The powers of an appellate court to interfere with a decree passed by a trial court in the absence of a cross-appeal or cross-objection are governed by specific legal principles under the Code of Civil Procedure.
Showing posts with label O 41 R33 of CPC. Show all posts
Showing posts with label O 41 R33 of CPC. Show all posts
Sunday, 15 June 2025
Supreme Court: Order 41 Rule 33 no doubt clothes the appellate court with an extraordinary power, which however is a rare jurisdiction
We may also observe that reference made to Order 41 Rule 33 of the Code of Civil Procedure may not have been justified. Order 41 Rule 33 no doubt clothes the appellate court with an extra ordinary power, which however is a rare jurisdiction. It is to reach justice in the special facts of a case. It is not an ordinary Rule to be applied across the board in all the appeals. In fact, the principle is inter alia no doubt that even if there is no appeal by any of the parties in the proceedings, an order can be passed in his favour in the appeal carried by the other side. Any order which ought to have been passed can be passed. {Para 13}
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 2794 of 2022
Decided On: 07.04.2022
Eastern Coalfields Limited and Ors. Vs. Rabindra Kumar Bharti
Hon'ble Judges/Coram:
K.M. Joseph and Hrishikesh Roy, JJ.
Author: K.M. Joseph, J.
Citation: 2022 INSC 405, MANU/SC/0466/2022.
Print Page
Order 41, Rule 33 of CPC: Extraordinary Appellate Power and Its Limitations
Statutory Framework of Order 41, Rule
33
Power of Court of Appeal
Print PageRestricting Appellate Modification of Decrees Without Cross-Appellate Objection: Analysis of Banarsi v. Ram Phal
The landmark Supreme Court of India case of Banarsi And Others v. Ram Phal (2003) 9 SCC 606 established crucial limitations on the power of appellate courts to modify decrees in the absence of cross-appeals or cross-objections. This case provides significant guidance on the boundaries of appellate jurisdiction under the Code of Civil Procedure (CPC).
Case Background
Print PageFriday, 22 May 2020
When Civil appeal will not be barred by res judicata?
Maintainability of the present appeal
(A) Res Judicata
39. At the outset, the respondents contend that the present appeal is not maintainable and that, if maintainable, propriety demands that it should be dismissed as otherwise it may give rise to conflicting decrees in the same cause of action.
40. The present appeal is only at the instance of the sole-appellant Bajranglal, who was Defendant No. 8 in the original suit filed by the Respondent No. 8 (original plaintiff). The decree made by the High Court qua other respondents (original defendants) has attained finality since defendants 1-4, 6 and 7 in that suit did not challenge the judgment dated 2/5.4.93 made by the Division Bench of the Bombay High Court and the consequent decree. The original defendants 1, 2 and 7 did not participate in the proceedings before the High Court and the suit was contested only by defendant No. 5 Shyamsunder and defendant No. 8 Bajaranglal (the present appellant).Respondents contend that inasmuch as the appeal filed by Shyamsunder, original defendant No. 5, being C.A. No. 7490/93 was dismissed by this Court on 15th January, 2001 for non prosecution, the judgment of the Division Bench of the Bombay High Court operates as res-judicata. It is urged that the judgment and decree has become final as against Bajaranglal and all other defendants in the original suit. Even otherwise, it is urged that the present appeal must be dismissed as otherwise it may give rise to conflicting decrees.
41. It is not possible to accept that the principle of res-judicata will apply to bar the appeal. Section 11 of the CPC would bar the Court from trying any suit or issue in which the matter "directly and substantially in issue" between the same parties or between the parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or suit in which such issue has been subsequently raised, has been "heard and finally decided by such Court". In the present case, Bajaranglal and Shyamsunder were defendants in the Original Suit No. 118 of 1973. The suit was dismissed and the plaintiff Satyavati carried an appeal to the Division Bench. In the appeal, both Bajranglal and Shyamsunder were respondents . The Division Bench, reversed the Single Judge's judgment and decreed the suit by its judgment. As the respondents in the appeal before the Division Bench both Bajranglal and Shyamsunder were aggrieved by the decree against them. The present appellant Bajranglal filed SLP No. 8425/93 on 27.5.1993. while Shyamsundar filed his appeal No. SLP 18492/93 on 17.12.1993.
