Legal Provisions of Order XLI of Code of Civil Procedure, 1908 (C.P.C.), India – Different Stages of Appeal

Form of appeal:

Every appeal is preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum should be accompanied by a copy of the “[judgment] on which it is founded.

Where two or more suits have been tried together and a common judgment has been delivered there-for and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the appellate court may dispense with the filing of more than one copy of the judgment.

The memorandum sets forth, concisely and under distinct heads, the grounds of objection to the decree appealed from, without any argument or narrative, such grounds being numbered consecutively. [Order XLI, Rule 1 (2-3)]. Where the appeal is against a decree for payment of money, the appellant shall, within such time as the appellate court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit. [Order XLI, Rule 1 (3)].

The position of law under Order XLI, Rule 1 is absolutely clear. Under the said rule every appeal has to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in that behalf and has to be accompanied by a copy of the decree appealed from, and of the judgment on which it is founded. Rule 1 empowers the appellate court to dispense with the filing of the judgment but ‘there is no jurisdiction in the appellate court to dispense with the filing of the decree.

There is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent.

Under Order XLI, Rule 1 the appellate court can dispense with the filing of the copy of the judgment but it has no power to dispense with the filing of the copy of the decree. A decree and a judgment are public documents and under S. 77 of the Evidence Act, only a certified copy may be produced in proof of their contents. The memorandum of appeal is not validly presented unless it is accompanied by certified copies of the decree and the judgment.

Depositing decretal amount or furnishing security in the appellate court is not a condition precedent for hearing and disposal of an appeal against a money decree within the meaning of Order XLI, Rule 1 (3). It is true the word “shall” has been employed in sub-rule (3) of Rule 1 of Order XLI, C.RC. making it appear as though it is mandatory that the appellant will have to deposit the amount covered by the decree, if it is a money decree, in the appellate court when an appeal is sought to be preferred against.

But though this provision has been brought in for the first time by the Amending Act 104 of 1976, nevertheless the Legislature has not brought in the consequential provision as to what should happen in case the appellant does not either deposit the amount or furnish security and therefore inferentially it should be presumed that the Legislature did not intend to penalise in case they said provision is not complied with. In these circumstances, the word “shall” has to be considered ‘as may’.

Order XLI, Rule 5 (5), C.RC. saves the decree-holder from his decree being stultified or he being deprived of his right because for some reason or the other if the judgment-debtor does not comply with the provisions enacted in sub-rule (3) of Rule 1 of Order XLI, C.P.C. then certainly it is open to the decree-holder to file an execution petition and have the decree executed.

An application for stay of execution would be maintainable without prior deposit of decretal amount or tender of security. The language of Order XLI, Rule 1 (3) and Rule 5 (5) does not indicate that in an appeal against a money decree before an application for stay of execution of the decree is made the decretal amount should be deposited or security must be tendered.

A point which has been abandoned cannot be permitted to be reagitated at a subsequent stage.

Bank filed appeal for balance remaining unpaid in decreed money suit claim. The appellate court can issue directions for attachment of securities and cannot be precluded by the fact that such a direction can also be issued by Bank by executing the decree.

Avoidance of two sale deeds relating to property charged in favour of co-operative society was challenged on ground of voidity under S. 49 of Co-operative Society Act. Appeal of one purchaser was dismissed finding plea of voidity under S. 49 to be untenable. Treating it as representative appeal the suit was dismissed against the appellant purchaser and also against other purchaser who had not appealed under Order XLI, Rule 4, C.P.C. and Article 142 of the constitution.

Grounds:

The appellant shall not be heard in support of any ground of objection not set forth in the memorandum of appeal, except by leave of the court; but the appellate court in deciding the appeal may consider other grounds also not set forth in the memorandum of appeal. It shall, however, not rest its decision on them unless the party affected has had a sufficient opportunity of contesting the case on those grounds. (Order XLI, Rule 2).

The question of benami is one of fact and law, more of fact than of law. Where no benami was pleaded in the plaint, no issue of benami was raised before the trial court, no oral evidence was called on the point, no ground of appeal has been taken on the point, but on the contrary the plaintiff-appellant had urged just the contrary, the appellant cannot be heard to argue the question of benami in appeal.

Rejection of amendment:

The memorandum of appeal, when not properly drawn up, may be rejected or returned to the appellant for the purpose of being amended within a specified time. (Order XLI, Rule 3).

Application for condonation of delay:

When an appeal is presented after the expiry of the period of limitation specified there for, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period. [Order XLI, Rule 3A (1)].

