JUDGMENT :- These are three connected second appeals by a defendant and they arise out of three suits for the recovery of Rs. 1591/10, Rs. 1064/-, and Rs. 1952/- respectively on the basis of three bonds. In each of the suits, there were 3 defendants, Sant, Devi Singh and Puran Chand. The suits were consolidated by order of the trial Court and evidence was recorded in suit No. 80. Sant, defendant, while admitting receipt of the above sums pleaded that he was only an agent of the other two defendants and he made over the sums to the latter and transmitted their acknowledgments to the plaintiffs. 2. Puran Chand disclaimed all liability. He alleged that as mukhtiar of Devi Singh, he wrote the letters in question to Sant Ram. 3. Devi Singh categorically denied having authorized Puran Chand or Sant to borrow the monies in question from the plaintiffs. 4. The trial Court-(Sub-Judge Mandi) decreed the suits against Devi Singh defendant, alone, holding that the sums in question had been borrowed by Sant on behalf of Devi Singh and the same were spent on Devi Singhs work in Saraj. 5. Devi Singh went up in appeal to the learned District Judge of Mandi, who came to the conclusion that Devi Singh had been wrongly saddled with the liability of these bands. Consequently, he set aside the decrees passed by the trial Court and instead granted the plaintiffs, decrees for the sums in suits, against Sant alone. 6. Sant has now come up in second appeal in all the three suits. 7. I have heard learned counsel for the parties at considerable length. I have also looked into the originals of the three bonds, which were specially summoned from the plaintiffs-respondents. For reasons to be stated shortly, I am of the opinion that the decision of the learned District Judge is right and there is no force in these appeals. 8. The first point argued by learned counsel for the appellant was that the learned District Judge was not justified in granting decrees against Bant, in view of the fact that the trial Court had dismissed the suits as far as they lay against Sant and no cross-objection had been filed by the plaintiff against that portion of the trial Courts decrees. Mr. Mr. Kedar Ishwar contended that the only course open to the District Judge was to set aside the decrees against Devi Singh, i.e. the suits should have been dismissed in toto. In this connection, learned counsel for the appellant cited the following rulings : 8a. - Surendra Nath Ghosh v. Surendra Nath Jordar, 1939 Cal 593 (AIR V 26) (A). There a Division Bench of the Calcutta High Court observed that : "Where the plaintiffs suit against several defendants is dismissed as against one of them and the plaintiff does not prefer any appeal or cross-objection in the lower appellate Court against the trial Courts decision nor is the point taken as a ground of second appeal to the High Court, it is not proper to give the plaintiff any relief under O. 41 R. 33 against such defendant against whom the suit was dismissed." This ruling, in my opinion, is not applicable to the facts of the present case. In his grounds of appeal to the District Judge, Devi Singh contended that the plaintiffs were in collusion with Sant and Puran Chand defendants and were out to defraud him (Devi Singh). He further pleaded that the sums in question had been appropriated by Sant and Puran Chand defendants and the plaintiffs fraudulently wanted to fasten the liability of these sums en him, i.e. Devi Singh. In para 17 of the grounds of appeal to the District Judge, Devi Singh states "The liabilities, If at all, rest with defendants 1 and 3". 9. In the course of his judgment, the learned District Judge remarks "Their (i.e. the plaintiffs) learned counsel Shri Vidya Sagar has simply urged that they will foe content with decrees against any one of the defendants and he prays that in case it be found that the decrees cannot stand against Devi Singh appellant, the plaintiffs may be granted decree against Sant defendant-respondent who is the actual borrower." 10. Thus it is clear that the plaintiffs position before the lower appellate Court was that failing Devi Singh, they should be granted decrees against Sant defendant. Consequently, the Calcutta ruling, in my view, is not applicable. 11. (b)- Mt. Jagpati Kuer v. Sukhdeo Prasad. 1942 Pat 204 (AIR V 29) (B). There Meredith and J. indicated that : "Order 41, Rr. Consequently, the Calcutta ruling, in my view, is not applicable. 11. (b)- Mt. Jagpati Kuer v. Sukhdeo Prasad. 