963
KOK SINGH
_v._
DEOKABAI
_December_ IO, 1975
## ' [K. K. MATHEW AND S. MURTAZA FAZAL ALI, JJ.]
_Code_ _of_ _Civil Procedure,_ _O.XLI;_ _r._ _33-High_ _Court_ _if_ _competent to pass_
A
B
_C•_ _decree fdr enforcement_ _of_ _charge even when no appeal filed._
The appellant, who bought property from the respondent's husband, covenanted that in case of non-payment of the consideration, the amount due would
be a charge upon the property. The respondent, on the death of her hmband,
filed a suit on the ground that the appellant defaulted to pay the full purchase
money of the property. The ·trial court held that no dec~ee could be passed
for enforcing the charge against the· property as it was held in occupancy right C
by the appellant, but gave a personal decree against the appellant for a. ce·rtain sum. On the appellant's appeal the High Court held that
the respondent was entitled to ·enforce the charge on the property but negatived
the respondent's claim for a personal decree.
On appeal to this Court, it was contended (1) that the Court was not competent to pass a decree creating a charge on the property since it was held by the
appdlant as an occupancy tenant and (2) that as the respondent did not appeal
from. the decree of th.e trial court negativing her claim in the suit for a charge D
on the property, the High Court was wrong in granting a decree for enforcement
~ the ~H~ .
Dismissing the appeal,
HELD : (1) The High Court was right in holding that the prohibition to
pass a decree for sale or for closure of any. right of an occupancy tenant in
his holding was not in existen_ce in l 952 when the suit was filed, because,
s. hibition, had been repealed before the decree was passed. [964 E-F] l 2 of the Central Provinces Tenancy Act, _1920,_ which contained the pro- E
(2) Even if the respondent did not file any appeal from the decree of the
trial court, that was no bar to the High Court passing a decree in favour of
the respondent for the enforcement of the charge. Under Order XLI, r. 3 3
of the Code of Civil Pro~edure, the High Court was competent to pass a decree
for the enfmcement of the charge in favour of the respondent notwithstanding
the fact that the respondent did not file any appeal from the decree. [964 G,
_965_ El
E
_Radhi/,a Mohan_ v. _Sudhir Chandra,_ A.LR. _1937_ Calcutta 10 and _Giani_
_Ram_ _&_ _Others_ v. _Ramji Lal and Others,_ [1969] 3 S.C.R. 944, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2354 of 1968
From the judgment and order dated the 7th March, 1968 of the
Madhya Pradesh High Court in First Appeal No. 24 of 1969.
C. _P._ _Lal_ for the appellant.
_S._ _T. Desai_ and _D. N. Misra_ for the respondent.
The Judgment of the Court was delivered by
F
G
MATHEW, J. One Deojibhai executed a sale deed on 30-12-1950
in respect of the property in question in favour of the appellant for a
sum of Rs. 12,000/-. No part of consideration was paid at the time of
the execution of the sale deed. The appellant promised to pay the H
amount by 21-5-1951 and covenanted that in case of non-payment, the
amount due would be charge upon the property sold. After the execution of the sale deed, the appellant was put into possession of the
**A**
**B**
**964** SUPREME COURT REPORTS [1976] 2 s.c.R.
property and he paid Rs. _3,1001-_ in three instalments. Deojibhai died
in 1955 leaving his widow, the respondent,, and a son who died subsequently leaving his widow Manibai. Manibai filed a suit in 1956 in
the Bombay City Civil Court against Deokabai, the respondent, claiming a share in the property left by her father-in-law, Deojibhai. This
suit was compromised and Deokabai was appointed r·eceiver of the
estate of Deojibhai with a direction by the Court to realise his assets
and to pay a certain amount to Manibai. Deokabai, the respondent,
filed the suit from which the appeal arises, on the basis that the appellant defaulted to pay the full purchase money of the property and that
she was entitled to the same with interest.
