BIBISAHEBT v. MAKTUM HUSSIANSAB — 1981 DIGILAW 19 (KAR)

G. N. SABHAHIT, J. ( 1 ) THIS appeal by defendant-4 is directed against the judgment and decree dated 17-7-1974 passed by the Civil Judge, hubli, in RA No. 87 of 1971, on his file dismissing the appeal with modification in the form of the decree. ( 2 ) THE plaintiff filed a suit for specific performance of an agreement under ex. 50 dated 7-11-1961 executed by defendants 1 to 3 agreeing to sell the southern portion of properties bearing C. T. S. Nos. 1955 and 1956 in Ward No. 3 of mubli. It is the further case of the plaintiff that the suit properties formerly belonged to one Chamansab Wallad Ameensab Dharwad. Chamansab mortgaged the suit properties with possession to the plaintiff on 4-4-1952 for a sum of Rs. 1000. The suit properties have been in the possession and enjoyment of the plaintiff since then. After the death of Chamansab, defendants 1 to 3, who are his heirs, executed Ex. 50 agreeing to sell the suit properties in favour of the plaintiff for a sum of Rs. 3000 and received a sum of Rs 1000 as earnest money and passed the receipt Ex. 51. The further case of the plaintiff is that it was agreed between them that the balance of Rs. 900 should be paid before the Sub-Registrar at the tme of the registration of the sale deed in respect of the suit properties He further averred that he was ready and willing to perform his part of the contract and called upon defendants 1 to 3 by a notice (Ex. 58) dt. 17-8-1963 to perform their part of the contract. They failed to execute the sale deed On the other hand, the plaintiff came to know that they had sold the suit properties to defendant-4. under Ex 62 on 21-11-1963. The plaintiff has averred that defendant-4 purcha- sed the suit properties fully knowing that there was an agreement to sell as per Ex. 50 executed in favour of the plaintiff. In the circumstances, the plaintiff instituted the suit for specific performance of the agreement to sell against defendants 1 to 4. under Ex 62 on 21-11-1963. The plaintiff has averred that defendant-4 purcha- sed the suit properties fully knowing that there was an agreement to sell as per Ex. 50 executed in favour of the plaintiff. In the circumstances, the plaintiff instituted the suit for specific performance of the agreement to sell against defendants 1 to 4. ( 3 ) DEFENDANTS 1 to 3 resisted the suit contending inter alia that time was the essence of the contract, that the plaintiff did not act in terms of the contract within the stipulated time, that the contract was, therefore, rendered void, that the plaintiff did not pay Rs. 1000 as alleged and that therefore, the suit was liable to be dismissed. ( 4 ) DEFENDANT-4 resisted the suit contending that he had no knowledge of the contract of sale as per Ex. 50 and that he was a bona fide purchaser for value without notice of the earlier agreement to sell. ( 5 ) ON these pleadings, the trial court raised the following issues : (1) Whether the time was the essence of the agreement in the suit ? (2) Whether defendants 1 to 3-prove that the plaintiff failed to comply with the terms of the agreement within the prescribed time and forfeited his right to obtain specific performance of it ? (3) Whether defendants 1 to 3 prove that the earnest money mentioned in the agreement in the suit was not in fact paid to them ? (4) Whether defendants 1 to 3 prove that the plaintiff himself has committed the breach of the agreement in the suit ? (5) Whether defendant-4 proves that she is a bona fide purchaser of the suit properties for value without notice of the agreement in the suit ? (6) Whether the suit is bad for misjoinder of parties and causes of action ? (7) Is the plaintiff entitled to the specific performance sought ? (8) What decree ? ( 6 ) THE trial Court, appreciating the evidence on record, answered the above issues as follows : issue No. 1. No; Issue No. 2, No issue No. 3, No; Issue No. 4, No; Issue no. 5, No; Issue No 6, No. 7 yes, and in that view, the trial Court decreed the suit of the plaintiff. But, while passing the final order, it stated thus : the suit is decreed. Defendant no. No; Issue No. 2, No issue No. 3, No; Issue No. 4, No; Issue no. 5, No; Issue No 6, No. 7 yes, and in that view, the trial Court decreed the suit of the plaintiff. But, while passing the final order, it stated thus : the suit is decreed. Defendant no. 4 shall execute a sale deed in respect of the suit property in favour of the plaintiffaccording to the "terms of Ex. 50 on or before February 1, 1966. The plaintiff shall pay defendant No 4 a sum of Rs 900 at the time of the registration of the sale deed. If the defendant No 4 fails to execute a sale deed as aforesaid, the deed shall be executed by the Court on her behalf. The defendants shall pay the plaintiff's costs of this suit and bear their own. " ( 7 ) AGGRIEVED by the said judgment and decree, defendant-4 went up in appeal before the Civil Judge, Hubli, in RA. No. 87 of 1971. The learned Civil Judge raised the following points as arising for his consideration on the basis of the arguments addressed before him : (1) Whether the appellant proves that she is a bona fide purchaser of the suit property for value without notice of the equities in favour of the respondent ? and (2) Whether the form of the decree is defective and, if so, what is the legal effect of such a defective decree ? ( 8 ) THE learned Civil Judge, re-assessing the evidence on record in the light of the arguments addressed before him, held that the appellant (defendant-4) was not a bona fide purchaser of the suit properties without notice of Ex. 50 and, in that view, he dismissed the appeal of defen- dant-4 but, while so dismissing the appeal, he directed modification in the form of the decree