Sarat Chandra Patnaik vs Baidyanath Patnaik

James, J.—This appeal arises out of a suit for confirmation of possession of certain land which the plaintiff claimed as reversionary heir of one Batabrishna Patnaik. Defendant 1 had set up a claim to have been adopted by Batakrishna Patnaik and in his capacity of adopted son he-had executed a deed conveying a small piece of property to defendant 2. The trial Court found that defendant 1 had not been adopted by Batakrishna Patnaik and that he had no title to make the conveyance to defendant 2. The plaintiff''s suit was decreed.

Defendant 1 appealed from the decree but defendant 2 did not. The property conveyed to defendant 2 was valued at Rupees 124-4-0 while the rest of; the property forming the estate of Batakrishna Patnaik was valued at Rs. 1216. Defendant 1 in his memorandum of appeal prayed that the, plaintiff''s suit might be dismissed in toto but he valued his appeal at Rs. 1216 and'' he did not join defendant 2 as a respondent.

When the appeal came on for hearing, an objection was taken before the Subordinate Judge that as defendant 2 had not appealed from the Munsif''s decree that decree had become final as between the plaintiff and the defendants in the suit and. therefore the finding of; the Munsif that" defendant 1 was not the adopted son was res judicata determining this question of fact in the appeal before the Subordinate Judge. The appellant offered to amend his memorandum of appeal by increasing the valuation and paying the difference of the court-fee and also by adding defendant 2 as a respondent but the Subordinate Judge did not permit this and the appeal was dismissed.

On behalf of the defendant-appellant it is argued that the question between defendant 2 and the plaintiff could not be regarded as finally settled so long as the-decree was under appeal because under Order 41, Rule 33, Civil P.C., the Subordinate Judge could deal with the decree as a whole, even though the appellant purported to appeal only from a part of the decree, but there is nothing in the memorandum of appeal itself which indicates that the, appellant is objecting to only part of the decree except the figure given for valuation and the amount of court-fee paid Objection might have been taken that the valuation should be increased, and that court-fee should be paid on the sum of Rs. 124, but the presence of defendant 2 as appellant or respondent was not necessary. The omission of defendant 2 to appeal from the decree might have had the effect of rendering the decree final between himself and the plaintiff, if the Appellate Court did not apply the provisions of Order 41, Rule 33, but this cannot affect the right of defendant 1.

Defendant 1 did appeal in form against the whole decree, and when he offered to amend the valuation and pay the increased court-fee the offer should have been accepted, whether defendant 2 was made a respondent or not. It is within the power of the Appellate Court to deal with so much of the decree as affects defendant 2 by application of the provisions of Order 41, Rule 33, Civil P.C., but that is a matter for the Appellate Court to decide. Defendant 1, as I have said, has actually appealed from the whole decree; and at the present moment none of the questions of fact can be treated as res judicata between the appellant and the plaintiff.

I would set aside the order of the lower Appellate Court and remand Sarat Chandra Patnaik''s appeal to the District Judge for disposal according to law. Costs in this Court and in the lower Appellate Court will abide the final result of the suit.

Courtney-Terrell C. J.

I agree.