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CASE NO.:

Appeal (civil) 1376-77 of 2003

PETITIONER:

BANARSI AND ORS.

RESPONDENT:

RAM PHAL

DATE OF JUDGMENT: 17/02/2003

BENCH:

R.C. LAHOTI & BRIJESH KUMAR

JUDGMENT:

JUDGMENT

2003(2) SCR 22

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Leave granted in both the SLPs.

A suit for specific performance of an agreement to sell entered into

between the parties on 03.11.1988 and later on novated by an agreement

dated 15.7.1991, was filed by the respondent herein. According to the

latter agreement, the consideration for sale was appointed at Rs. 2,90,000

out of which an amount of Rs. 2,40,000 was acknowledged by the vendor to

have been received, leaving a balance of Rs. 50,000 to be received at the

time of execution and registration of the sale deed. The appellants had

also filed their own suit seeking cancellation of the agreement dated

03.11.1988 on the ground that the nature of transaction between the parties

was one of loan; that the amount of loan taken by the appellants was only

Rs. 60,000 but the respondent had added advance interest and capitalized

the same; and that the amount of loan with interest was returned and yet

the respondent had failed to deliver back as fully discharged the

agreements dated 03.11.1988 and 15.7.1991. The two suits were consolidated

and tried together by the learned Civil Judge. Vide the judgment and decree

dated 20.5.1994, disposing of both the suits, the Trial Court held that

looking at the real nature of the transaction entered into between the

parties and the evidence adduced to show the actual amount which passed

from the respondent to the appellants it was just and proper that the

appellants returned the amount of Rs. 2,40,000 with interest calculated at

the rate of 1% per month with effect from 3.11.1988 on Rs. 1,80,000 and

with effect from 15.7.1991 on Rs. 60,000. During the course of its judgment

the Trial Court recorded a specific finding that the appellants were

cultivating the land; that land in dispute was very necessary for the

maintenance of their family; and that if execution of sale deed was

directed they would suffer too much hardship. The operative part of the

judgment, incorporated in the decree, reads as under:-

"The defendants Shri Banarsi etc. are hereby ordered that they should

deposit the amount of Rs. 1,80,000 and Rs. 60,000 total Rs. 2,40,000 from

3.11.88 to 15.7.91 within two months for the plaintiff, in the court.

The plaintiff Shri Ramphal is directed that in case the above amount is

deposited during the above mentioned period, he will return the original

agreement after endorsing the receipt of the entire amount on the back of

the original Agreement dated 15.7.91 and return this to the defendants or

do the alienation at their expense in their favour and get it registered.

If the above defendants Shri Banarsi etc. fails to deposit the above

mentioned entire amount in the court within a period of above two months

time then thereafter the plaintiff Shri Ramphal shall have the right that

he after depositing the amount of Rs. 50,000 in the court may get the sale

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deed executed in respect of the land in dispute in his favour or in favour

of the person nominated by him, from the defendants. Accordingly, the order

is given to the defendants that they after executing the above sale deed in

favour of the plaintiff give the same to the plaintiff.

In the land in dispute, all those lands are included which have been

allotted to the defendants after modification in the consolidation.

Both the parties to bear their respective costs. Dated 20.5.94"

The appellants herein filed two appeals in the High Court. By an interim

order dated 13.7.94 passed in one of the appeals, the High Court directed

execution of decree under appeal to remain stayed subject to the appellants

depositing an amount of Rs. 80,000 on or before 31st March, 1995. On

24.3.95, the appellants deposited the amount of Rs. 80,000 in the High

Court. During the pendency of the first appeals, the pecuniary jurisdiction

of the District Courts was enhanced consequent whereupon the first appeals

came to be transferred from the High Court to the District Court. Both the

appeals came to be heard and decided by the learned Additional District

Judge vide his judgment dated 21.9.99. Both the appeals were dismissed. The

respondent did not prefer any appeal of his own nor filed any cross-

objection. While holding the appeals preferred by the appellants liable to

be dismissed, the first appellate Court framed the operative part of the

judgment as under-

"both the appeals are liable to be rejected with this modification that the

suit of the plaintiff Ramphal is liable to be decreed for specific relief

and the original suit no.63 of 1993 Banarsi Versus Ramphal is liable to be

rejected.

