ivil Appeals Nos
423 of 1979  2084 to 2090 of 1977
Appeals by special leave from the judgment and order dated the 24th September 1976 of the Patna High Court in CWJC Nos 1631 1614 1618 1617 1594 1616 1615  1593 of 1976 respectively
P R Mridul R K Jain B P Singh and Pankaj Kalra for the Appellant in CA
42379
Soli J Sorabjee R P Singh and RK Jain for the Appellant in CA
2085 of 1977
M C Bhandare and R P Singh for the Appellant in CA
208677
D P Singh R K Jain and R P Singh for the Appellant in CA
2089 209077
D Goburdhan and R lV Poddar for the Respondent
180 The Judgment of the Court was delivered by MISRA J
These eight appeals by special leave raise a common question of law regarding the scope of order 41 rule 22 and order 41 rule 33 of the Code of Civil Procedure
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 81 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 ordered for the publication of the draft statement under section 10 of the Act
The petitioner was again served with a notice under section 102 of the Act
In response there to he filed all objection laying inter alia a claim for fifteen units for reasons enumerated therein
The Collector considered the objections filed by the petitioner and by his order dated 23rd of February 1975 ordered allotment of twelve units to the petitioner
The petitioner feeling aggrieved went up in appeal before the Commissioner of the Division
The State of Bihar submitted to the order and did not go up in appeal
Notices were issued to the respondents who however failed to appear on the date fixed
The appeal was heard on 27th of April 1976 and a final order was passed by the Commissioner on 14th of May 1976
He allowed the appeal and set aside the order of the Collector and remanded the case to him for disposal according to law
It may be pointed out that the appellant had challenged the order of the Collector on various grounds
He however did not challenge the finding recorded by the Collector regarding the units allowed to him
The Commissioner however set aside the finding of the Collector even regarding the units allotted to the appellant in spite of the fact that no appeal had been filed by the State of Bihar before the Commissioner
The appellant filed a petition under Article 226 of the Constitution to challenge the order of the Commissioner but the High Court dismissed the petition and confirmed the order of the Commissioner on the basis of the provisions of order 41 rule 22
181 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 CPC in support of the order of the Commissioner
The High Court however did not rely upon order 41 rule 33 and rest content by relying on provision of order 41 rule 22 By rule 49 of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land Rules 1963 order 41 of the Civil Procedure Code has been made applicable in disposing of the appeals under the Act
We will first refer to the provisions of order 41 rule 22 Insofar as it is material for the purposes of this case it reads 221 Any respondent though he may not have appealed from any part of the decree may not only support the decree on any of the grounds decided against him in the Court below but 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 the appeal or within such further time as the Appellate Court may see fit to allow
 The first part of this rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below
The first part thus authorises the respondent only to support the decree
It does not authorise him to challenge the decree
If he wants to challenge the decree he has to take recourse to the second part that is he has to file a cross objection if he has not already 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 182 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 221
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 CPC
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 strength of order 41 rule 22
In the view that we have taken regarding the applicability of order 41 rule 22 it becomes pertinent to consider the applicability of order 41 rule 33 of the Code of Civil Procedure
Insofar as material it reads 33
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 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
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 degree against Y This rule is widely expressed and it must be applied with great caution
The object of this rule is to empower the Appellate Court to do complete justice between the parties
Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection
Reliance has been placed on Nirmala Balai Ghosh  Anr
vs Balai Chand Ghose  Ors1 This Court dealing with the scope of order 41 rule 33 observed as follows 183 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 to re open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from
 In the case cited above there were two sets of defendants in the suit and in substance two decrees though co related were passed
One of the decrees could stand apart from the other
One set of defendants were two deities
The suit was decreed against them
They did not go up in appeal nor did they take part in the proceedings either before the High Court or before the Supreme Court although they were impleded as respondents
The other set of defendants Nirmala sought to invoke the powers of the Appellate Court under order 41 rule 33 to pass a decree in favour of a party not appealing so as to give the latter a benefit which she had not claimed
In such a situation this Court observed When a party allows a decree of the Court of First Instance to become final by not appealing against the decree it would not be open to another party to the litigation whose rights are otherwise not affected by the decree to invoke the powers of the appellate court under O 41 r 33 to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed
Order 41 r 33 is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed when refusing to do so would result in making inconsistent contradictory or unworkable orders 184 Counsel for the State of Bihar on the other hand referred to Giani Ram  Ors
vs Ramiji Lal  Ors1 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 avoid a decree against him without filing an appeal or cross objection it must be exercised with care and caution
The rule 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
Ordinarily the power conferred by this rule 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 the Limitation or the Law of Court Fees etc
In these appeals the Collector on the basis of the material placed before him 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 are not such in which it would be appropriate to exercise the power under order 41 rule 33
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 185 to that extent by not filing any appeal or cross objection within the period of limitation
For the reasons given above all the appeals are allowed and the order of the High Court and that of the Commissioner is set aside insofar as it relates to finding of the Collector in favour of the appellants
The remand order will however remain intact insofar as other points are concerned
In the circumstances of the case the parties shall bear their own costs
SR Appeals allowed


Summary:
The appellant is a land owner in terms of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land Act 1961
While considering the objection of the appellant in response to the notice issued under section 102 of the Act the Collector by his order dated 23rd of February 1975 ordered allotment of twelve units of lands
By Rule 49 of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land Rules
1963 order XLI of the Civil Procedure Code has been made applicable in disposing of the appeals under the Act
The appellant feeling aggrieved by the Collector s order went up in appeal before the Commissioner of the Division
The respondent State submitted to the order did not go in appeal and allowed the appeal to be decided ex parte
The appellant who challenged the order of the Collector on various grounds did not challenge the finding recorded by The Collector regarding The twelve units allotted to him as against fifteen prayed for
The Commissioner heard the appeal on 27th of April 1976 allowed the appeal by its order dated 14th of May 1976 set aside the Collector s order in toto and remanded the case to him for disposal according to law
The appellant filed a Petition under Article 226 of the Constitution to challenge the order of the Commissioner but the High Court dismissed the petition and confirmed the order of the Commissioner on the basis of the provisions of order XLI Rule 22
Hence the appeals by special leave
Allowing the appeals the Court  HELD 1
The first part of Rule 22 of order XLI of the Civil Procedure Code authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below
The first part thus authorises the respondent only to support the decree
It does not authorise him to challenge the decree
If he wants to challenge the decree he has to take recourse to the second part that is he has to file a cross objection if he has not filed an appeal against the decree
181 G In the instant case admittedly the State of Bihar had neither filed any appeal or cross objection
Obviously therefore on the strength of the first part of sub clause 1 of Rule 22 of order XLI the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds 179 decided against it
The Commissioner could not set aside the finding in favour A of the appellant on the strength of order XLI Rule 221 CPC 181 H 182A 21
The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order XLI Rule 33
Rule 33 of order XLI Civil Procedure Code is widely expressed and it must be applied with caution
The objects of this rule re i to empower the Appellate Court to do complete justice between the parties
Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection ii 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 avoid a decree against him without filing an appeal or cross objection it must be exercised with care and caution
184 G 182 G 184 C 22
The rule 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
Ordinarily the power conferred by this rule 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
184D F Nirmala Bala Ghose  Anr
vs Balai Chand Ghose  Ors  and Giani Ram  Ors
vs Ramji Lal  Ors   followed