S. NAZEER AHMED versus STATE BANK OF MYSORE AND ORS.

Citation: [2007] 1 S.C.R. 843 · Decided: 12-01-2007 · Supreme Court of India · Bench: H.K. SEMA · Disposal: Dismissed

Cited by 5 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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S. NAZEERAHMED 
v. 
STATE BANK OF MYSORE AND ORS. 
JANUARY 12, 2007 
(H.K. SEMA AND P.K. BALASUBRAMANYAN, JJ.] 
Code of Civil Procedure, 1908-0.2 R.2; 0.41 R.22 & R.33-Lender 
Bank filed a money suit for recovery of loan given for buying bus-Its 
second suit on the basis of mortgage debt is not barred by 0.2. R.2 as the 
cause of action in suits are different-Bar of 0.2 R.2 operates on reliefs 
based on the same cause of action-Besides 0. 34 R.14 specifically lays 
down that mortgage is not barred by 0.2 R.2. 
The Respondent-Bank had advanced loan to appellant for buying a bus. 
Bank obtained a money decree. When Bank filed execution petition, 
appellant raised a defence that he had transferred bus to 'F' in agreement 
with the Bank. Bank then filed another suit on the basis of mortgage 
of his properties by the deposit of title deeds. Various defences were 
raised by appellant like bar of 0.11 R.2 and limitation. Trial Court held 
that suit was not hit by O.U R. 2 of CPC but dismissed the suit as 
time barred. It also held that there was no creation of a valid equitable 
mortgage. Bank filed appeal in the High Court. High Court held that a 
valid and enforceable equitable mortgage was created. The suit was held 
to be in time and not hit by 0.11 R. 2. It purported to invoke Order XLI 
Rule 33 of the Code to grant the Bank a decree against the appellant 
though it refused a decree to the Bank against the guarantor. It did not 
disturb the finding of the trial court on the tripartite arrangement set up 
by the appellant based on the alleged transfer of the vehicle. Hence the 
present appeal. 
Dismissing the appeal, the Court 
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HELD: 1. The High Court, was clearly in error in holding that the 
appellant not having filed a memorandum of cross-objections in terms of 
Order XLI Rule 22 of the Code of Civil Procedure, 1908, could not 
challenge the finding of the trial court that the suit was not barred by 
Order II Rule 2 of the Code. The respondent in an appeal is entitled to 
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844 
SUPREME COURT REPORTS 
[2007J I S.C.R. 
support the decree of the trial court even by challenging any of the findings 
that might have been rendered by the trial court against himself. For 
supporting the decree passed by the trial court, it is not necessary for a 
respondent in the appeal, to file a memorandum of cross-objections 
challenging a particular finding that is rendered by the trial court 
against him when the ultimate decree itself is in his favour. 
A 
memorandum of cross-objections is needed only if the respondent claims 
any reliefwhich had been negatived to him by the trial court and in addition 
to what has already been given by the decree under challenge. 
[Para 7] [848-F-H, 849-AJ 
2. The High Court has misconceived the object of Order XLI Rule 33 
of the Code and has erred in invoking it for the purpose of granting the 
plaintiff Bank a decree. Order XLI Rule 33 enables the appellate court to 
pass any decree that ought to have been passed by the trial court or grant 
any further decree as the case may require and the power could be 
exercised notwithstanding that the appeal was only against a part of the 
decree and could even be exercised in favour of the respondents, though the 
respondents might not have filed any appeal or objection against what has 
been decreed. 
In the case on hand therefore there was no occasion for 
applying Order XLI Rule33 of the Code. If the view of the High Court was 
that the suit was barred by Order II Rule 2 of the Code, it is difficult to 
see h'ow it could have resorted to Order XLI Rule 33 of the Code to grant 
a decree to the plaintiff in such a suit. In that case, a decree bas to be 
declined. That part of the reasoning of the High Court is therefore 
unsustainable. [Para 8] [849-B, D, F-GJ 
3.1 The plea of the appellant was that the present suit is hit by Order 
II Rule 2 of the Code in view of the fact that the plaintiffomitted to claim 
· relief based on the mortgage, in the earlier suit. Obviously, the burden to 
establish this plea was on the appellant. The appellant has not even cared 
to produce the plaint in the earlier suit to show what exactly was the cause 
of action put in suit by the Bank in that suit. The Bank had earlier sued 
for recovery of the loan with interest thereon as a money suit. No relief 
was claimed for recovery of the money on the foot of the equitable mortgage. 
In that suit, the Bank appears to

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