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TMI Blog1943 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... the first appellant) borrowed ₹ 3,000 on a promissory note dated the 12th December, 1934; on the 27th January, 1937, there was due on this instrument ₹ 4,359 ', on that date the first defendant repaid in cash ₹ 3,059 and in respect of the balance of ₹ 1,300 he executed the promissory note in suit. The first defendant's two sons were joined as defendants. The defence was that the note of the 12th December, 1934, really represented what was due in respect of a loan of ₹ 2,000 advanced in 1925; on the 23rd October, 1929, the first defendant repaid a sum of ₹ 1,900; by this payment and the payment of ₹ 3,059 on the 27th January, 1937, he had repaid altogether more than double the amount borrowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dants have appealed to this Court. Their case is that the Subordinate Judge was wrong in not allowing them to challenge the finding of the District Munsiff that the promissory note dated the 12th December, 1934, represented a new cash transaction. They maintain that they were entitled to do so by reason of the provisions of Order 41, Rule 22. The appeal came on for hearing before Wadsworth and Patanjali Sastri, JJ., who considered that in view of the decision of this Court in Sri Ranga Thathachariar v. Srinivasa Thathachariar AIR1927Mad801 a reference to a Full Bench was advisable. The question referred reads as follows Whether under Order 41, Rule 22, Civil Procedure Code, it is open to a defendant-respondent who has not taken any cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt below and merely enables the decision arrived at by the lower Court to be supported on grounds other than those on which the lower Court proceeded. We are satisfied that under that rule it is not open to a respondent to have adjudicated by the appellate Court rights or causes of action which have been decided against him in the Court below and in respect of which he has filed no appeal or memorandum of objections. 8. It is this passage which Wadsworth and Patanjali Sastri, JJ., have suggested goes too far. I consider that their criticism is well founded. A respondent may support a decree which has been passed in his favour on any ground on which he opposed the plaintiff's case in the trial Court notwithstanding that the trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree aside, because it has become final, but it is open to the defendants to repel the plaintiffs' case for an increased decree by showing that they were not really entitled to a decree at all. 10. The costs of this reference should be made costs in the appeal. K.P. Lakshmana Rao, J. 11. I agree and have nothing to add. Krishna Swamy Ayyangar, J. 12. I also agree but would like to add a word or two on the true nature of the privilege given to a respondent by Order 41, Rule 22, Civil Procedure Code. When an appeal is preferred, the appellant is generally speaking, seeking to get rid of an adverse decision, adverse to him wholly or in part, which means that the opposite party had succeeded wholly or in part. That succes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is easily understood and applied. Where however the suit is decreed in part and dismissed as to the rest, we have in reality what may be described as a double or composite decree. There is a decree for the plaintiff in respect of the part decreed, and a decree for the defendant in respect of the part dismissed. If the plaintiff appeals, he does so for the purpose of displacing the decree in so far as it is in favour of the defendant. If the defendant appeals, he again does so for the purpose of getting rid of the decree in so far as it has gone in plaintiff's favour. In either case the party who figures as the respondent has a decree in his favour, which he is allowed to support on any of the grounds decided against him by the Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low it is open to the defendant-respondent--that is what it seems to me the rule says--to support the disallowance of the claim to the extent of ₹ 400 by making good his plea of discharge which will avail him to that extent, and no more. In doing so he is only relying on a ground decided against him in the Court below, and this is precisely, what the rule permits. In other words, where there is a decree for a part only of a claim it means that it is partly in favour of the plaintiff and partly in favour of the defendant, and when the respondent is given liberty by the rule to support the decree it is to enable him to support that part of the decree which is really in his favour. In doing so he is not attacking the decree in so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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