CHOUDHARY SAHU (DEAD) BY LRS. versus STATE OF BIHAR

Citation: [1982] 2 S.C.R. 178 · Decided: 14-12-1981 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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178 
CHOUDHARY SAHU (DEAD) BY LRS. 
v. 
STATE OF BIHAR 
December 14, 1981 
[S. MURTAZA FAZAL ALI AND R. B. MISRA, JJ.J 
Code of Civil Procedure, Order X LT, Rules 22 and 33, scope of 
The appellant is a land-owner in terms of the Bihar Land Reforms (Fixation 
of Ceiiing Area and Acquisition of Surplus Land) Act, 1961. 
While considering 
the objection of the appellant in re•::>onse to the notice issued under section 10(2) 
of the Act, the Colle:tor, 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 Arca 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 M<iY, 1976, set aside 
the Collector's order in toto and remanded the case to him for disposal according 
to law. The appellant 'iled 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 pro-
visions of Ord"r XL!, Rule 22. 
Hence the appeals by special leave. 
Allowing the appeals, the Court 
HELD : I. 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 [Jirst part of 
sub-clause (I) 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 
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CHAUDHARY SAHU V. BIHAR 
179 
decided against it. The Commissioner could not set aside the finding in favour 
of the appellant on the strength of Order XLI, Rule 22(1) C.P.C. (181 H-182A] 
2:1. 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 are : {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 rnotwithstanding 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 contra-
dictory 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 CJ 
2:2. 
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 
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necessary in order to adjust the rights of the parties according to justice, equity 
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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 La
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