RANGAM LAL Vs. JHANDU

JUDGEMENT

(1.) This appeal arises out of a suit brought by a zamiudar against a tenant for rent. The rent claimed was the sum of Rs. 294-7-0. The defence was that the claim had been discharged. The Assistant Collector, who tried the case in the first instance, found that the defendant was entitled to certain credits, but that there was a balance due of Rs. 96-11-11, for which he gave a decree. The plaintiff appealed against the decree in so far as it dismissed any part of his claim. The defendant submitted to the decree. He neither filed a cross appeal nor objections, as, provided by Order XLI, Rule 22 of the Code of Civil Procedure. On appeal the learned District Judge referred certain issues. It would rather appear that he was influenced by certain matters which either were not before the court of first instance or were not urged in that court. These issues in substance involved a retrial by the court of first instance of the very issues which that court had already decided. The result, however, of the findings was that the learned District Judge considered that the plaintiff s claim had been fully discharged; and he consequently in exercise of what he considered to be the powers conferred upon him by Order XLI, Rule 33, dismissed the plaintiff s suit in toto.

(2.) The plaintiff comes here in second appeal and contends that the learned District Judge was not justified under the circumstances in making such a decree.

(3.) The question is one of considerable importance, because Rule 33 of Order XLI is a new rule introduced into the Code of Civil Procedure for the first time in 1908 The rule is as follows: 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 that case may require, and this power 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. Illustration. A claims a sum of money as due from him by 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.