(Prayer: Appeal (disposed of on 16-8-1943) against the decree of the Court of the Subordinate Judge of Amalapuram in A.S. No. 90 of 1940 preferred against the decree of the Court of the District Munsif of Amalapuram in O.S. No. 26 of 1940.)

In my judgment the answer to the question referred should be in the affirmative, but before indicating my reasons I will set out the essential facts.

The respondents sued in the Court of the District Munsif of Amalapuram to recover the sum of Rs. 1450-1-3, which they claimed to be due on a promissory note executed by the first appellant on the 27th January 1937. The plaintiffs case was that the first defendant (the first appellant) borrowed Rs. 3000 on a promissory note dated the 12th December 1934; on the 27th January 1937 there was due on this instrument Rs. 4359; on that date the first defendant repaid in cash Rs. 3059 and in respect of the balance of Rs. 1300 he executed the promissory note in suit. The first defendants 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 Rs. 2000 advanced in 1925; on the 23rd October 1929 the first defendant repaid a sum of Rs. 1900; by this payment and the payment of Rs. 3059 on the 27th January 1937 he had repaid altogether more than double the amount borrowed in 1925 and by virtue of the provisions of the Madras Agriculturists Relief Act nothing was due by him.

The main questions which the District Munsif was called upon to decide were (1) whether the promissory note dated the 12th December 1934 was executed in respect of cash advanced on that date or represented the balance of what was due on an earlier transaction, and (ii) if the promissory note in suit did not represent a new cash transaction, in what manner was the sum of Rs. 3059, admittedly paid on the 27th January 1937, to be appropriated The District Munsif found that the promissory note of the 12th December 1934 represented an entirely new cash transaction and he held that the Rs. 3059 should be appropriated under S. 9 of the Agriculturists Relief Act. On this basis he calculated that the plaintiffs were entitled to Rs. 274-11-4 and he passed a decree for this amount with interest.

The plaintiffs appealed to the Subordinate Judge of Amalapuram. The Subordinate Judge reversed the decision of the District Munsif with regard to the appropriation of Rs. 3059 and held that the defendants were not entitled to challenge the District Munsifs finding that the promissory note of the 12th December 1934 represented a new cash transaction because they had neither appealed nor had they filed a memorandum of cross-objections. The result was that he gave the plaintiffs a decree for the full amount claimed.

The defendants 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 Munsif 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 O. 41, R. 2

2. 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 (50 Mad. 866 [LQ/MadHC/1927/9] = 26 L.W. 125) a reference to a Full Bench was advisable. The question referred reads as follows:

Whether under O. 41, R. 22, Civil Procedure Code, it is open to a defendant-respondent who has not taken any cross-objection to the partial decree passed against him, to urge in opposition to the appeal of the plaintiff a contention which, if accepted by the trial Court, would have necessitated the total dismissal of the suit.

In the order of reference the learned Judges have indicated that in their opinion the observations in Sri Ranga Thathachariar v. Srinivasa Thathachariar (50 Mad. 866 [LQ/MadHC/1927/9] = 26 L.W. 125), went too far and that on a proper construction of O. 41, R. 22(1), the defendants should have been allowed to challenge in the Subordinate Court, the finding of the District Munsif that the promissory note of the 12th December 1934 represented a cash transaction.

O. 41, R. 22(1) says, Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

Sri Ranga Thathachariar v. Srinivasa Thathachariar (50 Mad. 866 [LQ/MadHC/1927/9] = 26 L.W. 125), was decided by a Bench consisting of Coutts Trotter C.J. and Srinivasa Ayyangar J. who said, Though the word decree has been used in R. 22, it is clear that what the rule contemplates really is the decision by the Court 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.

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 against him on any ground on which he opposed the plaintiffs case in the trial Court notwithstanding that the trial Court had decided the point against him. It is said that to allow the defendants to reopen the question whether the promissory note of the 12th December 1934 was executed for a new loan means an attack on the decree, not the support of it. This argument is based on an observation of Madhavan Nair, J. in Gangama v. Veerappa (A.I.R. 1931 Mad. 513) [LQ/MadHC/1930/225] where the learned Judge followed Sri Ranga Thathachariar v. Srinivasa Thathachariar (50 Mad. 866 [LQ/MadHC/1927/9] = 26 L.W. 125).

