JUDGMENT
1. The only question for consideration in this appeal is, whether there is a decree capable of execution as against Mulu. It appears that there was an attempt at house-breaking committed at the house of Mulu in 1919. Two persons were named in the first report made by Mulu at the police station, one of whom was Mohsham Ali Khan, the present appellant. Bhawani had accompanied Mulu when he had gone to the police station to make that report. Both the persons named in the report were originally convicted, but on appeal Mohsham Ali Khan was acquitted.
2. The suit which has given rise to this appeal was then brought by Mohsham Ali Khan for damages' for malicious prosecution. It was decreed by the trial Court both against Mulu and Bhawani. Mulu did not appeal. Bhawani filed an appeal making Mohsham Ali Khan alone a party to it. Mulu subsequently appeared before the appellate Court and asked that his name should be added as a co-appellant, alleging that he had paid Rs. 16 to Bhawani of a joint appeal and that Bhawani had fraudulently kept his name out. Bhawani, however, denied that he had been paid any money. The application was, therefore, rejected.
3. The appellate Court then proceeded to hear the appeal and the conclusion at which it arrived was that there was no satisfactory evidence and that Mohsham Ali Khan had failed to establish that he had been falsely named through enmity. It allowed the appeal accordingly, and dismissed the suit of Mosham Ali Khan, and what is more significant, it set aside the judgment and the decree of the trial Court.
4. An attempt is now being made by Mohsham Ali Khan to execute the decree which had been given to him by the trial Court against Mulu. Both the Courts below have refused to entertain his application because they found that there was no subsisting decree capable of execution against him. O.41, Rule 83 provides that an appellate Court shall have power to make or pass such decree or order as the case may require, and this power may be exercised by it, notwithstanding that the appeal is as to a part only of the decree and it may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not file any appeal or objections. Mulu was not a party to the appeal but he was a party to the original suit which had given rise to that appeal. Both he and Bhawani filed a joint and common defence. The ground upon which the appellate Court proceeded to dismiss the suit was a ground common to Bhawani and Mulu, namely, that no sufficient case for damages had been made out. Although Mulu was not a party to the appeal, the appellate Court passed a decree which had the result of dismissing the suit in its entirety and setting aside the judgment and decree which the trial Court had passed in the case. It is open to an appellate Court to vary the decree appealed against, where there is a common defence, even in favour of persons who have not appealed but were parties to the suit and that is what the appellate Court seems to have done when it dismissed the suit and set aside the judgment and decree which the trial Court had passed and from which one of the defendants, namely, Bhawani alone had appealed.
5. The learned Counsel for the plaintiff has referred to the decision in Puran Mul v. Krant Singh [1897] 28 All. 8. That was a case decided under the old Civil P.C. and all that was held therein was that, unless the appellate Court proceeded upon a ground common to all the defendants, a defendant who did not appeal was not entitled to the benefit of a decree framed in favour of the others. Even that case is not an authority for the proposition that where the appellate Court proceeds upon a ground common to all the defendants, and dismisses the suit as against all, the decree passed by the trial Court against any of the non-appealing defendants can be enforced. A reference has also been made to the decision in Niaz-ud-din v. A bdul Aziz [1909] 31 All. 521. But in that case the suit had been decreed against one of the defendants and dismissed against the other. An appeal was filed by the defendant against whom the claim was decreed and it was held that since the plaintiff had not appealed, the appellate Court could not convert she decree of dismissal in favour of the successful defendant into a decree imposing a liability upon him in an appeal filed by the unsuccessful defendant.
6. The question is really one of interpretation to be placed on the decree passed on appeal. The decree in question here specifically directed that the suit shall stand dismissed and that the decree and judgment of the trial Court should be set aside. In the face of that direction, the view taken by the Courts below ought to be upheld. We dismiss the appeal with costs including fees on the higher scale.