Holding

An appellate court cannot modify a decree to grant specific performance in favour of a respondent who has not filed an appeal or cross‑objection where the relief is not inseparably connected with the appealed portion; thus the first appellate court lacked jurisdiction.

Summary

The respondent Ram Phal sued for specific performance of a land sale agreement, while the appellants Banarsi et al. sued to cancel the agreement claiming it was a loan. The trial court denied specific performance, granting only a money decree and a conditional order for specific performance if the appellants failed to deposit the money. The appellants appealed; the respondent filed no appeal or cross‑objection. The first appellate court dismissed the appeals and, invoking Order 41 Rule 33 CPC, modified the decree to grant specific performance in favour of the respondent. The High Court stayed this modification. The Supreme Court held that, because the specific‑performance relief was not inseparably connected with the money part of the decree and the respondent had not filed an appeal or cross‑objection, the appellate court lacked jurisdiction to alter the decree. Consequently, the first appellate court’s modification was set aside and the trial court decree was restored, relieving the appellants from specific performance and ordering the release of the deposited money with interest, plus an additional compensation offered by the appellants.

Issues considered

Whether an appellate court can modify a decree to grant specific performance in favour of a respondent who has not filed an appeal or cross‑objection under Order 41 Rule 33 CPC.
Whether the specific‑performance relief is inseparably connected with the money part of the decree appealed against.
Scope and limitations of the power conferred by Order 41 Rule 33 and Order 41 Rule 22 after the 1976 amendment.
Whether specific performance can be granted when the plaintiff did not claim it in the plaint after a money decree was awarded.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. 96, s. Order 41 Rule 22, s. Order 41 Rule 33, s. Order 41 Rule 4, s. Order 4 Rule 22, s. Order 4 Rule 33, s. Order 4 Rule 4
Specific Relief Act, 1963s. 21

Subjects

Specific performanceOrder 41 Rule 33 CPCCross‑objectionAppellate jurisdictionDecree modificationSpecific Relief ActConditional decreeSeparability of reliefs

Judgment

~-

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 ofappeal or cross objectio.n-Suit for specific
performance-Denial of decree of specific performance to plaintiff by trial
court-Appeal ofanother party-No appeal or cross-objection by the plaintiff-
First appellate court modifying the decree in favour ofplaintiff-High Court
held that it was not necessary for the plaintiffto file appeal or cross-objection-
:0 In appeal, held: In the absence ofcross 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 ofthe decree
E not appealed against so as to result in injustice and inconsistent decrees-
Specific Relief Act, /963

Order 41, Rule 33-Power ofappellate 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.

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
H 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 COURT REPORTS [2003] 2 S.C.R.

A Allowing the appeals, the Court

HELD: 1.J To be entitled to file an appeal the person must be one
aggrieved by the decree. Unless a person is prejudicially or adversely
affected by the decree he is not entitled to file an appea l. 133-D}

B Phoolchand and Anr. v. Gopa/ La/, 11967) 3 SCR 153; Smt. Jatan
Kanwar Go/cha v. Mls Go/cha Properties (P) Ltd., 11970) 3 SCC 573 and
Smt. Ganga Bai v. Vijay Kumar and Ors., 119741 2 SCC 393, referred to.

1.2. Any respondent though he may not have filed an appeal from

C
any part of the decree may still support the decree to tbe extent to which
it is already in his favour by laying challenge to a finding recorded in the
impugned judgment against him. Taking any cross objection is the exercise
of right o_f appeal and takes the place of cross-appeal though the form
-
differs. Just as an appeal is preferred by a person aggrieved by the decree
so also a cross objection is preferred by one who can be said to be aggrieved
by the decree. A party who has fully succeeded in the suit can be said to
D be aggrieved by the decree and it can and needs to neither prefer an
appeal nor take any cross objection though certain finding may be against
him. Appeal and cross-objection- both are filed against decree and not
against judgment aJtd certainly not a~ainst any finding recorded in a
judgment. f33-F; 34-A, B, C)

E Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar
and Anr., Jl971)1 SCR 146, relied on.

1.3. Under the amended CPC, read in the light of the explanation,
though it is still not necessary for the respondent to take any cross-
F objection laying challenge to any finding adverse to him as the decree is
entirely in his favour and he may support the decree without cross
objection, the amendment made in the text of sub-rule (1) or Rule 22 Order
41 CPC, read with the explanation gives him a right to take cross objection
to a finding recorded against him either while answering an issue or while
dealing with an issue. The advantage of preferring such cross objection is
G spelled out by sub-rule (4) of Rule 22 Order 41 CPC. In spite of the original
appeal having been withdrawn or dismissed for default the cross objection
taken to any finding by the respondent shall still be available to be
adjudicated upon on merits which remedy was not available to the
respondent under the unamended CPC. 135-A, B, C)

H 1.4. To the extent to which the decree is against the respondent and ·'
BANARSJ v. RAM PHAL 25
he wishes to get rid of it, he should have either filed an appeal of his own A
or taken cross-objection failing which the decree to that extent cannot be
insisted on by the respondent for being interfered, set aside or modified
to his advantage. The law continues to remain so post 1976 amendment.
.
•' 135-D, El

