# Smt. Lalita Devi Plff v. Smt. Sayeeda Khatoon

- **Citation:** (2015) 1 ILRA 184
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-29
- **Case number:** Second Appeal No. 1261 of 1989
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-lalita-devi-plff-v-smt-sayeeda-khatoon-43275
- **Pages:** 16

## Headnote

C.P.C.-Section-100-Second
Appealconcurrent
finding
of
facts
regarding
execution of deed agreement to sale-but
Lower Appellate Court raised surprised
question-about identity of plot-reverse the
findings of Trail Court and direction to
return earnest money with interest-heldquashed.
Held: Para-35
Now there is another aspect of matter
regarding interference with decree of
Trial
Court
on
the
ground
of
identifiability though no such objection
or pleading was taken by defendantrespondent. It is now well settled that
Court cannot make out a case outside
the plea of parties and it is the case
pleaded by both of them which has to be
seen. I am fortified in taking the
aforesaid view by the decision in Messrs.
Trojan and Co. Vs. RM. N. N. Nagappa
Chettiar AIR 1953 SC 235, Raruha Singh
Vs. Achal Singh AIR 1961 SC 1097 and
Siddu
Venkappa
Devadiga
Vs.
Smt.
Rangu S. Devadiga and others (1977) 3
SCC 532.
Case Law discussed:
1912 (34) ILR (All) 32; (1979) 1 SCC 166; (1982)
1 SCC 232; (1998) 8 SCC 222; (2003) 9 SCC 606;
1965 (3) SCR 550; (2007) 11 SCC 75; AIR 1953
SC 235; AIR 1961 SC 1097; (1977) 3 SCC 532.

## Text

_Characters 0–39,976 of 54,194. This is a partial read: ask again with offset=39976 for what follows._

184
 INDIAN LAW REPORTS ALLAHABAD SERIES
including benefits which accrue on
account of the death of an employee, is
not a matter of largesse or charity but
constitutes a vested right on account of
the years of service rendered as an
employee of the State. The facts on the
record would make it clear that it was the
State which took a long period of 29 years
to make payment of the retiral dues. As
pleaded by the appellant, an amount of
Rs.5,75,000/- was paid to her in 2011
though the death of the employee had
occurred in 1983. The grievance of the
appellant is that this did not represent the
full amount of the payments due and
outstanding
towards
death-cum-retiral
benefits. The learned Single Judge has
erred in finding fault of the appellant for
not specifying what were the exact
balance dues. As a matter of fairness, it
was for the State to indicate in the form of
a computation, the dues as computed and
to which the appellant was entitled and
that the entirety of the dues had been paid.
This ought to have been placed on the
record before the learned Single Judge. In
any event having due regard to the facts
of this case, it was the duty of the State to
explain why no payment had been made
for a period of 29 years since the date of
death of the employee.
4. In these circumstances, the heirs
of an employee cannot be non-suited on
the ground of delay when there has been a
failure on the part of the State to pay the
retiral dues within a reasonable period. In
this view of the matter, we are of the view
that the impugned order of dismissal of
the writ petition is unsustainable and
would have to be set aside.
5. We, accordingly, set aside the
judgment of the learned Single Judge
dated 2 December 2004 and restore Writ ? A
No.64921 of 2014 for fresh disposal on
merits. We direct the respondents to file a
counter affidavit on or before 9 March 2015.
The counter affidavit shall specify the
computation of the death-cum-retiral dues.
The
affidavit
shall
also
contain
an
explanation, if any, of the State for the delay
of well over 29 years in the payment of the
dues to the appellant. The issue as to whether
full payment has been made to the appellant
and whether the appellant should be entitled
to the award of interest, shall be decided by
the learned Single Judge after the counter
affidavit is filed. We grant liberty to the
appellant to move the learned Single Judge
upon the expiry of the period fixed by this
order for the filing of a counter affidavit. The
learned Single Judge may, having due regard
to the facts of the case, and more particularly
that the appellant is a poor widow who is
fighting for the payment of her entitlement,
take an appropriate view while directing the
listing of the writ petition for final disposal at
an early date. The special appeal is,
accordingly, disposed of. There shall be no
order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
Second Appeal No. 1261 of 1989
Smt. Lalita Devi
...Plff. Appellant
Versus
Smt. Sayeeda Khatoon
...Respondents
Counsel for the Appellant:
Sri
R.N.