If the court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. [Order XLI, Rule 3A (2)].

Where an application has been made under sub-rule (1), the court shall not make an order for stay of execution of the decree against which the appeal is proposed to be filed so long as the court does not, after hearing under Rule 11, decide to hear the appeal. [Order XLI, Rule 3A (3)].

The provisions of Rule 3-A of the Code are not mandatory. Rule 3A of Order XLI does not lay down that if the appeal filed beyond time is not accompanied by an application under S. 5 of the Limitation Act the court shall reject it. The filing of limitation petition is entirely different from the filing of an appeal.

For the proper presentation of appeal all that is needed is the memorandum of appeal accompanied by a copy of the judgment and of the decree as provided in Rule 1 of Order XLI of the Code? The ambit of Rule 1 cannot be enlarged by Rule 3A of the Code. Therefore, the contention that the effect of Rule 3A would be that the appeal would be deemed to have been properly presented on the day the application for condonation of delay was filed would not be tenable.

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, anyone 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 the plaintiffs or defendants, as the case may be. (Order XLI, Rule 4).

Where all the persons affected by the decree had filed an appeal and it is only one of them who had died later, the provisions of Order XLI, Rule 4 could not be applicable.

An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate court may order nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate court may for sufficient cause order stay of execution of such decree. (Order V, Rule 1).

No order for stay of execution shall be made unless the court making it is satisfied—(a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding on him. [Order XLI, Rule 5 (3)].

Notwithstanding anything contained in the foregoing sub-rules where the appellant fails to make the deposit or furnish the security specified in sub-r (3) of Rule 1, the court shall not make an order staying the execution of the decree. [Order XLI, Rule 5 (5)].

When a memorandum of appeal is admitted, the appellate court or the proper officer of the court endorses thereon the date of presentation and registers the appeal in a book to be kept for the purpose, which is called the register of appeals. (Order XLI, Rule 9).

Security for Costs:

The appellate court may, in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal or of the original suit, or of both. The appellate court shall demand such security in cases in which the appellant is residing out of India and is not possessed of any sufficient immovable property within India other than the property to which the appeal relates. Where no such security is furnished the court shall reject the appeal. (Order XLI, Rule 10).

Power to dismiss appeal without notice:

The appellate court after fixing a day for hearing the appellant or his pleader and after hearing him accordingly, may summarily dismiss the appeal under Order XLI, Rule 11, C.P.C. without sending notice to the court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. [Order XLI, Rule 11 (1)].

If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed. [Order XLI, Rule 11 (2)]. The dismissal of an appeal under this rule shall be notified to the court from whose decree the appeal is preferred.

Where an appellate court, not being the High Court, dismisses an appeal under sub-rule (1) it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. [Order XLI, Rule 11 (4)]. Admission of an appeal as to part and rejection as to the other part is illegal.

The appeal can be admitted wholly or rejected wholly. Every appeal shall be heard under Rule 1 as expeditiously as possible and endeavour shall be made to conclude such hearing within 60 days from the date on which the memorandum of appeal is filed. (Order XLI, Rule 11A).

Where the appeal is not dismissed, the appellate court sends notice of the appeal to the court from whose decree the appeal is preferred and notice of the date fixed for hearing is served on the respondent or his pleader. Instead of sending the notice to the court from whose decree the appeal is preferred the appellate court may itself cause the notice to be served on the respondent or his pleader. (Order XLI, Rules 13 and 14).

Right to Begin:

The case is then set down for hearing and on the date fixed for hearing the appellant shall be heard in support of the appeal. If the court does not dismiss the appeal at once, it shall hear the respondent against the appeal and the appellant shall be entitled to reply. (Order XLI, Rule 16).

Dismissal for default:

If at the date of hearing the appellant does not appear on the appeal being called on for hearing, the court may dismiss the appeal. Nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. If, however, the appellant appears and the respondent is absent, the appeal shall be heard ex parte. (Order XLI, Rule 17).

Where an appeal filed by the appellant was disposed of in the absence of his counsel, so also his application for recall of the order of dismissal was rejected, the Supreme Court in appeal set aside both the order of dismissal on the ground that a party who as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel.

When the appeal was called out for hearing it appeared that the pairokar responded and went to call counsel, but when it was called for the second time none responded. The appellate court dismissed the appeal on merits by one sentence non-speaking order instead of dismissing the appeal in default as is provided under Order XLI, Rule 17, C.P.C.

