PANCHEI BEWA Vs. BANCHHANIDHI PADHAN

JUDGEMENT

(1.) DEFENDANT 1 is the appellant. Defendants 2 to 4 are the sons of defendant 1. The suit is for declaration of title and recovery of possession of the disputed land which the plaintiffs purchased from the husband of defendant 1 by a registered sale deed (Ex. 1) dated 22-3-1948 for Rs. 80/ -. Plaintiffs' case is that the defendants dispossessed them in August, 1954. The defence case is that the sale-deed is not genuine and not for consideration.

(2.) BOTH the Courts below concurrently found that the sale deed was genuine and was duly executed. The trial Court found that There was no payment of consideration, but it decreed the suit on the finding that title had passed despite non-payment of consideration. It accordingly granted declaration of title but directed that possession was to be delivered to the plaintiffs subject to payment of rs. 80/ -. There was no decree for damages. Against the trial Court's decree plaintiffs filed an (sic) (No. ?) appeal. Defendant 1 filed an appeal challenging the finding of the trial court that title had passed despite non-payment of consideration. The lower appellate Court found that consideration had been paid. It accordingly decreed the suit for declaration, of title and recovery of possession without payment of Rs. 80/- as directed by the trial court, As there was no appeal against the dismissal of the claim for damages, it also did not award damages.

(3.) THE only contention raised by Mr. Sahu is that in the absence of any cross-objection filed by the plaintiffs in the lower appellate court, it was not open to It to set aside the trial Court's decree for possession being delivered subject to payment of Rs. 80/ -. Order 41, Rule 33 C. P. C. gives very wide powers to The appellate courts but despite it the consensus of authorities is that it should not be so applied as to enable a party litigant to ignore the other provisions of the Code. In Panna Lal v. State of Bombay, AIR 1963 SC 1516, their Lordships observed that the wide wording of Order 41, Rule 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 such other relief to any of the respondents as the case may require. Though very wide powers have been conferred on the apeltate Court under Order 41, Rule 33, the very amplitude of power conferred necessitates that the power must be very cautiously exercised. In Krishna Reddi v. Ramireddi, AIR 1954 Mad 848 a lucid discussion has been made as to the various classes of exceptions in which ordinarily such power is exercised. There cannot be an exhaustive enumeration of the classes of cases in which Courts could interfere under Order 41, Rule 33 and their Lordships observed that such an enumeration would neither be possible not even desirable for situations might arise which cannot be foreseen or predicted in which the Court must have the power to exercise its jurisdiction under that rule. The decision was followed by Bench of this court in ILR 1958 Cutt. 51.