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Koksingh v. Smt Deokabai .
Factual and Procedural Background
On December 30, 1950, one Deojibhai executed a sale deed in favour of the appellant for a consideration of Rs 12,000. No part of the price was paid at execution; the appellant undertook to pay the amount by May 21, 1951 and agreed that, upon default, the unpaid purchase money would constitute a charge on the property. The appellant took possession and later paid Rs 3,100 in three instalments.
Deojibhai died in 1955, leaving his widow (the respondent) and a son who subsequently died, leaving a widow, Manibai. In 1956, Manibai sued the respondent for a share in the estate; the suit was compromised, and the respondent was appointed receiver of Deojibhai’s estate with authority to realise assets. The respondent then brought the present suit to recover the balance of the purchase money with interest from the appellant.
The trial court declined to enforce the contractual charge—holding that the land formed part of the appellant’s occupancy holding under tenancy law—but awarded a personal decree of Rs 21,375 against the appellant. On appeal, the High Court reversed that part of the decree and held that the respondent could enforce the charge; it disallowed the personal decree on limitation grounds and otherwise affirmed the trial court. The appellant obtained a certificate and appealed to the Supreme Court.
Legal Issues Presented
- Whether, despite the appellant’s status as an occupancy tenant, the court could pass a decree enforcing the contractual charge on the property after repeal of Section 12 of the Central Provinces Tenancy Act, 1920.
- Whether, in the absence of an appeal by the respondent against the trial court’s refusal to enforce the charge, the High Court could nevertheless grant such relief under Order 41 Rule 33 of the Civil Procedure Code.
- Whether the courts below failed to give the appellant credit for all payments allegedly made towards the purchase price.
Arguments of the Parties
Appellant's Arguments
- The contractual charge could not be enforced because the property constituted an occupancy holding protected against sale or foreclosure.
- The High Court lacked jurisdiction to grant a decree for enforcement of the charge since the respondent had not appealed the trial court’s contrary finding.
- The respondent failed to acknowledge additional payments totalling Rs 9,500 made by the appellant.
Respondent's Arguments
- The appellant defaulted on the purchase money, and under the sale deed the unpaid amount was a charge on the property.
- Order 41 Rule 33 empowered the appellate court to grant appropriate relief even without a cross-appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Radhika Mohan v. Sudhir Chandra, AIR 1937 Cal 10; 40 CWN 1397 | An appellate court may, under Order 41 Rule 33 CPC, grant relief to a non-appealing respondent. | Cited to support the High Court’s competence to create and enforce a charge despite the respondent’s failure to appeal. |
| Giani Ram v. Ramji Lal, (1969) 1 SCC 813; (1969) 3 SCR 944 | “What ought to have been passed” in Order 41 Rule 33 refers to what the law required; the appellate court may pass such a decree. | Relied on to justify the High Court’s power to mould relief so that a decree “which ought in law to have been passed” is in fact granted. |
Court's Reasoning and Analysis
1. Enforceability of the charge: Section 12 of the Central Provinces Tenancy Act, 1920—which had prohibited sale or foreclosure of an occupancy holding—had been repealed before the institution and decision of the suit. Consequently, no statutory bar existed in 1952 when the suit was filed, and the High Court correctly held the charge enforceable.
2. Power under Order 41 Rule 33 CPC: The Supreme Court affirmed that the appellate court may grant any decree that “ought in law to have been passed,” even for a respondent who has not appealed. The Court relied on its earlier decision in Giani Ram and on Calcutta authority in Radhika Mohan, holding that the High Court was competent to vary the trial decree and enforce the charge.
3. Credit for additional payments: The appellant’s contention that other payments totalling Rs 9,500 had not been credited was rejected because of concurrent findings of fact by the courts below, which the Supreme Court declined to disturb.
Holding and Implications
Appeal Dismissed with Costs.
The Supreme Court affirmed the High Court’s decree enforcing the contractual charge on the property and rejected all grounds of challenge. The decision reinforces the breadth of an appellate court’s powers under Order 41 Rule 33 CPC to mould relief in favour of non-appealing parties and clarifies that, once the statutory bar in Section 12 of the Central Provinces Tenancy Act was repealed, an occupancy tenant could no longer rely on it to defeat a contractual charge. Beyond these clarifications, the judgment sets no new substantive precedent.
K.K Mathew, J.— One Deojibhai executed a sale deed on December 30, 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 May 21, 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 property and he paid Rs 3100 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.
2. 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 3100 he had made other payments totalling Rs 9500. 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 21375. 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.
3. 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 Section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed.
4. 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 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 Section 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.”
5. In Radhika Mohan v. Sudhir Chandra AIR 1937 Cal 10, 40 CWN 1397, 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 Order 41 Rule 33 of the 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.
6. In Giani Ram v. Ramji Lal (1969) 1 SCC 813, (1969) 3 SCR 944 the Court said that in Order 41 Rule 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.
7. 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.
8. 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.
9. We dismiss the appeal with costs.
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