ORDER

Both the appeals, while rejecting this order passed by the Court below in

the impugned judgment and decree dated 20.5.1984 that deposit the amount

Rs. 2,40,000 with interest @ 1% within two months and after that make the

endorsement of the receipt of the entire money on the back of the Agreement

dated 15.7.1991 by the Defendant Ramphal and after confirming the remaining

order, modifying the impugned order and decree to that extent, are hereby

dismissed. In this manner the suit of the Plaintiff Ramphal for the

specific relief is decreed with costs against the original Suit No. 38 of

1993 in the matter of the defendant Banarsi etc. and the Defendant Banarsi

etc. are here by directed that they after receiving the balance amount of

Rs. 50,000 as per the agreement dated 15.7.1991 within a period of one

months execute the sale deed and hand over the possession otherwise the

plaintiff shall be at liberty to get the above work done through Court.

Original Suit no.63 of 1993 Banarsi etc. Versus Ram Phal is dismissed with

costs. Copy of this order be kept in the concerned file. Both the parties

would bear their respective costs of both the appeals."

[emphasis supplied]

The appellants preferred two second appeals before the High Court. By an

interim order dated 20.12.99, the High Court directed the execution of the

decrees appealed against to remain stayed subject to the appellants

depositing an amount of Rs. 2,40,000, after adjusting the amount already

deposited by them pursuant to the earlier order of the High Court, within a

period of eight weeks, which amount along with the amount already deposited

should be kept in fixed deposit. On 10.2.2000, the appellants deposited an

amount of Rs. 1,60,000 in the Court of Civil Judge Senior Division, Kairana

(M. Nagar). Both the amounts deposited by the appellants, i.e. Rs. 80,000

and Rs. 1,60,000, are now lying in fixed deposit. Vide the impugned common

judgment (in the two appeals) dated 10.8.2001, the High Court has directed

both the second appeals filed by the appellants to be dismissed as raising

no substantial question of law. One of the pleas advanced on behalf of the

appellants before the High Court was that the first Appellate Court could

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not have, in the purported exercise of power under Order 41 Rule 33 of the

CPC, reversed the decree in respect of the refund of money and directed the

suit for specific performance to be decreed in favour of the respondent

without there being any appeal or cross-objection preferred by the

respondent. The High Court opined that it was open for the respondent not

to file any appeal against the Trial Court's decree on the belief that he

would either get his money back within the short time provided under the

decree or would have the contract specifically performed. However, on

account of the stay order obtained by the appellants, the payment of

decretal amount was not made by the appellants to the respondent as per the

terms of the decree and in such circumstances, the first Appellate Court

committed no error of law in exercising power under Order 41 Rule 33 of the

CPC and passing a decree for specific performance in favour of the

respondent.

Feeling aggrieved by the judgment and decree of the High Court the

appellants have filed these two appeals by special leave.

The appeals raise a short but interesting question of frequent recurrence

as to the power of the appellate court to interfere with and reverse or

modify the decree appealed against by the appellants in the absence of any

cross-appeal or cross-objection by respondent under Order 41 Rule 22 of the

CPC and the scope of power conferred on appellate court under Rule 33 of

Order 41 of the CPC.

The first question is whether without cross objection by the respondent,

could the Appellate Court have set aside the decree passed by the Trial

Court and instead granted straightaway a decree for specific performance of

contract? This would require reference to the principles underlying right

to file an appeal and right to prefer cross objection or when does it

become necessary to prefer cross objection without which decree under

appeal cannot be altered or varied to the advantage of the respondent

and/or to the disadvantage of the appellant. Rule 22 of Order 41, as

amended by CPC Amendment Act 104 of 1976, with effect from 1.2.1977 is

reproduced hereunder in juxtaposition with the text of the provision as it

stood prior to the amendment.

