Judgment :- SRINIVASAN, J. 1. This appeal is by defendants 3 and 4 against the judgment and decree dated 15-3-1983 passed in C.S. No. 73 of 1979 on the file of the Original Side of this Court, as amended on 1-2-1995 pursuant to an order made in Application No. 2239 of 1983. The first respondent in the appeal is the plaintiff. In the cause title in the Memorandum of Appeal, immediately below the name of the first respondent, the names of. All India Training Co. by its Partner and Salebhai are shown. With regard to the firm, it is typed within brackets “Partnership firm, dissolved”. With reference to Salebhi, it is typed within brackets “deceased”. The Memorandum shows 11 persons as respondents 2 to 12 and below their names it is typed “Respondents 2 to 12 are not necessary parties since the claim in the suit against these respondents had been given up by the plaintiff in C.S. No. 73/79”. Thus, the plaintiff is the only respondent in the appeal. 2. He filed the suit on 22-7-1974 for judgement and decree against defendants 1 to 4 for recovery of possession of the leased portion, namely Block No. 4 in the second floor of the premises bearing Municipal Door No. 57, Linghi Chetty Street, G.T. Madras-1, for judgement and decree against all the defendants jointly and severally for recovery of the movables described in the Schedules ‘A’ to ‘H’, or in the alternative, for payment to the plaintiff of the sum of Rs. 11,15,100/- being the value of the said movables recoverable from all the defendants jointly and severally and for judgement and decree against all the defendants for Rs. 10,000/- towards damages for malicious trespass and conversion committed by all the defendants recoverable jointly and severally. The substance of the plaint is as follows:— The plaintiff was a lessee of a portion of the premises in Door No. 57, Linghi Chetty Street, Madras-1 from 1-9-1972 on a monthly rent of Rs. 200/- for a period of five years. He had kept in the said premises all his movables, books, documents and other belongings fully and particularly described in Schedules ‘A’ to ‘H’ in the plaint. 200/- for a period of five years. He had kept in the said premises all his movables, books, documents and other belongings fully and particularly described in Schedules ‘A’ to ‘H’ in the plaint. There were certain disputes between him on the one hand and the defendants on the other, which led to a police complaint by the plaintiff on 2.9.1973 that defendants 1 to 4 were criminally and unlawfully restraining him from entering into and using the suit portion and also threatened to shoot him down with a gun. There were some proceedings in the Court of Small Causes i ncluding a petition for eviction filed by the first defendant against the plaintiff under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. In December 1973, defendants 5 and 6 accompanied by one Madani, an advocate and two other persons, met the plaintiff and negotiated for a settlement. Thereafter, the defendants brought in the 15th defendant to put pressure on the plaintiff in order to succeed in the bargain. The plaintiff rejected the offer. On 26-1-1974, when the plaintiff went as usual to the leased premises for collecting his letters from the letter box, he was shocked to note the disappearance of the letter box as well as his name board and he found that the portion leased out to him was under a different lock and there were marks indicating tampering with the door as well as the padlock used by him. On enquiry he was told that defendants 1 to 4 had locked his premises with the help of other defendants and they were giving out a version to the visitors that the plaintiff had vacated. He lodged a complaint with B-1, North Beach Road Police Station, but no action was taken. When the police made an enquiry, it was represented by the defendants that the Tahsildar, North - East Taluk, Madras, had broken open the lock and distrained the movables for the purpose of collection of court-fees due in a court proceeding. The plaintiff found out on a correspondence with the Tahsildar that it was not true. When the police made an enquiry, it was represented by the defendants that the Tahsildar, North - East Taluk, Madras, had broken open the lock and distrained the movables for the purpose of collection of court-fees due in a court proceeding. The plaintiff found out on a correspondence with the Tahsildar that it was not true. According to the plaintiff, the defendants deliberately, maliciously and wrongfully committed trespass into the portion leased out to him by breaking open the lock and removing all his belongings described in Schedules ‘A’ to ‘H’ and converting the same into their own property, thereby causing irreparable loss to the