(1.) The only question which has been raised by the Learned Counsel for the Appellant in this second appeal is with regard to the modification made by the lower appellate court in the trial court's decree. The suit was for a mandatory injunction. The trial court directed the Defendants to remove their constructions from the land shown by figures 4-A, B-5 in the map 14C and deliver possession to the Plaintiffs over the said land within one month. The lower appellate court dismissed the Defendant's appeal but while doing so it observed that the Plaintiff's suit should have been decreed in toto and that the line drawn by the trial court on the commissioner's map for decreeing the suit in respect of only a part of the land was imaginary and that the suit should have been decreed in respect of the whole of the land mentioned by figures 3, 4, 5 and 6 on the commissioner's map and not only in respect of the western land thereof up to the line A B. Whether the lower appellate court was right in its opinion is not the question for consideration. The question raised by the Learned Counsel is that in the absence of any appeal by the Plaintiff, and in view of the fact that the Defendant's appeal from the trial court's decree was being dismissed by the lower appellate court, it had no jurisdiction to modify the decree in favour of the Plaintiff-Respondent who had not appealed. Order 41 Rule 33 of the Civil Procedure Code applies to the situation only when an appellate court comes to the conclusion that an appeal deserves to be allowed, at the stage of deciding the nature of the order to be passed in the suit giving rise to the appeal before it.-It does not come into operation when the appellate court dismisses the appeal before it. Learned Counsel for the Respondents relied on the decision of the Supreme Court in Panna Lal v. State of Bombay, 1963 AIR(SC) 1516 in this context. That case has no application to the facts of the present case before me. In the present case the Plaintiff-Respondent had not appealed from the decree at all. The fact that he was a poor Bari and had no money to file an appeal or cross-objection are wholly irrelevant considerations and the lower appellate court exceeded its jurisdiction in relying on them. On this ground the appeal succeeds and is allowed. The modifications made by the lower appellate court in the trial court's decree are set aside. The trial court's decree is confirmed. There will be however, no order as to costs.