1.5 In a suit seeking specific performance of an agreement to sell B
governed by the provisions of the Specific Relief Act, 1963, the court has
a discretion to decree specific performance of the agreement. The plaintiff
may also claim compensation under Section 21 or any other relief to which
he may be entitled including the refund of money or deposit paid or made
by him in case his claim for specific performance is refused. No C
compensation or any other relief including the relief of refund shall be
granted by the Court unless it has been specifically claimed in the plaint
by the plaintiff. Certainly the relief of specific performance is a larger relief
for the plaintiff and more onerous to the defendant compared with the
relief for compensation or refund of money. A plaintiff who files a suit
for specific performance claiming compensation in lieu of or in addition D
to the relief of specific performance or any other relief including the refund
of any money has a right to file an appeal against the original decree if
the relief of specific performance is refused and other relief is granted.
The plaintiff would be a person aggrieved by the decree in spite of one of
the alternative reliefs having been allowed to him because what has been E
allowed to him is the smaller relief and the larger relief has been denied
to him. In an appeal filed by the defendant laying challenge to the relief
of compensation or refund of money or any other relief while decree for
specific performance was denied to .t.fte plaintiff, the plaintiff as a
respondent cannot seek the relief of specific performance of contract or
modification of the impugned decree except by filing an appeal of his own F
or by taking cross objection. [35-E, F, G-H; 36-A-C)

1.6. In the absence of cross appeal preferred or cross objection taken
by the plaintiff-respondent the firs t appellate court did not have
jurisdiction to modify the decree in the manner in which it has done.
Wi~hin the scope of appeals preferred by the appellants the first appellate G
court could have either allowed the appeals and dismissed the s uit filed
by the respondent in its entirety or could have deleted the latter part of
the decree which granted the decree for specific performance conditional
upon failure of the defendant to deposit the money in terms of the decree
or could have maintained the decree as it was passed by dismissing the H
}
?(

26 SUPREME COURT REPORTS [2003] 2 S.C.R.

A appeals. What the first appellate court has done is not only to set aside
the decree to the extent to which it was in favour of the appellants but
also granted an absolute and out and out decree for specific performance
of agreement to sell which is to the prejudice of the appellants and to the
advantage of the respondent who has neither filed an appeal nor taken
B any cross objection. f36-D, E, F]

2.1. Rule 4 of Order 41 CPC seeks to achieve one of the several
objects sought to be achieved by Rule 33 Order 41 CPC, that is, avoiding
a situation of conflicting decrees coming into existence in the same suit.
The abovesaid provisions confer power of widest amplitude on the
C appellate court so as to do complete justice between the parties and such
power is unfettered by consideration of facts like what is the subject matter
of appeal, who has filed the appeal and whether the appeal is being
dismissed, allowed or disposed of by modifying the judgment appealed
against. The object sought to be achieved by conferment of such power
on the appellate court is to avoid inconsistency, inequity, in quality in
D reliefs granted to similarly placed parties and unworkable decree or order
coming into existence. The overriding consideration is achieving the ends
of justice. Wider the power, higher the need for caution and care in
discretion while exercising the power. [37-G, H; 38-A, B, CJ

2.2. Usually the power under Rule 33 Order 41 CPC is exercised
E when the portion of the decree appealed against or the portion of the
decree held liable to be set aside or interfered by the appellate court is so
inseparably connected with the portion not appealed against or left
untouched that for the reason of the latter portion being left untouched
either injustice would result or inconsistent decrees would follow. The
p power is subject to at least three limitations; firstly, the power cannot be .
exercised to the prejudice or disadvantage of a person not a party before
the Court; secondly, a claim given up or lost cannot be revived; and
thirdly, such part of the decree which essentially ought to have been
appealed against or objected to by a party and which that party has
permitted to achieve a finality cannot be reversed to the advantage of such
G party. A case where there are two reliefs prayed for and one is refused
while the other one is granted and the former is not inseparably connected
with or necessarily depending on the other, in an appeal against the latter,
the former relief cannot be granted in favour of the respondent by the
appellate court exercising power under Rule 33 of Order 41 CPC.
H (38-D, E, F)
BANARSI v. RAM PHAL 27
2.3. First appellate court ought not to have, while dismissing the A
appeals filed by the defendant-appellants before it, modified the d~ree
in favour of the respondent before it in the absence of cross-appeal or
cross-objection. The interference by the first appellate court has reduced
the appellants to a situation worse than in what have been if they had not
appealed.
B
2.4. In the instant case, the latter decree is not inseparably connected
with the former decree. The two reliefs are surely sepnable from each
other and one can exist without the other. Nothing prevented the
respondent from filing his own appeal or taking cross-objection against
that part of the decree which refused straightaway a decree for specific
performance in his favour based on the finding of comparative hardship C
recorded earlier in the judgment The dismissal of appeals filed by the
appellant was not resulting in any inconsistent, iniquitous, contradictory
or unworkable decree coming into existence so as.to warrant exercise of
power under Rule 33 of Order 41 CPC. It was not a case of interference
with decree having been so interfered with as to call for adjustment of D
equities between respondents inter se. By bls failure to prefer an appeal
or to take c'~oss-objection the respondent has allowed the part of the trial
court's decree to-achieve a finality wbicb was adverse to him. (~1-A, B. C)

Padma Lalv. State ofBombayandOrs.. (1964) .1 SCR 980; Rameshwar
Prasad and Ors. v. Shambehari La/ Jagannath and Anr., (1964)3 SCR 549; E
Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh l!nd Ors., (1975) 1
SCC 212; Nirma/a Bola Ghose and Anr.' v. Balai Chand Ghose and Anr.,
(1965)3 SCR 550 and Jadunath Bosak v. Mritunjoy Sett and Ors., AIR (1986)
Calcutta 416, referred to.