plaintiff. The plaintiff is, therefore, entitled to not only recover possession of the portion leased to him, but also restoration of his belongings described in Schedules ‘A’ to ‘H’ or recover the value thereof being Rs. 11,15,100/- and for damages suffered by him on account of the defendants tortious acts of trespass and conversion, nominally assessed at Rs. 10,000/-. In the cause of action paragraph it is stated that the cause of action arose on 22nd January, 1974 when the defendants committed tortious acts of trespass into the premises and wrongfully dispossessed the plaintiff and took over the movables kept therein. In Schedule ‘A’ to the plaint, two items are described, the first being documents for C.S. No. 127 of 1970 for a claim of Rs. 5,00,000/- and the second being documents relating to claim of Rs. 5,00,000/- against the estate of Raja Kandaswamy Mudaliar of Hyderabad including all other valuable documents and papers handed over to the plaintiff by V. Kandaswamy, the agent of the heirs of the said Raja. The said items are valued at Rs. 5,00,000/- each. Schedule ‘B’ refers to complete and entire files and bundles of relevant papers and documents pertaining to about 200 Civil, Criminal and other cases. The numbers of several of such cases have been set out. They are valued at Rs. 1,00,000/-approximately. Schedule ‘C’ contains a list of about 132 Law Books and other books approximately valued at Rs. 1150/-. Schedule ‘D’ refers to books of account, rubber stamps, photographs etc., valued at Rs. 1605/-. Schedule ‘E’ refers to 62 clip files approximately valued at Rs. 5000/-. Schedule ‘F’ values the furniture including the electric sub-meter and framed pictures of Gods and Goddesses, valued at Rs. 3190/-. 1150/-. Schedule ‘D’ refers to books of account, rubber stamps, photographs etc., valued at Rs. 1605/-. Schedule ‘E’ refers to 62 clip files approximately valued at Rs. 5000/-. Schedule ‘F’ values the furniture including the electric sub-meter and framed pictures of Gods and Goddesses, valued at Rs. 3190/-. Schedule ‘G’ refers to 260 photographs and negatives relating to various documents etc., approximately valued at Rs. 400/-. Schedule ‘H’ values one telephone set and one telephone directory at Rs. 155/-. The plaintiff obtained leave to file the suit in forma pauperis. 3. Summons was served on defendants 1 to 6, 12 and 15. Defendants 5 and 6 filed a common written statement on 30-10-1979 denying all the allegations contained in the plaint. The 12th defendant filed a separate written statement on 21-7-1979 denying the allegations in the plaint. The plaintiff made an endorsement of the docket of the plaint on 29-1-1983 withdrawing the suit as against defendants 5, 6 and 12 and prayed for dismissal of the suit as against them without costs. No orders were, however, passed on the said endorsement. The suit was taken up for trial on 15-3-1983. On that date, the plaintiff made an endorsement on the docket of the plaint giving up defendants 5 to 15 and praying for dismissal of the suit as against them. The plaintiff examined himself as P.W. 1 and marked Exs. P-1 to P-9 on his side. As defendants 1 to 4 were absent, they were set ex parte and the court passed a judgement the relevant portion of which reads as follows:— “According to the plaintiff the defendants have committed trespass into the premises leased out to him. Notice was served on defendants 1 to 6, 12 and 15. But the plaintiff gives up defendants 5 to 15. He only prays for a decree against defendants 1 to 4. The plaintiff as P.W. 1 has spoken to these details in the box. Exs. P1 to P. 9 have been marked Defendants 1 to 4 are absent. It is clear that defendants 1 to 4 have trespassed and removed the articles mentioned in Schedules A to H to the plaint. Under these circumstances the plaintiff will be entitled to a decree for recovery of possession of leased out portion in block No. 4. Exs. P1 to P. 9 have been marked Defendants 1 to 4 are absent. It is clear that defendants 1 to 4 have trespassed and removed the articles mentioned in Schedules A to H to the plaint. Under these circumstances the plaintiff will be entitled to a decree for recovery of possession of leased out portion in block No. 4. Second Floor, No. 57, Linghi Chetty Street, Madras and for a decree for recovery of the movables mentioned in Schedules A to H. The suit is decreed for those two reliefs and is dismissed in other respects and mere is no clear evidence of the damage caus ed on account of malicious trespass. To the extent the plaintiff has succeeded, defendants 1 to 4 will pay the court fee due to govt. and to the extent the plaintiffs claim is dismissed he will pay the court fee. The suit against defendants 5 to IS is dismissed without costs”. 