the  appellant  for  Rs.  21,375/-.  The  appellant appealed against  the decree  to the  High Court.  The Court found that the respondent was entitled to enforce the charge on the  property and  granted a  decree on  that basis,  but negatived the  claim of the respondent for a personal decree against the  appellant on the ground of limitation. In other respects, the decree of the trial court was confirmed. It is against this decree that the present appeal, by certificate, has been filed.      Two points  were taken  on behalf of the appellant. One was that  the Court  was not  competent  to  pass  a  decree creating a  charge on  the property in view of the fact that the property  was held by the appellant as occupancy tenant. This contention  was negatived  by the  High  Court  on  the ground that the prohibition to pass a decree for sale or for closure of  any right  of an occupancy tenant in his holding was not  in existence  in 1952  when the  suit was filed. We think the High Court was right in its conclusion as s. 12 of

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the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed.      The second  point raised  by the appellant was that the respondent did not appeal from the decree of the trial court negativing her  claim in  the  suit  for  a  charge  on  the property. It  was contended that the High Court was wrong in granting a  decree for  enforcement of  the  charge  as  the decree of  the trial  court  became  final  so  far  as  the respondent was  concerned as  she did  not file  any  appeal therefrom. We  are unable  to accept  this contention. Under Order 41,  Rule 33  of the  Civil Procedure  Code, the  High Court was  competent to pass a decree for the enforcement of the charge  in favour  of the respondent notwithstanding the fact that  the respondent  did not  file any appeal from the decree. Order 41, Rule 33 provides:           "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, and this      power may  be exercised  by the  Court  notwithstanding      that the appeal is as to part only 965      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:           Provided that  the Appellate  Court shall not make      any  order   under  sec.  35-A,  in  pursuance  of  any      objection on  which the  Court from  whose  decree  the      appeal is preferred has omitted or refused to make such      order."      In Radhika  Mohan v.  Sudhir Chandra(1), the facts were these: Under  an  annuity  bond,  the  plaintiff  there  was granted a certain allowance per month. In a will executed by the executor  of the  annuity bond. It was provided that the annuity was  to be  a charge  on certain  properties. As the annuity allowance  fell in  arrears, the plaintiff brought a suit to  enforce it  praying for  a charge.  The trial court decreed the  suit but  did not  grant a  charge.  The  lower appellate court  exonerated  the  defendants  from  personal liability but  held that  there should  be a  charge on  the property.  In   second  appeal  by  the  defendants  it  was contended by  them that  the lower appellate court could not create a  charge  as,  in  the  lower  appellate  court  the plaintiff had  failed to  take objection to that part of the trial court’s  decree. The  High Court held that under 0.41, r.33, Civil  Procedure Code,  the lower  appellate court was competent to vary the decree by providing for enforcement of the charge and that the decree passed by it was right.      In Giani  Ram &  others v.  Ramji Lal and others(2) the Court said  that in 0.41, r. 33, the expression "which ought to have  been passed"  means "what ought in law to have been passed" and  if an  appellate court  is of the view that any decree which  ought in  law to  have been passed was in fact not passed  by the  court below,  it may  pass or  make such further or  other decree or order as the justice of the case may require.      Therefore, we  hold that even if the respondent did not file any appeal from the decree of the trial court, that was no bar  to the  High Court passing a decree in favour of the respondent for the enforcement of the charge.      There is  no substance  in the  contention that all the payments made by the appellant have not been given credit to by the  respondent in view of the concurrent findings of the courts.

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    We dismiss the appeal with costs. P.B.R.                                     Appeal dismissed. 966