3. In view of tbe appellants having deposited the money due and F
payable under the money part of the decree, it is held that they are relieved
from specifically performing the agreement and executing sale deed In
pursuanu thereof. Tbe ~elay in deposit, if any, deserves to be condoned
in view of the interim orders passed by the High Court. The time for
deposit, as appointed by the trial court, shall be deemed to have been G
extended upto the dates of actual deposits made by the appellants. The
amount of Rs. 2,40,000 lying deposited in the court and invested in fixed
deposits shall, along with the interest earned, be released to the
respondents. In addition tbe appellants shall as offered by them, ~.eposit
with the executing court for payment to the respondent another amount
of Rs. 1,20,000 within a period of eight weeks from the date of judgment H
28 SUPREME COURT REPORTS [2003] 2 S.C.R.

A On that being done, the decree passed by the trial court shall be deemed
to have been fully satisfied. 14~-H; 43-A, B, CJ

CIVIL .APPELLATE JURJSDICTION : Civil Appeal No. 1376-77 of
2003.

B From the Judgment and Order dated I0.8.200 I of the Allahabad High
Court in S.A. Nos. 1635 and 1795 Of 1999.

Dinesh Kumar Garg for th·e Appellants.

Mukesh K. Giri and Praveen Singh for the Respondent.
c
The Judgment of the Court was delivered by

R.C LAHOTI, J. Leave granted in both the SLPs.
. .
A suit for specific perfonnance of an agreement to sell entered into
D between the parties on 03.ll.l988 and later on novated by an agreement
dated .l5.7.199l, was filed by the respondent herein. According to the latter
agreement, the consideration for sale was appointed at Rs. 2,90,000 out of
which an amount of Rs. 2,40,000 was acknowledged by the vendor to have
been received, leaving a balance of Rs. 50,000 to be received at the time of
E execution and registration of the sale deed. The appellants had also filed their
own suit seeking cancellation of the agreement dated 03.11.1988 on the
ground that the nature of transaction between the parties was one of loan; that
the amount of loan taken by the appellants was only Rs. 60,000 but the
respondent had added advance interest and capitalized the same; and that the
amount of loan with interest was returned and yet the respondent had failed
F. to deliver· back as fully discharged the agreements dated 03.11.1988 and
15.7.1991. The tWo suits were consolidated and tried together by the learned
Civil Judge. Vide the judgment and decree dated 20.5.1994, disposing_ of
bo'th the suits, the Trial Co~rt held that looking at the real nature of the
transaction entered into between the parties and the evidence adduced to
G show the actual amount which passed from the respondent to the appellants
it was just and proper that the appellants returned the amount ofRs. 2,40,000
with interest cillculated at the rate of 1% per month with effect from 3.11.1988
on Rs. 1,80,000 and with effect from 15.7.1991 on Rs. 60,000. During the
course of its judgment the Trial Court recorded a specific finding that the
appellants were cultivating the land; that land in dispute was very necessary
H for the maintenance of their family; and that if execution of sale deed was
BANARSI v. RAM PHAL [R.C. LAHOTI, I .] 29
directed they would suffer too much hardship. The operative part of the A
judgment, incorporated in the decree, reads as under:-

"The defendants Shri Banarsi etc. are hereby ordered that they should
deposit the amount of Rs. 1,80,000 and Rs. 60,000 total Rs. 2,40,000
from 3.11.88 to 15.7.91 within two months for the plaintiff, in the
·court. B
The plaintiff Shri Ramphal is directed that in case the above
amount is deposited during the above mentioned period, he will return
the original agreement after endorsing the receipt of the entire amount
on the back of the original Agreement dated 15.7.91 and return this
to.the defendants or do the alienation at their expense in their favour C
and get it registered.

If the above defendants Shri Banarsi etc. fails to deposit the above
mentioned entire amount in the court within a period of above two
months time then thereafter the plaintiff Shri Ramphal shall have the D
right that he after depositing the amount of Rs. 50,000 in the court
may get the sale deed executed in respect of the land in dispute in his
favour or in favour of the person nominated by him, from the
defendants. Accordingly, the order is given to the defendants that
they after executing the above sale d~ed in favour of the plaintiff give .
the same to the plaintiff. E
In the land in dispute, all those lands are included which have
been allotted to the defendants after modification in the consolidation.

Both the parties to bear their respective costs.

Dated 20.5.94" F

The appellants herein filed two appeals in the High Court. By an interim
order dated 13.7.94 passed in one of the appeals, the High Court directed
ex~cution of decree under appeal to remain stayed subject to the appellants
depositing an amount of Rs. 80,000 on or before 31st March, 1995. On G
24.3 .95, the appellants deposited the amount ofRs. 80,000 in the High Court.
During the pendency of the first appeals, the pecuniary jurisdiction of the
District Courts was enhanced consequent whereupon the first appeals came
to be transferred from the High Court to the District Court. Both the appeals
came to be heard and decided by the learned Additional District Judge vide
...._ his judgment dated 21.9.99. Both the appeals were dismissed. The respondent H
30 SUPREME COURT REPORTS [2003] 2 S.C.R.

A did not prefer any appeal of his own nor filed any cross-CJbjection. While
holding the appeals preferred by the appellants liable to be dismissed, the
first appellate Court framed the operative part of the judgment as under:-

" both the appeals are liable to be rejected with this modification that
the suit of the plaintiff Ramphal is liable to be decreed for specific
B relief and the original suit no.63 of 1993 Banarsi Versus Ramphal is
liable. to be rejected.

