TMI Blog2003 (2) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... llants 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 the judgment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art 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 shall be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filled may nevertheless be heard and determined after such notice to the other 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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) 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: Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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) 20. A Division Bench decision of Calcutta High Court in 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 Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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