to bring it in accordance with law. This is what the learned Civil judge has stated in the final order :"therefore for reasons stated above and subject to the following modification of the decree, the appeal is dismissed. Defendants 1 to 4 shall execute a sale deed in respect of the suit property in favour of the plaintiff according to the terms of Ex. 50 within three months from this date. The plaintiff shall pay Rs. Defendants 1 to 4 shall execute a sale deed in respect of the suit property in favour of the plaintiff according to the terms of Ex. 50 within three months from this date. The plaintiff shall pay Rs. 900 to defendants 1 to 3 at the time of the ergistration of the sale deed. If defendants 1 to 4 fail to execute the sale deed as aforesaid, the deed shall be got executed through the agency of the Court in accordance with law. In view of the peculiar circumstances of the case, I direct each party to bear their respective costs in this appeal. " ( 9 ) AGGRIEVED by the said judgment and decree, defendant-4 has come up in the second appeal before this Court. ( 10 ) IT is the main grievance of the learned Advocate appearing for tae appellant that the learned Civil Judge could dot modify the decree and pass decree against defendants 1 to 3 who were not parties before him. It is his further contention that the first appellate Court was in error in holding that the present appellant (defendant-4) was not a bona fide purchaser for value without notice. He further contended that the Courts below ought to have held that time was the essence of the contract. ( 11 ) AS against that, the learned Advocate appearing for the plaintiff/respondent argued supporting the judgment and decree of the learned Civil Judge. He further submitted that the point that time was the essence of the contract was never urged before the first appellate Court and that, that way the finding of the trial court in that behalf had become final. ( 12 ) THE points, therefore, that arise for my consideration in this appeal are : (1) Whether the first appellate Court was justified in modifying the form of the decree ? (2) Whether the Courts below were justified in holding concurrently that the present appellant viz. , defendant-4, was not a bona fide purchaser for value without notice of the agreement Ex. 50 ? (3) Whether it is open to the appellant at this stage to contend that the trial court was in error in holding that time was the essence of the contract ? , defendant-4, was not a bona fide purchaser for value without notice of the agreement Ex. 50 ? (3) Whether it is open to the appellant at this stage to contend that the trial court was in error in holding that time was the essence of the contract ? ( 13 ) IT is necessary to remember that the suit is one for specific performance, this Court, after considering the decisions of the Supreme Court of India has ruled in Khader Saheb Jaffer Saheb v. Amin Saheb (1981) 1 Kar. L J. 321 that in a suit for specific performance, the original parties, who contracted to sell the property, are necessary parties to the suit and that a decree for specific performance shall be drawn not only against the subsequent purchaser but also against the parties who entered into the contract. That being so it is now settled law that the decree for specific performance should be given not only against the parties who contracted to sell but also against the subsequent purchaser for value with notice in case there is such a transfer. The decree cannot be given merely against a subsequent purchaser. ( 14 ) THE trial Court, in the instant case, found on merits that the suit had to be decreed for specific performance, In the plaint, the prayer is that decree should be given for specific performance against defendants 1 to 4. But the trial Court thought in its wisdom that in view of the fact that defendant-4 had purchased the right of defendants 1 to 3, it was enough if decree was given against defendant-4, who was then having title to the suit properties, though as stated above, the trial court, on merits, held that the suit for specific performance has to be decreed against the defendants. It is this technical mistake that came to be corrected by the first appellate Court ( 15 ) THEREFORE, the point that arises for my consideration is : Whether the first appellate Court could correct this mistake while dismissing the appeal of defendant-4 before it ? It is this technical mistake that came to be corrected by the first appellate Court ( 15 ) THEREFORE, the point that arises for my consideration is : Whether the first appellate Court could correct this mistake while dismissing the appeal of defendant-4 before it ? ( 16 ) ORDER XLl Rule 33 of the Code of Civil Procedure reads :"power of Court of appeal-The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appealjor objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : provided that the Appellate Court shall not make any order under S. 35a in pursuance of any objection"on which the Court from whose decree the appeal' is preferred has omitted or refused to make such order. ( 17 ) THUS, regarding Order XLI Rule 33 of the CPC. , it becomes clear prima facie that the appellate Court shall have power to pass any decree or make any order which ought to have been passed or made by the trial Court. It further states that it may exercise its power notwithstanding that the appeal is as to part only of the decree. Further it states that it may pass a decree in favour of the respondents or parties although such respondents or parties may not have filed any appeal, or objections. Thus, it becomes clear that the appellate Court has ample powers to rectify the form of decree if it is technically wrong against parties or res pendents. If, however, the