42. Leave was granted in Bajranglal's appeal on 4.10.1993 while leave was granted in Shyamsundar's case on 17.12.1993. Subsequently, Bajranglal's appeal was numbered as Civil Appeal No. 5293 while Shyamsundar's appeal was numbered as Civil Appeal No. 7490/93. Shyamsundar's appeal was dismissed for default for non-removal of office objections on 15.1.2000. Thus, it is obvious that both in the matter of filing the SLP and granting of leave, Bajranglal's appeal was earlier and Shamsundar's was later in time. In these circumstances, we are unable to accept the contention that an order dismissing a subsequent appeal for default can operate as res-judicata in respect of an earlier appeal. Neither Section 11 of the CPC, nor any principle derivable therefrom, would bar the appeal as contended by the respondents. The contention is misconceived and we see no merit in the contention. In our judgment, the appeal is perfectly maintainable.
B. Conflict of decrees
43. The respondents then contend that, even if the appeal is not liable to be dismissed on the principle of res-judicata, even otherwise the appeal should be dismissed as it may result in conflicting decrees. Upon dismissal for default of Civil Appeal No. 7490/93, the decree made by the High Court became final as against Shyamsundar. If the present appeal is allowed, resulting in setting aside the decree or making any modification thereof, it would result in the anomalous situation of there being conflicting decrees between the same parties, arising out of same cause of action, is the contention.
44. In our view, this contention has no merit. Where there are several defendants, who are equally aggrieved by a decree on a ground common to all of them, and only one of them challenges the decree by an appeal in his own right, the fact that the other defendants do not choose to challenge the decree or that they have lost their right to challenge the decree, cannot render the appeal of the appealing defendant infructuous on this ground. In fact, Rule 4 and Rule 33 of Order XLI of the CPC are enacted to deal with such a situation.
67. In our view, this is the litmus test to decide whether an appeal should be dismissed for possible conflict of decrees or not applying this test; it appears to us that the appeal before us cannot be dismissed. Shyamsunder is the 5th respondent before us, who has been served, but has chosen to remain absent. The fact that Shyamsunder's own appeal failed for non-compliance with the office objections cannot have the consequence of defeating the appeal of the present appellant Bajaranglal. Order XLI Rule 4 read with Rule 33 invests this Court with sufficient power to entertain the appeal of Bajranglal before us and to make any appropriate order thereupon consonant with justice, equity and good conscience. In the result we overrule the preliminary objections and hold that the appeal is maintainable.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 5293 of 1993
Decided On: 23.03.2004
Bajranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors.
Tuesday, 21 April 2020
Leading Supreme court judgments on parameters for exercise of powers by appellate court under O 41 R 33 of CPC
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 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 decree 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 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."
15. (SIC) 4 seeks (SIC) 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 in discretion 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 appellant 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.
18. In Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors. , MANU/SC/0008/1974 : [1975]2SCR932 , 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, MANU/TN/0366/1954 : AIR1954Mad848 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 decree 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 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."
19. 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. , MANU/SC/0346/1965 : [1965]3SCR550 , 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 Order 41 Rule 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)
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 1376-1377 of 2003
Decided On: 17.02.2003
Banarsi Vs. Ram Phal
Leading Supreme Court judgment Banarsi Vs. Ram Phal on 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. - MANU/SC/0438/1970 : [1971]1SCR146 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 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 finding recorded in a judgment. this was well-settled position of law under the unamended CPC.
10. 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 stated. A respondent may defined 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.
11. 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 a 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.
12. 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.
Civil Appeal Nos. 1376-1377 of 2003
Decided On: 17.02.2003
Banarsi Vs. Ram Phal
Hon'ble Judges/Coram:
R.C. Lahoti and Brijesh Kumar, JJ.
Citation: AIR 2003 SC 1989
Sunday, 15 September 2019
Whether defendant can file cross objection if suit against it is dismissed in default?
We find that the High Court has failed to draw the distinction
between the decree and a finding on an issue. It is the decree
against which an appeal lies in terms of Section 96 of the Code.
Decree in terms of Section 2(2) of the Code means formal
expression of an adjudication conclusively determining the rights of
the parties. The defendants-State could not file an appeal against
a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 17486 OF 2017
STATE OF ANDHRA PRADESH Vs B. RANGA REDDY
HEMANT GUPTA, J.
Dated: AUGUST 09, 2019.
Sunday, 16 December 2018
Whether appellate court can give relief to respondent?
Even a bare reading of Order 41, rule 33 is a sufficient to convince any one that the wide wording 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 respondent as "the case may require."
IN THE SUPREME COURT OF INDIA
Civil Appeals Nos. 207 to 209 of 1961
Decided On: 11.02.1963
Pannalal Vs. State Bombay and Ors.
