The Judgment of the Court was delivered by

Sir Arnold White, C.J:— I his is a suit in which the plaintiff claims to recover certain property from the defendants on the ground of an alleged sale to him by the third defendant, or, in the event of the sale being found invalid, for the return by the third defendant of the purchase money paid to him by the plaintiff. The District Munsif held on the ground of limitation that the plaintiff was not entitled to recover the property, dismissed the claim for possession, and gave judgment for the plaintiff against the third defendant for the recovery of the purchase money. The third defendant appealed. The plaintiff did not appeal against the dismissal of his suit for possession against defendants Nos. 1 and 2. The Subordinate Judge set aside the Munsif's decree for the recovery of the purchase money, and gave a decree for the plaintiff on his claim for possession against defendants Nos. 1 and 2. The third defendant made the plaintiff a respondent to the appeal to the lower Appellate Court. The plaintiff appealed and was represented at the hearing of the appeal, but it does not appear whether he took any part in the argument. The Subordinate Judge observes that he did not press, in appeal, his claim for possession.

One thing however is quite clear, and that is that he did not file any notice of objection to the decree under section 561 of the Code of Civil Procedure. It would seem that before the lower Appellate Court he was content with the decree given him by the Court of First Instance against the third defendant for the recovery of his purchase money. The first and second defendants have appealed to this Court against the decree of the lower Appellate Court and have made the third defendant and the plaintiff respondents to the appeal. Before this Court the plaintiff supports the decree for possession given him by the lower Appellate Court. I am of opinion that the decree of the lower Appellate Court cannot be upheld.

For the purposes of my judgment I assume that the suit is not bad for misjoinder. This point was raised before us on behalf of the appellants, but the point was not taken before the lower Appellate Court, and I do not think the appellants ought to be allowed to raise it here.

A good deal of argument was directed to the question whether the plaintiff, having regard to the form in which he made his claim, had any right of appeal against the decree of the District Munsif. The argument on behalf of the plaintiff was that as his claim was in the alternative, and he had obtained a decree on one branch of his claim he had no right of appeal, and that as much as he had no right of appeal, it was not open to him to give the notice required by section 561, and this being so, the lower Appellate Court had power to give a decree in his favour, notwithstanding the fact that the notice required by the section had not been given. I should he disposed to hold that section 561 only applies where a party, has a right of appeal but who until forced, or “invited” into Court does not think fit to exercise it. But it is not necessary to decide this question.

It seems to me that where a respondent to an appeal fails to give the notice required by section 561, it is not open to the Appellate Court to grant any relief to that respondent in a case where the granting of such relief is not necessarily incidental to the relief granted to a party who has appealed. This is obviously not the case here, for the lower Appellate Court could have given full relief to the appellant before that Court by simply setting aside the decree which had been obtained against him. This may seem to be a somewhat narrow ground on which to determine a question of jurisdiction but the powers of an appellate tribunal are the creature of statute and unless power to give such a decree as was given by the lower Appellate Court in this case is to be found in the provisions of the Code, the decree cannot be supported. We are asked to say that the case comes within section 544 of the Code since before the lower Appellate Court, the plaintiff and the third defendant were equally interested in maintaining the title of the third defendant to convey to the plaintiff; that before the lower Appellate Court the third defendant was really in the position of a plaintiff, seeking to make out as against defendants Nos. 1 and 2 his right to convey to the plaintiff, and that the decree appealed against proceeded on a “ground common to all the plaintiffs.” I do not think the section can be so construed. Even if it could, it is quite clear that the decree appealed against, did not proceed on a ground common to the plaintiff and the third defendant since it was a decree in favour of the plaintiff against the third defendant. Neither can it be said that the decree appealed against proceeded on a ground common to all the defendants since it was not the case of the third defendant that the plaintiff's claim for possession as against defendants Nos. 1 and 2 was barred by limitation. The powers of the Court of Appeal in England are regulated by Order LVIII of the Rules of the Supreme Court.

Rule 4 of this order is no doubt wide enough to cover a case like the present. But the powers of this Court are those given by the Code, and, under the provisions of the Code, in the absence of the notice of objection required by section 561, it seems to me there was no power in the lower Appellate Court to give the decree which is now before us. As regards the authorities in the case of Timmayya v. Lakshmana(1) the notice required by section 561 had been given by the party who had been made a respondent. The case of Soiru Padmanabh Rangappa v. Narayan Rao bin Vithal Rao may be distinguished on the ground that the relief granted by the Appellate Court to the plaintiff who had not appealed was necessarily incidental to the relief granted to the first defendant, who had appealed, as against the second defendant. The case of Hudson v. Basdeo Bajpye(2) where a party was added as a respondent to an appeal when no appeal had been made against him, was a decision under section 559 of the Code and the party was added on the ground that he was “interested in the result of the appeal.” In the case of Bishunchurn Ray Chowdhry v. Jogandra Nath Roy(3) where the plaintiff was not allowed to urge his cross objections against the non-appealing defendants, the notice required by section 561 had in fact been given by him.

