Kuttan Sudhakaran v. Padmavathi Amma Laila Bai — 1986 DIGILAW 318 (KER)

JUDGEMENT :- Ext. A1 is a lease deed on 1105 for two cents of land in favour of 4th defendant Parameswaran and his father Kuttan. Kuttan died. Defendants 1 to 3 got assignment of the lessor's right. Impleading 4th defendant as the 1st defendant and the other legal representatives of Kuttan as defendants 2 to 4. O.S. 209/58 was filed by defendants 1 to 3 before the munsiff's Court, Alleppey for recovery of possession with arrears of rent. Defendants 2 to 4 remained ex parte. First defendant alone contested. The suit was decreed evidenced by Ext. B2 judgement. First defendant (fourth defendant here) alone filed appeal. Respondents were plaintiffs alone. Defendants 2 to 4 were not parties to the appeal. Appeal was allowed in part accepting the contention of the appellant based on Sec. 106 of the Land Reforms Act. Prayer for eviction was refused. Ext. A3 is the judgement. Plaintiffs (defendants 1 to 3 here) filed S.A. 887/65 against the 1st defendant alone (D4 here). Appeal was allowed, a decree for recovery of possession was granted and as agreed to by both sides Rs. 2,500/-was paid as value of the building to the respondent in the appeal (D1 here). Ext. B1 is the judgement. 2. When execution was taken out, 2nd defendant and legal representative of the 4th defendant who was impleaded in executions the additional 5th defendant filed objection and said that the decree of the High Court will not bind them. Execution Court allowed the objection. But the appellate Court set aside the order and it was confirmed by this Court in second appeal evidenced by Ext. B3 judgement. 3. The only person who remained available among the defendants in O.S. 209/58 to challenge the decree is the 3rd defendant in that case. It was he who filed this suit for a declaration that Ext. B1 judgement of this Court in O.S. 209/58 is null and void and not executable against him. Defendants 1 to 3 contested the claim. Both the Courts below non-suited the plaintiff and hence he has come up in second appeal. 4. The short question for consideration is whether the appellant is entitled to the benefits of Ext. A3 judgement of the appellate Court rejecting the prayer for recovery of possession in O.S. 209/58 and whether he is entitled to the declaration prayed for. Both the Courts below non-suited the plaintiff and hence he has come up in second appeal. 4. The short question for consideration is whether the appellant is entitled to the benefits of Ext. A3 judgement of the appellate Court rejecting the prayer for recovery of possession in O.S. 209/58 and whether he is entitled to the declaration prayed for. That will depend upon whether the decree of the trial Court in that case proceeded on any ground common to all the defendants in that case. Then only the appellate Court could reverse or vary the decree in favour of all the defendants in an appeal filed by one of the defendants. 5. The general rule is that on an appeal by one of the several plaintiffs or defendants the appellate Court can reverse or vary the decree of the trial Court only in favour of the party appealing. O.41, Rr.4 and 33 provide exceptions to this general rule. Those provisions give the Court ample power to make the appropriate order needed in the interests of justice by reversing or varying the decree in favour of all the plaintiffs or defendants as the case may be when appeal is filed only by one or some of them. While R.33 provides that the appellate Court has power to make the proper decree even in cases where the appeal is as to a part only of the decree, R.4 provides that where the decree proceeds upon a ground common to all the plaintiffs or defendants, any one of them may appeal from the whole decree, and thereupon the appellate Court can reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. It is a condition precedent to the applicability of R.4 that the decree appealed against by only one or some of the defendants or plaintiffs must proceed upon a ground common to all the defendants or plaintiffs, one of whom or some of whom alone appealed. In such a case appeal by one is virtually treated as an appeal on behalf of all though they may not be parties to the, appeal When one or some of the plaintiffs or defendants filed the appeal only against that portion of the decree, which affects him or them alone in particular the rule has no application. In such a case appeal by one is virtually treated as an appeal on behalf of all though they may not be parties to the, appeal When one or some of the plaintiffs or defendants filed the appeal only against that portion of the decree, which affects him or them alone in particular the rule has no application. So also if under the circumstances of the case the appealing plaintiff or defendant cannot be considered as appealing on behalf of the non-appealing plaintiffs or defendants as the case may be the rule cannot have any application. As a matter of course a decree passed by the appellate Court does not enure to the benefit of persons who have not joined in the appeal merely because the decree of the lower Court proceeded on a common ground. The rule will apply only when the Court consciously decided to apply it in relation to the particular case. The policy of the rule is in the first instance to enable the appellate Court to do justice to all the parties whether before it or not provided the whole case is gone into at the instance of parties representing all the necessary contentions in the case. Secondly it is to avoid contradictory decisions on the matter in the same case. Under O.41, R.33 the word parties is intended to mean parties in the trial Court but not in the appeal. Under this Rule it is not possible to vary the decree of the lower Court