4. On 2-7-1983 the plaintiff filed Application No. 2239 of 1983 under Order 18, Rule 16 of the Original Side Rules for amending the decree by incorporating the value of the movables described in Schedules ‘A’ to ‘H’ to the plaint in order to enable the plaintiff to claim the sum of Rs. 11,15,100/-from defendants 1 to 4 jointly and severally in the alternative of recovery of movables in specie. In the affidavit filed in support of the application, the plaintiff has referred to the provision in Order 20, Rule 10, Code of Civil Procedure and stated that it is mandatory on the part of the court to bet out the value of the movables in the alternative in the decree for delivery of movables. That application was posted before Court on 5-3-1984. The Court observed that the proposed amendment certainly required evidence and, therefore, notice had to go to the respondents in the application to avoid any future complications. The Court directed issue of fresh notice as the earlier notice had returned unserved. Ultimately, after completion of service, the application was served on 1-2-1995. It should be mentioned here that on 1-6-1990 the 2nd defendant in the suit died and his legal representatives, other than defendants 3 and 4 who were already on record, were not impleaded. The factum of the demise of the second defendant was not even placed on record by the plaintiff. 5. It should be mentioned here that on 1-6-1990 the 2nd defendant in the suit died and his legal representatives, other than defendants 3 and 4 who were already on record, were not impleaded. The factum of the demise of the second defendant was not even placed on record by the plaintiff. 5. On 1-2-1995, the Court granted the prayer for amendment of the decree by allowing the application. While doing so, the Court observed that as it is an ex parte decree, the Court has no opportunity to assess the value of the movables and hence, the suit has to be decreed as prayed for. 6. The plaintiff took proceedings for executing the decree and on receipt of notice in the said proceedings, defendants 3 and 4 filed application for setting aside the ex parte decree dated 15-3-1983. By a common order dated 22-10-1995, the applications were dismissed by a single Judge of this Court. That order is challenged In O.S.A. No. 12/96 by the fourth defendant and in O.S.A. No. 13 of 1996 by the third defendant. 7. Thereafter, defendants 3 and 4 filed this appeal O.S.A. No. 40 of 1996 with a petition to condone the delay in filing the same. The said petition viz., C.M.P. No. 1683 of 1996 was ordered by us on certain conditions which were complied with by the appellants 1 . We have passed a detailed order giving the reasons for condoning the delay in filing the appeal. We directed the appellants to pay a sum of Rs. 10,000/- by way of costs as condition precedent for condonation of delay and the same was complied with. Recording the said compliance, we passed a final order condoning the delay on 13-2-1996. The appeal was taken on file thereafter and heard along with O.S.A. Nos. 12 and 13 of 1996 8. This appeal was argued at length as the entire decree is challenged on merits. Learned counsel for the appellants has stated that in view of this appeal having been heard fully, he is not pressing O.S.A. Nos. 12 and 13 of 1996 as they are unnecessary. 9. Learned counsel for the appellants has taken care not to urge the grounds put forward in the applications for setting aside the ex parte decree and negatived by the Court. 12 and 13 of 1996 as they are unnecessary. 9. Learned counsel for the appellants has taken care not to urge the grounds put forward in the applications for setting aside the ex parte decree and negatived by the Court. The arguments in this appeal are on the merits of the case, on the basis of the materials available before Court. As the appellants remained ex parte in the suit, there was neither pleading not evidence on their side. The Court is left only with the plaint in the suit, the deposition of the plaintiff as P.W. 1 and Exs. P-1 to P- 9 marked on his side. 10. The following contentions are urged on behalf of the appellants:— (i) The suit is bad for multifariousness as it contains two sets of prayers, one relating to an immovable property directed against defendants 1 to 4 only and the other relating to certain movables directed against all the defendants. The latter part itself consists of three prayers, one for recovery of movables in specie , second for recovery of the value of the movables in the alternative and third for damages. According to learned counsel, there is mis-joinder of causes of action and the plaintiff cannot be permitted to combine two different causes of action in the same suit. We