In a recent case decided by a Full Bench of the Calcutta High Court (Rup Jaun Bibee v. Abdul Kadir Bhuyan(4)), the suit was one for contribution in which the plaintiff asked for relief against several defendants separately. The Court of First Instance gave a decree against defendant No. 1 and dismissed the suit against defendant No. 2. The plaintiff did not appeal. Defendant No. 1 appealed and made defendant No. 2 a respondent. The lower Appellate Court allowed the appeal of defendant No. 1 and gave the plaintiff a decree against defendant No. 2 instead of against defendant No. 1. On a reference to a Full Bench the decree of the lower Appellate Court was upheld, but the judgment was expressly limited to the case of a suit for contribution. The Full Bench declined to answer the general question referred to them the question whether an Appellate Court can give relief to a respondent who has not given the notice required by section 561 of the Code was not considered. I think the decree of the lower Appellate Court for possession by the plaintiff as against defendants Nos. 1 and 2 must be set aside. The appellants must pay the costs of the third defendant before this Court. We make no further order as to the costs of this appeal.

Subrahmania Ayyar, J.:— The appellant before us brought the suit out of which the appeal arises, in the District Munsif's Court for the partition and delivery of certain lands setting up title thereto under a purchase from the third defendant who was himself vendee of the same from the widow of a deceased brother of the first and second defendants. The plaintiff also prayed that in the event of its being found that his vendor had no right to convey the lands the latter may be directed to refund Rs. 300, the price paid by the plaintiff. The District Munsif being of opinion that defendants Nos. 1 and 2 had for the statutory period held adverse possession of the share of their deceased brother as against the widow, dismissed the suit for partition and delivery of the lands, and gave a decree to the plaintiff for Rs. 300 against the third defendant. This defendant preferred an appeal against the decree so given against him, impleading, as respondents not only the plaintiff but defendants Nos. 1 and 2 also. The plaintiff preferred no appeal against so much of the decree of the District Munsif as related to the dismissal of the suit for the lands nor preferred a memorandum of objections in the matter under section 561 of the Civil Procedure Code. The Subordinate Judge who heard the appeal having differed from the Munsif with reference to the question of adverse possession by defendants Nos. 1 and 2, reversed practically the whole decree, dismissed the suit for money as against the third defendant and decreed the claim for land as against the first and second defendants. The question in the present appeal of the first and second defendants is whether it was competent to the Subordinate Judge to reverse so much of the decree of the Munsif as was in their favour.

There can be no doubt that when in an appeal the conclusion of the Appellate Court with reference to matters properly arising before it is such as to render any portion of the decree of the lower Court not made the subject of appeal inconsistent with such conclusion, it would be not only anomalous to leave such portion of the decree in force while setting aside only so much of it as was comprised in the appeal, but it might also involve a broach of the rules as to res judicata. Take for instance a suit brought on a bond for a sum of money and a decree given for the whole amount claimed, but an appeal is preferred only in respect of part of the amount decreed. If the Appellate Court should find that the whole claim is barred by limitation, it could not for that reason properly reverse the decree in so far only as it was appealed against, for the decree so far as it has not been appealed against carries with it the assumption that there is no bar by limitation, and a decree resting on such assumption being final, would preclude a finding by any other Court to the contrary with reference to any claim based on the same right and between the same parties. It would seem therefore that in cases such as that supposed the only consistent course is to dismiss the appeal or to reverse the whole decree.

How then does the matter stand with reference to the provisions of our Civil Procedure Code? In instances falling within section 544 of the Code the provisions thereof fully enable an Appellate Court to avoid anomalies. In other cases also the desirable result could be brought about if the Court in which the appeal is pending takes the precaution of requiring a memorandum of objections being presented to it. This course will meet all cases so far as this Presidency is concerned inasmuch as according to the decisions of this Court such a memorandum may legally be filed even when the question arises as between co-respondents only. Nor would there be any obstacle on the score of its late presentation since it would be a legitimate ground to excuse the delay that the admission of the memorandum is required to do complete justice as between all the parties to the litigation. The difficulty can only arise when, as in the present case, the Appellate Court has failed to have this necessary precaution adopted. The absence of a provision corresponding to Rule 4 of Order LVIII of the English Supreme Court Rules would, where the section 544 has no application, seem to preclude the modification by the Appellate Court of the decree of the lower Court in favour of a party who has filed neither an appeal nor a memorandum of objections except as part and parcel of relief necessary to be granted to an appellant. The language of section 574 of the Civil Procedure Code is wide enough to cover such an exception and Soiru Padmanabh Rangappa v. Narayan Rao Bin Vithal Rao is a case that goes to support this view. It may be added that even with reference to the English Practice it was held by Jessel, M.R, and Cotton and Brett, L.JJ, in In re Cavander's Trusts that a respondent who wishes to have the decree appealed against varied with reference to a matter in which the appellant has no interest must himself file a notice of appeal. As to Rup Jaum Bibee v. Abdul Kadir Bhujan and the cases approved of therein, they are apparently in conflict with the above view of the effect of the provisions of the Code of Civil Procedure bearing on the point and if it is correct, it would follow that the Subordinate Judge had no power to reverse the decree as against the first and second defendants inasmuch as such reversal was not necessary to give relief to the appellant before him, viz., the third defendant who was disentitled to ask for anything more than the reversal of the decree directing him to refund the price, since, having sold the land, the right to claim present possession thereof had passed away from him so as to disentitle him to claim delivery.

I concur in the order proposed.