LexBANARSI AND ORS. versus RAM PHAL
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A BANARSI AND ORS. v. RAM PHAL FEBRUARY 17, 2003 B [R.C. LAHOTI AND BRIJESH KUMAR, JJ.] Code of Civil Procedure, /908: Sections 96 and 100, Order 4/ Rules 4, 22 and 33-Power of Court of C appeal to pass decree in absence of appeal or cross objectio.n-Suit for specific performance-Denial of decree of specific performance to plaintiff by trial court-Appeal of another party-No appeal or cross-objection by the plaintiff- First appellate court modifying the decree in favour of plaintiff-High Court held that it was not necessary for the plaintiff to file appeal or cross-objection- :0 In appeal, held: In the absence of cross appeal or cross-objection first appellate court did not have jurisdiction to modify the decree-since the decree for specific peiformance was refused to the plaintiff, he was aggrieved party and hence he cannot seek relief of specific performance or modification of the decree except by filing an appeal or cross-objection-Part of the decree appealed against was not so inseparably r;:onnected with the part of the decree E not appealed against so as to result in injustice and inconsistent decrees- Specific Relief Act, /963 Order 41, Rule 33-Power of appellate court-scope of-Held, generally the power is exercised when portion of the decree appealed against is so inseparably connected with the portion not appealed against and if the latter F portion is left untouched either injustice would result or inconsistent decrees would follow-The power is subject to certain limitations i.e. (1) the power cannot be exercised against a person not party before the Court, (2} a given up or lost claim cannot be revived, (3) such part of decree which essentially ought to have been appealed against or objected to by party and which that G party has permitted to achieve finality cannot be reversed to the advantage of such party. H Respondent-plaintiff filed suh for specific performance of an agreement to sell against appellant-defendant. Appellants had filed separate suit seeking cancellation of the agreement, on the ground that 22 ~- \. BANARSI v. RAM PHAL 23 the nature of the transaction was one of loan and despite the return of A loan amount, the agreements were not discharged. Both the suits were consolidated. Trial Court did not find respondent · entitled to decree for specific performance and on the -ground of comparative hardship of the appellant, as t.he land was in his possession, found the respondent entitled only for money decree. However, decree B d.irecting execution of sale deed was passed only when the appellant defaulted in depositing the money within two months. Appellants filed two separate appeals before first Appellate Court. Respondent did not prefer any appeal nor did he file cross objection against the trial court judgment First appellate court dismissed the appeals C modifying decree of trial court and hence decreeing the suit of the respondent for specific relief. In second appeal, High Court by interim order stayed the decree passed by first appellate court subject to appellants' depositi~g the amount D as directed by trial court. The amount was deposi~ed with the Court. Appellants had contended that the first appellate court could not have, in. purported exercise of power under order 41, Rule 33 CPC, reversed the decree in respect of refund of money and directed the suit for specific performance to be decreed in favour of the respondent in absence of any appeal or cross objection by the respondent. High Court dismissed both E the appeals as raising no substantial question of Jaw. It held that it was open for the respondent not to file any appeal against the trial court rlecree on the belief that he would either get his money back or would have the contract specifically performed; and that first appellate court committed no error of law in exercising power under Order 41, Rule 3~ CPC and F passing the decree for specific performance. In appeal to this Court respondent contended that even in absence of appeal preferred by him ·or·cross objection taken, the appellate court was not powerless to grant the decree in exercise of rule 33, Order 41 CPC. During the course of hearing appellants made a sta.tement . G undertaking to pay a further amount by way of compensation to the respondent over and above the amount already deposited by them in the Court pursuant to interim orders alongwitb the bank interest accrued thereon. H 24 SUPREME
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