- (1.)There were two suits instituted in the trial Court. One was Haiti No. 1376, which was a suit on a mortgage. The plaintiff's allegation was that defendant 1 had failed to pay the mortgage moneys. The plaintiff therefore prayed for a decree on the mortgage as against defendant 1. Her allegation against defendant 2 was that she had come to know that certain money a had been released by defendant 2 from defendant 1. on account of the mortgage and the plaintiff prayed that should it turn oat that defendant 2 realised any moneys or the whole of the mortgage moneys from defendant 1, then a decree for money on account of the mortgage might be made against defendant 2. The first Court found that defendant 2 had realized a sum of Rs. 100 from defendant 1 and that defendant 1, by such payment, had been released by defendant 2 from the debt in question. The first Court accordingly dismissed the suit as against defendant 1, bur, decreed the suit against defendant 2 for Rs. 100 which had been realized by him from defendant 1, and also passed a decree for a sum of Rs. 100 on account of damages, in as much as, owing to the action of defendant 2, defendant 1 had been released by him from the mortgage debt.
(2.)Defendant 2 appealed to the lower appellate Court, his appeal being numbered as Appeal No. 32. To that appeal the only respondent was the plaintiff. De-fondant 1 was not made a party respondent to the appeal. The plaintiff how-over preferred certain cross-objections. These cross-objections were lodged within one month from the date of service of notice of appeal on her. But in these cross-objections the case on behalf of the plaintiff was not only directed against defendant 2, who was the appellant in the lower appellate Court, but against defendant 1, against whom the suit had been dismissed by the trial Court and who was not made a party respondent to the appeal. The lower appellate Court came to the conclusion that, inasmuch as the plaintiff had not preferred any appeal against defendant 1, her cross- objections, though in part directed against defendant 1, could not be entertained, as they were out of time and also because no such cross-objections can be allowed against an absent respondent. It may be noted in this connexion that notice of the cross-objections was served upon the absent defendant 1. The lower appellate Court came to the conclusion however on the merits that the decree against defendant 2 for Rs. 200 should not be allowed to stand. The lower appellate Court modified the decree against defendant 2 by reducing it from Rs. 200 to Rs. 100 (the last mentioned amount being the amount which had been realized by defendant 2 from defendant 1), holding that there was no case for the award of damages against defendant 2.
(3.)Mr. Palit has now, on behalf of the plaintiff preferred an appeal to this Court and this appeal has been numbered S. A. 2276 of 1928. He has in his memorandum of appeal on behalf of the plaintiff made the two defendants-respondents to this appeal and his argument is twofold. In the first place ha argues that the lower appellate Court was wholly in error in not awarding damages against defendant 2. In the second place he argues that the lower appellate Court should not have thrown out the case that, his client sought to make in the cross-objections as against defendant 1, although defendant 1 was not a party respondent in the appeal before the lower appellate Court. He formulates his case against defendant 1 in the following manner: Ha says that for all practical purposes, defendant 1 was a party respondent to the appeal before the lower appellate Court, inasmuch as the cross-objection on behalf of the plaintiff had been served on defendant 1. In the second place, he argues that, by virtue of the combined operation of 0.41, Rules 33 and 20, the lower appellate Court had clear jurisdiction in the matter and should have determined the plaintiff's claim as against defendant 1, although defendant 2, in his appeal to the lower appellate Court, had not made defendant 1 a party respondent thereto. In support of his last contention Mr. Palit has invited our attention to the case of Bejoy Kumar Sen V/s. Kusum Kumari Debi , being a decision of our learned brothers Suhrawardy and Garlick, JJ. But, in our opinion, so far as this last contention is concerned the case is covered by the authority of their Lordships of the Judicial Committee in the two cases to which reference has been made during the course of the argument at the Bar, the case of V.P.R.V. Chokalingam Chetty V/s. Seethai Acha and the ease of Mahomed Khaleel Shirazi and Sons V/s. Las Tanneries Lyonnaises A.I.R. 1926 P.C. 34.