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1904 DIGILAW 92 (ALL)

Farzand Ali Khan v. Bismillah Begam

1904-05-25

BANERJI, BLAIR

body1904
JUDGMENT : Blair, J. The suit out of which this appeal arises was a suit for profits against two defendants on the allegation that they were both lambardars. The first Court dismissed the claim as against one of the defendants, the present appellant, Farzand Ali. The other defendant, Chaudhri Mahmud Khan, against whom the whole of the plaintiff's claim had been decreed, appealed making Farzand Ali, the present appellant, a party to that appeal. The Court below has held that Farzand Ali is jointly liable with the appellant then before the Court to pay profits to the plaintiff. The Court made a decree to that effect against Farzand Ali, and also ordered him to pay costs. It is against that decree that the present appeal is filed. Farzand Ali having been dismissed from the suit by the Court of first instance, the plaintiff did not appeal against the decree dismissing him from the suit. It is contended 0 : 1 behalf of the respondent that the Court below was acting within its rights in passing a decree against Farzand Ali. In support of that contention he cites the Full Bench case of Rup Jan Bibi v. Abdul Kader Bhajan reported in 8 C.W. N., 496. In that case the referring Judges have expressed grave doubts upon the question. The Full Bench heard the case and gave a decision to the effect that the Court was acting within its powers in so passing a decree in a suit for contribution. 2. That Court gives no reason for the conclusion at which it arrived. We are of course not bound by the authority of the Calcutta Court, and though we always consider with much respect the decisions of the other Courts in India, a decision which is unsupported by reasoning, does not command the respect which we should otherwise have been bound to pay it. On the other hand there are two decisions of this Court—one in Ranjit Singh v. Sheo Prasad Ram, [1879] I.L.R., 2 All., 487 and the other in Atma Ram v. Balkishen, [1888] I.L.R., 5 All., 266. Both these decisions go the length desired by the appellant here. On the other hand there are two decisions of this Court—one in Ranjit Singh v. Sheo Prasad Ram, [1879] I.L.R., 2 All., 487 and the other in Atma Ram v. Balkishen, [1888] I.L.R., 5 All., 266. Both these decisions go the length desired by the appellant here. They hold that when a suit has been dismissed against one of two defendants by the Court of first instance, and the defeated plaintiff has not appealed against that part of the decree, the addition of the defendant against whom the suit has been dismissed, to the array of parties, does not empower the appellate Court to pass against him a decree which the, Court of first instance declined to pass, and in the decision of which Court the plaintiff chose to acquiesce. We decree this appeal and set aside the decree of the Court below as far as it decrees the claim against Farzand Ali Khan, the respondent, Mahmud Khan, will pay the costs of the appellant in this Court and in the lower appellate Court.