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TMI Blog2003 (2) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the appellants was only ₹ 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 30.11.1988 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, the disposing of both the suits, the Trial Court held that looking at 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 appellant sit was just and proper that the appellants returned the amount of ₹ 2,40,000/- with interest calculated at the rate of 10% per month with effect from 3.11.1988 on ₹ 1,80,000/- and with effect from 15.7.1991 on ₹ 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 or the maintenance of their family; and that if execution of sale deed was directed they would suffer too much hardship. The operative part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erative 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 ₹ 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. 8 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 ₹ 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 shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed these two appeals by special leave. 6. 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. 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her parties as the Court thinks fit. 8. Section 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 La l - MANU/SC/0284/1967 : [1967]3SCR153 ; Smt. Jatan Kanwar Golcha v. Golcha Properties (P) Ltd. - MANU/SC/0041/1970 : [1971]3SCR247 ; Smt. Ganga Bai v. Vijay Kumar and Ors. - MANU/SC/0020/1974 : [1974]3SCR882 . 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. 9. 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. If 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 speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. (SIC) Lal v. State of Bombay and Ors. , MANU/SC/0240/1963 : [1964]1SCR980 so sets out the scope of Order 41 Rule 33 in the widest terms. "The wide wording of Order 41 Rule 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 required". 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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) 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. Ramiredd i , 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Jadunath Basak v. Mritunjoy Sett and Ors. , MANU/WB/0078/1986 : AIR1986Cal416 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 Section 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 permiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law committed by the first Appellate Court. 23. 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 ₹ 1,20,000/- by way of compensation to the respondent over and above the amount of ₹ 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. 24. 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 agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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