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TMI Blog1981 (12) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure. We, therefore, propose to dispose of these appeals by a common judgment. Since these appeals raise similar questions, we will refer to the facts of civil appeal No. 2084 of 1977 only. The appellant in this appeal is a land holder in terms of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act). A notice under section 8(1) of the Act was issued to the petitioner calling upon him to submit return with all the particulars of the lands held by him. The petitioner in response to the said notice filed his return. On the basis of the verification report the Additional Collector came to the conclusion that the petitioner was entitled to five units and accordingly o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition and confirmed the order of the Commissioner on the basis of the provisions of order 41 rule 22. The sole contention raised on behalf of the appellants in the various appeals is that in the absence of any appeal or cross objection filed by the State of Bihar the Commissioner was not justified in reversing the finding in favour of the appellant's namely, the finding on the question of allotment of units or regarding the classification of land. This contention, as observed earlier, was raised before the High Court in the writ petition as well. The High 1 Court, however, repelled the contention by applying the provisions of order 41, rule 22. Reliance has also been placed by the State of Bihar on the provisions of order 41, rule 33 C.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy filed an appeal against the decree. Admittedly, the State of Bihar had neither filed any appeal nor cross-objection. Obviously, therefore, on the strength of the first part of sub-clause (I) of rule 22 of order 41 the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds decided against it. The Commissioner however, has not aside the finding in favour of the appellant on the strength of order 41, rule 22(1). In our opinion this he could not do. The only other order on which the State cf Bihar could rely upon is order 41, rule 33 C.P.C. The High Court did not consider the provisions of order 41, rule 33 as in its opinion the order of the Commissioner could be supported on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt dealing with the scope of order 41, rule 33, observed as follows: "The rule is undoubtedly expressed in ter ns 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; Counsel for the State of Bihar, on the other 'hand, referred to Giani Ram & Ors. v. Ramiji Lal & Ors.(1) while construing the provisions of order 41, rule 33, this Court observed: ".. the expression 'which ought to have been passed' means 'what ought in law to have been passed'. If the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, if may pass or make such further or other decree or order as the justice of the case may require " The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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