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Sarojini Bai v. Krishna Pillai .
Structured Summary of the Opinion
Factual and Procedural Background
This is a second appeal brought by the 1st defendant (the attaching decree-holder) in a suit instituted by a defeated claimant (the plaintiff). The 1st defendant had earlier obtained a decree in O.S. No. 484 of 1950 of the District Munsiff's Court, Cochin, against the 2nd defendant for rent arrears. Prior to judgment in that suit the 1st defendant levied attachment before judgment on certain articles of furniture (including an almyrah, table, chair) valued at about Rs. 130/-, alleging they belonged to his debtor, the 2nd defendant.
The plaintiff filed an Ext. E petition dated 11-9-1950 claiming the attached articles. After enquiry and after the decree had been passed, the Munsiff rejected the claim by order Ext. D dated 1-8-1952. The plaintiff then instituted the present suit for declaration of his title to the listed articles. The plaintiff alleged he was a sub-tenant under the 2nd defendant for two rooms covered by the lease to the 2nd defendant, and that the articles were seized from rooms in his occupation and that attachment had been levied in collusion between the 1st and 2nd defendants.
The 1st defendant contested on the basis that the movables belonged only to the 2nd defendant and were never in the plaintiff's possession. The 2nd defendant did not appear (ex parte). The trial court dismissed the plaintiff's suit, finding no proof of the plaintiff's ownership or exclusive possession; the trial court relied on comparative financial capacity, the plaintiff's failure to produce a letter of sale (Ext. A) or a Kaippada book (Ext. C), and certain admissions made by the plaintiff while examined on commission.
The lower appellate court, however, accepted the plaintiff's evidence (P.W. 4) and supporting witnesses (P.W. 1 and P.W. 3), held the movables belonged to the plaintiff and were in his possession at the time of attachment, and accordingly allowed the appeal. The 1st defendant filed this second appeal challenging that result.
Legal Issues Presented
- Whether the appeal before the lower appellate court (filed by the plaintiff) was ill-constituted and unsustainable because the 2nd defendant (whose ownership of the attached articles had been upheld by the trial court) was not on the respondents' array, and whether that defect required dismissal/abatement of the appeal.
- Whether, on the merits, the attached articles were the property of the plaintiff and in his possession at the time of attachment (i.e., the attachability and ownership question raised and decided differently by the trial court and the lower appellate court).
Arguments of the Parties
Appellant (1st defendant) / Appellant's Arguments
- Contended that the appeal filed by the plaintiff in the lower appellate court was ill-constituted because the 2nd defendant was not on the respondents' array, and that this procedural defect alone rendered the appeal liable to be dismissed.
- Maintained that the attached movables belonged exclusively to the 2nd defendant and were never in the plaintiff's possession.
Plaintiff's Arguments
- Asserted that he was a sub-tenant under the 2nd defendant for two rooms and that the attached articles were seized from the rooms he occupied.
- Alleged that the attachment was levied in collusion between the 1st and 2nd defendants.
- Presented evidence (as P.W. 4 and through P.W. 1 and P.W. 3) to support his claim of ownership and possession of the movables.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Suopan Asari v. Alima Bibi, AIR 1934 Mad 587 (A) | Referred to in connection with authorities on whether a respondent is a necessary party in an appeal. | Cited as one of the authorities on the question of necessary parties in appeal procedure (grouped with Mt. Maryam Bibi), contrasted with Ghasi Ram v. Mongal Chand. |
| Mt. Maryam Bibi v. Ram Das, AIR 1922 All 404 (B) | Referred to in connection with authorities on whether a respondent is a necessary party in an appeal. | Cited alongside Suopan Asari as an authority relevant to the necessity of a party in appeal proceedings; noted to differ from Ghasi Ram. |
| Ghasi Ram v. Mongal Chand, ILR 28 All 41 (C) | Listed as an authority taking a different view on the necessity of a party in appeal proceedings (contrasting with A and B). | Noted as a contrasting authority; the opinion records the existence of differing authorities on the point but relies on the general test reproduced from Mulla and the cited case law. |
| Apurba Krishna v. Ram Bahadur, AIR 1936 Pat 191 (D) | Illustrates the principle that an appeal may abate if, by allowing it without necessary parties, two inconsistent decrees would result. | Relied upon as a supporting example: the court invoked this case to show that an appeal can abate even if the underlying suit might not, when allowing the appeal would create conflicting decrees. |
Court's Reasoning and Analysis
The court framed the central procedural test (citing Mulla's Code of Civil Procedure as reproduced in the opinion): whether allowing the appeal as against the remaining respondents would lead to two contradictory decrees in the same litigation with respect to the same subject-matter. The quoted passage from Mulla emphasizes that a court should avoid making inconsistent decrees about the same property and, if necessary to avoid conflict, must dismiss the appeal as a whole.
