The first question argued by Mr. Adiga is that as Rs. 10,000 was paid in furtherance of an agreement which fell through, that sum should not be regarded as having been paid in satisfaction of the common decree. The answer to this is that in the application for execution as regards the balance of Rs. 5,000, the 10,000 was referred to as having been paid in part satisfaction, and the present plaintiff did not object to this statement. It is not open to him now to contend that the Rs. 10,000 was not paid towards the decree. We must therefore uphold the order of the District Judge.
It was next objected that as the District Munsif passed several decrees against each of the defendants, and as only some of them appealed against the decrees so passed, it was not competent to the District Judge to act under O. 41, R. 33, Code of Civil Procedure, in favour of the defendants who did not appeal. The language of the rule is wide enough to cover the case, The use of two words Respondents and Parties shows that the legislature contemplated interference by the appellate Court even though some of the parties to the suit were not before it. This was the view taken in Venkatachella Pillai v. Ranga Pillai(1) and in Krishnaswami Naik v. Aiyappa Naik(2). As against these cases, the learned Vakil relied on the judgment of Kumaraswami Sastri, J., in Ramachandra Mallayya v. Narayana Hegade(3). The learned Judge rightly enough points out that no decree should be passed against a person without hearing him; but we do not think that this principle is applicable where the party who is not heard is not prejudiced by the order but is benefited by it. The learned judge relies upon the illustration to R. 33; but that illustration is not exhaustive of the scope of the rule. The very object of the rule is to enable a court to pass judgment or order which would give consistency to its decision and although the power in the case of a person who is not before it should be exercised with great care and caution, there is no ground for introducing into the language of the rule words which would unnecessarily hamper the court's discretion. We may also say that in the majority of cases where interference with a decree in favour of a person not before the court is deemed necessary, the court should implead him in the exercise of the plenary powers possessed by it, so that the benefit of the decree may be availed of in execution.
We think the order of the District Judge is right and dismiss the Second Appeal with costs.
K.V.SAppeal dismissed.