to the detriment of a party, who is not before the appellate Court without hearing him. O.41, Rr. 4 and 33 are not having the effect of empowering the appellate Court to pass decrees to the prejudice of persons who were not given a hearing. The above provisions do not have effect of investing the party who files the appeal with a representative capacity which obliges him to represent the non-appealing parties. In order to decide who all should be parties in an appeal from the appellate decree passed applying the provisions of O.41, R.4 we must consider not only the appellate decree and the parties thereto but also the effect of O.41, R.4 on the decree. Only if the appellate decree enured to the benefit of the non-appealing parties also they need be impleaded in second appeal in order to avoid inconsistent decrees. Only if the appellate decree enured to the benefit of the non-appealing parties also they need be impleaded in second appeal in order to avoid inconsistent decrees. These propositions of law were elaborately considered in Gouri Amma v. Gopalakrishna Panicker, 1966 Ker LT 715 and approved by a later Division Bench decision in Gopala Pillai v. Chellamma Pillai, 1966 Ker LT 1154 : (AIR 1966 Ker 317). These decisions were later confirmed by a Full Bench in the decision in Ammokutty Amma v. Madhavi Amma, 1971 Ker LT 50 : (AIR 1971 Ker 90) (FB). 6. The question is how far these principles could be applied to the facts on the present case. O.S. 209/58 was for eviction with arrears of rent and mesne profits. The rent deed was in favour of first defendant and his father Kuttan in 1105. Kuttan died and the suit was against first defendant and other heirs of Kuttan who were defendants 2 to 4. They remained ex parte and 1st defendant alone contested. Contention was only on his behalf. Though recovery of possession was granted against all the defendants arrears of rent and mesne profits were allowed only against first defendant. Building was allowed to be removed by the 1st defendant and in case of default plaintiffs were allowed to remove the same and realise costs from the 1st defendant alone. Costs of suit also were allowed only against the first defendant. Appeal was only by the 1st defendant and other defendants were not even made respondents. As Ext. A3 judgement of the appellate Court shows the 1st defendant who filed the appeal did so only on his behalf and not on grounds in common to himself and other defendants. The other defendants did not raise any contention before the trial Court. The trial Court decreed the suit overruling the contention of the first defendant that he is entitled to the benefits of S.78 of the Act 4 of 1961. Defendants 2 to 4 submitted to the decree. There was another suit by the same plaintiffs for injunction against the 1st defendant from making constructions in the suit property. There was a contention for the plaintiffs that the construction was in violation of the order of injunction. That contention seems to be finally accepted by this Court. Defendants 2 to 4 submitted to the decree. There was another suit by the same plaintiffs for injunction against the 1st defendant from making constructions in the suit property. There was a contention for the plaintiffs that the construction was in violation of the order of injunction. That contention seems to be finally accepted by this Court. In A.S. 62/63 filed by the first defendant against the decree in O.S. 209/58 he raised two contentions for himself alone and not any contention common to the other defendants. When the appeal was pending Act 1 of 1964 came into force and he claimed protection under S.106 thereof for himself alone. No such contention was raised by the other defendants and there is nothing to show that such a contention was available to them. Another contention raised by him was that he is entitled to the value of the building put up by him. That contention was not considered because the appellate Court held "I hold that the appellant is not liable to be evicted in view of the provisions of Act 1 of 1964." Thus the appellate decree was only in favour of the 1st defendant and that too only on contentions available and put forward by him alone. When S.A. 887/65 was filed by the plaintiffs against the 1st defendant alone it was found that he was not entitled to the benefits of S.106 of Act 1 of 1964 and the building was constructed by him in violation of the order of injunction in O.S. 256/58. By way of compromise 1st defendant received Rs. 2,500/- as value of the building from the plaintiffs and this Court granted a decree for recovery of possession of the land and building. Decree for rent granted by the Court below was confirmed. This was on 4-9-1970. 7. There was no common contention as between 1st defendant and defendants 2 to 4 for the simple reason that defendants 2 to 4 did not resist the suit, The decree of the trial Court was not repelling the common contention of defendants 1 to 4. In the absence of any such common contention or its rejection there is no question of applying O.41, R.4 or 33. In the absence of any such common contention or its rejection there is no question of applying O.41, R.4 or 33. The appellate judgement and the trial Court judgement further show that contentions were exclusively those of the 1st defendant and relief granted the appellate Court was also exclusively for the first defendant. That relief was negatived in second appeal and 1st defendant walked off on receipt of the amount due to him. Since the suit was not resisted by defendants 2 to 4 apparently the lower appellate Court could not have legally relied on O.41, R.4 to reverse the decree against them as well in an appeal filed by the 1st defendant alone without impleading defendants 2 to 4. In fact the appellate