do not find any substance in this contention. Under Order I, Rule 3 of the Code of Civil Procedure, all persons may be joined in one suit as defendants, where any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative, and if separate suits were brought against such persons, any common question of law or fact would arise. Under Rule 5 of Order I, C.P.C., it shall not be necessary that every defendant shall be interested as to all the reliefs claimed in any suit against him. Hence, we reject this contention. (ii) The second contention is that the second prayer in the suit is for a statutory relief under Section 7 of the Specific Relief Act, being one for recovery of specific movable property. Hence, we reject this contention. (ii) The second contention is that the second prayer in the suit is for a statutory relief under Section 7 of the Specific Relief Act, being one for recovery of specific movable property. According to learned counsel, in so far as the second prayer is concerned, the suit is really an ‘Action for Detenue’ and in such a suit all the persons who are alleged to have detained the movable property of the plaintiff are necessary parties and if any of them is omitted to be impleaded, the suit will have to be dismissed for non-joinder of necessary parties. Elaborating this contention, learned counsel submitted that the suit was originally instituted against 15 defendants and the allegations in the plaint in relation to the movables in Schedules ‘A’ to ‘H’ are all directed as against all the fifteen defendants. Our attention is drawn to the averments in paragraphs 14 and 15 in which allegations have been made against all the defendants as one bunch in relation to the alleged tortious acts. A specific distinction is made in paragraph 16 with reference to the immovable property. The said paragraph reads as follows:— “The defendants 1 to 4 are bound to redeliver the possession of the leased portion to the Plaintiff, and all the defendants are bound and” liable to restore and return all the movables described more fully and particularly in Schedules ‘A’ to ‘H’ to the Plaintiff in tact, or in me alternative to pay the value thereof being Rs. 11,15,100/-, and all the defendants are further bound liable to pay to the Plaintiff a sum of Rs. 10,000/- towards damages for malicious trespass and conversion” (underlining ours). In paragraph 17, reference is made to all the defendants while setting out the cause of action. In paragraph 20, prayer (i) is directed against defendants 1 to 4 while prayers (ii) and (iii) are directed against all the defendants jointly and severally. It is also pointed out by learned counsel that in his deposition the plaintiff has not made any distinction between defendants 1 to 4 and the other defendants. The entire deposition reads as if all the fifteen defendants joined together and committed the tortious acts alleged by the plaintiff. 11. It is also pointed out by learned counsel that in his deposition the plaintiff has not made any distinction between defendants 1 to 4 and the other defendants. The entire deposition reads as if all the fifteen defendants joined together and committed the tortious acts alleged by the plaintiff. 11. When the plaintiff gave up defendants 5 to 15 and had the suit dismissed as against them, there is no explanation on the part of the plaintiff as to why he was confining and restricting his claim against defendants 1 to 4. Nowhere has he stated in the deposition that all the movables set out in Schedules ‘A’ to ‘H’ are in the possession of defendants 1 to 4 only. In the absence of any amendment to the plaint or specific evidence adduced by the plaintiff the court could not have made a distinction betwe en defendants 1 to 4 on the one hand and defendants 5 to 15 on the other and give any finding that defendants 1 to 4 are alone liable to return the movables. It is rightly pointed out by learned counsel for the appellants that there is in fact no finding by the Court to that effect. As a matter of fact, that aspect of the matter was not kept in mind by the Court. 12. Learned counsel for the appellants would contend that the principle that a suit can be maintained against some of the joint tortfeasors as all the joint tortfeasors are jointly and severally liable, would not apply to this case, as this is one for a statutory relief, under Section 7 of the Specific Relief Act. According to him, the suit is not one falling under the general law of tort. In any event, it is contended by him that there is no evidence on record to prove that the movables set out in Schedul es ‘A’ to ‘H’ are in the possession of defendants 1 to 4 and no decree can be passed directing return of such movables in the absence of such evidence. In this connection, reliance is placed on the judgement of a Full Bench of this Court in Jaldu Venkatasubba Rao v. The Asiatic Steam Navigation Company of Calcutta (I.L.R. 39 Madras 1= 2 L.W. 805 (FC)). 