Order 41 Rule 22

Text as amended by Act 104 of 1976(w.e.f. 1-2-1977)

Text pre-amendment

R.22. Upon hearing, respondent may object to decree as if he had preferred

a separate appeal.-(1)

Any respondent, though he may not have appealed from any part of the

decree, may not only support the decree [but may also state that the

finding against him in the Court below in respect of any issue ought to

have been in his favour; and may also take any cross-objection] to the

decree which he could have taken by way of appeal:

Provided he has filed such' objection in the Appellate Court within one

month from the date of service on him or his pleader of notice of the day

fixed for hearing the appeal, or within such further time as the Appellate

Court may see fit to allow.

[Explanation.-A respondent aggrieved by a finding of the Court in the

judgment on which the decree appealed against is based may, under this

rule, file cross-objection in respect of the decree in so far as it is

based on that finding, notwithstanding that by reason of the decision of

the Court on any other finding which is sufficient for the decision of the

suit, the decree, is, wholly or in part, in favour of that respondent.]

R.22. Upon hearing, respondent may object to decree as if he had preferred

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a separate appeal.-(1)

Any respondent, though he may not have appealed from any part of the

decree, may not only support the decree on any of the grounds decided

against him in the Court below, but take any cross-objection to the decree

which he could have taken by way of appeal, provided he has filed such

objection in the Appellate Court within one month from the date of service

on him or his pleader of notice of the day fixed for hearing the appeal, or

within such further time as the Appellate Court may see fit to allow.

(2) xxxx xxxx xxxx (2) xxxx xxxx xxxx

(3) xxxx xxxx xxxx (3) xxxx xxxx xxxx

(4) Where, in any case in which (4) Where, in any case in which any

any respondent has under this rule respondent has under this rule filed

a filed a memorandum of objection, memorandum of objection, the

original appeal is withdrawn or original appeal is withdrawn or is

dismissed for default, the dismissed for default, the objection

objection so filed may nevertheless so filed may nevertheless be heard

be heard and determined after such and determined after such notice to

notice to the other parties as to the other parties as the Court thinks

Court thinks fit. fit.

Sections 96 and 100 of the CPC make provision for an appeal being preferred

from every original decree or from every decree passed in appeal

respectively; none of the provisions enumerates the person who can file an

appeal. However, it is settled by a long catena of decisions that to be

entitled to file an appeal the person must be one aggrieved by the decree.

Unless a person is prejudicially or adversely affected by the decree he is

not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal,

[1967] 3 SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P)

Ltd., [1970] 3 SCC 573; Smt. Ganga Bai v. Vijay Kumar and Ors., [1974] 2

SCC 393. No appeal lies against a mere finding. It is significant to note

that both Sections 96 and 100 of the CPC provide for an appeal against

decree and not against judgment.

Any respondent though he may not have filed an appeal from any part of the

decree may still support the decree to the extent to which it is already in

his favour by laying challenge to a finding recorded in the impugned

judgment against him. Where a plaintiff seeks a decree against the

defendant on grounds (A) and (B), any one of the two grounds being enough

to entitle the plaintiff to a decree and the Court has passed a decree on

ground (A) deciding it for the plaintiff while ground (B) has been decided

against the plaintiff, in an appeal preferred by the defendant, in spite of

the finding on ground (A) being reversed the plaintiff as a respondent can

still seek to support the decree by challenging finding on ground (B) and

persuade the appellate court to form an opinion that in spite of the

finding on ground (A) being reversed to the benefit of defendant-appellant

the decree could still be sustained by reversing the finding on ground (B)