Upadhyay,
Sri
Amarnath
Bhargava, Sri A.N. Bhargava
Counsel for the Respondents:
Sri Shakeel Ahmad Azmi, Sri S.A. Ansari,
Sri Shakeel Ahmad Azami, Sri S.U. Khan
1 All]
 Smt. Lalita Devi Vs. Smt. Sayeeda Khatoon
185
C.P.C.-Section-100-Second
Appealconcurrent
finding
of
facts
regarding
execution of deed agreement to sale-but
Lower Appellate Court raised surprised
question-about identity of plot-reverse the
findings of Trail Court and direction to
return earnest money with interest-heldquashed.
Held: Para-35
Now there is another aspect of matter
regarding interference with decree of
Trial
Court
on
the
ground
of
identifiability though no such objection
or pleading was taken by defendantrespondent. It is now well settled that
Court cannot make out a case outside
the plea of parties and it is the case
pleaded by both of them which has to be
seen. I am fortified in taking the
aforesaid view by the decision in Messrs.
Trojan and Co. Vs. RM. N. N. Nagappa
Chettiar AIR 1953 SC 235, Raruha Singh
Vs. Achal Singh AIR 1961 SC 1097 and
Siddu
Venkappa
Devadiga
Vs.
Smt.
Rangu S. Devadiga and others (1977) 3
SCC 532.
Case Law discussed:
1912 (34) ILR (All) 32; (1979) 1 SCC 166; (1982)
1 SCC 232; (1998) 8 SCC 222; (2003) 9 SCC 606;
1965 (3) SCR 550; (2007) 11 SCC 75; AIR 1953
SC 235; AIR 1961 SC 1097; (1977) 3 SCC 532.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri A.N. Bhargava, learned
counsel for appellant. None appeared on
behalf of respondent though the case has
been called in revised. Hence, this Court
proceed ex-parte against respondent.
2.
This appeal under Section 100 of
Code of Civil Procedure has arisen at the
instance of plaintiff-appellant against the
judgment and decree dated 8.2.1989 passed
by Sri Hari Shanker Lal Srivastava, First
Additional District Judge, Jaunpur whereby
partly allowing the appeal, Lower Appellate
Court (hereinafter referred to as "LAC") has
set aside the judgment and decree of Trial
Court insofar as it had directed defendantrespondent to execute sale-deed in respect to
plots in dispute in favour of plaintiff, but
simultaneously has directed defendantrespondent to refund Rs. 4,000/- which was
received as earnest money, along with
interest, at the rate of 6 per cent per annum,
to plaintiff-appellant.
3. After hearing the appeal under
Order 41 Rule 11 C.P.C. on 31.3.1987,
this Court found adjudication of the
following substantial questions of law
having arisen, in this appeal:
"(A) Whether the Appellate Court
having confirmed findings of Trial Court
about genuineness of agreement was right
in refusing relief of granting execution of
sale-deed simply on the ground of
identifiability and when there was only
slight reduction of area of only two plots?
(B) Whether any permission was
required when the agreement was with
regard to sale of land after the
consolidation was over within a period of
five years.
(C) Whether absence of permission
creates any bar for entering into an
agreement and sale also specially by
Court?"
4. Subsequently, vide order dated
30.10.2014, one more substantial question
of law was formulated as under:
"(D) Whether the lower appellate
court can dismiss the relief for specific
performance granted by trial court when
no appeal was preferred by DefendantAppellant against the grant of relief for
specific performance by trial court."
5. Plaintiff-appellant, Smt. Lalita
Devi, instituted Original Suit No. 66 of
186
 INDIAN LAW REPORTS ALLAHABAD SERIES
1983 in the Court of Civil Judge, Jaunpur
seeking a decree of rectification in the
document dated 31.5.1978 by substituting
the numbers 200/1-26 and 200/2-4 instead
of 208/1-26 and 208/2-4. She also sought
a decree of specific performance of
contract, directing defendant to execute
sale-deed after receiving a sum of Rs.
6,000/- in respect to disputed plots.
6.
The plaint case set up was that
disputed property was owned by Smt. Jahida,
widow of Munshi and mother of defendant
Smt. Sayeeda. Smt. Jahida having died, her
property succeeded to defendant Smt.
Sayeeda, whose name was mutated as owner
of disputed property. Defendant's mother
entered into a registered agreement for sell
dated 31.5.1978, for a consideration of Rs.
10,000/- for transfer of her property by sale.
