Velamma Muthamma v. Krishnaswamy Naidu Muthu Pillai Naidu
1952-12-02
JOSEPH VITHAYATHIL, K.SANKARAN
body1952
DigiLaw.ai
ORDER : Joseph Vithayathil, J. The second appeal is from the judgments and decrees in three appeals filed by three different parties in the same suit. The suit is for recovery of possession of properties with mesne profits. From the portion of the decree which made the 6th defendant liable for mesne profits he preferred A. S. No. 312 of 1124. The legal representatives of the 2nd defendant filed A. S. No. 292 of 1124 from that portion of the decree which allowed the plaintiff to recover possession of plaint item No. 1. The plaintiff preferred A.S. No. 315 of 1124 from the portion of the decree which disallowed his claim in respect of plaint schedule item No. 2. All the three appeals were heard together. But three separate judgments were written and three separate decrees also were prepared. The plaintiff has filed this second appeal from all the three decrees. The question was raised by the office as to whether the plaintiff should be ordered to file three separate appeals from the three separate decrees. Notice was given to the Advocate General and the Government Pleader was beard on the matter. 2. It was argued for the appellant that since the three appeals in the lower appellate Court were from the same decree the three decrees passed by that court in the three appeals should be regarded as one decree passed in the case. This question came up for consideration in Nanu Prasad v. Nassim Hussain (I.L.R. 50 All. 517). In that case Lindsay, J. observed thus: “The law, in my opinion, contemplates that there should be only one decree in one suit, except in certain cases in which the Code of Civil Procedure lays down that there my or must be two decrees, namely, one preliminary decree and one final.” The learned Judge followed an earlier decision of the Allahabad High Court in Muhammad Sulaiman Khan v. Mohammad Yar Khan (I.L.R. 11 All. 267, where it was held that the decree of the appellate Court supersedes the decree of the first court even when the appeal decree merely affirms the original decree and does not reverie or modify it.
267, where it was held that the decree of the appellate Court supersedes the decree of the first court even when the appeal decree merely affirms the original decree and does not reverie or modify it. The learned Judge further observed: “The function of the appellate Court is to determine what decree the Court below ought to have made and it follows that where the trial Court has passed only one decree there can be substituted for that decree only one decree should the case come up in appeal. So, while it may be that for purposes of procedure and in order to formally complete the records it may be necessary in the case of cross appeals to draw up a separate decree in each case, there is, in fact, only one and the same decree which ought to be incorporated with each appeal record. Either decree, read, if necessary for purposes of interpretation with the decree of the trial Court ought to produce the same result.” In Lala Rughoobons Sahov v. Mt. Asloo (1878) 10 W.R.1294.Phear, J. observed thus: “It is however obvious that when two parties to a suit appeal so that the one appeal is but the cross-appeal of the other there ought to be only one final decree made between the two parties.” Order 41, Rule 35 (2), Code of Civil Procedure, requires that the decree passed in appeal shall contain “A clear specification of the relief granted or adjudication made in appeal as also in the decree appealed from.” Rule 129 of the Travancore Civil Courts Guide provides thus: “The decree of the appellate courts in all cases where the decrees of the lower Courts are modified or reversed shall be self-explanatory, namely, the portion of the decree of the lower Court confirmed being reproduced and amendments duly entered.” It will thus be seen what the law requires is that the decree passed by the appellate court should be a complete self-explanatory decree containing the final adjudication of the rights in dispute between the parties in the suit. Such being the nature of the appellate decree it is clear that there can be only one such decree in a case. Therefore even if separate decrees are drawn up in separate appeals filed from the same decree, the final decree in the case will be all the decrees taken together.
Such being the nature of the appellate decree it is clear that there can be only one such decree in a case. Therefore even if separate decrees are drawn up in separate appeals filed from the same decree, the final decree in the case will be all the decrees taken together. What the appellate court should do in such cases is to draw up only one decree. Rule 124 (2) of the Travancore Civil Courts Guide requires that “if more than one appeal is made against the same decree, the appeals shall, if possible, be heard together and one decree only shall be drawn up which shall be headed with the cause-titles of the several appeals”. Since the three appeals filed in the lower appellate court were from the same decree only one decree ought to have been drawn up in this case as provided in Rule 124 (2) of the Civil Courts Guide. Difficulties may arise if the several appeals filed from the game decree are heard at different times and separate decrees are drawn up. In such cases the period of limitation for preferring second appeals from the different decrees may be different and the question may arise as to whether a party’s right to appeal from one decree may not be lost on the expiry of the period of limitation for preferring an appeal from that decree merely because the period of limitation for preferring an appeal from another decree has not expired It is to avoid such difficulties that Rule 124 (2) of the Civil Courts Guide enjoins that when there are more than one appeal filed from the same decree the appeals shall if possible be heard together. In this case this difficulty has not arisen since all the three appeals were heard together and judgments were pronounced on the same day. 3. For the reasons mentioned above we hold that it is enough if on appeal is filed in this case from the three decrees of the lower appellate court.