In wanting to reopen this question the defendants are not really attacking the decree. They cannot do so, because they failed to file in the plaintiffs appeal to the Subordinate Court-cross-objections to the finding that they were liable in the sum of Rs. 274-11-4. So far as they are concerned that decree must stand and they admit it. What they desire to do, however, is to demonstrate that the plaintiffs were not entitled to more than Rs. 274-11-4 by showing that on a proper appreciation of the evidence they ought not to have got anything at all. I can see nothing in O. 41, R. 22, to prohibit them from doing so. Stress has been laid by the plaintiffs on the following passage in the judgment of Madhavan Nair J. in Gangama v. Veerappa (A.I.R. 1931 Mad. 513) [LQ/MadHC/1930/225] .

If the Court disagrees with the opinion of the lower Court on the point in question, how can the Court doing so allow the lower Courts decree to stand without setting it aside.

With great respect, I consider that this is not the position. The Court cannot set the decree 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.

The costs of this reference should be made costs in the appeal.

Lakshmana Rao, J. :I agree and have nothing to add.

Krishnaswami Ayyangar, J. :I also agree but would like to add a word or two on the true nature of the privilege given to a respondent by O. 41, R. 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 success might be the result of a decision in his favour on one or some only of several grounds urged by him, the Court negativing the other or others. As regards these latter grounds, he cannot and need not appeal, however erroneous the decision, because there is no right of appeal to a party who has succeeded. But when the opposite party prefers an appeal, he may find himself in a difficult situation if he is obliged to remain content with supporting the decision on the only point or points on which he had succeeded without resorting to the others on which he had failed. For instance it may turn out on examination that some or all of these other grounds are good, while those accepted by the lower Court are unsubstantial. It is to provide for such a contingency, and to avoid injustice to the respondent in such a case that the rule has been enacted giving him liberty to support the decree if necessary by relying on any of the grounds decided against him in the Court below. The use of the word support makes it plain that the right given is limited to the sustaining of the decree in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration, giving him a further advantage. This, he can secure only by an appeal or cross-objection.

Where a suit is wholly dismissed or wholly decreed it is open to the respondent to support the decision, by reagitating the grounds negatived by the lower Court. This is simple enough, and the language of the rule 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 plaintiffs 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 which passed the decree. When he does this and no more, he is only supporting and not attacking the decree. The principle can be appreciated by taking a simple illustration or two.

Let us take a case where a plaintiff sues for a debt of, say Rs. 1000, and the suit is contested by the defendant on two grounds, (i) discharge, and (ii) limitation. Let us assume that the trial Court dismisses the suit on the ground of limitation, while negativing the plea of discharge. The plaintiff in an appeal from that decree may be able to satisfy the appellate Court that the decision on the point of limitation is incorrect. In such an eventuality O. 41, R. 22 enables the defendant to sustain the decree by making good the plea of discharge found against by the Court below. Let us however take a more complex case where the claim and defence are of the same character as in the last illustration, but the trial Court gives a decree to the plaintiff for Rs. 600 only disallowing the claim for the balance on the ground of limitation. In essence the decree, as already explained, bears a double character. There is a decree for the plaintiff for Rs. 600 and a decree for the defendant in respect of the sum of Rs. 400 disallowed by the Court, because to that extent the decision was in his favour. When the matter is taken before the appellate Court by an appeal by the plaintiff in which, let us say, he asks for a decree for the balance of Rs. 400 disallowed by the Court below it is open to the defendant-respondentthat is what it seems to me the rule saysto support the disallowance of the claim to the extent of Rs. 400 by making good his plea of discharge which will avail him to that extent and no more. I n 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 it is in favour of the plaintiff nor is he supporting it; for obviously he is not interested in supporting it at all. In fact, he is only attempting to prevent the plaintiff from increasing the burden of the liability beyond the limit fixed by the decree appealed against.

The word decree in this rule may be taken to mean decision as held in Sri Ranga Thathachariar v. Srinivasa Thathachariar (50 Mad. 866 [LQ/MadHC/1927/9] = 26 L.W. 125), but that does not solve the difficulty. What is necessary to bear in mind is that the principle which is applicable to a simple case where a claim is wholly decreed or wholly dismissed, is equally applicable to a case where the claim is allowed in part and dismissed as regards the rest. In the latter class of cases, namely, where there is a decree for a part only of a larger claim, the decision is to be understood as comprising a decree in favour of the respondent to the extent to which the Court below had disallowed the claim of the appellant. So understanding it, there is no difficulty whatever. It is by an omission to see clearly this double aspect when there is a decree for a part only of a claim, that errors are likely to occur.