Since consolidation proceedings were going
on, it was agreed that sale-deed shall be
executed after consolidation proceedings are
over, or within five years, after obtaining
permission. A sum of Rs. 4,000/- was
received by mother of defendant as part
consideration and Rs. 6,000/- was to be paid
at the time of registration of sale-deed. After
death of Smt. Jahida (the erstwhile owner),
now the defendant is bound by the said
agreement. Defendant's mother also gave
possession of disputed property to plaintiff
and she is continuously in possession thereof
since then, i.e., 1978. Repeatedly plaintiff
requested defendant's mother and thereafter
defendant to execute sale-deed but they
avoided on one or the other pretext. The
property, subject matter of agreement to sell
dated 31.5.1978, was numbered as 205/-20
and 206/1/-25, but during consolidation, its
area reduced and now numbered as 205/-11
and 206/1/-26. Plaintiff is ready to proceed
for purchase of reduced area and also to pay
the agreed consideration. In the agreement,
due to mistake of Deed-Writer, Khata
numbers were wrongly mentioned as 208/1/-
26 and 208/2/-4 though it ought to be 200/1/-
26 and 200/2/-4. The correct numbers were
200/1/-26 and 200/2/-4. The aforesaid
mistake, however, would not be material so
far as the agreement is concerned and
defendant is bound to honour the said
agreement. Since within five years, the
document of sale has not been executed and
defendant is not agree to do so, hence the
suit.
7. At the bottom of plaint, detail of
property, allegedly agreed to be sold by
mother of defendant, was mentioned as
under:
en 1⁄4v1⁄2
199@&01] 201@&61] 203@&14] 204@&13]
205@&20]
206@1@&25]
206@2@&33]
206@3@&02]
208@1@&26]
208@2@&04]
183@1@&02] 202@&11] 202@1@-58& 13 xkVk
@2&70
8. It was also stated that in place of
the aforesaid numbers, after rectification,
the corrected numbers and others would
be as under:
en 1⁄4c1⁄2
199@&01] 201@&61] 203@&14] 204@&13]
205@&11]
206@1@&23]
206@2@&33]
206@3@&02]
200@1@&26]
200@2@&04]
183@1@&02] 202@2@&11] 202@1@&58] & 13
xkVk @2&59
9. The copy of the original
"Agreement to Sell" was placed on record
as Exhibit-10.
10. The defendant contested the suit
and filed written statement. The execution
of agreement was seriously disputed. It is
said to be a fictitious document. Mother
of defendant had no son. The plaintiff
used to reside in the house of defendant's
1 All]
 Smt. Lalita Devi Vs. Smt. Sayeeda Khatoon
187
mother and used to take her care. She was
not capable of moving for the last 4-5
years before death and died in 1979. She
was an illiterate pardanashin lady and had
a weak eyesight at the time of her death.
She wanted to install a diesel pumping set
for
agricultural
purposes
in
the
agricultural holding but having financial
difficulty, Sri Sajjad, son-in-law, assured
her that he can arrange funds from
Government in instalments and on such
misrepresentation, got document dated
31.5.1978 executed. She (the defendant)
clearly denied that at any point of time
she was required to execute sale-deed as
claimed by plaintiff.
11. Trial Court formulated the
following four issues:
^^1- D;k rkjh[k 31-5-1978 dk eq0 tkfgnk chch
eknj eqn~nkysgk us tk;nkn eqrknkfc;k :0
10]000@& esa cspus dk ekeyk r; fd;k Fkk vkSj
ml fnu eokgnkukek o; rgjhj fd;k x;k Fkk vkSj
ml flyflys esa :0 4000@& c;kuk Hkh fy;k Fkk\
2- D;k eqn~nkbZ;k ges'kk eqvkfgnkukek ds
eqrkfcd cSukek fy[kkus dh [okfg'kean vkSj rS;kj
jgh gS vkSj vc Hkh eqvkfgnkukek ds eqrkfcd viuk
^^ikVZ ijQkeZ** djus dks rS;kj gS\
3- D;k nkok nQk 38@ 41 dkuwu nknjlh
[kkl ls vkfjt gS\
4- eqn~nbZ;k fdl nknjlh dk gdnkj gS\**
"1. Whether Zahida Bibi, mother of the
defendant had on 31.05.1978 agree d to sell
out the property in question for Rs. 10,000/-
and on the same day its draft had been
scribed and in relation thereto she had taken
Rs. 4,000/- as advance payment ?
2. Whether the lady plaintiff has always
been keen and ready to get a sale deed
executed as per the agreement and is still
ready to perform her part as per the
agreement?
3. Whether the claim is barred u/s
38/41 of the Specific Relief Act?
4. To what relief the plaintiff is
entitled?"