ORDER

Both the appeals, while rejecting this order passed by the Court
c below in the impugned judgment and decree dated 20.5.1984 that
deposit the amount Rs. 2,40,000 with interest @ I ~ within two months
and after that make the endorsement of the receipt of the entire money
on the back of the Agreement dated 15.7.1991 by the Defendant
Ramphal and after confmning the remaining order, modifying the
impugned order and decree to that extent, are hereby dismissed. In
D this manner the suit of the Plaintiff Ramphal for the specific relief is
decreed with costs against the original Suit No. 38 of 1993 in the
matter of the defendant Banarsi etc. and the Defendant Banarsi etc.
.are here by directed that they after receiving the balance amount of
Rs. 50,000 as per the agreement dated 15.7.1991 within a period of
E one months execute the sale deed and hand over the possession
otherwise the plaintiff shall be at liberty to get the above work done
through Court. Original Suit no.63 of 1993 Banarsi etc. Versus Ram
Phal is dismissed with costs. Copy of this· order be kept in the
concerned file. Both the parties would bear their respective costs of
both the appeals."
F
[emphasis supplied]

The appellants preferred two second appeals before the High Court. By
an interim order dated 20.12.99, the High Court directed the execution of the
G decrees appealed against to remain stayed subject to the appellants depositing
an amount of Rs. 2,40,000, after adjusting the_amount already deposited by
them pursuant to the earlier order of the High Court, within a period of eight
weeks, which amount along with the amount already deposited should be
kept in fiXed deposit. On 10.2.2000, the appellants deposited an amount of
~ · 1,60,000 in the Court of Civil Judge Senior Division, Kairana (M. Nagar).
H Both the amounts deposited by the appellants, i.e. Rs. 80,000 and Rs. 1,60,000,
-·
BANARSI v. RAM PHAL {R.C. LAHOTI, J.] 31
are now lying in flXed deposit. Vide the impugned common judgment (in the A
two appeals) dated 10.8.2001, the High Court has directed both the second
appeals filed by the appellants to·be dismissed as raising no substantial question
of law. One of the pleas advanced on behalf of the appellants before the High
Court was that the first Appellate Court could not have, in the purported
exercise of power under Or~er 41 Rule 33 of the CPC, reversed the decree

- in respect of the refund of money and directed the suit for specific performance B
to be decreed in favour of the respondent wi~hout there being any appeal or
cross-objection preferred by the respondent. The High Court opined that it
was open for the respondent not to file any appeal against the Trial Court's
decree on the belief that he would either get his money back within the short
time provided under the decree or would have the contract specifically C
performed. However, on account of the stay order obtained by the appellants,
the payment of decretal amount was not made by the appellants to the
respondent as per the terms of the decree and in such circumstances, the flrst
Appellate Court committed no error of law in exercising power under Order
41 Rule 33 of the CPC and passing a decree for specific performance in D
favour of the respondent.

Feeling aggrieved by the judgment and decree of the High Court the
appellants have filed these two appeals by special leave.

The appeals raise a short but interesting question of frequent recurrence
as to the power of the appellate court to interfere with and reverse or modify E
the decree appealed against by the appellants in the absence of any cross-
appeal or cross-objection by respondent under Order 4l Rule 22 of the CPC
and the scope of power conferred on appellate court under Rule 33 of Order
41 of the CPC.
F
The first question is whether without cross objection by the respondent,
could the Appellate Court have set aside the decree passed by the Trial Court
and instead granted straightaway a decree for specific performance of contract?
This would require reference to the principles underlying right to file an
appeal and right to prefer cross objection or when does it become necessary
to prefer cross objection without which decree under appeal cannot be altered G
or varied to the advantage of the respondent and/or to the disadvantage of the
appellant. Rule 22 of Order 41, as amended by CPC Amendment Act 104 of
1976, with effect from 1.2.1977 is reproduced hereunder in juxtaposition
with the text of the provision as it stood prior to the amendment.
H
32 SUPREME COURT REPORTS [2003] 2 S.C.R.

A Order 41 Rule 22

Text as amended by Act 104 of Text pre-amendment
1976(w.e.f. 1-2-1977)

R.22. Upon hearing, respondent R.Zl. Upon hearing, respondent
B may object to decree as if he had may obje~t to decree as if he had
preferred a separate appeal.-(1) preferred a separate appeal.-(1) .....
Any respondent, though he may not Any respondent, though he may not
have appealed from any part of the have appealed from any part of the
decree, may not only_support the decree, may not only support the
decree [but may also state that the decree on any of the grounds decided
c finding against hiin in the Court against him in the Court below, but
below in respect of any issue ought take any cross-objection to tbe decree
to have been in his favour; and may which he could have taken by way
also take any cross-objection] to the of appeal, provided he has filed such
decree which he could have taken objection in the Appellate Court
D by way of appeal: within one month from the date of
service on him or his pleader of
Provided he has filed such' notice of the day fixed for hearing
objection in the Appellate Court the appeal, or within such further time
within one month from the date of as the Appellate Court may see fit to
service· on him or his pleader of allow.
E notice of the day fixed for hearing
the appeal, or within such further
time as the Appellate Court may·see
fit to allow.

(Explanation.-A respondent
F aggrieved by a fmding of the Court
in the judgment on which the decree
appealed aeainst is based may'
under this rule, file cross-objection
in respect of the decree in so far as
G it is based on that finding ,
notwithstanding that by reason of
the decision of the Court on any
other finding which is sufficient for
the decision of the suit, the decree,
is, wholly or in part, in favour of
H that respondent.]
BANARSI v. RAM PHAL tR.C. LAHOTI, J.) 33
(2) xxxx xxxx xxxx (2) xxxx xxxx xxxx A
(3) xxxx xxxx xxxx (3). xxxx xxxx xxxx

(4) Where, in any case in which (4) Where, in any case in which any
any respondent has under this rule respondent has under this rule filed a
filed a memorandum of objection, memorandum of objection, the B
the original appeal is withdrawn or original ~ppeal is withdrawn or is
is dismissed for default, the ·dismissed for default, the objection
objection so filed may nevertheless so filed may nevertheless. be heard
be heard and determined after such and determined after such notice to
notice to the other parties as the the other parties as the Court thinks C
Court thinks fit. fit.