Hon'ble Judges/Coram:
J.C. Shah, K.C. Das Gupta, K.N. Wanchoo, M. Hidayatullah and P.B. Gajendragadkar, JJ.
Citation: AIR 1963 SC 1516
Whether appellate court can grant relief under O 41 R 33 of CPC even if it is not claimed in plaint?
While considering the scope of the powers of the appellate Court under provisions of Order-XLI, Rule 33 of the Code, the Constitution Bench of the Honourable Supreme Court in Panna Lal [supra] observed that the appellate Court while denying relief to the appellant could grant relief to the respondent as "the case may require." In Mahant Dhangir [supra], it was held that the provisions of Order-XLI, Rule 22 and Rule 33 of the Code were not mutually exclusive. Rule 33 was liberal enough and the only requirements for exercise of such discretion were that the parties before the lower Court should be there before the appellate Court and the question raised must arise properly out of the judgment of the lower Court.
In Chaya and others v. Bapusaheb and others [MANU/SC/0616/1994 : (1994) 2 SCC 41], it was observed by the Honourable Supreme Court in paragraph 14 of its decision as under:-
"14. This provision is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the rule confers a wide discretionary power on the appellate court to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding the fact that the appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross- objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule."
14. From aforesaid, it can be seen that the appellate Court is vested with wide powers to enable it to do complete justice between the parties so as to pass such decree or order as the case may require even in absence of any appeal or cross-appeal. Though it was urged on behalf of the appellants that only such relief that was prayed for in the plaint could be granted in exercise of such powers, I am not in a position to accept said submission. The exercise of these wide powers is not trammeled by the absence of any prayer being made in the plaint. This exercise of power is, however, circumscribed for being exercised only in rare cases and when the facts of such case demand its exercise.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 280 of 2016
Decided On: 13.07.2017
Sattarsha Dibarsha Vs. Ajizabi Dilbarsha and Ors.
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Sunday, 19 August 2018
Whether decree can be re-opened by appellate court in absence of cross objection by affected party?
In so far as the first substantial question of law is concerned, it can be seen that the trial Court while answering Issue No. 1 held that the plaintiff had proved that the sale-deed dated 16th August, 1983 was a valid document. On that count, it granted the relief of declaration of title in favour of the plaintiff. It is only the plaintiff who preferred an appeal as the relief of possession and damages was refused by the trial Court. No Cross-objections were filed by the defendant. In such a situation, therefore, in absence of any Cross-objection or Cross-appeal by the defendant, the decree in so far as declaration of the plaintiff's title is concerned could not have been reopened. The legal position in this regard is well settled and reference in that regard can be made to the decision in Indrakumar Daulat Khushlani Vs. Atmaram Vitthal Zade [MANU/MH/2879/2014 : 2015 (3) Mh.L.J. 613]. It is, thus, clear that the first appellate Court committed an error in setting aside the partial decree passed by the trial Court without the same being challenged by the defendant. Substantial question of law No. 1 is answered by holding that the appellate Court committed an error in setting aside the decree with regard to declaration of the plaintiff's ownership.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 384 of 2003
Decided On: 09.02.2018
Tulshidas Vs. Madhukar
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Citation: 2018(4) MHLJ 370
Whether decree passed by trial court if it refuses part of relief to plaintiff can be altered in absence of cross objection by plaintiff?
In Tummalla Atchaiah (supra), it was observed by the Supreme Court that in absence of any specific ground in the cross objections, the decree passed by the trial Court cannot be altered in exercise of powers conferred under provisions of Order 41, Rule 33 of the Code. Similarly, in Hardevinder Singh (supra), it was held by the Supreme Court that though the respondent may defend the decree in his favour without filing any cross objections, if he intends to assail any part of the decree, then it is obligatory for him to file cross objections. It is, therefore, clear that the decree as passed by the trial Court can be supported without filing any cross objection, but if any alteration or modification in said decree is sought, then the same has to be done by filing cross objections. Similar view has been taken by learned Single Judge in Surjansingh (supra) by observing that if the respondent wants any particular relief in his favour from the Appellate Court, then cross objections to the decree are required to be filed. In view of aforesaid position, it is clear that in absence of any cross objection by the plaintiff, the decree passed by the trial Court granting part relief could not be modified to convert said decree into one granting larger relief.