though the plaintiff-respondent has neither preferred an appeal of his own

nor taken any cross objection. A right to file cross objection is the

exercise of right to appeal though in a different form. It was observed in

Sahadu Gangaram Bhagade v. Special Deputy Collector. Ahmednagar and Anr.,

[1971] 1 SCR 146 that the right given to a respondent in an appeal to file

cross objection is a right given to the same extent as is a right of appeal

to lay challenge to the impugned decree if he can be said to be aggrieved

thereby. Taking any cross objection is the exercise of right of appeal and

takes the place of cross-appeal though the form differs. Thus it is clear

that just as an appeal is preferred by a person aggrieved by the decree so

also a cross objection is preferred by one who can be said to be aggrieved

by the decree. A party who has fully succeeded in the suit can and needs to

neither prefer an appeal nor take any cross objection though certain

finding may be against him. Appeal and cross-objection - both are filed

against decree and not against judgment and certainly not against any

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finding recorded in a judgment. This was well-settled position of law under

the unamended CPC.

CPC Amendment of 1976 has not materially or substantially altered the law

except for a marginal difference. Even under the amended Order 41 Rule 22

sub-rule (1) a party in whose favour the decree stands in its entirety is

neither entitled nor obliged to prefer any cross objection. However, the

insertion made in the text of sub-rule (1) makes it permissible to file a

cross objection against a finding. The difference which has resulted we

will shortly state. A respondent may defend himself without filing any

cross objection to the extent to which decree is in his favour; however, if

he proposes to attack any part of the decree he must take cross objection.

The amendment inserted by 1976 amendment is clarificatory and also enabling

and this may be made precise by analysing the provision. There may be three

situations:-

(i) The impugned decree is partly in favour of the appellant and partly in

favour of the respondent;

(ii) The decree is entirely in favour of the respondent though an issue has

been decided against the respondent;

(iii) The decree is entirely in favour of the respondent and all the issues

have also been answered in favour of the respondent but there is a finding

in the judgment which goes against the respondent.

In the type of case (i) it was necessary for the respondent to file an

appeal or take cross objection against that part of the decree which is

against him if he seeks to get rid of the same though that part of the

decree which is in his favour he is entitled to support without taking any

cross objection. The law remains so post amendment too. In the type of

cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the

respondent to take any cross objection as he was not the person aggrieved

by the decree. Under the amended CPC, read in the light of the explanation,

though it is still not necessary for the respondent to take any cross

objection laying challenge to any finding adverse to him as the decree is

entirely in his favour and he may support the decree without cross

objection; the amendment made in the text of sub-rule (1), read with the

explanation newly inserted, gives him a right to take cross objection to &

finding recorded against him either while answering an issue or while

dealing with an issue. The advantage of preferring such cross objection is

spelled out by sub-rule (4). In spite of the original appeal having been

withdrawn or dismissed for default the cross objection taken to any finding

by the respondent shall still be available to be adjudicated upon on merits

which remedy was not available to the respondent under the unamended CPC.

In pre-amendment era, the withdrawal or dismissal for default of the

original appeal disabled the respondent to question the correctness or

otherwise of any finding recorded against the respondent.

The fact remains that to the extent to which the decree is against the

respondent and he wishes to get rid of it he should have either filed an

appeal of his own or taken cross objection failing which the decree to that

extent cannot be insisted on by the respondent for being interfered, set

aside or modified to his advantage. The law continues to remain so

post-1976 amendment. In a suit seeking specific performance of an agreement

to sell governed by the provisions of the Specific Relief Act, 1963 the

Court has a discretion to decree specific performance of the agreement. The

plaintiff may also claim compensation under Section 21 or any other relief

to which he may be entitled including the refund of money or deposit paid

or made by him in case his claim for specific performance is refused. No

compensation or any other relief including the relief of refund shall be

granted by the Court unless it has been specifically claimed in the plaint

by the plaintiff. Certainly the relief of specific performance is a larger

relief for the plaintiff and more onerous to the defendant compared with

the relief for compensation or refund of money. The relief of compensation

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or refund of money is a relief smaller than the relief of specific