It was not empowered to dismiss the appeal on merits in view of the Explanation appended to Order XLI, Rule 17, C.RC. The impugned order passed by the District Judge dismissing the appeal on merits by one sentence non-speaking order was per se illegal and without jurisdiction and deserved to be

quashed.

The court may also dismiss the appeal if the respondent has not been served with notice in consequence of the failure of the appellant to deposit within the period fixed, or within any subsequent period fixed where the notice is returned unserved, the necessary costs for serving the notice. (Order XLI, Rule 18).

Where High Court dismissed the appeal in default in absence of appellants’ counsel, the court should not advert to the merits of the case.

It is the duty of the appellant to see that his counsel is ready when he has changed his earlier counsel. There is no illegality if the court decides the case on merits in absence of the counsel of one appellant after hearing counsel for other appellants. The court is not bound to adjourn the case when counsel is not present.

Readmission of appeal:

In case of dismissal of the appeal under the above rules, the appellant may apply to the appellate court for readmission of the appeal; and the court, if satisfied that the appellant was prevented by any sufficient cause from appearing at the time of hearing the appeal or from depositing the sum required, shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. (Order XLI, Rule 19).

Where the restoration of appeal was allowed on condition of payment of costs within stipulated time and the appellant filed the application for extension of time for payment of the costs before the appellate court on certain grounds, the appellate court could extend the time for the payment of the costs even though the period of 15 days had earlier elapsed. It was open to the appellate court not to extend the time only if it felt that the reason given by the appellant was not adequate or sufficient.

Re-hearing:

When an appeal is heard ex parte and judgment is pronounced against the respondent, the respondent may apply to the appellate court to re-hear the appeal; and if he satisfied the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing the court shall rehear the appeal on such terms as it thinks fit to impose upon him. (Order XLI, Rule 21).

Negligence and want of care on the part of the pairokar of the appellant is not sufficient cause for restoration of the appeal.

The civil revision was heard by the High Court and the advocate engaged on behalf of the appellant could not appear because he was engaged in another court. Failure to appear at the hearing resulted in passing of ex parte order by the court.

An application for rehearing supported by an affidavit of the advocate stating his engagement in another court as reason for the non-appearance was rejected by the single Judge of the High Court treating it as if it were a review application. The Supreme Court held that,

on the facts and in the circumstances, the single Judge should have allowed the application and reheard the Civil Revision petition applying the principle underlying Order XLI, Rule 21, C.P.C. The appeal was accordingly allowed and the case remitted to the High Court for disposal on merits in accordance with law. It was left to the Chief Justice of the High Court to consider whether the civil revision petition should be posted before the same Judge or before another Judge of the High Court.

Upon hearing, respondent may object to decree if he has preferred separate appeal:

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 [or appearance in] the appeal or within such further time as the appellate court may see fit to allow. (Order XLI, Rule 22).

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.

Cross-objections are required to be filed when there is some decree passed by the trial Judge against the respondent. Where a suit is dismissed by the trial court with an adverse finding against the defendant, and the plaintiff appeals, the appellate court cannot refuse to consider the question decided against the defendant on the ground that no cross-objections were filed by him. The defendant respondent is entitled to support in the j appellate court the decree passed by the trial Judge on any of the grounds decided against him.

Order XLI, Rule 22 (4) specifically provides that where in any case in which any respondent has filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit.

When an appeal is dismissed for default or withdrawn the fate of the cross-objection is not sealed thereby. Even when an appeal is withdrawn or dismissed for default the court has to hear the cross-objection and dispose of it in accordance with law. In other words, cross-objection will have to be heard despite the dismissal of the appeal for default.

Once an appeal is withdrawn or dismissed for default and the cross-objection has been heard and decided on merit restoration of the appeal and rehearing of the appeal would not automatically warrant a re-hearing of the cross-objection. When the appeal and cross-objection are taken for hearing on the same day and when the plaintiff’s counsel reports no instructions, there is really no necessity to issue further notice to the parties directly.

Order of remand—View of High Court could not be countenanced:

Matter was remitted to High Court as High Court had assumed wider field of jurisdiction than one which had been permitted by Supreme Court and entering into examining whole controversy afresh as if all contentions of all parties were open before it. Held, that view of High Court could not be countenanced.

