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TMI Blog1998 (8) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... Security Bond and in execution thereof brought the suit property to sale. Respondent purchased the suit property in the said court auction sale on 06.02.1957 and the same was confirmed on 153.1957. Respondent took delivery of the property through court. Sandanam Mudaliar and Company filed O.S. No. 108 of 1950 for recovery of a sum of ₹ 6,493.10 against Ganesan. In that suit the plaintiffs got certain amounts due to Ganesan from the South Indian Railway attached before judgment. Ganesan filed I.A. No. 811 of 1950 in the said suit seeking for raising the attachment before judgment of the amount and it was ordered subject to his furnishing of security. Ganesan executed on 12.04.1950 a registered deed in respect of the said property for ₹ 7,000, costs of the suit and subsequent interest. In this said deed recitals were made referring to the security bond dated 18.02.1950, executed in favour of Vairavan Chettiar as a prior encumbrance. O.S. No. 108 of 1950 filed by Sandanam Mudaliar Co. was decreed on 25.01.1956. Sandanam Mudaliar and Company in execution of the decree obtained by them brought the property to sale on 15.09.1962 and the original Appellant Muthuswami Gounde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption of the first mortgage in favour of the appellant, but held that he was not entitled to claim possession of the property and granted the respondent the relief of injunction in suit O.S. No. 12 of 1967 filed by him. 3. The appeals filed by the appellant against the said decrees were dismissed by the First Appellate Court holding that the relief of injunction was correctly granted to the respondent. The appellate court also con-firmed the decree for redemption but enhanced the amount payable from ₹ 1501 to ₹ 5,000. The appeal of the respondent against non-awarding of costs in the injunction suit by the trial court was dismissed. The appellate court on the nature of document at Exhibit A6 observed as follows : The lower court in paragraphs 12 to 15 has clearly explained that Exhibit A6 contains all the characteristics of a mortgage. I agree with the conclusion. Further, as pointed out by the lower court merely because the petitioner decree-holder in E.P. No. 305/62 (Exhibit A9) altered the prayer into one of attachment and sale from one of pure sale at the instance of the court, it cannot be said the decree-holder had given up his charge. Therefore, the attac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as res judicata by not having been appealed against and the High Court could not dismiss the suit by setting aside the decree for redemption in the absence of an appeal by the defendant in the redemption suit; that the decree for redemption passed by the trial court having attained finality in the absence of an appeal to the first appellate court by the defendant, the High Court even in exercise of powers under Order XLI Rule 33 could exercise its powers only against the judgment of the First Appellate Court and not as against the judgment of the trial court and destroy the finality of that part of the trial court judgment which was not appealed against; that Order XLI Rule 33 was not attracted to the facts arising in the present case. 9. Elaborating this contention Shri Parasaran submitted that before the First Appellate Court the respondent not only did not appeal against the decree for redemption but prayed for invocation of power under Order XLI Rule 33 of the CPC in acceptance of the decree for redemption but only sought for enhancement of the redemption amount on the ground that it was a mistake which called for rectification. Having opted for praying for enhancement of am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be laid down as to the circumstances under which the power can be exercised under Order XLI Rule 33 C.P.C. and each case must depend upon its own facts. The rule enables the appellate court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding Order XLI Rule 33 C.P.C. However, in exceptional cases the rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals. We are not impressed with argument that the finding as to the nature of Exhibit A6 the Security Deed has become final as the finding operates as res judicata. When the entire matter was still in appeal and any part of the finding could be varied by the appellate court it is idle to contend that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n -son of Magudapathi Gounder, Businessman Agriculturist residing at Gowripuram, Karur Taluk Dt. The aforesaid plaintiff A.M. Sundara Mudaliar has filed the suit against me for recovery of ₹ 6,493.13 Annas with subsequent interest and costs. He has also obtained an order for attachment before judgment of the monies payable to me from South India Railway. In order to vacate the order of the aforesaid order for attachment before judgment I have filed an application LA. No. 811 of 1950 in the said suit O.S. 108 of 1950. As per the order of this Hon'ble Court I have executed this deed of security in the sum of ₹ 7000 and subsequent interest and cost over my self acquired properties in my possession and properties which are nanja lands and are described in the schedule. In the event of a decree being passed in the suit I will not alienate the properties till the decree is discharged. The properties set out hereunder belong to me under right of purchase dated 14.10.46. There is already a prior mortgage over the properties for a sum of ₹ 3,000 in favour of one Vairavan Chettiar. These properties are capable of being plotted into house sites and therefore their p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /62 to order sale of the suit property stating that the same is secured in the bond Ex. A-6. However, the executing court did not proceed on that basis and raised objections thereto. Thereafter, the decree holder sought for attachment of the suit property independent of the so-called charge under Ex. A-6. If really the decree holder in the proceedings wanted to proceed on the basis of the security arising out of charge under Ex. A-6. The requirement of attachment was superfluous. Whether the claim under Ex. A-6 arising out of charge was given up or not what was pursued is the execution proceeding was only to attach the suit property without recourse to charge under Ex. A-6. Therefore, the appellant could not have acquired any rights of mortgagee under Ex. A-6, the Security Bond. For this reason also appellant's suit is liable to be dismissed and the finding of the High Court, therefore, stands affirmed. 19. The other question raised and elaborately argued do not assume any importance in the view we have taken. Hence we do not propose to answer them. 20. In the result the appeals stand dismissed and in the circumstances of the case shall be no order as to costs. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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