KHAIRATI AND 4 Other vs ALEEM UD DIN AND ANOTHER

1. HAMOODUR RAHMAN, C. J---This is a petition for the review of a judgment of this Court passed, in Civil Petition for Special Leave to Appeal No. 143 of 1972, on the 25th of October 1972.

2. The said petition arose out of a suit filed on the 13th of May 1968, for specific performance against the heirs of one Dinu who had been transferred the evacuee property in dispute in January 1960.

3. This Dinu bad executed a Deed on the 8 of December 1960 which was described as a mortgage deed but contained a recital to the effect that Dinu had realised the full consideration for the property and that he would execute the sale deed and get it registered on getting the P. T. D. In his favour. Unfortunately, he died on the 4 of November 1962, before the P. T. D. Could be issued, but the same was subsequently issued in his name on the 5 of December 1962.

4. The mortgagees thereupon filed a suit for specific performance and alternatively prayed that if it is found that title had not passed to them then a mortgage decree for Rs. 12,500 should lie passed in their favour.

5. The suit was contested by the heirs of Dinu who denied that the deed was an agreement of sale but admitted that it was a mortgage deed and, therefore, claimed to redeem the mortgage, notwithstanding that the time fixed for the redemption had long since expired.

6. Alternatively, they also contended that if it is held that the deed was an agreement to sell, then the suit for specific performance was barred by time. A specific issue was raised on this last point in the following form: -

(3) "Is the suit within time?"

7. On this issue, the trial Court recorded the following finding:th th th "The suit for specific performance of a contract falls under Article 113 of the Limitation Act, which sets a period three years from the date fixed for the performance of the contract, or when no such date is fixed from the date when the plaintiff has notice that performance is refused. No date is fixed for the performance of the contract from the date of notice to the plaintiff of the refusal of the defendants to perform the contract. No notice has been brought on record by the defendant and as such period of limitation has not yet even begun to run against the plaintiff. Of course a written notice was not required but the defendants should have shown that by their conduct they had made it clear to the plaintiff that they had no intention to perform the said contract it is, therefore, held that the suit is within time and the issue is decided in the affirmative."

8. The trial Court, however, ultimately, came to the conclusion that the deed was only a deed of mortgage, Therefore, the heirs of Dinu were entitled to redeem the mortgage, as the limitation of time for the redemption fixed by the deed was in the nature of a clog on the equity of redemption and, therefore, invalid. Redemption was, accordingly, allowed to the heirs of Dinu on depositing the mortgage amount of Rs. 5,578, as also paying Rs. 200 as expenses of the litigation.

9. The heirs of Dinu, who were defendants in the suit, accepted this decree and deposited the mortgage money; but the plaintiffs went in appeal to the District Judge. The heirs of Dinu filed no cross-objection, nor did they challenge the finding of the trial Court on the question of limitation of the suit for specific perfor--mance. The District Judge ultimately allowed the appeal and passed a decree for specific performance. He also directed the refund of the mortgage money deposited by the defendants in accordance with the trial Court's order.

10. The heirs of Dinu then came up in second appeal where only a "feeble attempt" was made to argue that the suit not having been filed within three years of the grant of the P. T. D. Was barred by limitation. But when it was pointed out to the learned counsel that the suit had been filed within three years of the refusal to perform the contract, the point was not pressed any further. The second appeal was dismissed in limine.

11. The heirs of Dinu then came up to this Court for special lave to appeal. In this Court also, it was contended that the High Court should have held that the suit was barred by limitation. This Court repelled the contention in the following words: - "The next contention of the learned counsel is that if it was an agreement to sell, then the suit was time-barred. This question was raised before the trial Court and decided against the petitioners but they did not file any cross-objection in the First Appellate Court. They cannot, therefore, now re- agitate this question."

12. Review of this order is now sought on the ground that this Court has possibly overlooked

(i) that it was the duty of the Court under section 3 of the Limitation Act to consider the question of limitation whether it was raised or not by a party to a proceeding:

(ii) that under Order XLI, rule 33 of the Code of Civil Procedure, the Court of Appeal has ail the powers of the trial Court and it can pass any decree or order which ought to have been passed or made ; and

(iii) that, furthermore, under Order XLI, rule 22 of the Code of Civil Procedure, any respondent, though he may not have appealed from any part of the decree, may support the decree even on any one of the grounds decided against him in the Court below.

13. It is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In the present case, the trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could not do without filing any cross-objection.

14. The next contention of the learned counsel appearing in support of this review petition is that it is, in any event, the duty of the Court to consider the question of limitation. This is also correct to the extent it goes; but it does not mean that where a trial Court has given a finding on the question of limitation against a particular party, he can still, without filing an appeal or cross-objection, challenge that finding in the higher Court of Appeal.

15. The Appellate Court is certainly bound to consider whether the appeal is within time or not, but It is not called upon to consider whether the suit has been rightly held to be within time, if no appeal or cross-objection is filed.

16. Lastly, learned counsel contends that where a decree is passed in respect of one of several alternative reliefs prayed for by the plaintiff, the plaintiff cannot go in appeal and in the Appellate Court contend that he does not want the alternative relief which has been granted to him, or that he desires to have the other relief which he claimed but was refused.

17. Learned counsel has cited a number of other decisions also on other points but It is not necessary to refer to them, as they are not relevant.

18. The petition is accordingly dismissed.

19. The respondents who have entered appearance press for costs, but we make no order as to costs.