Appellate powers to remand not inhibited by acts or omissions of parties:

In a suit for possession on the basis of grant of occupancy rights, issue of effect of earlier grant in favour of the tenant on the subsequent grant in favour of plaintiff/purchaser from Inamdar was neither addressed to by any of the Courts below nor had a decision been rendered on the same. Held, that as the issue of effect and the identity of the land under the two grants were vital to the just decision of the case, hence, appellate Court was empowered to remand the whole suit for retrial.

Finality of remand:

Where matter was finally decided in order of remand, the same could not be subsequently re-agitated before Court to which matter was remanded nor before Court where appeal was filed against order passed on remand. Court to which matter was remanded had to act within order of remand. Held, that once finality was reached, order could not be re-opened.

Production of additional evidence:

The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court; but the appellate court may allow such evidence or document to be produced, or any witness to be examined, if:

(a) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; of (aa) the party seeking to produce additional evidence establishes that notwithstanding the exercise of diligence such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; or

(b) The appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. [Order XLI, Rule 27 (1)]. Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission. [Order XLI, Rule 27 (2)].

Order XLI, Rule 27, C.P.C. enjoins that parties in appeal have no right to produce additional evidence but empowers the appellate court to allow such evidence to be produced subject to certain conditions. However, the discretion of the appellate court is not to be exercised arbitrarily but in accordance with the rule and subject to the conditions specified therein.

A document may or may not be in the possession of the party wanting to produce it but the question before the court under Rule 27 is whether he could have produced it if he had exercised due diligence or whether he was not aware of the existence of the document even after exercising due diligence.

The fact that a document is not in possession of a party does not mean that he cannot produce it if he wants to do so. Further, Rule 27 does not alter the rules governing admission of additional evidence. After the appellate court decides to admit any document, it must be proved in accordance with the procedure under the Evidence Act.

It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order XLI, Rule 27, C.R.C., the appellate court would receive the documents and consider their effect thereof.

When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received, an opportunity given to prove them and rebuttal if any and their relevance and effect may have, be considered in deciding the issues which arose in the controversy.

Under these circumstances the trial court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned.

The trial court is directed to receive the documents, give an opportunity to the parties to prove the documents and, if necessary, opportunity to the respondent to rebut the same and then dispose of the reference according to law.

Once during the pendency of the suit a subsequent event has taken place, therefore, it is very, much material that the plaintiff is allowed to lead evidence in the case, and the matter is discussed afresh.

In divorce petition the husband was crossed at length and wife led no evidence. The counsel of wife gave statement not to lend evidence. In second appeal for the first time wife sought to lead additional evidence on the ground that her counsel closed evidence without her consent. Her prayer was rejected and clauses (a), (aa) and (b) of Rule 27 were held not to be applicable.

Parsotim Thakur v. Lai Mohan Thakur.—Under Order XLI, Rule 27 (1), the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment”, but also for “any other substantial cause.” There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment”, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence “for any other substantial cause” under Rule 27 (1) (b) of the Code.

It is easy to see that such requirement of the court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. “It may well be that the defect may be pointed out by a party, or that a party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of the evidence as it stands.”

Appellate court allowed additional evidence at interim stage during the pendency of appeal. It is not proper to interfere with such order by revisional court. The appellate court has final jurisdiction to pass order one or other under Order XLI, Rule 27(b) and that can be challenged is second appeal.

The appellate court has discretion to receive evidence if the provisions of Rule 27, Order XLI, so require. This evidence cannot, however, be admitted to fill in gaps, lacuna or defect in party’s evidence. It can only be taken in evidence for requirement of the court upon its appreciation of the evidence as it stands.

The words ‘for any other substantial cause’ in cl. (b) of Rule 27, Order XLI must be read with the word ‘requires’ in the beginning of the sentence. The words could not be construed in the narrow sense suggested by the doctrine of ejusdem generis. The discretion to allow additional evidence may be exercised when in the interests of justice a point is required to be cleared up.

The rule cannot be restricted for the benefit of only those who have adduced some evidence in the trial court. Permission to adduce additional evidence cannot be refused on the ground that the party has not adduced any evidence in trial court.

The object of Rule 27 (2) is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced whether this was done on the ground: (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required to enable it to pronounce judgment in the appeal, or (iii) it allowed this for any other substantial cause.

Where a further appeal lies from the question of the appellate court such recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the court below. The omission to record the reason must, therefore, be treated as a serious defect.

Even so, the provision is not mandatory and the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. For it does not seem reasonable to think that the Legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate court allowed additional evidence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the rule all that should be set at naught merely because the provision in the second clause was not complied with.

