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Tummalla Atchaiah v. Venka Narasingarao .
Factual and Procedural Background
The plaintiff sought cancellation of a registered assignment deed dated 31 October 1957 by which he had transferred to the defendant a decree in O.S. No. 88 of 1949 (Sub-Court, Kakinada) for recovery of possession of approximately 20–25 acres of land and future mesne profits.
The trial court cancelled the assignment deed but made the defendant’s obligation to deliver possession conditional upon the plaintiff paying Rs 13,000.
The defendant appealed to the High Court, while the plaintiff filed a cross-objection confined to costs and mesne profits. Nevertheless, the High Court, invoking Order 41 Rule 33 of the Code of Civil Procedure, removed the Rs 13,000 condition, ordered inquiry into mesne profits from the date of suit, and dismissed the defendant’s appeal—holding that only Rs 7,600 had been paid under a collateral agreement.
The defendant obtained a certificate of fitness and appealed to the Supreme Court, giving rise to the present decision.
Legal Issues Presented
- Whether the High Court could, in the absence of a specific ground in the plaintiff’s cross-objection and without payment of the requisite court-fee, invoke Order 41 Rule 33 CPC to delete the Rs 13,000 condition imposed by the trial court.
- Whether the decree cancelling the assignment deed should stand.
- Whether the High Court erred in directing assessment of mesne profits against the defendant from the date of the suit rather than from the date of payment of Rs 13,000.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court issued a concise order, stating that a detailed judgment was unnecessary. Key points of its reasoning include:
- Misuse of Order 41 Rule 33 CPC: The High Court lacked authority to alter the trial court’s decree regarding the Rs 13,000 payment because the plaintiff’s cross-objection contained no such ground and no court-fee had been paid on that relief. The precedents relied upon by the High Court were held distinguishable.
- Validity of Cancellation Decree: The Court declined the appellant’s contention that cancellation of the assignment deed was unwarranted, affirming both lower courts on this point.
- Mesne Profits: Liability for mesne profits could commence only after the plaintiff paid Rs 13,000, because before such payment the defendant’s possession was lawful under the trial court’s decree. The High Court therefore erred in directing mesne profits from the date of suit.
- Fact-Finding on Possession: The Court noted a dispute over whether possession had already been delivered. It directed the trial court to determine that question during any mesne-profit proceedings following payment (or verification of prior payment) of Rs 13,000.
Holding and Implications
Appeal allowed in part; High Court decree modified.
The assignment deed remains cancelled. Delivery of possession by the defendant is conditional upon the plaintiff paying Rs 13,000. Mesne profits, if any, are recoverable only from the date of such payment and after the trial court determines the factual issue of possession. No order as to costs. The ruling reaffirms limits on the High Court’s power under Order 41 Rule 33 CPC when no specific ground is raised and no court-fee is paid, but otherwise sets no new precedent of general application.
N.L Untwalia, J.— This is an appeal by the defendant by certificate. It arises out of a suit filed by the plaintiff-respondent for cancellation or setting aside of the registered assignment deed dated October 31, 1957 executed by the latter in favour of the former purporting to transfer the decree in OS No. 88 of 1949 on the file of Court of Subordinate Judge, Kakinada, for recovery of the possession of the scheduled properties measuring about 20 to 25 acres of land and for future mesne profits.
2. The trial court decreed the suit in part and granted a decree for cancellation of the assignment deed aforesaid on the plaintiff's paying Rs 13,000 to the defendant. Under the decree defendant was required to deliver possession of the suit properties to the plaintiff on the payment of the said sum of Rs 13,000.
3. The defendant filed an appeal in the High Court and a cross-objection was filed by the plaintiff. In the cross-objection the grounds taken were in regard to two matters only, namely, costs and mesne profits. No ground was taken in the cross-objection attacking the decree of the trial court in regard to the payment of Rs 13,000 and defendant's liability to deliver possession of the suit properties only on such payment being made. The High Court has, however, varied that portion of the decree of the trial court by exercising its power under Order 41 Rule 33 of the Code of Civil Procedure. The High Court does not seem to be right when it says in its judgment that the cross-objection was confined to costs only. After having said so the High Court has granted decree for mesne profits also in exercise of its power under the same provision of law, that is, Order 41 Rule 33 of the CPC. The defendant's appeal was dismissed by the High Court but subject to this finding that a sum of Rs 7600 only had been paid by the defendant to the plaintiff. The High Court has found that the said amount of Rs 7600 was not paid as a part of the consideration of the deed of assignment but under a different and collateral agreement executed by the defendant in favour of the plaintiff for a sum of Rs 20,000. There were many other complications of facts involved in this litigation. It i& not necessary for us to give any details of them.
4. Having heard learned counsel for the parties and having given our due consideration to the points involved in this appeal, we have thought it proper to dispose of this appeal by a short order. No detailed or reasoned judgment by us, on the facts of this case, is called for.
5. We are of the view that the High Court was clearly wrong in taking recourse to Order 41 Rule 33 of the CPC in interfering with the decree of the trial court in relation to payment of Rs 13,000. The cases relied upon by the High Court are clearly distinguishable. The plaintiff was a party to the appeal. He had filed a cross-objection but did not attack the decree of the trial court making him liable to return Rs 13,000 before he could take back possession from the defendant. Without a specific ground in the cross-objection and without payment of court-fees on the said amount he was not entitled to get any relief by the Court, under Order 41 Rule 33 of the CPC.
6. Having appreciated the entire facts and circumstances of the case we are not inclined to accept the argument put forward on behalf of the appellant before us that a decree for cancellation of the assignment deed dated October 31, 1957 ought not to have been passed. We are of the view that the courts below were right in passing such a decree. The High Court has also committed an error in directing ascertainment of mesne profits as payable by the defendant-appellant from the date of the suit. Since the decree of the trial court had directed him to deliver possession only on payment of Rs 13,000 by the plaintiff, the defendant could not be made liable for any mesne profits before the payment of the said amount by the plaintiff.
7. We accordingly allow this appeal in part and modify the decree of the High Court to the extent indicated below:
7-A. The decree for cancellation of the assignment deed dated October 31, 1957 stands and the condition imposed by the trial court in its decree is also affirmed by us, that is to say, the defendant would be liable to deliver possession on payment of Rs 13,000 to him by the plaintiff. If he does not deliver possession even after the payment of the said amount he will be liable to mesne profits from the date of such payment. A dispute was raised before us by learned counsel for the parties as to whether possession had already been given up and delivered by the defendant. It was asserted on behalf of the appellant that he is no longer in possession of the suit properties, had given up and delivered possession long time back through the process of the Court. On the other hand learned counsel for the respondent states before us that possession was not given up by the appellant and he is still in possession. On the payment of a sum of Rs 13,000 by the plaintiff or if the said sum has already been paid a proceeding for determination of mesne profits, if necessary may be started and in that proceeding this disputed question of fact of possession will have to be gone into and determined by the first court, whereupon a decree for mesne profits may be passed or may not be passed, as the case may be. The decree for mesne profits granted by the High Court is, accordingly, also modified. In the circumstances, we make no order as to costs.
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