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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Binayendranath Palit for the appellants.
  • Upendrakumar Ray (for Birendrakumar De) for the respondents.
Judges
  • C.C Ghose
  • Pearson, JJ.
Acts
  • Order XLI, rule 20 of the Code of Civil Procedure
  • Article 62 of the Limitation Act.
  • Article 90 of the Limitation Act.
  • Order XLI, rule 33 and rule 20,
  • Order XLI, rule 20 and rule 33,
  • Order XLI, rule 33,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Binayendranath Palit for the appellants.
  • Upendrakumar Ray (for Birendrakumar De) for the respondents.
Judges
  • C.C Ghose
  • Pearson, JJ.
Acts
  • Order XLI, rule 20 of the Code of Civil Procedure
  • Article 62 of the Limitation Act.
  • Article 90 of the Limitation Act.
  • Order XLI, rule 33 and rule 20,
  • Order XLI, rule 20 and rule 33,
  • Order XLI, rule 33,
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This opinion concerns two distinct suits and their appeals to this Court.

Suit No. 1376 (mortgage suit): The plaintiff sued on a mortgage, alleging that Defendant No. 1 had failed to pay mortgage moneys and seeking a decree on the mortgage against Defendant No. 1. As to Defendant No. 2, the plaintiff alleged that Defendant No. 2 had realised certain moneys from Defendant No. 1 on account of the mortgage and sought a decree against Defendant No. 2 should it turn out that Defendant No. 2 had realised any or the whole of the mortgage moneys. The trial court found that Defendant No. 2 had realised Rs. 100 from Defendant No. 1 and that, by such payment, Defendant No. 1 had been released from the debt. The trial court dismissed the suit against Defendant No. 1, decreed Rs. 100 against Defendant No. 2 (the amount realised) and additionally awarded Rs. 100 as damages against Defendant No. 2 on the basis that Defendant No. 1 had been released by Defendant No. 2’s action. Defendant No. 2 appealed to the lower appellate court (Appeal No. 32). Defendant No. 1 was not made a party respondent in that appeal. The plaintiff lodged cross-objections within time but those cross-objections in part were directed against Defendant No. 1. The lower appellate court held that the plaintiff’s cross-objections insofar as they were directed against Defendant No. 1 could not be entertained (they were out of time and could not be allowed against an absent respondent), but on the merits reduced the decree against Defendant No. 2 from Rs. 200 to Rs. 100, holding there was no case for damages. The plaintiff appealed to this Court as S.A. 2276 of 1928.

Suit No. 1337 (accounting suit): The plaintiff alleged that Defendant No. 1, acting as her agent, realised sums on three dates (9 Sept. 1920; 26 June 1920; 20 Jan. 1921) and withheld these moneys from her. The trial court dismissed the suit as barred by limitation under Article 62 of the Limitation Act. The appeal in the lower appellate court was Appeal No. 31, and the second appeal to this Court is S.A. 2277 of 1928. This Court observed that the case might fall within Article 90 of the Limitation Act but that the date when the plaintiff became aware of the withholding must be ascertained; accordingly the Court set aside the lower appellate court’s judgment and remitted the matter to the lower appellate court for fact-finding and decision.

Legal Issues Presented

  1. Whether the lower appellate court erred in refusing to award damages against Defendant No. 2 (in the mortgage suit) and in reducing the decree against Defendant No. 2 from Rs. 200 to Rs. 100.
  2. Whether the lower appellate court had jurisdiction to entertain and determine the plaintiff’s cross-objections as against Defendant No. 1 (an absent respondent in the appeal) under Order XLI, rule 20 and Order XLI, rule 33 of the Code of Civil Procedure, and related authorities.
  3. In the accounting suit, whether the plaintiff’s cause of action is barred by limitation under Article 62 of the Limitation Act or whether it falls within Article 90 of the Limitation Act (requiring ascertainment of the date when the plaintiff became aware that moneys had been withheld).

Arguments of the Parties

Plaintiff's Arguments (as advanced by Mr. Palit)

  • The lower appellate court was wholly in error in not awarding damages against Defendant No. 2.
  • The lower appellate court should not have rejected the plaintiff’s cross-objections as against Defendant No. 1 (who was not a party respondent in the appeal) because:
    • For practical purposes Defendant No. 1 was effectively a party respondent as the cross-objections had been served upon him.
    • By the combined operation of Order XLI, rule 33 and rule 20 of the Code of Civil Procedure the lower appellate court had jurisdiction to determine the plaintiff’s claim as against Defendant No. 1 even though Defendant No. 1 had not been made a formal respondent in the appeal.
  • He relied on the decision in Bejoy Kumar Sen v. Kusum Kumari Debi in support of this contention.