It is true that the word ‘shall’ is used in Rule 27 (2), but that by itself does not make it mandatory. The provision for recording reasons is merely directory and not imperative.

Mode of taking evidence:

The additional evidence so allowed to be produced by the appellate court may either be taken by it, or the court from whose decree the appeal is preferred or any other subordinate court may be directed to take such evidence and to send it to the appellate court. (Order XLI; Rule 28).

Judgment when pronounced:

The appellate court, after hearing the parties or their pleaders and referring to any part of the proceeding, whether on appeal or in the court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open court either at once, or on some future day of which notice shall be given to the parties or their pleaders.

When a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced. (Order XLI, Rule 30).

The proceedings for the final decree are taken in the court which has passed the preliminary decree. So, the proceedings for the preparation of the final decree would be proceedings in the same suit and the court from whose decree the appeal is preferred. The appellate court can refer to them. The parties would be equally entitled to refer such proceedings at the hearing of the appeal.

The term ‘proceeding’ occurring in Order XLI, Rule 30, C.P.C. would undoubtedly include the evidence led and admitted on the record of the case. This is part of the procedure undertaken by the court in drawing up the final decree. The evidence so led being evidence on the record of the suit, could be referred to at the hearing of the appeal.

It is well settled that appeal is continuation of the suit. But it is not quite correct to say that the trial court cannot deal with the question of rights and shares of the parties after the passing of the preliminary decree, under any circumstances.

It will be seen that even the trial court can, after passing the preliminary decree, reconsider the matter and pass a second preliminary decree “if an event transpires after the preliminary decree which necessitates a change in shares.” The death of a party is one such event.

Contents of Judgment:

The judgment of the appellate court shall be in writing and state : (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. (Order XLI, Rule 31).

What judgment may direct:

The judgment may confirm, vary or reverse the decree from which the appeal is preferred, or if the parties agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the appellate court may pass a decree or make an order accordingly. (Order XLI, Rule 32).

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 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 decree, although an appeal may not have been filed against such decrees. (Order XLI, Rule 33).

Rule 33 of Order XLI, C.RC. is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate 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.

The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

Where no cause of action is established against one of the defendants, the appellate court could exercise the power under Order XLI, Rule 33 to set aside the decree passed against such defendant by the trial court.

This rule empowers to appellate court in exceptional circumstances to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. This power is discretionary.

The general principle is that the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal. Order XLI, Rule 33 forms an exception to this general rule.

There was dispute between two court auction purchasers. It is not improper to set aside decree of redemption in favour of appellant even though not appealed against by respondent where the court held that the appellant was not puisne mortgagee to avoid anomalous or absurd result.

In case of dismissal of servant the trial gave findings that proper opportunity of hearing was not given in departmental proceedings and unauthorised absence having been regularised charge of misconduct disappeared. The lower appellate court confirmed the finding of not survival of the charge of misconduct but said nothing about the finding of lack of opportunity of hearing.

The finding about lack of proper opportunity of hearing stood confirmed. The lower appellate court remanded the case to punishing authority and High Court summarily dismissed the second appeal without adverting to inconsistent judgment. The Supreme Court quashed the order of High Court and restored the judgment and decree passed by trial court setting aside dismissal.

The provision with regard to Order XLI, Rule 34 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.

Baijnath Singh v. The Board of Revenue, Allahabad:

Even if the respondent has not filed any appeal or cross-objections, if the appellate court comes to the conclusion that the effect of a particular part of the order under appeal, which is in favour of the appellant, will be to perpetrate an action without jurisdiction, there is no reason why the appellate court should not exercise its power under the rule, and prevent such erroneous exercise of jurisdiction.

An order may therefore be passed in favour of a person who has not appealed, but such an order cannot be passed against a person who is not a party to the appeal and who is not on the record.

In Nirmala Bala Ghose v. Balai Chand Ghose, the Supreme Court, however, observed:

“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 XLI, Rule 33 may properly be invoked. The rule, however, does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from.”

In Choudhary Sahu v. State of Bihar, the Supreme Court observed that, ordinarily, the power conferred by Order XLI, Rule 33, C.P.C. will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience.

While exercising the power under this rule the court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the law of limitation or the law of court fees, etc. In this view of the matter -the Supreme Court, while allowing the appeals filed by the appellants, observed that the Collector on the basis of the material placed before him had allowed certain units to the various appellants.

In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals were not such in which it would be appropriate to exercise the power under Order XLI, Rule 33, C.P.C.

The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.