Applying that test and authorities, including the example in Apurba Krishna v. Ram Bahadur (where an appeal abated because allowing it would have produced inconsistent decrees), the court concluded that the lower appellate court's decision produced two contradictory decrees in the same suit concerning the title to the attached movables: (a) the trial court had upheld the 2nd defendant's ownership in favour of the 1st defendant, and (b) the lower appellate court had negatived that ownership in favour of the plaintiff.
Because the plaintiff had impleaded the 2nd defendant in the original proceedings and had failed at trial, the court held it was not open to prosecute the appeal against only the 1st defendant without the 2nd defendant on the respondents' array. The absence of the 2nd defendant in the appeal filed before the lower appellate court therefore rendered that appeal unsustainable and required allowance of the present second appeal.
The court added that it was unnecessary, in view of the procedural conclusion, to decide the merits on attachability and ownership. Nevertheless, the court expressed a preference for the trial court's findings on the merits (particularly because the trial court had the opportunity to see witnesses testify) and found the plaintiff's collusion allegation to be "totally unbelievable," a point that the court considered undermined the plaintiff's case.
Holding and Implications
Holding: The second appeal is ALLOWED; the decree of the trial court dismissing the suit with costs is restored.
Implications and direct effects:
- The trial court's dismissal of the plaintiff's suit is reinstated.
- The plaintiff is ordered to pay the 1st defendant's costs in this Court and in the lower appellate court.
- The opinion rests its decision on a procedural ground (the absence of the 2nd defendant from the respondents' array in the lower appellate court) and thus does not announce or rely upon a new substantive precedent beyond application of existing procedural principles and cited authorities.
Outcome recorded in the opinion: "Appeal allowed."
1. This second appeal is by the 1st defendant attaching decree-holder in a suit by a defeated claimant which was dismissed by the trial court but allowed by the lower appellate court.
2. The 1st defendant obtained decree in O.S No. 484 of 1950 of the District Munsiff's Court, Cochin, against the 2nd defendant, for certain rent arrears. Pending that suit he had levied attachment before judgment of a few articles of furniture consisting of an almyrah, table, chair etc. and valued at about Rs. 130/- as belonging to his debtor the 2nd defendant. The plaintiff thereupon filed Ext. E petition dated 11-9-1950 setting up claim to the attached articles. The petition was enquired into after the suit was decreed and rejected by the Munsiff by his order Ext. D dated 1-8-1952. This suit was then filed by the plaintiff for declaration of his title to the articles in question and which have been itemised in the margin of the plaint. According to the plaintiff he was a sub-tenant under the 2nd defendant in respect of two of the rooms covered by the building leased by the 1st defendant to the 2nd defendant and the articles were seized from inside the rooms in his occupation in pursuance to attachment levied in collusion between the defendants 1 and 2. The 1st defendant contested the suit on the footing that the movables attached belonged exclusively to the 2nd defendant and were never in the possession of the plaintiff. The 2nd defendant was ex parte. The trial court dismissed the suit on basis of its finding that there was no proof that the plaintiff owned or at all was in exclusive possession of the articles in question. In doing so it took into consideration the comparative financial capacity of the plaintiff and the 2nd defendant to purchase and also plaintiff's failure to produce along with his claim petition either Ext. A letter of sale dated 1109 as regards item 1 almyrah which was apparently the most valuable of the articles, or even Ext. C. Kaippada book evidencing the plaintiff's sub-tenancy under the 2nd defendant. The Munsiff was greatly impressed by the admissions made by the plaintiff while he was Being examined on commission in one of the rooms covered by the alleged sub-tenancy, that his sister who was married to the 2nd defendant was, along with her children, then residing with the plaintiff.
