T. M. PAMBAYAN AMBALAM Vs. K. R. VEERANAN AMBALAM

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed the suit for recovery of a sum of Rs. 2329 -67 being the principal and interest due on a promissory note executed by the two defendants who are the respondents herein. The promissory note is dated 4 -5 -1959. The plaintiff relied on an endorsement of payment of a sum of Rs. 350 made on 27 -4 -1962 and signed by the defendants as saving the suit from the bar of limitation. The first defendant filed a written statement which was adopted by the second defendant in which it was stated that the promissory note was executed as security in connection with certain lease of a coconut thope and it was not supported by consideration. It was also pleaded that the signature of the defendants in the endorsement dated 27 -4 -1962 was a forgery and that therefore, the suit is barred by limitation.

(2.) THE trial court rejecting the defence held that the suit promissory note was supported by consideration and that the signature of the defendants in the endorsement is that of the defendants and not a forgery. In that view he held that the suit is not barred by limitation and decreed the suit as prayed for. The first defendant alone preferred an appeal impleading the plaintiff and the second defendant as respondents in the appeal. The lower appellate court held that the promissory note was supported by consideration but differing from the finding of the trial court held that the signature of the first and second defendants on the endorsement dated 27 -4 -1962 was a forgery and that, therefore, that endorsement could not save the suit from the bar of limitation. In that view the lower appellate court allowed the appeal and set aside the decree against the defendants and dismissed the suit. In this appeal the learned counsel for the appellant sought to challenge the finding that the signature of the defendants was a forgery. But I am unable to permit him to challenge that finding as it was a finding on a question of fact and it could not be stated that it is not supported by any evidence or that the finding was perverse. The learned counsel, therefore, proceeded on the assumption that the signature of the defendants in the endorsement was not the signature of the defendant. It was the contention of the learned counsel that the lower appellate court had no jurisdiction to go into the question of the genuineness of the signature of the second defendant in an appeal filed by the first defendant alone, though the second defendant was a party in the appeal. According to the learned counsel the decree as against the second defendant could not be challenged in the appeal and that the decree against him had become final. He therefore wanted to sustain the decree as against the second defendant at least. The powers of the lower appellate court in an appeal filed by one of the defendants alone is to be found in Order 41, Rule 4 and Rule 33. Under Rule 4 where there are more defendants than one in a suit and the decrees appealed from proceed on any ground common to all the defendants, any one of the defendants may appeal from the whole decree and thereupon, the appellate court may reverse or vary the decree in favour of all the defendants. A similar power is also contained in Rule 33 which provides that the appellate court shall have powers to pass any decree and make any order which ought to have been passed or made and to pass or to make such or further decree or order as the case may require and this power 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. This power also could be exercised by the court notwithstanding that the appeal is as to part only of the decree. These two rules are not mutually exclusive but they are complementary to each other. But it is seen from the provisions that the powers under Rule 4 could be exercised only when the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants. Rule 33 is a little wider than Rule 4 in the sense that it is not only in cases where the decree appealed from proceeds on any ground common to all but also in cases where the result of interference in favour of the appellant necessitates the readjustment of the rights of the other parties as given in the illustration to that rule itself. I may at this stage refer to a few of the decided cases where this principle was applied. In Thirumala Chariar v. Athimoola Karyalayar, 65 Mad LJ 15 : (AIR 1933 Mad 529) the suit was for specific performance of an agreement to sell. The suit was filed against the legal representatives of the owner. The defence was that the agreement was not genuine. This being a common question in which all the defendants are interested and a finding on that will dispose of the entire suit it was held in that case that a finding on that question in an appeal filed by one of the defendants alone will enure for the other defendants as well.