Sections 96 and I 00 of the CPC make provision for an appeal being
preferred from every original decree or from every decree passed in appeal
respectively; none of the provisions enwnerates the person who can file an D
appeal. However, it is settled by a long catena of decisions that·to be entitled
to file an appeal the person must be one aggrieved by the decree. Unless a
person is prejudicially or adversely affected by the decree he is not entitled
to file an appea·l (See Phoo/chand and Anr. v. Gopal La!, [I 967) 3 SCR 153;
Smt. Jatan Kanwar Golcha v. Mls Go/cha Properties (P) Ltd., [1970] 3 SCC
573; Smt. Ganga Bai v. Vijay Kumar and Ors., [ 1974) 2 SCC 393. No appeal -E
lies against a mere finding. Jt is significant to note tliat both Sections 96 and
100 of the CPC provide for an appeal against decree and not againstjudgment.

Any respondent though he may not have filed an appeal from any part
of the decree may still support the decree to the extent to which it is already F
in his favour by laying challenge to a finding recorded in the impugned

-- judgment against him. Where a plaintiff seeks a decree against the defendant
on grounds (A) and (B), any one of the two grounds being enough to entitle
the plaintiff to a decree and the Court has passed a decree on ground (A)
deciding it for the plaintiff while ground (B) has been decided against the
plaintiff, in an appeal preferred by the defendant, in spite of the finding on G ·
ground (A) being reversed the plaintiff as a respondent can still seek to
support the decree by challenging finding on ground (B) and persuade the
appellate court to form an opinion·that in spite of the finding on ground (A)
being reversed to the benefit of defendant-appellant the decree could still be
sustained by reversing the finding on ground (B) though the plaintiff- H
34 SUPREME COURT REPORTS [2003) 2 S.C.R.

A respondent has neither preferred an appeal of his own nor taken any cross
objection. A right to file cross objection is the exercise of right to appeal
though in a different fonn. It was observed in Sahadu Gangaram Bhagade
v. Special Deputy Collector, Ahmednagar and Anr., [1971] I SCR 146 that
the right given to a respondent in an appeal to file cross objection is a right
given to the .c;ame extent as is a right of appeal to lay challenge to the
B impugned decree if he can be said to be aggrieved thereby. Taking any cross
objection is the exercise of right of appeal and takes the place of cross-appeal
though the form differs. Thus it is clear that just as an appeal is preferred by
a person aggrieved by the decree so also a cross objection is preferred by one
who can be said to be aggrieved by the decree. A party who has fully
C succeeded in the suit can and needs to neither prefer an appeal nor take any
cross objection though certain finding may be against him. Appeal and cross-
objection - both are filed against decree and not against judgment and certainly
not against any finding recorded in a judgment. This was well-settled position
of law under the unamended CPC.
D CPC.Amendment of 1976 has not materially or substantiatly altered the
law except for a marginal difference. Even under the amended Order 41 Rule
22 sub-rule (l) a party in whose favour the decree stands in its entirety is
neither entitled nor obliged to prefer any cross objection. However, the
insertion made in the text of sub-rule (I) makes it pennissible to file a cross
E objection against a finding. The difference which has resulted we will shortly
state. A respondent may d<.'fend himself without filing any cross objection to
the extent to which decree is in his favour; however, if he proposes to attack
any part of the decree he must take cross objection. The amendment inserted
by 1976 amendment is clarificatory and also enabling and this may be made
F precise by analysing. the provision. There may be three situations:-

(i) The impugned decree is partly in favour of the appellant and
partly in favour of the respondent; ·-
(ii) The decree is entirely in favour of the respondent though an issue
G has ~een decided against the respondent;

(iii) The decree is entirely in favour of the respondent and all the
issues have also been answered in favour of the respondent but
there is a finding in the judgment which goes against the
respondent.
H
-o:- BANARSI v. RAM PHAL [R.C. LAHOTI, J.J 35
In the type of case (i) it was necessary for the respondent to file an A
appeal or take cross objection against that part of the decree which is against
him if he seeks to get. rid of the same though that part of the decree which
is in his favour he is entitled to support without taking any cross objection.
)
The law remains so post amendment too. In the type of cases (ii) and (iii)
pre-amendment CPC ·did not entitle nor permit the respondent to take any
cross objection as he was not the person aggrieved by the decree. Under the B
amended CPC, rea~ in the light of the explanation, though it is still not
necessary for the respondent to take any cross objection laying challenge to
any finding adverse to him as the decree is entirely in his favour and he may
support the decree without cross objection; the amendment made in the text
of sub-rule (1), read with the explanation newly inserted, gives him a right c
to take cross objection to a finding recorded against him either while answering
an issue or while dealing with an issue. The advantage of preferring such
cross objection is spelled out by sub-rule (4). In spite of the original appeal
having been withdrawn or dismissed for default the cross objection taken to
any finding by the respondent shall still be available to be adjudicated upon
on merits which remedy was not available to the respondent under the D
unamended CPC. In pre-amendment era, the withdrawal or dismissal for
defjiult of the original appeal disabled the respondent to question the
correctness or otherwise of any finding recorded against the respondent