13. In this connection, reliance is placed on the judgement of a Full Bench of this Court in Jaldu Venkatasubba Rao v. The Asiatic Steam Navigation Company of Calcutta (I.L.R. 39 Madras 1= 2 L.W. 805 (FC)). 13. As against this contention it was argued by the respondent, appearing as party-in-person, that his suit is only for recovery of immovable property under Section 6 of the Specific Relief Act with the movables kept inside by him. According to him, the immovable property is leased out to him by defendants 1 to 4 and they are the only persons liable to put him back in possession, and as the movables are inside the premises, he is entitled to a decree for the return of the same as against them. It is also contended by him that under Order 15, Rule 2, Code of Civil Procedure, he is entitled to give up any of the defendants in the course of a suit and pray for reliefs against the other defendants. According to him, the defendants are all joint tortfeasors, jointly and severally liable, and he can maintain the suit against any of them. In support of his contentions, he placed reliance on the judgments in Virjivandas Madhavadas and another v. Mahomed Alikhan, Ibrahimkhan and others (I.L.R. 5 Bombay 208), Khushro S. Gandhiv N.A. Guzder (AIR 1970 SC 1826) and Dabgar Arvindkumar Keshavlal v. Shri Modh Chanel Gnyati Samaj (AIR 1995 Gujarat 148). Prime facie , we find considerable force in the contention urged on behalf of the appellants in view of the specific averments made in the plaint and the absence of any explanation on the part of the plaintiff for confining his suit against defendants 1 to 4 at the stage of trial. There is a fallacy in the contention of the respondent that his suit is for recovery of an immovable property along with the movables kept therein. The specific allegations in the plaint and also the deposition of P.W. 1 are to the effect that the movables kept in the premises had been removed and taken away by the defendants even on 22.1.1974. Hence, we cannot construe the suit as one for recovery of immovable property along with the movables kept therein. 14. The specific allegations in the plaint and also the deposition of P.W. 1 are to the effect that the movables kept in the premises had been removed and taken away by the defendants even on 22.1.1974. Hence, we cannot construe the suit as one for recovery of immovable property along with the movables kept therein. 14. However, we do not propose to decide the issue finally here as we intend remanding the matter for fresh disposal as, in our opinion, full justice cannot be rendered in this case to the parties unless they are given further opportunities. 15. We are quite aware that it is not normally advisable for an appellate Court to remand a matter nearly after a period of 22 years since the filing of the suit. But the facts and circumstances of this case do necessitate such a remand in order that complete justice can be rendered to the parties. A perusal of our orders in C.M.P. No. 1683 of 1996 would show that the plaintiff is also partly responsible for the long pendency of this litigation. Had he been more diligent and attempted to ensure the benefits of the judgement and decree obtained by him in 1983, the litigation would not have been pending this long. 16. We have referred above only to two of the contentions raised by the appellants and found one of them to be prima facie acceptable. We will now refer to the other contentions urged by the appellants. The first of them is, the evidence on record is absolutely worthless to sustain a judgement against defendants 1 to 4 for return of movables. Even a reading of the plaint shows that the plaintiff was not using regularly the premises let out to him since September 1973. He was going there only to collect the letters from the letter box fixed outside the portion. According to the allegations in the plaint, he learnt on 26-1-1 974 that defendants 1 to 4 had put up a new lock with the help of other defendants and they were giving out a version that the plaintiff had vacated the premises. In paragraph 12 of the plaint, the plaintiff uses the expression “on enquiry”. He has not given any details of the persons whom he enquired. In paragraph 12 of the plaint, the plaintiff uses the expression “on enquiry”. He has not given any details of the persons whom he enquired. He has not alleged that on enquiry he was told that defendants 1 to 4 and/or the other defendants removed the movables from the premises. Nowhere in the plaint he alleged that