1942 Pat 204 (AIR V 29) (B). There Meredith and J. indicated that : "Order 41, Rr. 4 and 33 are in wide terms and, do give the appellate Court ample power to pass such orders as it may deem just and proper and necessary to do full justice, having regard to all the circumstances of the case but they must not be so applied as to disregard other provisions o£ the law, such as those contained in the Limitation Act and the Court-fees Act. Therefore a right of appeal after it has lapsed should not be handed out gratuitously to persons, who have themselves neglected to avail of it, especially when they have not asked for it, and. the interests of the case do not require it for the purpose of doing justice to the person, who has appealed. Such a case is not one, for the application by the Court of the powers which O. 41, R. 4 and O. 41, R. 33 confer upon it." This ruling, again, is not applicable to the facts of the present case. As pointed out by me, while dealing with the Calcutta ruling above, the plaintiffs definitely requested the learned District Judge to grant decrees against Sant, failing Devi Singh. 12. (c)-Bir Singh v. Budhu Ram, 1950 Pat 346 (AIR V 37) (C). There Das and Sarjoo Prosad, JJ. were of the view that : "Though O. 41, R. 33 is in very wide terms, it must not be interpreted in such a way as to abrogate the other provisions in the Code with regard to the filing of appeals, cross-objections, etc. As an ordinary rule, an appellate Court must not reverse or vary a decree in favour of a party who has not preferred any appeal or cross-objection against it and this general rule should hold good notwithstanding the enactment of R. 33. As an ordinary rule, an appellate Court must not reverse or vary a decree in favour of a party who has not preferred any appeal or cross-objection against it and this general rule should hold good notwithstanding the enactment of R. 33. The illustration to the rule gives some indication of the class of cases in which R. 33 will apply; for example, it applies to cases where, as a result of interference in favour of the appellant, further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience." This ruling, if any thing, goes in favour of the plaintiffs. In his statement under O. 10, R. 1, C.P.C., made on 23-6-50, Mr. I.D. Abrol, Advocate for the plaintiffs, prayed that failing Devi Singh an Puran Chand, decrees may be passed against Sant This case is identical with the illustration to O. 41, R, 33 which runs as follows : A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate Court decides in favour of X, It has power to pass a decree against Y." On the same analogy, the plaintiffs in the present case claimed sums of money from Devi Singh and Puran Chand and failing them, from Sant. The trial Court granted decrees against Devi Singh. Devi Singh appealed to the District Judge and the plaintiffs as well as Puran Chand and; Sant, were impleaded as respondents. The District Judge decided in favour of Devi Singh. Therefore, on the analogy of the illustration to R. 33 O. 41, he had power to pass decrees against Sant. 13. (d)- Pocmalal Ammal v. Subbammal, 19535 Mad 568 (AIR V 40) (D). There, it would appear that the memoir of cross-objection was filed in the High Court by defendant 1, while she did not file an appeal against the judgment of the trial Court decreeing the suit against her. 13. (d)- Pocmalal Ammal v. Subbammal, 19535 Mad 568 (AIR V 40) (D). There, it would appear that the memoir of cross-objection was filed in the High Court by defendant 1, while she did not file an appeal against the judgment of the trial Court decreeing the suit against her. Under those circumstances, a learned Judge of Madras High Court remarked : "For the first time she has filed a memorandum of cross-objections here which, in effect, is only an, appeal against the decree of the trial Court invoking O. 41, R. 33, Civil P.C. I do not think chat provision is meant to be exercised in favour of a party who. did not choose to the an appeal against the judgment of the trial Court and allowed it to become final. Therefore O. 41, R. 33, Civil P.C. does not avail him. Even otherwise this is not a case in which this Court would exercise its discretion under O, 41, R. S3 Civil P.C." 14. Here, as already remarked, the facts are different. The plaintiffs obtained a decree in the trial Court against one of the defendants. That defendant appealed to the District Judge and latter while accepting the appeal granted the plaintiffs decrees against another defendant. Such a course is expressly provided for by the illustration (cited above) to O. 41, R. 33. 15. In this connection, learned counsel for the plaintiffs cited two rulings : 16. (1) - Keshwar Sao v. Guni Singh, 1338 Pat 275 (AIR V 25) (E). There the facts were similar to those of the present case. The plaintiffs sued two sets of defendants and claimed relief against first set or in the alternative the second set. The trial Court granted decrees against the first set of defendants. The plaintiffs did not appeal. The defendants first set, however, appealed and the appellate Court passed a decree against the defendants second set. Under those circumstances, Wort and Varma, JJ. held that : "The powers of the Appellate Court are governed by O. 41, R. 33 and are sufficiently wide to empower it to pass such a decree." (2) - R. Ponnari Rao v. R. Lakshmi Narasamma, 1938 Mad 322 (AIR V 25) (F). Under those circumstances, Wort and Varma, JJ. held that : "The powers of the Appellate Court are governed by O. 41, R. 33 and are sufficiently wide to empower it to pass such a decree." (2) - R. Ponnari Rao v. R. Lakshmi Narasamma, 1938 Mad 322 (AIR V 25) (F). There a Division Bench of Madras High Court, following - Subramanian Chettiar v. Sinnamai, 1930 Mad 801 (FB) (AIR V 17) (G), observed that : "The Appellate Court has power under R. 33 of O. 41 to vary the decree of the lower Courts although the variation may benefit a party who has not appealed, but the Court will exercise a wise judicial discretion in using such power." 