The opinion does not contain a detailed account of the respondents’ (defendants’) counter-arguments before this Court beyond what is recorded in the lower courts’ reasoning and findings.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bejoy Kumar Sen v. Kusum Kumari Debi Invoked by plaintiff's counsel to support the contention that cross-objections served on an absent party could enable the appellate court to determine claims against that absent party. The Court noted the case was cited by Mr. Palit but expressed that, on the particular contention before them, authority lay with Privy Council decisions to the contrary; the Bejoy Kumar Sen decision had noticed other authorities but did not displace the Court’s view based on higher authority.
V.P.R.V Chokalingam Chetty v. Seethai Acha Authority (Privy Council) interpreting powers of appellate courts under Order XLI, particularly concerning the effect on absent respondents and limits on exercising powers to the detriment of an absent respondent. The Court regarded this Privy Council decision as decisive: it supports the proposition that the appellate court’s powers under Order XLI cannot be used to the detriment of an absent respondent who had been dismissed in the trial court. The Court relied on this case to reject the plaintiff’s contention about adjudicating against Defendant No. 1 in the absence of an appeal by or proper joinder of that defendant.
Mahomed Khaleel Shirazi and Sons v. Les Tanneries Lyonnaises Another authority noticed in argument concerning the scope of appellate powers and treatment of absent parties. The Court referred to this case among the authorities discussed at the bar but treated the Privy Council decision (V.P.R.V Chokalingam Chetty) as placing the matter beyond doubt against the plaintiff's contention.
Bhutnath Deb v. Shashimukhi Brahmani Illustrative authority that powers under Order XLI, rule 33 may be exercised in favour of an absent respondent. The Court acknowledged this authority as showing that appellate powers can be exercised in favour of an absent respondent, but distinguished it from the proposition that such powers may be exercised to the detriment of an absent respondent who was dismissed in the trial court; no authority was cited that went as far as to permit detriment to an absent dismissed respondent.

Court's Reasoning and Analysis

The Court addressed the issues by focusing on the language and scope of Order XLI, rules 20 and 33, and the practical meaning of the phrase “a party interested in the result of the appeal.”

On the contention that the lower appellate court should have entertained the plaintiff’s cross-objections against Defendant No. 1 despite his not being a party respondent: the Court reasoned that the crucial question is whether an individual who was dismissed by the trial court and who was not made a party to the appeal can properly be considered “a party interested in the result of the appeal” or otherwise be treated as somebody who may be affected by the result of the appeal or by cross-objections. If that cannot be so considered, then the wide powers conferred on the appellate court by Order XLI, rule 20 and rule 33 cannot be exercised so as to prejudice or detrimentally affect that absent person. The Court found no authority to support exercising those powers to the detriment of an absent respondent dismissed in the trial court and concluded that the lower appellate court was correct in refusing to entertain the cross-objections insofar as they were directed against Defendant No. 1. The Court relied upon and treated the Privy Council decision in V.P.R.V Chokalingam Chetty v. Seethai Acha (and other authorities) as determinative of this interpretation.

On the contention that damages ought to have been awarded against Defendant No. 2: the Court examined the factual findings and concluded succinctly that, on the facts found, there was no case of damages against Defendant No. 2. Thus no interference with the lower appellate court’s reduction of the decree against Defendant No. 2 was warranted.

In the accounting suit (S.A. 2277 of 1928), the Court analysed the limitation issue. Although the trial court had held the suit barred under Article 62 of the Limitation Act, this Court observed that, on the materials before it (trial judgment and the brief lower appellate judgment), it was not clear that Article 62 necessarily applied and there was “ample foundation” for contending that Article 90 of the Limitation Act might be applicable. Article 90 requires knowledge of the date when the plaintiff became aware of the cause for action (i.e., when she knew that moneys had been withheld). The Court concluded that the factual date(s) must be ascertained before Article 90 could be invoked; because that factual determination was not adequately made on the record, the Court set aside the lower appellate court’s decision and remitted the matter for ascertainment of the relevant date(s) and for disposal according to law.

Holding and Implications

Holding:

- With respect to S.A. 2276 of 1928 (mortgage suit appeal): the appeal is dismissed and the judgment and decree of the lower appellate court are affirmed. The Court found no merit in either contention of the plaintiff (no damages on the facts; no jurisdiction to adjudicate adversely against Defendant No. 1 who was absent and had been dismissed in the trial court). Costs were awarded against the appellant in that appeal.

- With respect to S.A. 2277 of 1928 (accounting suit appeal): the judgment and decree of the lower appellate court are set aside and the matter is remitted to the lower appellate court for ascertainment of the date(s) when the plaintiff became aware that moneys were being withheld; after such ascertainment the lower appellate court is to determine and dispose of the appeal according to law. The costs of this appeal will abide the result of the lower appellate court’s decision.