performance. A plaintiff who files a suit for specific performance claiming

compensation in lieu of or in addition to the relief of specific

performance or any other relief including the refund of any money has a

right to file an appeal against the original decree if the relief of

specific performance is refused and other relief is granted. The plaintiff

would be a person aggrieved by the decree in spite of one of the

alternative reliefs having been allowed to him because what has been

allowed to him is the smaller relief and the larger relief has been denied

to him. A defendant against whom a suit for specific performance has been

decreed may file an appeal seeking relief of specific performance being

denied to the plaintiff and instead a decree of smaller relief such as that

of compensation or refund of money or any other relief being granted to the

plaintiff for the former is larger relief and the latter is smaller relief.

The defendant would be the person aggrieved to that extent. It follows as a

necessary corollary from the abovesaid statement of law that in an appeal

filed by the defendant laying challenge to the relief of compensation or

refund of money or any other relief while decree for specific performance

was denied to the plaintiff, the plaintiff as a respondent cannot seek the

relief of specific performance of contract or modification of the impugned

decree except by filing an appeal of his own or by taking cross objection.

We are, therefore, of the opinion that in the absence of cross appeal

preferred or cross objection taken by the plaintiff-respondent the First

Appellate Court did not have jurisdiction to modify the decree in the

manner in which it has done. Within the scope of appeals preferred by the

appellants the First Appellate Court could have either allowed the appeals

and dismissed the suit filed by the respondent in its entirety or could

have deleted the latter part of the decree which granted the decree for

specific performance conditional upon failure of the defendant to deposit

the money in terms of the decree or could have maintained the decree as it

was passed by dismissing the appeals. What the First Appellate Court has

done is not only to set aside the decree to the extent to which it was in

favour of the appellants but also granted an absolute and out and out

decree for specific performance of agreement to sell which is to the

prejudice of the appellants and to the advantage of the respondent who has

neither filed an appeal nor taken any cross objection.

The learned counsel for the respondent forcefully argued that even in the

absence of appeal preferred by the plaintiff or cross objection taken by

the plaintiff-respondent the Appellate Court was not powerless to grant the

decree which it has done in exercise of the power conferred by Rule 33 of

Order 41 of the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which have

to be read necessarily together, are set out hereunder:

ORDER 41 Appeals from Original Decrees

"33. Power of Court of Appeal.-The Appellate Court 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 Court notwithstanding 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 not have filed any appeal or objection and may, where there

have been decrees in cross-suits or where two or more decrees are passed in

one suit, be exercised in respect of all or any of the decrees, although an

appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section

35A, in pursuance of any objection on which the Court from whose decree the

appeal is preferred has omitted or refused to make such order.

Illustration

A claims a sum of money as due to him from X or Y, and in a suit against

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both obtains a decree against X. X, appeals and A and Y are respondents.

The Appellate Court decides in favour of X. It has power to pass a decree

against Y.

4. One of several plaintiffs or defendants may obtain reversal of whole

decree where it proceeds on ground common to all.-Where there are more

plaintiffs or more defendants than one in a suit, and the decree appealed

from proceeds on any ground common to all the plaintiffs or to all the

defendants, any one of the plaintiffs or of the defendants may appeal from

the whole decree, and thereupon the Appellate Court may reverse or vary the

decree in favour of all the plaintiffs or defendants, as the case may be."

