Civil Appeal No 2190 of 1987
From the Judgment and Order dated 29th August 1986 of the Calcutta High Court in Appeal No 204 of 1986
Amal Dutta DK Sinha and JR Das for the Appellant
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Special leave granted
This is an appeal challenging the decision of the High Court of Calcutta upholding the decision of the learned Single Judge of that Court whereby the award of the arbitrator was set aside and new arbitrator was appointed
In order to appreciate the position it is necessary to state that in the year 1964 the Executive Engineer had invited competitive sealed tenders in respect of Silt Clearance of River Peali from Utterbhag Canning Road Bridge upto Hobon Sluice
Shri DP Chatterjee entered upon the reference soon thereafter and the award was made in November 1966
It appears that thereafter the respondent asked for the award amount in full and final settlement which the Executive Engineer turned down
The respondent herein was paid by the appellant a sum of Rs3252562 in terms of the award and which sum was received and acknowledged by the respondent No 1
Then the true copy of the award was forwarded to the Court by the Chief Executive Engineer and the application was 71 filed by the respondent No 1 in 1981 in the High Court of Calcutta under Sections 14 15 16  30 of the for setting aside the award dated the 19th November 1966
The High Court after hearing the parties dismissed that application on 10th May 1982
The High Court was thereafter pleased to pass judgment in terms of the award
The respondent herein preferred an appeal against the judgment dated 10582
The Division Bench allowed the appeal of the appellant
The appellant s advocate did not notice that the matter appeared in the daily list dated 26th April 1985 of the learned Single Judge for judgment and as such he did not know the result of the judgment
Thereafter the matter again appeared in the list of the learned Single Judge and the respondent had made an application before the learned Single Judge for setting aside the previous order
The learned Single Judge on 18th March 1986 rejected the application of the appellant and allowed the application of the respondent herein under Section S 11 and 12 of the and appointed a retired Judge of the High Court as the arbitrator and thereafter revoked the authority of the said arbitrator from acting as the arbitrator and appointed a lawyer of the High Court as the arbitrator
The appellant preferred an appeal against the said order dated the 3rd December 1985 before the Division Bench of the High Court of Calcutta
Two points were raised before the learned Single Judge firstly that the award was beyond time and secondly the learned arbitrator had not signed the award
The Division Bench found that as there was an extension of time in making the award and the award having been filed within the extended time expressed the view that there was no force in the first point
The Division Bench however was unable to accept unsigned award being made the rule of the Court
It is true that an unsigned award cannot be made the rule of the Court
But it is only a formal defect
It appears that the award was handed over to the parties and a letter was sent to the parties concerned and award bore no signature of the arbitrator
The parties had acted upon the award
It is true that under the law the mandatory rule is that the award should be signed by the arbitrator
But law must subserve justice and endeavour to serve the purpose of law
The Court can in such circumstances extend time for making the award and direct curing of the formal defect in the award
So much time and effort should not be allowed to go waste
In the situation of this nature the proper order in the interest of H 72 justice would be to remit the award under Section 16 of the for enabling the arbitrator named therein for signing the award and for that purpose if it is necessary under Section 28 of the  the Court has the power to extend the time to the arbitrator for making the award final
We did so
We extend the time by four months from today and direct the award be remitted to the arbitrator for signature
The appeal is disposed of accordingly
NPV Appeal disposed of


Summary:
 There is a Math known as Juna Math in Bikaner
The first appellant is the present Mahant of the Math and the second appellant is the presiding deity of the Math both referred to collectively as the Math  herein
Previously one Lalgiri Maharaj was the Mahant of the Math
He mismanaged the Math and disposed of its properties
On August 19 1963 he gave on lease for 99 years land measuring 2211 sq
yards in favour of Madan Mohan the respondent No 1
On March 22 1968 he sold to Madan Mohan 446 sq
yards of land out of the land leased to him
Madan Mohan constructed shops on the land purchased and sold them to Jankidas and Mohan Lal who are respondents Nos 2 and 3
Then Madan Mohan sold another piece of land purchased from Lalgiri to the respondents Nos 2 and 3
Later the first appellant became the Mahant of the Math and the Math filed a suit challenging the alienations made by Lalgiri and for a declaration that the said alienations were without authority and not binding on the Math and for possession of the property from the respondents 1 to 3