Implications:

  • Direct effect on parties: The decree against Defendant No. 2 was reduced by the lower appellate court and that modification is upheld; Defendant No. 1 remains unaffected by the appellate proceedings in S.A. 2276 (the Court will not permit adjudication to the detriment of an absent respondent dismissed in the trial court). In S.A. 2277 the lower appellate court must now determine factual dates critical to the limitation question and then decide the appeal.
  • Precedential implication: The Court relied on existing authorities (including a Privy Council decision) to limit the use of Order XLI powers so as not to prejudice absent respondents dismissed at trial. The opinion affirms that factual findings important to limitation (e.g., date of knowledge) must be specifically ascertained before invoking Article 90; however, the Court did not purport to lay down a new general principle beyond the application of cited authorities to these facts.
Show full summary ...

    Saktiprasanna Bhattacharya v. Naliniranjan Bhattacharya

    C.C Ghose and Pearson, JJ.:— There were two suits instituted in the trial court. One was suit No. 1376, which was a suit on a mortgage. The plaintiff's allegation was that the defendant No. 1 had failed to pay the mortgage moneys. The plaintiff, therefore, prayed for a decree on the mortgage as against the defendant No. 1. Her allegation against the defendant No. 2 was that she had come to know that certain moneys had been realised by defendant No. 2 from defendant No. 1 on account of the mortgage and the plaintiff prayed that should it turn out that defendant No. 2 realised any moneys or the whole of the mortgage moneys from defendant No. 1, then a decree for money on account of the mortgage might be made against defendant No. 2. The first court found that defendant No. 2 had realised a sum of Rs. 100 from defendant No. 1 and that defendant No. 1, by such payment, had been released by the defendant No. 2 from the debt in question. The first court, accordingly, dismissed the suit as against defendant No. 1, but decreed the suit against defendant No. 2 for Rs. 100 which had been realised by him from defendant No. 1, and also passed a decree for a sum of Rs. 100 on account of damages, inasmuch as, owing to the action of defendant No. 2, the defendant No. 1 had been released by him from the mortgage debt. The defendant No. 2 appealed to the lower appellate court, his appeal being numbered as appeal No. 32. To that appeal the only respondent was the plaintiff. The defendant No. 1 was not made a party respondent to the appeal. The plaintiff, however, preferred certain cross-objections. These cross-objections were lodged within one month from the date of service of notice of appeal on her. But in these cross-objections the case on behalf of the plaintiff was not only directed against defendant No. 2, who was the appellant in the lower appellate court, but against the defendant No. 1, against whom the suit had been dismissed by the trial court and who was not made a party respondent to the appeal. The lower appellate court came to the conclusion that, inasmuch as the plaintiff had not preferred any appeal against the defendant No. 1, her cross-objections, though in part directed against defendant No. 1, could not be entertained, as they were out of time and also because no such cross-objections can be allowed against an absent respondent. It may be noted in this connection that notice of the cross-objections was served upon the absent defendant No. 1. The lower appellate court came to the conclusion, however, on the merits that the decree against defendant No. 2 for Rs. 200 should not be allowed to stand. The lower appellate court modified the decree against defendant No. 2 by reducing it from Rs. 200 to Rs. 100 (the last mentioned amount being the amount which had been realised by defendant No. 2 from defendant No. 1), holding that there was no case for the award of damages against defendant No. 2.

    Mr. Palit has now, on behalf of the plaintiff, preferred an appeal to this Court and this appeal has been numbered S.A 2276 of 1928. He has in his memorandum of appeal on behalf of the plaintiff made the two defendants respondents to this appeal and his argument is twofold. In the first place, he argues that the lower appellate court was wholly in error in not awarding damages against defendant No. 2. In the second place, he argues that the lower appellate court should not have thrown out the case that his client sought to make in the cross-objections as against defendant No. 1, although defendant No. 1 was not a party respondent in the appeal before the lower appellate court. He formulates his case against defendant No. 1 in the following manner. He says that, for all practical purposes, the defendant No. 1 was a party respondent to the appeal before the lower appellate court, inasmuch as the cross-objection on behalf of the plaintiff had been served on the defendant No. 1. In the second place, he argues that, by virtue of the combined operation of Order XLI, rule 33 and rule 20, the lower appellate court had clear jurisdiction in the matter and should have determined the plaintiff's claim as against defendant No. 1, although defendant No. 2, in his appeal to the lower appellate court, had not made defendant No. 1 a party respondent thereto. In support of his last contention Mr. Palit has invited our attention to the case of Bejoy Kumar Sen v. Kusum Kumari Debi, being a decision of our learned brothers Mr. Justice Suhrawardy and Mr. Justice Garlick. But, in our opinion, so far as this last contention is concerned, the case is covered by the authority of their Lordships of the Judicial Committee in the two cases to which reference has been made during the course of the argument at the bar, the case of V.P.R.V Chokalingam Chetty v. Seethai Acha and the case of Mahomed Khaleel Shirazi and Sons v. Les Tanneries Lyonnaises.