3. The lower appellate court on the other hand, accepted the evidence of the plaintiff as P.W 4 & his witnesses P.W 1 and P.W 3, to hold that the plaint movables belonged to the plaintiff and were in his possession at the time of attachment and accordingly allowed the suit. Hence this second appeal by the 1st defendant as abovesaid.
4. Mr. V. Rama Shenoi, learned counsel appearing for the appellant 1st defendant, raised the question that the appeal taken by the plaintiff before the lower appellate court was ill-constituted for lack of the 2nd defendant on the respondent's array and was liable to be dismissed on that sole ground. The 2nd defendant had no doubt been made 2nd respondent when the appeal was filed but he was struck out on later date on the motion of the appellant-plaintiff himself, that it was unnecessary to retain him on the array since no relief was prayed for against him. Now it may be that the 2nd defendant judgment-debtor was an unnecessary party in the suit herein filed by the plaintiff, defeated claimant. See Suopan Asari v. Alima Bibi, AIR 1934 Mad 587 (A) and Mt. Maryam Bibi v. Ram Das, AIR 1922 All 404 (B), differing from Ghasi Ram v. Mongal Chand, ILR 28 All 41 (C). But the question is whether in the appeal taken by the plaintiff, the 2nd defendant, whose ownership of the articles attached had been upheld by the trial court as against the plaintiff and in favour of the 1st defendant attaching decree-holder, was not a necessary party. This depends on, whether the success of the appeal filed without the 2nd defendant will give rise to two inconsistent or contradictory decrees. As observed in Mulla's Code of Civil Procedure 12th edition p. 947:
“The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter. It is clear that a court should not be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to such a result there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties who are before it”.
5. Thus in Apurba Krishna v. Ram Bahadur, AIR 1936 Pat 191 (D), the trial court had either intentionally or through oversight omitted to grant interest pendente lite. The plaintiff in appeal from the decree praying for grant of the interest, failed to bring the legal representatives of a deceased respondent in time. The court held that the appeal abated as a whole for, if the appeal was allowed there would be two inconsistent decrees on the basis of the same handnote. Dealing with the contention that as the liability of the defendants was joint and several it was open to the plaintiff to proceed against the remaining respondents. Mohammad Noor, J. observed at page 192:
“That is so, so far as a suit is concerned; but different considerations arise in appeal. There may be cases in which a suit might not have abated but an appeal will abate”.
6. There can be no doubt in this case that the judgment of the lower appellate court allowing the appeal before it, has given rise to two contradictory decrees, in one and the same suit as regards the title of the 2nd defendant to the movables attached, one, that of the trial court upholding it and two that of the appellate court negativing it. The plaintiff would not have suffered if he had not impleaded the second defendant in the first instance. But having done so and failed in the trial court, it was impossible to carry on the appeal against the 1st defendant without the 2nd defendant also on the respondent's array. The consequence is, that the appeal filed in the lower appellate court by the plaintiff was unsustainable and this appeal will have to be allowed on this sole ground.
7. It is unnecessary in the light of the above conclusion to deal on the merits with the question of attachability of the articles, also argued on behalf of the special appellant. But having heard learned counsel and considered the matters, though in the absence of the respondent, I may say that I prefer the finding of the trial court on the matter to that of the learned Judge, particularly as the former had occasion to see the witnesses actually testifying. The plaintiff's case that the attachment had been levied in collusion between his brother-in-law the 2nd defendant and the 1st defendant creditor, is totally unbelievable in the circumstances and in my opinion, must be taken to give away the whole show.
8. In the result the second appeal is allowed and the decree of the trial court dismissing the suit with costs, is restored. The plaintiff will pay the 1st defendant his costs in this and the lower appellate court as well.
K.S.B
9. Appeal allowed.
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