Research › Search › Judgment

Orissa High Court · body

2001 DIGILAW 23 (ORI)

Krushna Chandra Swain v. State Bank of India

2001-01-19

P.K.MOHANTY

body2001
JUDGMENT P. K. MOHANTY, J. — This revision is directed against the order of the learned District Judge. Cuttack in Misc. Appeal No. 80 of 1999 dated 24.6.2000 directing the plaintiff petitioner to pay the entire amount of the outstanding loan within three months. 2. The short point for consideration in this appeal is whether in view of the fact that the appellant-petitioner had filed an appeal as against the order of the learned Civil Judge (Junior Division), Cuttack directing payment of at least a sum of Rs. 1,25,000/- within three months in three instalments from the date of passing of the order to opp. party-Bank, the learned lower appellate Court could have, in absence of any appeal or cross-appeal by the opp. party-Bank passed an order for payment of the entire arrear loan amount. 3. The petitioner as plaintiff filed a suit in the Court of the learned Civil Judge (Junior Division), First Court, Cuttack, registered as Title Suit No. 85 of 1999 against the opp party-Bank and during the pendency of the suit a Misc. Case bearing No. 142 of 1999 was filed under Order 39, Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure for grant of temporary injunction against the opp.party-Bank restraining it from putting the Tractor bearing Regn. No. OR 05 D 4472 along with its Trailor bearing No. OR 05-D 4473 into public auction as per the adver¬tisement published in the Samaj on 18.6.1999, till disposal of the suit. The learned trial Court, on consideration of the mate¬rials on record having found that the plaintiff-petitioner has got a fair question to raise in the suit and if the petitioner will be debarred from paying the arrear dues and the vehicle will be put to inconvenience and he shall sustain of hearing, he will be put to inconvenience and he shall sustain irreparable loss inasmuch as the suit may become infructuous. In that view of the matter, the learned trial Court restrained the opp. party-Bank by an order of injunction from putting the suit Tractor into auction till payment of the arrear dues, in terms of the direction in the said order. The petitioner was directed to pay a sum of Rs. 1,25,000/- within three months in three instalments from the date of passing of the order to the opp. party-Bank by an order of injunction from putting the suit Tractor into auction till payment of the arrear dues, in terms of the direction in the said order. The petitioner was directed to pay a sum of Rs. 1,25,000/- within three months in three instalments from the date of passing of the order to the opp. party-Bank towards the arrear loan amount, the first instalment being a sum of Rs. 45,000/- within 15 days of the date of order and the balance Rs. 80,000/- in two monthly instalments each at Rs. 40,000/- per month, In addition, the petitioner was directed to clear up all dues of the M. V. Department up to the month of September, 1999 within this period, whereafter necessary orders would be passed for release of the vehicle in favour of the petitioner and in the event of failure, the opp. party-Bank was given liberty to put the Tractor into public auction. 4. Being aggrieved by the order of instalment on the ground that it was harsh and inequitable, the plaintiff referred an appeal bearing Misc. Appeal No. 80 of 1999 before the learned District Judge, Cuttack. The appellant-petitioner prayed for fixation of easy instalments than that were fixed by the learned trial Court on various grounds including the main ground that because of the super-cyclone the plaintiff having sustained loss of his home and hearth and the entire financial position of the plaintiff-petitioner having been shattered, the instalment fixed was unreasonable and harsh. The learned counsel for the opp. party opposed the appeal and submitted for vacating the stay and for direction to pay the entire outstanding dues in one instal¬ment on the ground that the Tractor is subject to depreciation. It appears from the impugned order that the learned District Judge took a general view that more of the loanees of the Bank are not paying instalments and using the tractor/vehicles without taking proper care resulting in depreciation of the money value and the Banks are not able to collect the money back by putting those vehicles into auction and therefore the defaulters should be dealt with iron hands. On such consideration, the learned Dis¬trict Judge directed the appellant to pay the entire amount of Rs. 2,51,373,13 paise within three months from the date of the order to the opp. parties, failing which the opp. parties shall put the vehicle into auction. On such consideration, the learned Dis¬trict Judge directed the appellant to pay the entire amount of Rs. 2,51,373,13 paise within three months from the date of the order to the opp. parties, failing which the opp. parties shall put the vehicle into auction. He was further directed to clear all taxes and dues of the Tractor. Hence the present revision. 