Z.R. Zahid Suhrawardy, J.

1. This appeal arises in connection with executionproceedings and the main question considered in the Court below was whether theexecution was time-barred.

2. The decree was passed on the 21st of December, 1918, Itwas a personal decree against judgment debtors Nos. 1 and 2 passed under OrderXXXIV, Rule 6, C.P.C. Respondent No. 3 is a transferee from the other twojudgment-debtors.

3. The decree-holders case is that on the, 26th of January,1919, Rs. 6 was paid by respondents Nos. 1-2, the judgment-debtors, on the 26thof October, 1919, another sum of Rs. 3 was paid by respondents Nos. 1 and 2, onthe 2nd of November, 1920, a sum of Rs. 2 was paid by the second respondentalone, on the 20th of December, 1921, a sum of Rs. 2 was paid by the first,respondent alone and on the 17th of January, 1922, Rs. 33 was paid by thesecond respondent only. The first application for execution was made on the10th of November, 1922, and notice under Order XXI, Rule 22 on thejudgment-debtors was ordered to be issued on the 24th of November, 1922, andthe notice was served. No further steps in execution having been taken, theexecution case was struck off and a second application for execution waspresented on the 28th of January, 1924, It was objected on behalf of thejudgment-debtor No. 2 that the execution was barred under Article 182 of theLimitation Act.

4. The Court of first instance believed the third and thefourth payments, namely; the payments on the 2nd of November 1920 by the secondrespondent, Mandakini, and on the 20th of December, 1921, by the firstrespondent, Sashi Mukhi, and held that the execution was not barred by limitation.

5. On appeal, by the first respondent the Subordinate Judgefound upon the evidence that the books produced by the decree-holders were notgenuine, and for the reasons given by him he disbelieved the oral evidence ofthe decree-holders. He found that the payment of Rs. 2 by Sashi Mukhi on the20th of December, 1921, was not proved and hence the execution so far asagainst her was barred. He further found that, the payment on the 2nd ofNovember, 1920, by Mandakini was also not proved, In the result he dismissedthe application for execution.

