Holding

An appellate court cannot set aside a lower court’s finding in favour of the appellant where the respondent has filed neither an appeal nor a cross‑objection; Order 41 Rule 22(1) only allows support of the decree, and Order 41 Rule 33 may be exercised only in limited circumstances not present here.

Summary

The appellant, a land‑holder under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, challenged a Collector’s order that allotted him twelve units of land, although he had claimed fifteen. The State of Bihar neither appealed the Collector’s order nor filed any cross‑objection. The Commissioner of the Division, however, set aside the Collector’s finding on the number of units allotted, relying on Order 41 Rule 22 and Rule 33 of the Code of Civil Procedure. The High Court dismissed the appellant’s writ petition under Article 226, holding that the Commissioner was justified under Order 41 Rule 22. The Supreme Court held that Rule 22(1) only permits a respondent to support a decree, not to challenge it, and that a challenge requires a cross‑objection. Since the State filed neither an appeal nor a cross‑objection, the Commissioner could not set aside the Collector’s finding. Moreover, the circumstances did not satisfy the stringent conditions for invoking Rule 33, which is to be exercised with caution to avoid reopening final decrees. Consequently, the Supreme Court allowed the appeals, set aside the Commissioner’s order (and the High Court’s order) insofar as it altered the Collector’s finding, and remanded the case for further disposal on other points.

Issues considered

Whether, in the absence of an appeal or cross‑objection by the State, the appellate authority can set aside a finding of the lower court under Order 41 Rule 22 of the CPC.
Whether Order 41 Rule 33 of the CPC can be invoked to alter a decree when the respondent has not appealed or cross‑objected.

Legislation cited

Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961s. 10(2), s. 8(1)
Code of Civil Procedures. Order 41 Rule 22, s. Order 41 Rule 33

Subjects

Land reformsCeiling areaCivil Procedure CodeOrder 41 Rule 22Order 41 Rule 33Appellate jurisdictionCross‑objectionDecree reversalSpecial leave petition

Judgment

A 178

CHOUDHARY SAHU (DEAD) BY LRS. ....
v.
STATE OF BIHAR
8
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
c 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
E 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-
F 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
G 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
H 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
CHAUDHARY SAHU V. BIHAR 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 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 B
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 c
- 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
necessary in order to adjust the rights of the parties according to justice, equity D
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. [1840-F]

Nirmala Bala Ghose & Anr. v. Balai Chand Ghose & Ors., (1965] 3 SCR 550
and Giani Ram & Ors. v. Ramji Lal & Ors., [1969] 3 SCR 944, followed.
E
CIVIL APPELLATE JURISDICTION : Civil 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 C.W.J.C. Nos
1631, 1614, 1618, 1617, 1594, 1616, 1615 & 1593of1976 respectively. F
P. R. Mridul, R. K. Jain, B. P. Singh and Pankoj Ka/ra for
the Appellant in CA. 423/79.

So/i J. Sorabjee, R. P. Singh and R.K. Jain for 'the Appellant
in CA. 2085 of 1977.
G
M. C. Bhandare and R. P. Singh for the Appellant in CA.
2086/77.

D. P. Singh, R. K. Jain and R. P. Singh for the Appellant in
CA. Nos. 2089-2090/77. H
D. Goburdhan and R. N. Poddar for the Respondent.
180 SUPREME COURT REPORTS [1982] 2 S.C.R.

A 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 a,:ipeals by a common judgment. Since these
B 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 {
1
Surplus Land) Act, 1961 (hereinafter referred to as the Act). A
c notice under section 8(1) 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 Addi-
....
tional Collector came to the conclusion that the petitioner was
D 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 l 0(2) of the Act. In
response thereto he filed an objection laying inter alia a claim for
fifteen units for reasons enumerated therein. The Collector con-
sidered, the objections filed by the petitioner and by his order dated
23rd of February, 1975 ordered allotment of twelve units to the
E petitioner. The petitioner feeling aggrieved went up in appeal
before the Commissioner of the Division. The State of Bihar sub-
mitted 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.
F 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
G 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
H Commissioner but the High Court dismissed the petition and con-
firmed the order of the Commissioner on the basis of the provisions
of Order 41 rule 22.
CHAUDHARY SAHU v. BIHAR (Misra, J.) 181

The sole contention raised on behalf of the appellants in the A
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 J!igh B
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 C.P.C. 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, c
- By rule 49 of the Bihar lLand 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.
0
We will first refer to the prov1swns of Order 41, rule 22
Insofar as it is material for the purposes of this case, it reads :

"22(1) Any respondent, though be 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 E
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 F
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. G
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, therefort", H
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 SUPREME COURT REPORTS [1982] 2 S.C.R.

A 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 22(1).
In our opinion this he could not do.

The only other Order on which the State of Bihar could rely
B upon is Order 41, rule 33 C.P.C. 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 r
of Order 41, rule 33 of the Code of Civil· Procedure. Insofar as
a material, it reads :

"33. The Appellate Court shall have power to pass
any decree arid 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
D 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.

E 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 decree against Y."
F
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 notwithstaading that r-'
the appeal is as to part only of the decree and such power may be
G 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 Ba/ai Ghosh & Anr. v.
Ba/ai Chand Ghose & Ors.(1 ) This Court dealing with the scope
H of Order 41, rule 33, observed as follows :

(1) [1965] 3 SCR 550.
CHAUDHARY SAHU v. BIHAR (Misra, J.) 183

"The rule is undoubtedly expressed in terms which are A
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
B
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
'..i. to a person who has not 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
c
Court does not agree with the opinion of the Court

- appealed from."

In the case cited above, there were two sets of defendants in D
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 E
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
bad 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 liti-
F

gation, whose rights are otherwise not affected by the
decree, to invoke the powers of the appellate court under
0. 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 SUPREME COURT REPORTS [19,82] 2 S.C.R.

A Counsel for the State of Bihar, on the other 'hand, referred to
Giani Ram & Ors. v. Ramiji Lal & Ors.(1) 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
B 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"

c The object of this rule is to avoid contradictory and incon-
sistent 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
D have become final merely because the Appellate rcourt 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
E 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.
F
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
G 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
H become final and rights of the State of Bihar had come to an end

(I) [1969] 3 SCR 944.
CHAUDHARY SAHU v. ntHAR (Misra, .l.) 185

to that extent by not filing any appeal or cross-objection within the A
period of limitation.

For the reasons given above, all the appeals are allowed and
the order of the Higb 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, i however, remain intact B
insofar as other points are concerned. In the circumstances of the
case, the parties shall bear their own costs.

S.R. Appeals allowed.

-