Rule 4 seeks to achieve one of the several objects sought to be achieved by

Rule 33, that is, avoiding a situation of conflicting decrees coming into

existence in the same suit. The abovesaid provisions confer power of widest

amplitude on the appellate court so as to do complete justice between the

parties and such power is unfettered by consideration of facts like what is

the subject matter of appeal, who has filed the appeal and whether the

appeal is being dismissed, allowed or disposed of by modifying the judgment

appealed against. While dismissing an appeal and though confirming the

impugned decree, the appellate court may still direct passing of such

decree or making of such order which ought to have been passed or made by

the court below in accordance with the findings of fact and law arrived at

by the court below and which it would have done had it been conscious of

the error committed by it and noticed by the Appellate Court. While

allowing the appeal or otherwise interfering with the decree or order

appealed against, the appellate court may pass or make such further or

other, decree or order, as the case would require being done, consistently

with the findings arrived at by the appellate court. The object sought to

be achieved by conferment of such power on the appellate court is to avoid

inconsistency, inequity, inequality in reliefs granted to similarly placed

parties and unworkable decree or order coming into existence. The

overriding consideration is achieving the ends of justice. Wider the power,

higher the need for caution and care while exercising the power. Usually

the power under Rule 33 is exercised when the portion of the decree

appealed against or the portion of the decree held liable to be set aside

or interfered by the appellate court is so inseparably connected with the

portion not appealed against or left untouched that for the reason of the

latter portion being left untouched either injustice would result or

inconsistent decrees would follow. The power is subject to at least three

limitations: firstly, the power cannot be exercised to the prejudice or

disadvantage of a person not a party before the Court; secondly, a claim

given up or lost cannot be revived; and thirdly, such part of the decree

which essentially ought to have been appealed against or objected to by a

party and which that party has permitted to achieve a finality cannot be

reversed to the advantage of such party. A case where there are two reliefs

prayed for and one is refused while the other one is granted and the former

is not inseparably connected with or necessarily depending on the other, in

an appeal against the latter, the former relief cannot be granted in favour

of the respondent by the appellate court exercising power under Rule 33 of

Order 41.

Panna Lal v. State of Bombay and Ors., [1964] 1 SCR 980 so sets out the

scope of Order 41 Rule 33 in the widest terms. "The wide wording of O.41

R.33 was intended to empower the appellate court to make whatever order it

thinks fit, not only as between the appellant and the respondent but also

as between a respondent and a respondent. It empowers the appellate court

not only to give or refuse relief to the appellant by allowing or

dismissing the appeal but also to give such other relief to any of the

respondents as "the case may require". If there was no impediment in law

the High Court in appeal could, therefore, though allowing the appeal of

the defendant-appellant by dismissing the plaintiff' s suit against it,

give the plaintiff-respondent a decree against any or all the other

defendants who were parties to the appeal as respondents. While the very

words of the rule make this position abundantly clear the Illustration puts

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the position beyond argument." The suit was filed by the plaintiff

impleading the State government and the Deputy Commissioner seeking

recovery of compensation for the work done under a contract and the price

of the goods supplied. The Trial Court held that the State was liable as it

had beyond doubt benefited by the performance of the plaintiff. The suit

was decreed against the State. The State preferred an appeal in the High

Court. The plaintiff and other defendants including the Deputy Commissioner

were impleaded as respondents. Disagreeing with the Trial Court, the High

Court held that the contract entered into by the Deputy Commissioner was

not binding on the State government; that the Deputy Commissioner signed

the contract at his own discretion; and further, that the contract not

having been entered into in the form as required under Section 175(3) of

the Government of India Act, 1935, was not enforceable against the State

government. The High Court also held that the government could not be held

to have ratified the action of the contract entered into by the Deputy

Commissioner. The State was held also not to have benefited by the

performance of the plaintiff. On this finding, the High Court set aside the

Trial Court's decree passed against the State government. In an appeal to

this Court, the Constitution Bench held that it was a fit case for the

exercise of jurisdiction under Order 41 Rule 33 of the CPC. On the findings

arrived at by the High Court, while setting aside the decree against the

State, the High Court should have passed a decree against the Deputy

Commissioner. It was not necessary for the plaintiff to have filed any

cross-objection and the illustration appended to Order 41 Rule 33 was

enough to find solution.