The fact remains that to the extent to which the decree is against the
respondent and he wishes to get rid of it he should have either filed an appeal
E
of his own or taken cross objection failing which the decree to that extent
• cannot be insisted on by the respondent for being interfered, set aside or
modified to his advantage. The law continues to remain so post-1976
amendment. In a suit seeking specific performance of an agreement to sell
governed by the provisions of the Specific Relief Act, 1963 the Court has a F
discretion to decree specific performance of the agreement. The pl~intiff may
also claim compensation under Section 21 or any other relief to which he
may be entitled including the refund of money or deposit paid or made by
him in ca.-;e his claim for specific performance is refused. No compensation
or any other relief including the relief of refund shall be granted by the Court
G
.
~
unless it has been specifically claimed in the plaint by the plaintiff. Certainly
the relief of specific performance is a larger relief for the plaintiff and_more
onerous to the defendant compared with the relief for compensation or refund
of money. The relief of compensation or refund of money is a relief smaller
than the relief of specific performance. A plaintiff who files a suit for specific
performance claiming compensation in lieu of or in addition to the relief of H
36 SUPREME COURT REPORTS [2003] 2 S.C.R. ...:

A specific performance or any other relief including the refund of any money
has a right to tile an appeal against the original decree if the relief of specific
performance is refused and other relief is grant~d . The plaintiff would be a
person aggrieved by the decree in spite of one of the alternative reliefs
having been allowed to him because what has been allowed to him is the
B smaller relief and the larger relief has been denied to him. A defendant
against whom a suit for specific performance has been decreed may file an
appeal seeking relief of specific performance being denied to the plaintiff and
instead a decree of smaller relief such as that of compensation or refund of
money or any other relief being granted to the plaintiff for the former is
larger relief and the latter is smaller relief. The defendant would be the
C person aggrieved to that extent. It follows as a necessary corollary from the
abovesaid statement of law that in an appeal filed by the defendant laying
challenge to the re.lief of compensation or refund of money or any other relief
while decree for specific performance was denied to the plaintiff, the plaintiff
as a respondent cannot seek the relief of specific performance of contract or .
D modification of the impugned decree except by filing an appeal of his own :
or by taking cross objection.

We are, therefore, of the opinion that in the absence of cross appeal
preferred or cross objec~ion taken by the plaintiff-respondent the First Appellate
Court did not have jurisdiction to modify the decree in the manner in which
E it has done. Within the scope of appeals preferred by the appellants the First
Appellate Court could have either allowed the appeals and dismissed the suit .
filed by the-respondent in its entirely or could have deleted the latter part of
the decree which granted the decree for specific performance conditional .
upon failure. of the defendant to deposit the money in terms of the decree or.
could have mai1,1tained the decree as it was passed by dismissing the appeals.
F What the First Appellate Court has done is not only to set aside the decree
to the extent to which it was in favour of the appellants but also granted an
absolute and out and out decree for specific performance of agreement to sell
which is to the prejudice of the appellant~ and to the advantage of the
respondent who has neither filed an appeal nor taken any cross objection.

G The learned counsel for the respondent forcefully argued that even in
the absence of appeal preferred by the plaintiff or cross objection taken by
the plaintiff-respondent the Appellate Court was not powerless to grant ~h~
decree which it has done in exercise of the power conferred by Rule 33 of
Order 41 of the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which have
H to be read necessarily together, are set out hereunder:
\
BANARSI v. RAM PHAL [R.C. LAHOTI, J.} 37
'.
. ORDER 41 A
Appeals from Original Decrees

"33. Power of Court of Appeal-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 B
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
a11y appeal or objection and may, where there have been decrees in
cross-suits or where two or more decrees are passed in one suit, be C
exercised in respect of all or any of the decrees, although an appeal
may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under
section 35A, in pursuance of any objection on which the Court from
whose decree the appeal is preferred has omitted or refused to make D
such order.
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 E
power to pass a decree against Y.

4. One of several plaintiffs or defendants may obtain reversal of
whole decree where it proceeds on ground common to a/I.-Where
there are more plaintiffs or more defendants than one in a suit, and
the decree appealed from proceeds on any ground common to all the F
plaintiffs or to all the defendants, any one pf the plaintiffs or of the
defendants may appeal from the whole decree, and thereupon the
Appellate Court may reverse or vary the decree in favour of all the
plaintiffs or defendants, as the case may be."
G
.. Rule 4 seeks to achieve one of the several objects sought to be achieved
by Rule 33, that is, avoiding a situation of conflicting decrees coming .into
existence in the same suit. The abovesaid provisions confer power of widest
amplitude on the appellate court so as to do complete justice between the
part!es and such power is unfettered by consideration of facts like what is the
subject matter of appea.J, who has filed the appeal and whether the appeal is H
38 SUPREME COURT REPORTS [2003] 2 S.C.R.

A being dismissed, allowed or disposed of by modifying the judgment appealed
against. While dismissing an appeal and though confirming the impugned
decree, the appellate court may still direct passing of such decree or making
of such order which ought to have been passed or made by the court below
in accordance with the findings of fact and law arrived at by the court below
B and which it would have done had it been conscious of the error committed
by it and noticed by the Appellate Court. While allowing the appeal or
otherwise interfering with th~ decree or order appealed against, the appellate
court may pass or make such further or other, decree or order, as the case
would require being done, consistently with the findings arrived at by the
appellate court. The object sought to be achieved by conferment of such
C power on the appellate court is to avoid inconsistency, inequity, inequality in
reliefs granted to similarly placed parties and unworkable decree or order
coming into existence. The overriding consideration is achieving the ends of
justice. Wider the power, higher the need for caution and care while exercising
the power. Usually the power under Rule 33 is exercised when the portion
of the decree appealed against or the portion of the decree held liable to be
D set aside or interfered by the appellate court is so inseparably connected with
the portion not appealed against or left untouched that for the reason of the
latter portion being left untouched either injustice would result or inconsistent
decrees would follow. The power is subject to at least three limitations: ...
firstly, the power cannot be exercised to the prejudice or disadvantage of a
E person not a party before the Court; secondly, a claim given up or lost cannot
be revived; and thirdly, such part of the decree which essentially ought to
have been appealed against or objected to by a party and which that party has
permitted to achieve a finality cannot be reversed to tbe advantage of such
party. A case where there are two reliefs prayed for and one is refused while
the other one is granted and the former is not inseparably connected with or
F necessarily depending on the other, in an appeal against the latter, the former
reli.ef cannot be granted in favour of the respondent by the appellate court
exercising power under Rule 33 of Order 41.