    The whole point resolves itself into a consideration of the precise meaning to be attached to the words “a party interested in the result of the appeal” appearing in Order XLI, rule 20 of the Code of Civil Procedure and the words “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.” As their Lordships point out in the circumstances such as have happened in this case, is it possible to say that the defendant, against whom the suit had been dismissed by the trial court and who has not been made a party to an appeal preferred against that decree before the lower appellate court, is still interested in the result of the appeal? If he cannot be considered to be a person who is still interested in the result of the appeal or if he cannot be considered to be a person who may be affected by the result of the appeal, within which expression is included the determination of the appeal itself as also the determination of any cross-objection which may be preferred by the respondent who is a party to the appeal, then it must follow that the powers of the court, however ample they may be within the ambit of Order XLI, rule 20 and rule 33, cannot be used to the detriment or prejudice of the person against whom the suit has been dismissed in the trial court and against whom no appeal had been preferred before the lower appellate court. It is true that the case of Mahomed Khaleel Shirazi has been noticed in the judgment of Mr. Justice Suhrawardy and Mr. Justice Garlick in the case of Bejoy Kumar Sen v. Kusum Kumari Debi, but it does seem to us that the matter has been put beyond all doubt by the decision of the Privy Council in the case of V.P.R.V Chokalingam Chetty v. Seethai Acha. The powers under Order XLI, rule 33, may no doubt be exercised in favour of an absent respondent. That is illustrated by the case of Bhutnath Deb v. Shashimukhi Brahmani(4). But we are not aware of any authority which has gone so far as to lay down in definite terms that such powers may be exercised, as stated above, to the detriment or prejudice of an absent respondent, against whom in the lower court the suit had been dismissed. For these reasons, we are of opinion that there is no substance in the second contention of Mr. Palit. We are of opinion that it is impossible for us to interfere with the judgment and decree of the lower appellate court as against the defendant No. 1.

    With, reference to Mr. Palit's first contention that the lower appellate court should not have interfered with the decree which awarded damages as against defendant No. 2, it is sufficient to point out that, on the facts found, there is really no case of damages as against defendant No. 2.

    The result, therefore, is that on both the points the judgment of the lower appellate court must be affirmed and this appeal No. 2276 of 1928 must be dismissed with costs.

    S.A 2277 of 1928.

    The second suit between the parties is a suit for accounts. This was numbered in the first court as suit No. 1337. The appeal arising there out is appeal No. 31 in the lower appellate court. The Second Appeal to this Court is appeal No. 2277 of 1928. The short facts, so far as this appeal is concerned, are these. The defendant No. 1 acted as agent of the plaintiff in the matter of the realisation of certain debts due to the plaintiff. The plaintiff's allegation is that, on three several dates, namely on the 9th September, 1920, 26th June, 1920, and 20th January, 1921, the defendant No. 1 had realised considerable sums of money from her debtors, but he withheld payments of these moneys from her. In the plaint she states that, after her husband's death, she made enquiries that these moneys had been realised and that the defendant No. 1 had not paid to her the same. Demand is said to have been made on her behalf on some date in 1331 B.S, which would correspond with some date in 1925. The plaintiff's suit has been dismissed on the ground that it is barred by limitation under Article 62 of the Limitation Act. As far as we can judge from the materials before us, namely, the judgment of the trial court and the very short judgment of the lower appellate court on this point, it is by no means clear that the plaintiff's case does not come within the purview of Article 90 of the Limitation Act. In our opinion, there is ample foundation for the contention that the case does come with the purview of Article 90. But before any definite pronouncement can be made, the facts have got to be investigated and elicited. It does not appear from the materials on the record, so we are informed by the learned advocate for the plaintiff, that the date or time when the fact of the defendant No. 1 having withheld these moneys from the plaintiff became known to the plaintiff can be ascertained. That date must be ascertained before Article 90 of the Limitation Act can be invoked.

    We, therefore, set aside the judgment and decree of the lower appellate court and remit the matter to that court for ascertainment of the date or dates bearing on the question referred to above and after such ascertainment to determine the case and dispose of the appeal according to law.

    The costs of this appeal will abide the result of the decision of the lower appellate court.

    A.K.D
    Case remanded.

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    Saktiprasanna Bhattacharya v. Naliniranjan Bhattacharya
    (Nov 26, 1930)