In Rameshwar Prasad and Ors. v. Shambehari Lal Jagannath and Anr., [1964] 3

SCR 549, the three-Judge Bench speaking through Raghubar Dayal, J. observed

that Rule 33 really provides as to what the Appellate Court can find the

appellant entitled to and empowers the Appellate Court to pass any decree

and make any order which ought to have been passed or made in the

proceedings before it and thus could have reference only to the nature of

the decree or order in so far as it affects the rights of the appellant. If

further empowers the Appellate Court to pass or make such further or other,

decree or order, as the case may require. The Court is thus given wide

discretion to pass such decrees and orders as the interests of justice

demand. Such a power is to be exercised in exceptional cases when its non-

exercise will lead to difficulties in the adjustment of rights of the

various parties, (vide Para 17, emphasis supplied)

In Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors., [1975] 1

SCC 212, the following statement of law made by Venkatarama Aiyar, J. (as

His Lordship then was) in the Division Bench decision in Krishna Reddy v.

Ramireddi, AIR (1954) Madras 848 was cited with approval which clearly

brings out the wide scope of power contained in Rule 33 and the

illustration appended thereto, as also the limitations on such power:

"Though Order 41, Rule 33 confers wide and unlimited jurisdiction on Courts

to pass a decree in favour of a party who has not preferred any appeal,

there are, however, certain well-defined principles in accordance with

which that jurisdiction should be exercised. Normally, a party who is

aggrieved by a decree should, if he seeks to escape from its operation,

appeal against it within the time allowed after complying with the

requirements of law. Where he fails to do so, no relief should ordinarily

be given to him under Order 41, Rule 33.

But there are well-recognised exceptions to this rule. One is where as a

result of interference in favour of the appellant it becomes necessary to

readjust the rights of other parties. A second class of cases based on the

same principle is where the question is one of settling mutual rights and

obligations between the same parties. A third class of cases is when the

relief prayed for is single and indivisible but is claimed against a number

of defendants. In such cases, if the suit is decreed and there is an appeal

only by some of the defendants and if the relief is granted only to the

appellants there is the possibility that there might come into operation at

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the same time and with reference to the same subject-matter two decrees

which are inconsistent and contradictory. This, however, is not an

exhaustive enumeration of the class of cases in which courts could

interfere under Order 41, Rule 33. Such an enumeration would neither be

possible nor even desirable."

In the words of J.C. Shah, J. speaking for a three-Judge Bench of this

Court in Nirmala Bala Ghose and Anr. v. Balai Chand Ghose and Anr., [1965]

3 SCR 550, the limitation on discretion operating as bounds of the width of

power conferred by Rule 33 can be so formulated -

"The rule is undoubtedly expressed in terms which are wide, but it has to

be applied with discretion, and to cases where interference in favour of

the appellant necessitates interference also with a decree which has by

acceptance or acquiescence become final so as to enable the Court to adjust

the rights of the parties. Where in an appeal the Court reaches a

conclusion which is inconsistent with the opinion of the Court appealed

from and in adjusting the right claimed by the appellant it is necessary to

grant relief to a person who has not appealed, the power conferred by O.41

R.33 may properly be invoked. The rule however does not confer an

unrestricted right to re-open decrees which have become final merely

because the appellate Court does not agree with the opinion of the Court

appealed from." (Para 22)

A Division Bench decision of Calcutta High Court in Jadunath Basak v.

Mritunjoy Sett and Ors., AIR (1986) Calcutta 416 may be cited as an

illustration. The plaintiff filed a suit for declaration that the defendant

had no right or authority to run the workshop with machines in the suit

premises and for permanent injunction restraining the defendant from

running the workshop. The Trial Court granted a decree consisting of two

reliefs: (i) the declaration as prayed for, and (ii) an injunction

permanently restraining the defendant from running the workshop except with

the terms of a valid permission and licence under Sections 436 and 437 of

Calcutta Municipal Act, 1951 from the Municipal Corporation. The defendant

filed an appeal. The Division Bench held that in an appeal filed by the

defendant, the plaintiff cannot challenge that part of the decree which

granted conditional injunction without filing the cross-objection. The

Division Bench drew a distinction between the respondent's right to

challenge an adverse finding without filing any appeal or cross-objection

and the respondent seeking to challenge a part of the decree itself without

filing the cross-objection. The Division Bench held that the latter was not

permissible. We find ourselves in agreement with the view taken by the High

Court of Calcutta.