6. Two points have been raised on behalf of thedecree-holders in this appeal.

7. Firstly, it is contended that the Court below should nothave considered the payment made by Mandakini on the 2nd of November, 1920, asshe was neither an appellant nor a respondent before it. It is argued that ifthe Court acted under Order XLI, Rule 33 the Court was not justified in passingan order in favour of a party who was not made a respondent in the appeal; and,in support of this view, reliance has been placed on the cases of JogeshChandra Banerjea v. Sarada Kumar CKakravarti 49 Ind. Cas. 834 [LQ/CalHC/1918/171] : 23 C.W.N. 223,and Haridas Dey v. Kailash Chandra Bose 44 Ind. Cas. 480 [LQ/CalHC/1918/52] . The first case is notdecided on the construction of Order XLI, Rule 33, and is based upon its ownparticular facts. The second case, decided by the same Judges who were partiesto the first case, no doubt, supports the appellants contention. Fletcher, J.,laid down the proposition broadly thus: "That section" (Order XLI,Rule 33) "does not apply to a person who was not a party to the appeal.These non-contesting defendants were not parties to the litigation in the lowerAppellate Court. Obviously, on first principles, the learned Judge in thatCourt could not vary the decree of the Court of first instance as regards theirrights and liabilities as adjudicated on by that Court." In my humblejudgment, the restriction to the operation of Rule 33 put by the learned Judgeis not borne out by the wording of the section or the principle underlying theenactment. Order XLI, Rule 33, is in these words: "The Appellate Courtshall have power to pass any decree and make any order which ought to have beenpassed or made and to pass or make such further or other decree or order as thecase may require." I pause here to comment that if the section had endedhere there would have been no limitation to the right of the Court to pass anyorder which on its finding should have, been passed. The section goes on:"and this power may be exercised by the Court notwithstanding that theappeal is as to part only of the decree and may be exercised in favour of allor any of the respondents or parties, although such respondents or parties maynot have filed any appeal or objection." The net result of the enactmentis that the Appellate Court may pass any order it thinks fit in appeal thoughthe appeal does not extend to the whole of the decree appealed against andthough the power is exercised in favour of any respondent or any party who hasnot objected before it to the decree. By the use of the expression"respondents or parties" in the section I understand that theAppellate Court may pass an order in favour of the respondents who have not,appealed and it may similarly decide any, question in favour of a party bywhich I understand a party to the suit and who is not a respondent in theappeal. Otherwise there was no sense in using the words "respondents orparties." The learned Judges, in the cases above referred to may have beeninduced to form the opinion they did in view of the illustration attached tothe section; but it is hardly necessary to say that the illustration does notlimit the section and is not intended to illustrate its full scope. The viewthat appeals to me is supported by the decision in the "case of AmbikaCharan Chakrabarti v. Sasitara Debt 30 Ind. Cas. 868 [LQ/CalHC/1915/127] : 32 C.L.J. 61. Thesection should be given a broad and generous interpretation in view of the factthat it is intended to secure consistency in the administration of justice andavoid anomalies which may result if the Court is held to be helpless in givingeffect to its own decision, to the full extent. Where the rights of partiesdepend on the same obligation e.g., a contract, and where the Court finds thatthe contract is genuine or not genuine it may give effect to its finding byholding all the parties liable under the contract or by exonerating all theparties who are sought to be made liable, without consideration as to whethersuch parties are before it or not. But the power which the Court is vested withunder this section must be exercised in the interest of and for the furtheranceof justice where, as has been observed in the case of Ganga Dhar Muradi v.Banabashi Padhari 24 Ind. Cas. 208 : 22 C.L.J. 390, "as the result of theAppellate Courts interference in favour of the, appellants, furtherinterference is required in order to adjust the rights of the parties inaccordance with justice, equity and good conscience." In the view that Ihave taken I am sceptic about the propriety of, giving the section such anarrow construction as not to make it applicable to cases where there may bedisregard of the provisions of other Statutes such as the Court Fees Act, ashas been observed in Abjal Majhi v. Intu Bepari 32 Ind. Cas. 494 [LQ/CalHC/1915/296] : 22 C.L.J.394 : 20 C.W.N. 542, and Akimannessa Bibi v. Bepin Behari Mitter 32 Ind. Cas.499 : 22 C.L.J. 397 : 20 C.W.N. 544, as the section is expressly madeapplicable to appeals as to part of the decree. As to substantive law like theLaw of Limitation other and different considerations will arise. In accordancewith the above observations I should have felt inclined to hold that thedetermination of the question as to the payment by Mandakini on the 2nd ofNovember, 1920, was not necessary in order to give relief in the appeal bySashi Mukhi, for it is apparent that, even if that payment was believed, itwould not have under Section 21 of the Limitation Act extended the period oflimitation against Sashi Mukhi. I would have given effect to the contention ofthe decree holders that the Court of Appeal below should not have dismissed theentire application for execution but should have allowed the execution toproceed as against Mandakini, the respondent No. 2; but I find from a perusalof the judgment of the learned Judge that he was invited by the decree-holdersto decide the factum of the alleged payment on, the 2nd of November 1920 byMandakini. The idea in the Court below of the legal advisers of thedecree-holders was apparently that a payment by one judgment-debtor would stoplimitation running as against the other judgment-debtor. It might have been amistaken view of the law but it was at the invitation of the decree-holdersthat the Judge went to decide that question and it was found that the paymenton that date was also not proved. Having come to that finding, I cannot saythat he acted illegally in dismissing the decree-holders application forexecution in toto.

8. Secondly, it is urged that the Court of Appeal belowshould have considered the payment alleged to have been made on the 17th ofJanuary, 1922. That payment was made more than three years after the decreewhich had been passed on the 21st of December, 1918, but the second paymentwhich is alleged to have been made by respondents Nos. 1 and 2 on the 26th ofOctober, 1919, would make the subsequent payment in time to save-the decree. Itis, therefore, submitted that the Court below having found that the fourthpayment was not proved should have enquired into the last payment beforeholding that the application for execution was barred. It appears that there isno express finding by the learned Subordinate Judge with regard to this paymentbut it appears that the first Court did not consider this alleged payment andin the lower Appellate Court the learned Subordinate Judge has disbelieved allthe evidence that was brought forward to support this payment in connectionwith the consideration of the fourth payment, and it further appears that thislast payment was never pressed before the learned Judge nor was he invited toexpress any definite opinion upon it. The judgment of the Subordinate Judgewhere he deals with the question begins with these words: "Now, the mainquestion in this case is whether any payment was made by judgment-debtor No. 2on the 5th Pous 1328 B.S., i.e., 20th December, 1921." Then he goes on toconsider the evidence and observes that the evidence consists mainly of onewitness, namely, Jasoda Nandan Hazari, who States that he made entries in thebooks in 1328 B.S. of the fourth and the fifth payments. He discusses thedecree-holders evidence and comes to the conclusion that the books of accountfiled on behalf of the decree-holders are fabricated and that the witnessJasoda could not have written the books. In these circumstances, I think itwill serve no useful purpose to ask the learned Subordinate Judge to considerthe last payment. Evidently his opinion is that the books filed by thedecree-holders in support of the alleged payments could not be relied upon andthat the oral evidence such as was adduced before him was of persons who wereeither their servants or directly related to them.