5. The main thrust of the argument of the learned counsel for the appellant-petitioner is that in absence of any appeal or even cross-appeal filed by the opp. party-Bank, as against the order of the learned Civil Judge (Junior-Division), Cuttack, the learned lower appellate Court could not have reversed/varied the order of the trial Court in favour of the opp. party-Bank. The learned counsel for the opp. party-Bank however submits that in view of the provisions of the Order 41, Rule 33, CPC, the lower appellate Court had the jurisdiction to pass the impugned order in favour of the respondent/opp. party, even though no appeal or cross-appeal was filed by it. 6. The learned counsel for the petitioner has referred to the Division Bench decision of the this Court in Kora Rana v. Saibo Behera and others, AIR 1958 Orissa 81, Panchei Bewa v. Banchhanidhi Padhan and others, AIR 1965 Orissa 53 to contend that even though Rule 33, Order 41 confers some power on the Court of appeal to pass a decree in favour of a party, who has not preferred a cross-appeal or objection, but that does not autho¬rise the Court of appeal to exercise jurisdiction in favour of the respondent when they themselves chose not to assail the adverse decree against them on the question of possession. The learned counsel for the opposite party however contends that the power of the appellate Court under Order 41, Rule 33, C.P.C. is wide enough to do complete justice and since the plaintiff-petitioner was a loanee and a huge amount is outstanding, the learned lower appellate Court was justified in directing payment of the entire dues in appeal filed by the plaintiff-petitioner. The learned counsel has relied on the decision in Giani Ram and others v. Ramji Lal and others, AIR 1969 Supreme Court 1144, Koksingh v. Smt. Deokabai, AIR 1976 Supreme Court 634 in support of her contention. 7. The learned counsel has relied on the decision in Giani Ram and others v. Ramji Lal and others, AIR 1969 Supreme Court 1144, Koksingh v. Smt. Deokabai, AIR 1976 Supreme Court 634 in support of her contention. 7. In Kora Rana’s case (supra), a Division Bench of this Court has taken the view that doubtless, Order 41, Rule 33 confers wide and unlimited jurisdiction to Court of appeal to pass a decree in favour of the party, who has not preferred a cross-appeal or objection but that does not mean that the other provi¬sions of the Code should be completely abridged or abrogated. Circumstances may arise where the appellate Court has not exer¬cised its power under that provision to do complete justice between the parties may vary or reverse the decree passed by the trial Court, but the general principle underlying the Civil Procedure Code should always be strictly followed. In Panchei Bewa’s case (supra), the learned Single Judge of this Court in following the decision in Kora Rana’s case and the decision in Panna Lal v. State of Bombay and others AIR 1963 Supreme Court 1516 has taken the view that the power must be very cautiously exercised. It has been held that the appellate Court would not be justified in exercising jurisdiction under Order 41, Rule 33, C.P.C. in favour of the respondent, when they themselves selected not to assail the adverse decree against them on the question of possession. In Giani Ram’s case (supra), the Apex Court consid¬ered the expression “which ought to have been passed” in Order 41, Rule 33, C.P.C. to hold that the expression “which ought to have been passed” means "which ought in law to have been passed”. If the appellate Court is of the view that any decree which ought in law to have been passed,but was in fact not passed by the subor¬dinate Court, it may pass or make such further or other decree or order as the justice of the case may require. If the appellate Court is of the view that any decree which ought in law to have been passed,but was in fact not passed by the subor¬dinate Court, it may pass or make such further or other decree or order as the justice of the case may require. In that case, the claim of the alienee to retain any part of the ancestral land after the death of alienor was negatived and it was found that that will amount to perpetrating the grave injustice to the widow and two daughters and their shares in property to which they were in law entitled and in that case, the power under Order 41, Rule 33, C.P.C. was found applicable. The facts of that case are completely different and there is absolutely no quarrel