Thus, from aforesaid discussion, it is clear that the first Appellate Court exceeded its jurisdiction while exercising powers under Order 41, Rule 33 of the Code by modifying the decree passed by the trial Court. Such course is not permissible in law. The substantial question of law as framed is answered by holding that in absence of any cross objections, the decree passed by the trial Court cannot be modified or altered by the first Appellate Court.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
S.A. No. 44 of 2014
Decided On: 23.12.2014
Indrakumar Vs. Atmaram and Ors.
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Citation: 2015 (3) Mh.L.J. 613.
Saturday, 12 May 2018
Notes on Civil appeal
APPEALS
FROM ORIGINAL DECREE: S 96-99A .Order 41 of CPC.
The word appeal has not been
defined in the code. The term refers to the removal of cause from an
inferior to a superior court for the purpose of testing the
soundness of the decision of the inferior court. It is thus a remedy
provided by law for getting the decree of lower court nullified, and
is in fact,a complaint made to a higher court that the decree of
lower court is unsound and wrong. An appeal must be preferred against
the whole decree and not any
item or items in it. An appeal is only a continuation of original
proceedings and it is a stage in the suit itself.
S
96 of CPC lays down four primary rules regarding appeals from
original decree as follows:
1) Unless otherwise provided,
an appeal lies from every decree passed by any court exercising
original jurisdiction to the court authorised to hear appeals from
decisions of such a court.
2) An appeal can be even from
an exparte decree.
3) However,no appeal lies from
a consent decree.
4) Except on a question of
law,no appeal lies from a decree in any suit cognizable by a small
causes court,if value of subject matter of original suit does not
exceed Rs. Ten Thousand.
Sunday, 7 January 2018
Whether Attornment by tenant is necessary to confer validity to transfer of landlords rights?
Admittedly, rent was never paid by Shri A.K. Guha in his lifetime and thereafter by appellants to any of the auction-purchasers. Substantial question of law No. 1 is framed in relation to the attornment by the tenant to new landlord. But, this question has been answered long back by the Supreme Court in the case of Mahendra Raghunathdas Gupta v. Vishwanath Bhikaji Mogul and others (MANU/SC/0621/1997 : AIR 1997 SC 2437) in following words in last lines of para No. 6:-
"It is well settled that a transferee of the lands right steps into the shoes of the landlord with all the rights and the liability of the transferor landlord in respect of the subsisting tenancy. The section does not require the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlords rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment."
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)
S.A. No. 1139/2005
Decided On: 06.02.2017
Shakuntala Guha and Ors. Vs. Jasmit Kaur Narula and Ors.
Hon'ble Judges/Coram:
Ashok Kumar Joshi, J.
Citation: AIR 2017(NOC) 910 MP
What are limitation on exercise or power under O 41 R 33 of CPC?
Now, the only question which remains is whether the landowners, without filing an appeal before the High Court from the order of the Reference Court, are entitled to the aforesaid benefit on the basis of their application under Order 41 Rule 33 of CPC.
18. The provision of Order 41, Rule 33 of CPC is clearly an enabling provision, whereby the Appellate Court is empowered to pass any decree or 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. Therefore, the power is very wide and in this enabling provision, the crucial words are that the Appellate Court is empowered to pass any Order which ought to have been made as the case may require. The expression 'Order ought to have been made' would obviously mean an Order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying 'the court may pass such further or other Order as the case may require.' This expression 'case' would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (CPC, 15th Edition, pg. 2647) 12 observed that this Rule is modelled on Order 59, Rule 10(4) of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this rule is to do complete justice between the parties.
20. In Vanarsi v. Ramphal MANU/SC/0294/2004 : AIR 2004 SC 1989, this Court construing the provisions of Order 41 Rule 33 of CPC held that this provision confers powers of the widest amplitude on the appellate court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject matter of appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (See para 15 at pg. 1997). It has also been held by this Court in Samundra Devi and Ors. v. Narendra Kaur and Ors. MANU/SC/3450/2008 : (2008) 9 SCC 100 (para 21) that this power under Order 41, Rule 33 of CPC cannot be exercised ignoring a legal interdict.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1745-1753 of 2004
Decided On: 15.09.2010
Pralhad and Ors. Vs. State of Maharashtra and Anr.
Hon'ble Judges/Coram:
G.S. Singhvi and A.K. Ganguly, JJ.
Citation:2010) 10 SCC 458
Sunday, 6 March 2016
When court can grant relief to party who had not preferred appeal?
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 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)
Supreme Court of India
Banarsi vs Ram Phal on 17 February, 2003
Bench: R.C. Lahoti, Brijesh Kumar
Citation: AIR2003SC1989,(2003)9SCC606,
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