Panna La/ v. State of Bombay and Ors., [1964] I SCR 980 so sets out
the scope of Order 41 Rule 33 in the widest terms. "The wide wor~ing of
G 0.41 R.33 was intended to empower the appellate court to make whatever
order it thinks fit, not only as between the appellant and the respondent but
also as between a respondent and a respondent. It empowers the appellate
court not only to give or refuse relief to the appellant by allowing or dismissing
the appeal but also to give suc.h other relief to any of the respondents as "the
H case may require". If there was no impediment in law the High Court in
BANARSI v. RAM PHAL [R.C. LAHOTl, J.] 39
appeal could, therefore, though allowing the appeal of the defendant-appellant A
by dismissing the plaintiffs suit against it, give the plaintiff-respondent a
decree against any or all the other defendants who were parties to the appeal
as respondents. While the very words of the rule make this position abundantly
clear the Illustration puts the position beyond· argument." The suit was filed
by the plaintiff impleading the State government and the Deputy Commissioner B
seeking recovery of compensation for the work done under a contract and the
price of the goods supplied. The Trial Court held that the State was liable as
it had beyond doubt benefited by the performance of the plaintiff. The suit
was decreed against the State. The State preferred an appeal in the High
_Court. The plaintiff and other defendants including the Deputy Commissioner
were impleaded as respondents. Disagreeing with the Trial Court, the High C
Court held that the contract entered into by the Deputy Commissioner was
not binding on the State government; that the Deputy Commissioner signed
the contract at his own discretion; and further, that the contract not having
been entered into in the form as required under Section 175(3) of the
Government of India Act, 1935, was not enforceable against the State
government. The High Court also held that the government could not be held D
to have ratified the action of the contract entered into by the Deputy
Commissioner. The State was held also not to have benefited by the
perfonnance of the plaintiff. On this finding, the High Court set aside the
Trial C~urt's decree passed against the State government. In an appeal to this
Court, the Constitution Bench held that it was a fit case for the exercise of E
jurisdiction under Order 41 Rule 33 of the CPC. On the findings arrived at
by the High Court, while setting aside .the decree against the State, the High
Court should have passed a decree against the Deputy Commissioner. It was

--· not necessary for the plaintiff to have filed any cross-objection and the
illustration appended to Order 41 Rule 33 was enough to find solution.
F
In Rameshwar Prasad and Ors. v. Shambehari La/ Jagannath and
Anr., [1964] 3 SCR 549, the three-Judge Bench speaking through Raghubar
Dayal, J. observed that Rule 33 really provides as to what the Appellate
Court can find the appellant entitled to and empowers the Appellate Court to
pass any decree and make any order which ought to have been passed or G
made in the proceedings before it and thus could have reference only to the
... nature ofthe decree or order in.so far as it affects the rights of the appellant.
If further empowers the Appellate Court to pass or make such further or
other, decree or order, as the case may require. The Court is thus given wide

- discretion to pass such decrees and orders as the interests of justice demand.
Such a power is to be exercised in exceptional cases when its non-exercise H
-~
40 SUPRtME COURT REPORTS [2003] 2 S.C.R.

A will lead to difficulties in the adjustment of rights of the various parties. (vide
Para 17, emphasis supplied)
--
In Harihar Prasad ~ingh and Ors. v. Balmiki Prasad Singh and Ors.,
[1975) I SCC 212, the following statement of law made by Venkatarama
Aiyar, J. (as His Lordship then was) in the Division Bench decision in Krishna
B Reddy v. Ramireddi, AIR (1954) Madras 848 was cited with approval which
clearly brings out the wide scope of power contained in Rule 33 and the
illustration appended thereto, as also the limitations on such power:

"Though Order 41, Rule 33 confers wide and unlimited jurisdiction
on Courts to pass a decree in favour of a party who has not preferred
c any appeal, there are, however, certain well-defined principles in
accordance with which that jurisdiction should be exercised. Nonnally,
a party who is aggrieved by a decree should, if he seeks to escape
from its operation, appeal against it within the time allowed after
complying with the requirements of Jaw. Where he fails to do so, no
D · relief should ordinarily be given to him under Order 41, Rule 33. ·

But there are well-recognised exceptions to this rule. One is where
as a result of interference in favour of the appellant it becomes
necessary to readjust the rights of other parties. A second class of
cases based on the same principle is where the question is one of
E settling mutual rights and obligations between the same parties. A
third class of cases is when the relief prayed for is single and indivisible
but is claimed against a number of defendants. In such cases, if the