In the case before us, the Trial Court found the plaintiff (in his suit)

not entitled to decree for specific performance and found him entitled only

for money decree. In addition, a conditional decree was also passed

directing execution of sale deed if only the defendant defaulted any paying

or depositing the money within two months. Thus to the extent of specific

performance, it was not a decree outright; it was a conditional decree.

Rather, the latter part of the decree was a direction in terrorem so as to

secure compliance by the appellant of the money part of the decree in the

scheduled time frame. In the event of the appellant having made the payment

within a period of two months, the respondent would not be, and would never

have been, entitled to the relief of specific performance. The latter

decree is not inseparably connected with the former decree. The two reliefs

are surely separable from each other and one can exist without the other.

Nothing prevented the respondent from filing his own appeal or taking

cross-objection against that part of the decree which refused straightaway

a decree for specific performance in his favour based on the finding of

comparative hardship recorded earlier in the judgment. The dismissal of

appeals filed by the appellant was not resulting in any inconsistent,

iniquitous, contradictory or unworkable decree coming into existence so as

to warrant exercise of power under Rule 33 of Order 41. It was not a case

of interference with decree having been so interfered with as to call for

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adjustment of equities between respondents inter se. By his failure to

prefer an appeal or to take cross-objection the respondent has allowed the

part of the Trial Court's decree to achieve a finality which was adverse to

him.

For the foregoing reasons we are of the opinion that the first Appellate

Court ought not to have, while dismissing the appeals filed by the

defendant-appellants before it, modified the decree in favour of the

respondent before it in the absence of cross-appeal or cross-objection. The

interference by the first Appellate Court has reduced the appellants to a

situation worse than in what they would have been if they had not appealed.

The High Court ought to have noticed this position of law and should have

interfered to correct the error of law committed by the first Appellate

Court.

During the course of hearing, the learned counsel for the appellants made a

statement under instructions, that the appellants have a large family to

support which is entirely dependent on the suit land for maintaining itself

and they have no other means of livelihood. (This statement finds support

from the finding arrived at by the Trial Court) He further stated that, in

any case, to get rid of the onerous part of the decree, the appellants

volunteer to pay a further amount of Rs. 1,20,000 by way of compensation to

the respondent over and above the amount of Rs. 2,40,000 already deposited

by them in the Court pursuant to interim orders alongwith the bank interest

accrued thereon. That statement is taken on record and being a very fair

voluntary offer deserves to be accepted and incorporated in the decree.

The appeals are allowed. The judgment and decree of the first Appellate

Court are set aside and instead those of the Trial Court restored. In view

of the appellants having deposited the money due and payable under the

money part of the decree, it is held that they are relieved from

specifically performing the agreement and executing sale deed in pursuance

thereof. The delay in deposit, if any, deserves to be condoned in view of

the interim orders passed by the High Court and is hereby condoned. The

time for deposit, as appointed by the Trial Court, shall be deemed to have

been extended upto the dates of actual deposits made by the appellants. The

amount of Rs. 2,40,000 lying deposited in the Court and invested in fixed

deposits shall, along with the interest earned, be released to the

respondents. In addition the appellants shall, as offered by them, deposit

with the executing court for payment to the respondent another amount of

Rs. 1,20,000 within a period of eight weeks from today. On that being done,

the decree passed by the Trial Court shall be deemed to have been fully

satisfied. The respondent shall deliver the agreements dated 03.11.1988 and

15.7.1991 to the appellants endorsing upon the agreements the amount of

money received and that the agreements stand discharged and need not be

performed. The costs shall be borne by the parties as incurred throughout.