any person told him or informed him that the movables were removed and taken away by any of the defendants. Ex. P-6 is a copy of the complaint sent by the plaintiff to the police by registered post. That complaint is made against six persons, that is, defendants 2 to 4, 7 and 8 and another person by name Bahadur (Goorka) whom the plaintiff has omitted to implead in the suit for reasons not disclosed. In that complaint it is alleged in paragraph 10 that in case his belongings had not been distrained by the Tahsildar, they must be within the building itself most probably with the aforesaid three persons, defendants 2 to 4. The complaint reads as if the movables continued to be inside the premises even on 26-1-1974, if they had not been removed by the Tahsildar. But in the plaint the specific averment in Paragraph 17 is that on 22-1-1974, the defendants committed trespass over the movables and took diem out of his possession. In paragraphs 14 and 15 it is specifically alleged that the movables have been taken out and taken away by the defendants from the premises. 17. But a more important and clinching feature referred to by learned counsel for the appellants is that on 9-2-1974 an endorsement was made by counsel for the petitioner in H.R.C. No. 2515 of 1973 (first defendant in the suit) that “the respondent left the premises wide open and delivered with petitioners articles and the petitioner took possession on 22-1-1974 and as such petition may be dismissed as not pressed.” On the basis of the said endorsement which was recorded by the Rent Controller (VII Judge, Court of Small Causes), the petition was dismissed as not pressed on 18-2-1974. In spite of the said endorsement, the plaintiff did not take any steps to protest against the correctness of the endorsement before the Rent Controller or subsequently by any notice. In spite of the said endorsement, the plaintiff did not take any steps to protest against the correctness of the endorsement before the Rent Controller or subsequently by any notice. There is no explanation on the part of the plaintiff as to why he waited for more than five months to file the present suit after the dismissal of the H.R.C. on the basis of the said endorsement. Even in the present plaint, the plaintiff did no t choose to allege that the endorsement made by the counsel for the petitioner in H.R.C. No. 2515 of 1973 on 9-2-1974 was false. In fact, the cause of action paragraph viz., paragraph 17 refers to the said endorsement in the following terms:— “on 9.2.74 when the counsel of the first defendant admitted in writing that the defendants had taken possession on 22-1-1974”. It is needless to point out that the plaintiff has chosen to refer only to one part of the endorsement and omitted any reference to the other part of the endorsement which was really against him. 18. In any event, the amendment of the decree granted on 1-2-1995 is wholly unsustainable. In spite of the specific order made by the court on 5-3-1984 that evidence was required for the proposed amendment, the learned Judge on the Original Side ignored the said order and granted the prayer for amendment without any such evidence. The learned Judge has also erroneously observed that as the decree is an ex parte one, the court can grant amendment as prayed for without any evidence. 19. There is considerable force in the contention of the appellants counsel that the judgement rendered in the suit granted only two reliefs in favour of the plaintiff and expressly dismissed the suit in other respects, thereby rejecting his alternative claim for the value of the movables. Hence, the decree should not have been amended as by such amendment it will be contrary to and not in conformity with the judgement. 20. It is also pointed out by learned counsel for the appellants that long before the application for amendment was taken up for hearing, the second defendant died (on 1-6-1990) and the order of amendment is invalid as against the second defendant, even if it could be sustained against the other defendants. 20. It is also pointed out by learned counsel for the appellants that long before the application for amendment was taken up for hearing, the second defendant died (on 1-6-1990) and the order of amendment is invalid as against the second defendant, even if it could be sustained against the other defendants. It is also the contention of the appellants that the first defendant firm was already dissolved and no longer in existence. But that is not a matter for which as at present there is any evidence on record. 