The appellant contended that the charge could not be enforced
against the property as it formed part of his occupancy holding and
## c that, besides the. sum of Rs. 3,.100/- he had made other payments
totalling Rs. 9,500/-. The trial court found that no decree could be
passed for enforcing the charge against the property as it was held in
occupancy right by the appellant, but the court gave a personal decree
against the appellant for Rs. 21,375/-. The appellant appealed against
the decree to the High Court. The Court found that the respondent
was entitled to enforce the! charge on the property and granted a decree
**D** on that basis, but negatived the claim of the respondent for a personal
decree against the appellant on the ground of limitation. In other
respects, the decree of the trial court was confirmed. It is against this
decree that the present appeal, by certificate, has been filed.
Two points were taken on, behalf of the appellant. One was that
the Court was not competent to pass a decree creating a charge on
**E** the property in view of the fact that the property was held by the
appellant as occupancy tenant. This contention was negatived by the
High Court on the ground that the prohibition: to pass a decree for sale
or for closure of any right of an occupancy tenant in his hokling was
not in exist•ence in 1952 when the suit was filed. We think the High
Court was right in its conclusion as s. 12 of the Central Provinces
Tenancy Act, 1920,, which contained the prohibition, had been repeal**F** ed before the decree was passed.
**G**
**H**
The second point raised by the appellant was that the respondent
did not appeal from the decree of the trial court negativing her claim
in the suit for a charge on the property. It was contended that the
High Court was wrong in granting a decree for enforcem'.)nt of the
charge as the decree of the trial court became final so far as the respondent was concerned as she did not file any appeal therefrom. We
are unable to accept this contention. Under Order 41, Rule 33 of the
Civil Procedure Code, the High Court was competent to pass a decree
for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not fil-e any appeal from the
decree. Order 41, Rule 33 provides :
"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 app·eal is as _to_ part only
KOK SINGH _v._ DEOKABAI _(Mathew,_ J.)
965
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 appeal or objection :
Provided that the Appellate Court shall not make any
order under sec. 35-A, in pursuance of any objection on which
the Court from whose decree the appeal is preferred has omittted or refused to make such order."
In _Radhika Mohan_ v. _Sudh;r Chandra(!),_ the facts were these:
Under an annuity bond, the plaintiff there was granted a certain allowance per month. In a will executed by the executor of the annuity
bond,, it was provided that the annuity was to be a charge on certain
properties. As the annuity allowance fell in arrears, the plaintiff
brought a suit to enforce it praying for a charge. The trial court decreed the suit but did not grant a charge. The lower appellate court
exonerated the defendants from personal liability but held that there
should be a charge on the property. In second appeal by the defendants it was contended by them that the lower appellate court could
not create a charge as, in the lower appellate court the plaintiff had
failed to take objection to that part of the trial court's decree. The
High Court held that under 0.41, r.33, Civil Procedure Code, the
lower appellate court was competent to vary the decree by providing
for enforcement of the charge and that the decree passed by it was
right.
A
B
# c
D
_In Giani_ _Ram_ & _Others_ v. _Ramji Lal and Others(_ _[2 ]_ _)_ the Court
said that in 0.41, r. 33, the expression "which ought to have been
passed" means "what ought in law to have been passed" and if an
appellate court is of the view that any decree which ought in law tO E
have been passed was in fact not passed by the court below, it may
pass or make such further or other decree or order as the justice of the
case may require.
Therefore, we hold that even if the respondent did not file any
appeal from the decree of the trial court, that was no bar to the High
Court passing a decree in favour of the respondent for the enforce-. F
ment of the charge.
There is no substance in the contention that all the payments made
by the appellant have not been given credit to by the respondent in
view of the concurrent findings of the courts.
We dismiss the appeal with costs.
P.B.R.
(1) A.LR. 1937 Calcutta 10.
(2) [l 969] 3 S.C.R. 944.
_Appeal dismissed._