F
suit is decreed and there is an appeal only by some of the defendants
and ·ifthe relief is granted only to the appellants there is the possibility
that there might come into operation at the same time and with
reference to the same subject-matter two decrees which are inconsistent
--
and contradictory. This, however, is not an exhaustive enumeration
of the class of cases in which courts could interfere under Order 41,
Rule 33. Such an enumeration would neither be possible nor even
desirable."
G In the words of J.C. Shah, J. speaking for a three-Judge Bench of this
Court in Nirmala Bala Ghose and Anr. v. Ba!ai Chand Ghose and Anr.,
( 1965) 3 SCR 550, the limitation on discretion operating as bounds of the
width of power conferred by Rule 33 can be so formulated -

H "The rule is undoubtedly expressed in terms which are wide, but it -
t
BANARSI v. RAM PHAL [R.C. LAHOTI, J.] 41
has to be ·applied with discretion, and to cases where interference in A
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 B
appealed, the power conferred by 0.41 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." (Para
22) . <:
A Division Bench decision of.Calcutta High Court in Jadunath Basak
v. Mritunjoy Sett and Ors., AIR (1986) Calcutta 416 may be cited as an
illustration. The plaintiff filed a suit for declaration that the defendant had no
right or authority to run the workshop with machines in the suit premises and
for permanent injunction restraining the defendant from running the workshop. D
The Trial Court granted a decree consisting of two reliefs: (i) the declaration
as prayed for, and (ii) an injunction permanently restraining the defendant
from running the workshop except. with the terms of a valid permission and
licence under Sections 436 and 437 of Calcutta Municipal Act, 1951 from the
Municipal Corporation. The defendant filed an appeal. The Division Bench E
held that in an appeal filed by the defendant, the plaintiff cannot challenge
that part of the decree which granted conditional injunction without filing the
cross-objection. The Division Bench drew a distinction between the
respondent's right to challenge an adverse finding without filing any appeal
or cross-objection and the respondent seeking to challenge a part of the
decree itself without filing the cross-objection. The Division Bench held that F
the latter was not permissible. We find ourselves in agreement with the view
taken by the High Court of Calcutta.

In the case before us, the Trial Court found the plaintiff (in his suit) not
entitled to decree for specific performance and found him entitled only for
money decree. In addition, a conditional decree was also passed directing G
execution of sale deed if only the defendant defaulted any paying or depositing
the money within two months. Thus to the extent of specific performance, it
was not a decree outright; it was a conditional decree. Rather, the latter part

-- of the decree was a direction in terrorem so as to secure compliance by the
appellant of the money part of the decree in the scheduled time frame. In the H
42 SUPREME COURT REPORTS {2003] 2 S.C.R.

A event of the appellant having made the payment within a period of two
months, the respondent would not be, and would never have been, entitled to
the relief of specific performance. The latter decree is not inseparably
connected with the fonner decree. The two reliefs are surely separable from
each other and one can exist without the other. Nothing prevented the
B respondent from tiling his own appeal or taking cross-objection against that
part of the decree which refused straightaway a decree for specific perfonnance
in his favour based on the finding of comparative hardship recorded earlier
in the judgment. The dismissal of appeals filed by the appellant was not
resulting in any inconsistent, iniquitous, c~mtradictory or unworkable decree
coming into existence so as to warrant exercise of power under Rule 33 of
· C Order 41. It was not a case of interference with decree having been so
interfered with as to call for adjustment of equities between respondents inter
se. By his failure to prefer an appeal or to take cross-objection the respondent
has allowed the part of the Trial Court's decree to achieve a finality which
was adverse to him.

D For the foregoing reasons we are of the opinion that the first Appellate
Court ought not to have, while dismissing the appeals filed by the defendant-
appellants before it, modified the decree in favour of the respondent before
it in the absence of cross-appeal or cross-objection. The interference by the
first Appellate Court has reduced the appellants to a situation worse than in
E what they would have been if they had not appealed. The High Court ought
to have noticed this position of law and should have interfered to correct the
error of law committed by the first Appellate Court.

During the course of hearing, the learned counsel for the appellants
made a statement under instructions, that the appellants have a large family
F to support which is entirely dependent on the suit land for maintaining itself
--
and they have no other means of livelihood. (This statement finds support
from the finding arrived at by the Trial Court) He further stated that, in any
case, to get rid of the onerous part of the decree, the appellants volunteer to
pay a funher amount ofRs. 1,20,000 by way of compensation to the respondent
over and above the amount of Rs. 2,40,000 already deposited by them in the
G Court pursuant to interim orders alongwith the bank interest accrued thereon.
That statement is taken on record and being a very fair voluntary offer deserves
to be accepted and incorporated in the decree.

The appeals are allowed. The judgment and decree of the first Appellate
H Court are set aside and instead those of the Trial Court restored. In view of
BANARSI v. RAM PHAL (R.C . LAHOTI, J.] 43
the appellants having deposited the money due and payable under the mon~y A
part of the decree, it is held that they are relieved from specifically performing
the agreement and executing sale deed in pursuance thereof. The delay in
deposit, if any, deserves to be condoned in view of the interim orders passed
by the High Court and is hereby condoned. The time for deposit, as appointed
by the Trial Court, shall be deemed to have been extended upto the dates of B
actual deposits made by the appellants. The amount of Rs. 2,40,000 lying
deposited in the Court and invested in fixed deposits shall, along with the
interest earned, be released to the· respondents. In addition the appellants
shall, as offered by them, deposit with the executing court for payment to the
respondent another amount of Rs. 1,20,000 within a period of eight weeks
from today. On that being done, the decree passed by the Trial Court shall C
be deemed to have been fully satisfied. The respondent shall deliver the
agreements dated 03.11.1988 and 15.7.1991 to the appellants endorsing upon
the agreements the amount of money received and that the agreements stand ·
discharged and need not be perfonned. The costs shall be borne by the
parties as incurred throughout.

K.K.T. Appeals allowed.