decree was only in favour of the 1st defendant and defendants 2 to 4 could not have claimed immunity from execution with the help of O.41, R.4. It was so held by this Court in E.S.A. No. 138 of 1975 evidenced by Ext. B3 which arose out of the objection to execution filed by the 2nd defendant and legal representative of deceased 4th defendant. It is evident that the present suit and the earlier objection in execution were all at the instance of the 1st defendant who contested the matter up to the High Court and finally received whatever is due as compensation. This is a typical example of the age old ingenuity of the litigants to find out loopholes in law in order to protract litigations for generations. This simple case for eviction of 2 cents and a building which started in 1958 is seeing the High Court for the third time in succession in the course of its long 28 years of duration. I have no hesitation in finding that this is an ill-conceived, mala fide litigation in which plaintiff is not entitled to invoke, the provisions of O.41, R.4 or 33 in an attempt to avoid the decree passed by the trial Court or this Court in second appeal. The trial Court decree still binds the appellant and defendants 2 and 4 in that case. 8. The Courts below dismissed the suit on grounds of res judicata and bar under S.47 of the Civil P.C as well. In view of the above finding those contentions are only of academic importance. The trial Court decree still binds the appellant and defendants 2 and 4 in that case. 8. The Courts below dismissed the suit on grounds of res judicata and bar under S.47 of the Civil P.C as well. In view of the above finding those contentions are only of academic importance. I have earlier stated that the decree in O.S. 209/58 still binds the plaintiff and that the appellate and second appellate decrees are only on disputes between the plaintiffs and 1st defendant in that case. Those decrees do not in any way have the effect of interfering with the decree passed by the trial Court against all the defendants for eviction. The present plaintiff is bound by the decree. He is not entitled to challenge the decree on any of the grounds alleged in this case. It naturally follows that his contentions are therefore barred by res judicata. On the other hand if the decree of the appellate Court was one under O.41, R.4 which was common to all the defendants the decree of this Court in second appeal without him on the array of parties would not have been binding on him and he would have been entitled to the declaration prayed for. 9. The bar under S.47 of the C.P.C. does not appear to be tenable. Bar under S.47 arises only in matters relating to execution, discharge or satisfaction of the decree. The objection that a Court has no jurisdiction to pass a decree and therefore the decree is a nullity may be raised before the execution Court. Whether the objection is one coming within S.47 or not in such a case it has to been entertained by the execution Court as the existence of a decree is necessary for the execution Court to obtain jurisdiction to execute the decree. But if the decree is one voidable at the instance of party on some ground the matter does not relate to execution, discharge or satisfaction of the decree and hence S.47 cannot be a bar. But if the decree is one voidable at the instance of party on some ground the matter does not relate to execution, discharge or satisfaction of the decree and hence S.47 cannot be a bar. In Sunder Dass v. Ram Parkash, AIR 1977 SC 1201 it was said that an executing Court cannot go behind the decree nor can it question its legality or correctness, but there is an exception to this general rule and it is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the Court passing it, its invalidity can be set up in an execution proceeding. The executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. That is because in such a case there is no decree at all to be executed. In that process the executing Court would not incur the reproach that it is going behind the decree. The question as to whether a decree is a nullity or not is generally not a question relating to execution, discharge or satisfaction of the decree. It goes to the very root of the decree and is a matter which the executing Court cannot ordinarily decide because the executing Court cannot go behind the decree when there is an executable decree. The dispute involved will not be within the scope of S.47. (See Mahabir v. Narain, AIR 1931 All 490 (FB) and A. Venkataseshayya v. A. Virayya, AIR 1958 Andh Pra 1 (FB).) 10. In this case the existence of decrees by competent Courts having jurisdiction is admitted. The contention is only that the decree is not valid and binding on the plaintiff and is not executable against him for the reason that the decree of the trial Court was varied to his advantage by the appellate Court and the decree in second appeal against him was without him on the party array. That is not a matter coming under execution, discharge or satisfaction of the decree to be decided by the execution Court. S.47 of the C.P.C. cannot operate as a bar to such a suit. That is not a matter coming under execution, discharge or satisfaction of the decree to be decided by the execution Court. S.47 of the C.P.C. cannot operate as a bar to such a suit. As held in Sunder Dass's case, AIR 1977 SC 1201, the only exception to the general rule that the execution Court cannot go behind the decree nor question its legality or correctness is where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the Court passing it. Such a situation has not arisen here and the bar under S.47 for a fresh suit cannot apply. The second appeal is without any merit or bona fides and it is hereby dismissed with costs. Appeal dismissed.