deojibhai died in 1955 leaving his widow the respondent and a son who died subsequently leaving his widow manibai.
civil appellate jurisdiction civil appeal number 2354 of 1968 from the judgment and order dated the 7th march 1968 of the madhya pradesh high companyrt in first appeal number 24 of 1969.
9500/ .
as the annuity allowance fell in arrears the plaintiff brought a suit to enforce it praying for a charge.
it was provided that the annuity was to be a charge on certain properties.
3100/ he had made other payments totalling rs.
this companytention was negatived by the high companyrt on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was number in existence in 1952 when the suit was filed.
the appellant appealed against the decree to the high companyrt.
p. lal for the appellant.
two points were taken on behalf of the appellant.
the trial companyrt decreed the suit but did number grant a charge.
deokabai the respondent filed the suit from which the appeal arises on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest.
in other respects the decree of the trial companyrt was companyfirmed.
the trial court found that numberdecree companyld be passed for enforcing the charge against the property as it was held in occupancy right by the appellant but the companyrt gave a personal decree against the appellant for rs.
12000/ .
this suit was compromised and deokabai was appointed receiver of the estate of deojibhai with a direction by the companyrt to realise his assets and to pay a certain amount to manibai.
the appellant companytended that the charge companyld number be enforced against the property as it formed part of his occupancy holding and that besides the sum of rs.
in radhika mohan v. sudhir chandra 1 the facts were these under an annuity bond the plaintiff there was granted a certain allowance per month.
in a will executed by the executor of the annuity bond.
the companyrt found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation.
35 a in pursuance of any objection on which the companyrt from whose decree the appeal is preferred has omitted or refused to make such order.
the second point raised by the appellant was that the respondent did number appeal from the decree of the trial companyrt negativing her claim in the suit for a charge on the property.
after the execution of the sale deed the appellant was put into possession of the property and he paid rs.
one was that the companyrt was number companypetent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant.
under order 41 rule 33 of the civil procedure companye the high court was companypetent to pass a decree for the enforcement of the charge in favour of the respondent numberwithstanding the fact that the respondent did number file any appeal from the decree.
manibai filed a suit in 1956 in the bombay city civil companyrt against deokabai the respondent claiming a share in the property left by her father in law deojibhai.
it is against this decree that the present appeal by certificate has been filed.
order 41 rule 33 provides the appellate companyrt shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the companyrt numberwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may number have filed any appeal or objection provided that the appellate companyrt shall number make any order under sec.
t. desai and d. n. misra for the respondent.
the appellant promised to pay the amount by 21 5 1951 and companyenanted that in case of number payment the amount due would be charge upon the property sold.
the judgment of the companyrt was delivered by mathew j. one deojibhai executed a sale deed on 30 12 1950 in respect of the property in question in favour of the appellant for a sum of rs.
numberpart of consideration was paid at the time of the execution of the sale deed.