17. In view of the provisions of O. 41 R. 33, Civil P.C., and the authorities cited above, I am of the opinion that the learned District Judge was well within his rights in granting decrees against Sant, while setting aside the decrees granted by the trial Court against Devi Singh-although no cross-appeal or cross-objection was filed by the plaintiffs. 18. That brings us to the evidence on the record (After discussing the evidence, the judgment proceeded) : In view of all what has been said above, I consider that the learned District Judge was justified in setting aside the decrees against Devi Singh and in passing decrees against Sant under the provisions of O. 41, R. 33. These appeals must, therefore, fail. 19. There remains the question of costs. The controversy in this Court has centred between Sant Ram appellant and Devi Singh respondent 3. In my view therefore, the appellant is liable to pay costs to respondent 3. in this Court while the other respondents should bear their own costs. ORDER :- 20. I dismiss all the three appeals. Devi Singh respondent 3 will get his costs of these appeals from the appellant. Other respondents will bear their own costs. This order will be read in all the three appeals. Appeals dismissed. AIR 1956 HIMACHAL PRADESH 37 (Vol. 43, C. 15 June) "Brijlal v. Tikhu" HIMACHAL PRADESH HIGH COURT Coram : 1 RAMABHADRAN, J.C. ( Single Bench ) Brijlal and others, Defendants-Petitioners v. Tikhu and others, Plaintiffs-Respondents. Civil Revn. No. 2 of 1955, D/- 12 -11 -1955, from order of Disk J., Bilaspur, D/- 9 -6 -1954. Appeals dismissed. AIR 1956 HIMACHAL PRADESH 37 (Vol. 43, C. 15 June) "Brijlal v. Tikhu" HIMACHAL PRADESH HIGH COURT Coram : 1 RAMABHADRAN, J.C. ( Single Bench ) Brijlal and others, Defendants-Petitioners v. Tikhu and others, Plaintiffs-Respondents. Civil Revn. No. 2 of 1955, D/- 12 -11 -1955, from order of Disk J., Bilaspur, D/- 9 -6 -1954. Civil P.C. (5 of 1908), O.41, R.25, R.27, S.151, S.115 - APPEAL - APPELLATE COURT - INHERENT POWERS - REVISION - EVIDENCE - Appellate Court - Power to frame issue and take evidence - Disregard of procedure under - Effect. Rule 25 of O. 41 empowers the appellate Court, in a case where the trial Court has omitted to frame or try any issue or determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon its merits, to frame the necessary issues and refer them to the trial Court for its findings. Further, if fresh issues cannot be framed without examining the parties, the Court of Appeal certainly is not debarred from examining them. But an order by the appellate Court remanding the case to the trial Court under S. 151, Civil P.C. disregarding the procedure provided by O. 41, R. 25 or R. 27 amounts to a material irregularity in exercise of its jurisdiction and can be set aside in revision. AIR 1935 Bom 216, Rel. on. (Para 4) Anno : AIR Com : Civil P.C., S. 115, N. 12. 1953 Mulla : S. 115, P. 420, N "Where. .......irregularity", P. 421, N "What.........irregularity", P. 425, N "What.... ..irregularity" (Various conflicts not resolved in Mulla - AIR Com. note -illustrative - Reference citation under Pt. (x) in Mulla is wrong - Statement of law under the point is inadequate). AIR Com. : Civil P.C., S. 151, N. 2. 1953 Mulla : S. 151, P. 476, N Inherent powers of Court" (AIR Com. note exhaustive and illustrative). AIR Com. : Civil P.C., O. 41, R. 25, N. 14. 1953 Mulla : O. 41, R. 25 (AIR Com. note extra-cases referred to under note not referred to in Mulla). AIR Com. : Civil P.C., O. 41, R. 27, N. 20. 1953 Mulla : O. 41, R. 27 (AIR Com. topic extra). note exhaustive and illustrative). AIR Com. : Civil P.C., O. 41, R. 25, N. 14. 1953 Mulla : O. 41, R. 25 (AIR Com. note extra-cases referred to under note not referred to in Mulla). AIR Com. : Civil P.C., O. 41, R. 27, N. 20. 1953 Mulla : O. 41, R. 27 (AIR Com. topic extra). Cases Referred : Courtwise Chorological Paras (A) (V 22) AIR 1935 Bom 216 : 156 Ind Cas 381 4 Kirti Ram, for Petitioners; H.C. Anand, for Respondents. Judgement JUDGMENT :- This was, originally, filed as a First Appeal from an order of remand under O. 43, R. 1(u), Civil P.C. For reasons stated it this Courts-order dated 11-1-1955, however, I held, that the order of remand was not under O. 41, R. 23, but under S. 151, Civil P.C., and consequently, no appeal lay. At the request of the appellants counsel, the memorandum of appeal was treated as a revision petition and admitted on the point that the order of remand, did not conform to law. 2. To-day, I have heard learned counsel for the parties. This matter had come up before this Court on two earlier occasions. When it was last heard by this Court on 3-4-1954, I had directed the learned District Judge to rehear the appeal after shaking off the impression that there had been any finding regarding custom by my learned predecessor in his order dated 2-1-1952. Towards the end of my order, I had observed :- "The hands of the District Judge are not tied at all and in rehearing the appeal, he will have all the powers conferred on a Court of Appeal by the Civil Procedure Code. If he considers that any particular matter or aspect of the case requires further investigation, he would be at liberty to investigate that matter." 