Civil Appeal No 2354 of 1968 From the judgment and order dated the 7th March 1968 of the Madhya Pradesh High Court in First Appeal No 24 of 1969
C P Lal for the appellant
section T Desai and D N Misra for the respondent
The Judgment of the Court was delivered by MATHEW J
One Deojibhai executed a sale deed on 30 12 1950 in respect of the property in question in favour of the appellant for a sum of Rs 12000 
No part of consideration was paid at the time of the execution of the sale deed
The appellant promised to pay the amount by 21 5 1951 and covenanted that in case of non payment the amount due would be charge upon the property sold
After the execution of the sale deed the appellant was put into possession of the 964 property and he paid Rs 3100 in three instalments
Deojibhai died in 1955 leaving his widow the respondent and a son who died subsequently leaving his widow Manibai
Manibai filed a suit in 1956 in the Bombay City Civil Court against Deokabai the respondent claiming a share in the property left by her father in law Deojibhai
This suit was compromised and Deokabai was appointed receiver of the estate of Deojibhai with a direction by the Court to realise his assets and to pay a certain amount to Manibai
Deokabai the respondent filed the suit from which the appeal arises on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest
The appellant contended that the charge could not be enforced against the property as it formed part of his occupancy holding and that besides the sum of Rs 3100 he had made other payments totalling Rs 9500 
The trial court found that no decree could be passed for enforcing the charge against the property as it was held in occupancy right by the appellant but the court gave a personal decree against the appellant for Rs 21375 
The appellant appealed against the decree to the High Court
The Court found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation
In other respects the decree of the trial court was confirmed
It is against this decree that the present appeal by certificate has been filed
Two points were taken on behalf of the appellant
One was that the Court was not competent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant
This contention was negatived by the High Court on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed
We think the High Court was right in its conclusion as section 12 of the Central Provinces Tenancy Act 1920 which contained the prohibition had been repealed before the decree was passed
The second point raised by the appellant was that the respondent did not appeal from the decree of the trial court negativing her claim in the suit for a charge on the property
It was contended that the High Court was wrong in granting a decree for enforcement of the charge as the decree of the trial court became final so far as the respondent was concerned as she did not file any appeal therefrom
We are unable to accept this contention
Under Order 41 Rule 33 of the Civil Procedure Code the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree
Order 41 Rule 33 provides 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 965 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 Provided that the Appellate Court shall not make any order under sec
35 A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order In Radhika Mohan vs Sudhir Chandra1 the facts were these Under an annuity bond the plaintiff there was granted a certain allowance per month
In a will executed by the executor of the annuity bond
It was provided that the annuity was to be a charge on certain properties
As the annuity allowance fell in arrears the plaintiff brought a suit to enforce it praying for a charge
The trial court decreed the suit but did not grant a charge
The lower appellate court exonerated the defendants from personal liability but held that there should be a charge on the property
In second appeal by the defendants it was contended by them that the lower appellate court could not create a charge as in the lower appellate court the plaintiff had failed to take objection to that part of the trial court s decree
The High Court held that under 041 r33 Civil Procedure Code the lower appellate court was competent to vary the decree by providing for enforcement of the charge and that the decree passed by it was right
In Giani Ram  others vs Ramji Lal and others2 the Court said that in 041 r 33 the expression which ought to have been passed means what ought in law to have been passed and if an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below it may pass or make such further or other decree or order as the justice of the case may require
Therefore we hold that even if the respondent did not file any appeal from the decree of the trial court that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge
There is no substance in the contention that all the payments made by the appellant have not been given credit to by the respondent in view of the concurrent findings of the courts
We dismiss the appeal with costs
PBR Appeal dismissed


Summary:
The appellant who bought property from the respondent s husband covenanted that in case of non payment of the consideration the amount due would be a charge upon the property
The respondent on the death of her husband filed a suit on the ground that the appellant defaulted to pay the full purchase money of the property
The trial court held that no decree could be passed for enforcing the charge against the property as it was held in occupancy right by the appellant but gave a personal decree against the appellant for a certain sum
On the appellant s appeal the High Court held that the respondent was entitled to enforce the charge on the property but negatived the respondent s claim for a personal decree
On appeal to this Court it was contended 1 that the Court was not competent to pass a decree creating a charge on the property since it was held by the appellant as an occupancy tenant and 2 that as the respondent did not appeal from the decree of the trial court negativing her claim in the suit for a charge on the property the High Court was wrong in granting a decree for enforcement of the charge
Dismissing the appeal  HELD 1 The High Court was right in holding that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed because section 12 of the Central Provinces Tenancy Act 1920 which contained the prohibition had been repealed before the decree was passed
964 E F 2Even if the respondent did not file any appeal from the decree of the trial court that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge
Under Order XLI r 33 of the Code of Civil Procedure the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree
964 G 965 E Radhika Mohan vs Sudhir Chandra AIR 1937 Calcutta 10 and Giani Ram  Others vs Ramji Lal and Others   referred to