21. We would have had no hesitation to allow the appeal and dismiss the suit, as the evidence on record is hardly sufficient to support the judgement and decree. But as rightly pointed out by the plaintiff it should be borne in mind that defendants 1 to 4 remained ex parte, and he was under the impression that his evidence supported by the documents filed by him was sufficient to get a decree against them. It is also rightly pointed out by him that he could not have expected the various contentions which are now put forward by the appellants counsel and referred to the relevant matters when he was giving evidence as P.W. 1. We agree with the plaintiff that if the defendants had filed a written statement putting forward their contentions the plaintiff would have had an opportunity to adduce such evidence as would be necessary to meet the same. By their failure to enter their defence, the plaintiff has been deprived of such an opportunity. Thus it is necessary to give such an opportunity to the plaintiff to adduce such evidence as may be available to him in order to meet the contentions of the appellants. For giving such an opportunity, it is absolutely necessary to remand the matter for fresh disposal, as the defendants would also be able to file their detailed written statement raising all the available contentions. 22. We have already observed and once again reiterate that the judgement and decree even as passed originally on 15-3-1983 and as amended on 1-2-1995 are unsustainable, as the evidence on record does not support the same. Hence we set aside the judgement and decree in the suit. As aremand is necessitated for the reasons given already, we are constrained to remand the matter for fresh disposal. 23. Hence we set aside the judgement and decree in the suit. As aremand is necessitated for the reasons given already, we are constrained to remand the matter for fresh disposal. 23. It is argued by the plaintiff that even if the decree as against the appellants, i.e., defendants 3 and 4 is set aside, the decree as against defendants 1 and 2 having become final, should not be interfered with. It is argued that defendants 1 and 2 are not made parties to the appeal, though the Memorandum of Appeal makes a reference to them in the cause title and states that defendant 1 is dissolved and defendant 2 is dead. It is submitted that even the legal representatives of the second defendant are not impleaded as parties in the appeal. It is argued by the plaintiff that the powers of the appellate court under Order 41, Rule 33, Code of Civil Procedure, cannot be exercised in favour of a person who is not a party in the appeal. Reliance is placed on the judgement of the Supreme Court in Dhangir v. Madan Mohan ( AIR 1988 SC 54 ). After referring to the provisions of Rule 33 of Order 41, C.P.C., and the language therein, the court said:— “The sweep of the power under R. 33 is wide enough to determine any question not only between the appellant and respondent, but also between the respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. “The word” as the case may require, used in R. 33 of O. 41 have been put in wide terms to enable the appellate court to pass an y order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraints that we could see may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of judgement of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgement or decree of the lower court. The question raised must properly arise out of judgement of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgement or decree of the lower court. It may be urged by any party to the appeal”. 24. No doubt, in order that a Court may exercise its power under Order 41, Rule 33 and grant relief to a person, one of the requirements is that such person should be a party to the appeal. But such a requirement is not found in Order 41, Rule 4, C.P.C. When a court wants to grant a positive relief, it has to act under Order 41, Rule 33, C.P.C. But, where the Court finds it necessary to set aside a decree obtained by the plaintiff on any ground common to all the defendants, the Court may reverse or vary the decree in favour of all the defendants under Order 41, Rule 4, C.P.C. The constraint in Rule 33 of Order 41 is absent in Rule 4. Under the said rule, the only requirement is that the decree passed by the trial Court is on a ground common to all the defendants. If there is an appeal by some of the defendants only and other defendants are not made parties to the appeal, the court while allowing the appeal can set aside the entire decree and give the benefit also to persons who are not parties to the appeal. This position is well settled and has been accepted by all the High Courts. In Dhu Ttaloor Subbayya v. Paidigantam Subbayya (I.L.R. 30 Mad. 470), a Full Bench of this Court held that when the decree of the lower court proceeds on aground common to all the defendants, the appellate court may, on appeal by one of the defendants against the whole decree, reverse the decree in so far as it affects other defendants though they have not joined in the appeal. The Full Bench has also pointed out that it is enough if any one ground on which the decree appealed against is found common to all the defendants. 