3. When the appeal went back to the learned District Judge (Mr. J.P. Thakore), he felt that it was necessary to examine the parties in respect of the allegations made in paras 2 and 4 of the plaint; and to grant the parties an opportunity to lead evidence on issue No. 8. Having come so far, the District Judge then passed an. J.P. Thakore), he felt that it was necessary to examine the parties in respect of the allegations made in paras 2 and 4 of the plaint; and to grant the parties an opportunity to lead evidence on issue No. 8. Having come so far, the District Judge then passed an. order remanding the case to the trial Court with directions to examine the parties on paras 2 and 4 of the plaint, if necessary, to let the pleadings be amended on the strength of those statements, to recast issue No. 8, if need be, and then allow the parties an opportunity to lead evidence en the issue as recast and, finally, decide the suit afresh. Learned counsel for the petitioners contended that there was no justification for permitting the plaintiffs to set up a new case. Mr. Anand for the respondents, on the other hand, urged that the pleadings were already there and it was only a question of interpreting them correctly. 4. It does not appear necessary for me to express an opinion on this matter, because it seems to me that the order of remand could have been dispensed with. Any difficulty experienced by the learned Dt. Judge could have been overcome by having recourse to the provisions of O. 41, R. 25 or 27. I may point out that R. 25 of O. 41 empowers the appellate Court, in a case where the trial Court has omitted to frame or try any issue or determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon its merits, to frame the necessary issues and refer them to the trial Court for its findings. Further, if fresh issues cannot be framed without examining the parties, the Court of Appeal certainly is not debarred from examining them. No reasons have been given by the learned District Judge for refusing to proceed under O. 41, R. 25 or 27 and instead proceeding under S. 151. In Purshottam Dattatraya v. Yeshvadabai Jayadeo, AIR 1935 Bom. 216 2(A), Broomfield, J., remarked that : "The Court has an inherent power to remand a case, even where R. 23 does not apply provided that the interests of justice require it. In Purshottam Dattatraya v. Yeshvadabai Jayadeo, AIR 1935 Bom. 216 2(A), Broomfield, J., remarked that : "The Court has an inherent power to remand a case, even where R. 23 does not apply provided that the interests of justice require it. But it has no inherent power to disregard a method of procedure, enjoined or provided by the Court and adopt a different one, unless it really is necessary in the interest of justice. Hence, where the lower appellate Court purports to remand a case under its inherent power, in a case covered by one1 of the rules of the Code, it is a material Irregularity in the exercise of its jurisdiction by the lower appellate Court which the High Court can cure by interfering in revision." 5. There is another aspect of the case. The suit, out of which this revision petition arises, was instituted on 19th Chet 2004 B. Since then it has had a chequered career. The suit was decided by the trial Court on 15-7-1949. Subsequent to that, the matter has been three times before this Court and three times before the District Judge. It seems desirable that the matter should be finally disposed of on its merits as soon as possible. 6. In view of all that has been said above, I allow this revision petition and" set aside the order of remand made by the learned District Judge (Mr. Thakore) on 9-6-1954. The present Dt. Judge, or the Additional District Judge (in case the appeal is transferred to him) will please take up the appeal and dispose of it in accordance with law at an early date. In case he considers that any matter needs further investigation, it would, of course, be open to him to proceed : under R. 25 or 27 of O. 41. It goes without saying that it would also be open to him to examine the parties before framing any further issues under R. 25, in case he thinks such a course necessary. Learned counsel for the petitioners does not press for costs. Consequently, there is no order as to the costs of this revision petition. Revision petition allowed.