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
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
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
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
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
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
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
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
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
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.