over the proposition in case of grave injustice, the appellate Court in absence of an appeal or a cross-appeal in order to do complete justice and/or to adjust the claim of the parties may pass an order in favour of the respondent, which is not the case in the present one. On Kok Singh’s case (supra), the Apex Court has also taken a similar view. 8. In Kishore Chandra Pati v. The Orissa Road Transport Co. Ltd. and others, 1989 (I) OLR 23, Hon’ble C.B. Pattnaik, Judge, as his Lordship then was, while considering the applica¬bility and the circumstances under which the power under Order 41, Rule 33 is to be exercised by a Court in appeal, has held that the appellate Court can pass orders under this provision when it finds that inconsistent, contradictory or unworkable order is the ultimate result. The learned Judge has referred to the decisions of the Apex Court in Choudhury v. State AIR 1982 SC 98 , Ekadasi v. State 1974 (2) CWR 858, Tummalla v. Venka, AIR 1978 SC 725 ; and Nirmala v. Balai, AIR 1965 SC 1874 and Panna v. State AIR 1963 SC 1516 and on ultimate analysis, held that the judgment and decree passed in favour of the plaintiff in absence of any appeal by the defendant before it could not be altered or re¬versed in appeal or cross-appeal by the lower appellate Court. 9. 9. In that view of the matter, taking the conspectus of the view expressed by this Court as well as the Apex Court in the decisions referred to above, law is well settled that when the appellate Court finds any inconsistent, contradictory or unworka¬ble order would be the ultimate result if the decree is not passed in favour of the non-appearing respondent, it is in that case alone, the appellate Court would exercise its power under Order 41, Rule 33, C.P.C. and not otherwise. The power under Rule 33 could be exercised only when the portion of the decree ap¬pealed against is so inseparably connected with the portion not in the appeal with justice cannot be done and a complete incon¬sistent decree cannot be passed unless the latter portion, is as well interfered with. The appellate Court has no power to dismiss the claim of the appellant in toto. If the respondent was aggrieved by the decree against him, he ought to have appealed or filed objection. Thus, the power under Order 41, Rule 33, C.P.C. can be exercised only when, as a result of interference in favour of the appellant, it becomes necessary to adjust the right of the par¬ties. 10. In the present case in hand, the opp.party-Bank did not choose to prefer an appeal or cross-appeal against the order of the learned Civil Judge (Junior Division) directing payment of a sum of Rs. 1,25,000/- in instalments and they were satisfied with the said order. But however, the appellant-petitioner being aggrieved by the amount to be paid and the instalment fixed, preferred the appeal for an easier instalment to pay the said amount of Rs. 1,25,000/- and the learned lower appellate Court reversed the entire order and directed the appellant (petitioner) to deposit the entire arrear loan amounting to Rs. 2,51,373,13 paise within three months thereof even without paying any instal¬ments along with clearance of the tax dues of the Tractor and as such, the impugned order of the learned District Judge is com¬pletely erroneous and cannot be sustained in law and accordingly set aside. 11. It appears that by order dated 25.10.2000 in Misc. Case No. 515 of 2000, this Court directed subject to deposit of Rs. 40,000/- by 30th November, 2000, there shall be interim stay of operation of the order passed by the appellate Court. 11. It appears that by order dated 25.10.2000 in Misc. Case No. 515 of 2000, this Court directed subject to deposit of Rs. 40,000/- by 30th November, 2000, there shall be interim stay of operation of the order passed by the appellate Court. It was further directed that if the amount as directed is deposited within the stipulated period, the vehicles shall not be auctioned by the Bank. 12. In that view of the matter, the order of the learned Civil Judge (Junior Division) 1st Court, Cuttack in Misc. Case No. 142 of 1999 is upheld and since the instalment dates fixed therein are already over, if the petitioner has deposited a sum of Rs. 40,000/- (Rupees forty thousand) in terms of order dated 25.10.2000 of this Court, pays the second instalment by 1st February, 2001 a sum of Rs. 45,000/- (Rupees forty-five thousand) and pays the next instalment of Rs. 40,000/- (Rupees forty thou¬sand) by 1st March,2001 the Tractor in question shall not be auc¬tioned and the learned trial Court shall pass appropriate orders in accordance with law thereafter in accordance with its order dated 20.8.1999 on which I express no opinion. The Civil Revision is allowed to the extent indicated. Revision allowed.