appellate Court changes the decree, it can so change the decree in favour of a party or respondent even though the party is absent before it. Thus, it becomes clear that the appellate Court has ample powers to rectify the form of decree if it is technically wrong against parties or res pendents. If, however, the appellate Court changes the decree, it can so change the decree in favour of a party or respondent even though the party is absent before it. It cannot, however change or modify the decree so as to affect the interest of the party for the first time against him unless obviously he is given the opportunity by being present before the Court. ( 18 ) THE leading cases on this subject are these : in the case of Pannalal v. State of bombay AIR 1963 SC. 1516 the Supreme Court of India has observed that the wording of Order xli Rule 33 of the CPC. is intended to empower the appellate Court to make whatever order it thinks fit, not only as between the appellant and the respondent but also between a respondent and respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as 'the case may require'. If there was no impediment in law, the High Court, in allowing the appeal, could, therefore, though allowing the appeal of the defendant/appellant by dismissing the plaintiff's suits against it, give the plaintiff/respondent a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear, the illustration puts the position beyond argument. Again, in the case of Rameshwar Prasad v. Shambehari Lal AIR 1963 SC. 1901 the Supreme court of India has observed inter alia that Rule 33 of Order XLI of the CPC. has no over-riding effect over the other provisions of law. ( 19 ) THUS, it becomes clear that the appellate Court cannot modify the decree against a party unless that party is heard and is present before the Court as respondent. It can, however, change the decree in favour of a party in the suit who is not arrayed as a respondent before the Court. ( 19 ) THUS, it becomes clear that the appellate Court cannot modify the decree against a party unless that party is heard and is present before the Court as respondent. It can, however, change the decree in favour of a party in the suit who is not arrayed as a respondent before the Court. All the same, the appellate Court has power to correct a technical defect in the order or decree when it is satisfied that it is not for the first time passing any order to the prejudice of any party to the suit who is not present before it. ( 20 ) IN the instant case, as stated above, the trial Court has made it very clear by answering the issues and discussing the points that the decree for specific performance has to be passed against the defendants That is also the prayer made in the plaint. But, while passing the final order, it has given the decree only against defendant-4 as she has purchased the rights of defendants 1 to 3. That decree is not in the proper form. That was also the grievance made by the present appellant (defendant-4) before the first appellate Court and, in that view the first appellate Court applied its mind and found that in view of the decisions of the supreme Court of India, it was necessary to pass the final decree against all the defendants, including the subsequent purchaser and it has corrected the form of the decree. Thus, I am satisfied that the first appellate Court has not passed any order for the first time to the prejudice of defendants 1 to 3. 'defendants 1 to 3 were parties to the suit and, it was, therefore, competent for the first appellate Court to give a decree in the proper form against them also, the trial Court having held that a decree for specific performance should be passed in the suit. In the circumstances therefore, what is done by the first appellate Court is not against the provisions of Order XLI Rule 33 of the CPC. It is in conformity with it. Hence I hold under point No. 1 that the first appellate Court was justified in correcting the technical defect in the form of the decree and that it does not now lie in the mouth of the present appellant to challenge it. It is in conformity with it. Hence I hold under point No. 1 that the first appellate Court was justified in correcting the technical defect in the form of the decree and that it does not now lie in the mouth of the present appellant to challenge it. ( 21 ) ADVERTING to the second point viz. , that the present appellant (defendant-4 was a bona fide purchaser for value without notice, both the Courts below have held concurrently that she ' is not, after discussing the evidence on record. It is purely a question of fact. The concurrent finding of the Courts below on a question of fact binds this Court sitting in second appeal. This Court is not expected to re-assess the evidence on record to come a different conclusion on a question of fact when the Courts betow have given concurrent finding. ( 22 ) ADVERTING to the last point, it may at once be pointed out that the point that time was the essence of the contract. was not raised at all before the first appellate Court. The trial Court, after discussing the agreement and the evidence has clearly found that time was not the essence of the contract. That being so, it is not legal and proper for the appellant to again raise that point before this Court, she having given it up before the first appellate Court. Even, otherwise, I am of the considered view that the contract to sell, being one to sell immoveable properties, it is settled law that time is not the essence of the contract unless it is specifically made so, which is not so on the facts of the present case. ( 23 ) IN the result, therefore, the appeal fails and is, dismissed. In the peculiar circumstances of the case, I make no order as to costs. --- *** --- .