25. In Gurunath v. Venkatesh (AIR 1937 Bombay 101), a decree was passed against three persons with costs. It was executed against one of them. The other two filed an appeal against the decree. 25. In Gurunath v. Venkatesh (AIR 1937 Bombay 101), a decree was passed against three persons with costs. It was executed against one of them. The other two filed an appeal against the decree. When the decree was reversed, the person against whom the decree was executed earlier and costs had been recovered, was held entitled to restitution under Section 144 of the Code of Civil Procedure, though he was not a party to the appeal. The same principle has been laid down in Chacko Joseph v. Varghese Markose (AIR 1957 Kerala 181), Brij Mohanlal Murli Dhar v. Raj Kishore (AIR 1959 Punjab 555), Chandadevi v. G.M., Eastern Rly. (AIR 1961 Patna 301), Thakur Ram Janki v. Jago Singh (AIR 1962 Patna 131) and Hanuman v. Shakru (AIR 1972 Rajasthan 176). In Thakur Ram Janki v. Jago Singh (AIR 1962 Patna 131 referred to above, an appeal was filed by some of the defendants against the decree. Two of the defendants, who did not file such appeal, died during the pendency of the said appeal. A Division Bench of the Patna High Court considered the question and held that whether they died before the filing of the appeal or after the filing of the appeal, it did not matter and the benefit of the decree which might be passed by the appellate court was available to the legal representatives of the deceased non-appealing defendants. In Lal Chand v. Radhakishan ( AIR 1977 SC. 789 ), a joint eviction decree was passed against several defendants. Two of them surrendered possession and three filed an appeal. During the pendency of the appeal, one of them died. His widow and son applied for being brought on record as legal representatives. The application was dismissed on the ground that the right to sue did not survive. The Supreme Court held that it was erroneous to treat the appeal as abated on the death of one of the appellants and the appellate court ought to have applied the provisions of Order 41, Rule 4, C.P.C. and heard the appeal on merits. The Court held that in view of the provisions of the Slum Clearance Act, the decree for eviction was a nullity and set aside the judgement of the High Court in entirety, dismissing the suit for eviction. 26. The Court held that in view of the provisions of the Slum Clearance Act, the decree for eviction was a nullity and set aside the judgement of the High Court in entirety, dismissing the suit for eviction. 26. In the present case, the decree against defendants 1 to 4 is on the only ground that they all trespassed together and removed the movables of the plaintiffs. No distinction has been made as between any of the defendants 1 to 4. Hence, when the decree is set aside as against the appellants, who are defendants 3 and 4, necessarily it has to be set aside in entirety even as against defendants 1 and 2. 27. In the view we have taken as above, we do not find it necessary to refer to the various other rulings cited by both sides in support of their respective contentions. 28. Consequently, the appeal is allowed and the entire decree and judgement made in C.S. No. 73 of 1979 are set aside. The suit is remanded to the file of the Original Side for fresh disposal in accordance with law. It is open to the plaintiff to implead the other partners of the first defendant if according to him the firm continued to exist and the other legal representatives of the second defendant. The defendants shall file their written statement in the suit on or before 15-3-1996, after serving a copy thereof on the plaintiff. It is open to both the parties to adduce such evidence as may be necessary in addition to the evidence which is already on record. If any new party is impleaded in the suit, such party shall file his its written statement within fifteen days from the date of impleading. It is desirable that the trial of the suit is concluded and the entire suit is disposed of before 30-9-1996. The Registry shall not cause any delay whatever with reference to matters which have to be attended to by it. The appellants are entitled to refund of the court-fee paid on the Memorandum of Appeal. 29. As stated already, O.S.A. Nos. 12 and 13 of 1996 are not pressed and they are dismissed. 30. There will be no order as to costs in any of the appeals.