The trial Court decreed the suit in part only as it gave a declaration that the lease deed dated August 19 1963 was null and void but the relief regarding possession of the land demised was rejected
The suit for recovery of possession of the land sold by Lalgiri was also dismissed
Against the judgment of the Trial Court two appeals one by the Math and the other by Madan Mohan were filed before the High Court
By a common judgment in the two appeals a single Judge of the High Court i allowed the appeal of the Math in part giving a simple declaration that the sale of the land was void but declining to pass a decree for possession of the land sold and ii allowed the appeal of 680 Madan Mohan giving him complete relief while holding that the suit as to the lease was barred by time
Against the judgment of the Single Judge no appeal was filed either by the Math or by Madan Mohan
There was only an appeal filed by respondents 2 and 3 who impleaded the Math as the first respondent and Madan Mohan as the third respondent
The Math Preferred cross objection
Madan Mohan did not do any thing
The Division Bench of High Court dismissed the appeal on the merits
It also dismissed the cross objection on the ground of maintainability
Aggrieved by the dismissal of the cross objection the Math appealed to this Court for relief by special leave
Allowing the appeal the Court  HELD The Single Judge invalidated the sale of the property to Madan Mohan while denying a decree for possession
The appellants before the Division Bench wanted to get rid of the finding as to the invalidity of the sale
The Math wanted to recover possession of the property from the appellants before the Division Bench and Madan Mohan
The Math instead of filing an appeal for that relief could as well file the cross objection
That is clear from the provisions of R 22 of 041 CPC
The High Court was clearly in error in holding to the contrary
684G H The next question for consideration was whether the cross objection was maintainable against Madan Mohan a co respondent and if not whether the Court could call into aid R 33 041 CPC Generally the cross objection could be urged against the appellant
It is only by way of exception to this general rule that one respondent may urge objection as against the other respondent
The type of such exceptional cases are very much limited when an appeal cannot be effectively disposed of without opening the matter as between the respondents inter se or when there is a case where the objections are common as against the appellants and the co respondent
This law has been laid down by this Court in Panna Lal vs State of Bombay  at 991
This view has been accepted as a guide for more than two decades
No attempt should be made to unsettle the law unless there is a compelling reason
The Court does not find any such compellmg reason in the case
685A H 686A B 687A B The Math could urge the objection that the appellants before the Division Bench and Madan Mohan had no right to retain the property 681 after the sale deed had been declared null and void
The validity of the lease deed and the possession of the land in pursuance thereof has to be determined only against Madan Mohan
It is not intermixed with the right of the appellants above said
It has no relevance to the question raised in the appeal
The High Court was right in holding that the cross objection as to the lease was not maintainable against Madan Mohan
But that does not mean that the Math should be left without a remedy against the judgment of the Single Judge
If the cross objection filed under R 22 of 041 CPC was not maintainable against the co respondent the Court could consider it under R 33 041 CPC R 22 and R 33 are not mutually exclusive
They are closely related with each other
If objection cannot be urged under R 22 against corespondent R 33 could take over and help the objector
The appellate Court could exercise that power in favour of all or any of the respondents even though such a respondent may not have filed any appeal or objection
The sweep of the power under R 33 is wide enough to determine any question not only between the appellant and the respondent but also between a respondent and co respondents
The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case
The appellate Court could also pass such other decree or order as the case may require
The words as the case may require used in R 33 of 041 have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice
This Court is not giving any liberal interpretation
The rule itself is liberal enough
The only constraint that could be seen may be that the parties before the lower Court should be there before the appellate Court the question raised must properly arise out of the judgment of the lower Court it may be urged by any party to the appeal
It is true that the power of the appellate Court under R 33 is discretionary but it is a proper exercise of judicial discretion to determine all the questions urged in order to render complete justice between the parties
The Court should not refuse to exercise that discretion on mere technicalities
687B H 688A B Appeal allowed
The judgment and decree of the Division Bench of the High Court reversed
The Division Bench to restore the appeal and cross objection of the parties and dispose of the same in accordance with law and in the light of the observations made
688C