9. The result is that, in my opinion, this appeal fails andis dismissed with costs, hearing-fee two gold mohurs.

Arthur Page, J.

10. I agree.

11. As regards the contesting respondent-judgment-debtor No.2, the learned Judge in the lower Appellate. Court has held that the allegedpayment of Rs. 2 on the 20th of December, 1921, on her behalf as part paymentof the debt was not proved. The learned Vakil for the appellants contends thatthere is no finding that a subsequent payment of Rs. 33 alleged to have beenmade as part payment of the, debt on the 17th of January, 1922, has not beenproved. In my opinion there is no substance in this contention. It is notcontended that this sum of Rs. 33 was paid in cash or currency. What, iscontended is that on the 3rd of Magh 1328 B.S. the defendant No. 2 delivered orcaused to be delivered to the plaintiffs some paddy, and a witness wasforthcoming on behalf of the plaintiffs who stated that that paddy was taken,as part payment of the debt in question. Although it is well established that apayment within Section 20 of the Limitation Act of 1903 need not be in cash orcurrency, yet, if it is to be in kind the party alleging that the payment wasmade must prove that there was an agreement between the parties that thepayment shall be made in that particular manner. The learned Judge in the lowerAppellate Court has disbelieved the evidence of the witness who purported toprove the alleged payment of Rs. 33 by appropriation of paddy, and, in myopinion, in substance there is a finding that no payment on the 17th ofJanuary, 1922, for the purpose of limitation was made. That disposes of theappeal so far as the second defendant is concerned.

12. It appears, however, that the plaintiffs in the lowerAppellate Court contended that if there was a payment made on the 2nd ofNovember, 1920, by the first defendant, (who did not appeal from the decreepassed against her to the lower Appellate Court) the effect of such a paymentwould be that the plaintiffs cause of action would be saved as against boththe first and the second defendants. The learned Judge came to the conclusionthat none of the alleged payments were proved to have been made and dismissedthe plaintiffs suit as against both the joint debtors. The learned Vakil onbehalf of the appellants has contended that the learned Judge in the lowerAppellate Court had no jurisdiction to dismiss the suit as against the firstdefendant because the first defendant was not a party to the appeal. In myopinion, that is not the true construction to be placed upon Order XLI, Rule33, C.P.C. In my opinion, it was open to the Court to dismiss the suitnotwithstanding that the appeal was not directed against the entire decree andnotwithstanding that the first defendant had not filed an objection or anappeal against the decree which had been passed against her, the real position,being that upon a true construction of Rule 33 "no hard and fast rule canbe laid down; but I think it may be fairly said that ordinarily the powercontained in Rule 33 should be limited to those cases where, as the result ofthe Appellate Courts interference with the decree in favour of the appellants,further interference is required in order to adjust the rights of the partiesin accordance with justice, equity and good conscience"; Per Jenkins,C.J., in Gangadhar Muradi y. Banahashi Padihari;24 Ind. Cas. 208 : 22 C.L.J.390. An illustration of the way in which the rule may be utilized is to befound in Ambica Charan Chuckerburtty v. Sasitara Devi 30 Ind. Cas. 868 [LQ/CalHC/1915/127] : 32C.L.J. 61. Care, of course, must be taken in each case to see that Rule 33 isnot utilized as a mode of evading the provisions of other statutory rules orOrders. In this case the Court having found at the appellants invitation thatno part payment of any sort or kind was made, in my opinion, it was a properexercise of the powers entrusted to him under Rule 33 that the learned Judgeshould have held in the circumstances of the particular case, the entire claimof the plaintiffs should be dismissed. I agree in the order which has beenpassed.

.

Bhutnath Deb and Ors.vs. Sashimukhi Brahmani and Ors.(05.03.1926 - CALHC)