(English Translation by the Court)
12. Trial Court answered Issue No. 1
in favour of plaintiff and held that an
agreement for sell dated 31.5.1978 was
executed by Smt. Jahida Bibi for a total
sale
consideration
of
Rs.
10,000/-
whereagainst Rs. 4,000/- was already
received by her and thereupon registered
agreement was executed. Issue no. 2 was
answered in favour of plaintiff holding
that she was always ready and willing to
execute sale-deed. So far as Issue no. 3 is
concerned, whether suit was barred under
Section 38/41 of Specific Relief Act,
1963 (hereinafter referred to as "Act,
1963"), defendant did not adduce any
evidence or pressed it, hence it was
decided against defendant and in favour
of plaintiff. Then considering Issue No. 4,
Trial Court held that in the agreement,
there was mention of the land, i.e., Arazi
No. 208/1 area 0.26 acres and 208/2 area
0.04 acres, which Smt. Jahida Bibi did not
own and this fact was admitted between
the parties. Plaintiff claimed that these
two numbers were wrongly mentioned
and instead ought to have been 200/1 area
0.26 acre 200/2 area 0.4 acres but this
story of mistake could not be proved by
plaintiff as to why such mistake occurred.
It then held that question of rectification
in the document was not permissible. It
further held that since plaintiff is still
ready to pay Rs. 6,000/- for execution of
sale-deed for remaining land, therefore,
relief to this extent can be granted.
Consequently, Sri, M.Q. Siddiqui, 3rd
Additional Civil Judge, Jaunpur vide
judgment and decree dated 16.4.1987
decreed the suit in respect to relief (B)
and (C) and dismissed in respect to relief
(A). It directed the defendant to execute
188
 INDIAN LAW REPORTS ALLAHABAD SERIES
sale-deed
pursuant
to
registered
agreement to sell dated 31.5.1978, within
45 days, in respect to land/ property
mentioned in the said agreement except
plots no. 208/1 and 208/2, after receiving
balance Rs. 6000/- and expenses of
execution of sale-deed and its registration.
13. The plaintiff preferred Civil
Appeal No. 198 of 1987 against judgment
and decree dated 16.4.1987 insofar as it
has dismissed the suit of plaintiff with
respect to relief A. The defendant neither
filed appeal nor any cross-objection under
Order 41 Rule 22.
14. The LAC formulated following
two points for determination for deciding
the appeal:
(1)Whether the impugned document
which is an agreement to sell is liable to
be rectified?
(2)Whether the impugned agreement
to sell dated 31.5.1978 is genuine one and
is enforceable?
15. LAC after considering evidence
came to the conclusion that plaintiffappellant has succeeded to establish his
case that Smt. Jahida Bibi executed a deed
of agreement to sell on 31.5.1978. It
consequently held, "Therefore, I hold that
deed of agreement to sell was executed by
Smt. Jahida Bibi." It then proceeded to
decide whether defendant-respondent is
liable to execute sale-deed after taking Rs.
6,000/- from plaintiff on the basis of
agreement
to
sell
dated
31.5.1978
executed by her mother. On this aspect
LAC held that during consolidation
proceedings, the land has undergone
substantial change. The agreement was
executed on 31.5.1978. The Executant
Smt. Jahida died on 12.10.1979. Notice
for specific performance was given for the
first time on 20.6.1981. No application for
permission was ever moved before
consolidation authorities. It shows that
there was no effort for getting the saledeed executed. In any case, after change
of circumstances, due to consolidation
operation, execution of sale-deed was not
proper. Consequently, it held that plaintiff
is entitled for refund of Rs. 4,000/- but not
for
execution
of
sale-deed
and
rectification. Lower Appellate Court then
dismissed the suit in respect to Prayer (A)
and (B), both, and held that only relief,
the plaintiff-appellant entitled, is, refund
of earnest money/ advance money, it had
paid to defendant's mother. Consequently,
it passed following judgment and decree:
"In view of discussion made above,
appeal is partly allowed. Judgement and
decree dated 16.4.87 passed by learned
Civil Judge, relating order for executing
sale-deed of the disputed plots by
defendant-appellant
Smt.
Saiyada
Khatoon is set aside. But the defendantappellant is directed to pay Rs. 4000/-
(Four thousand) which was paid to her
mother Smt. Jahida Bibi as an earnest
money along with interest at the rate of
six percent per annum from 31.5.78 till
today to plaintiff-respondent Smt. Lalita
Devi. In the peculiar circumstances of the
case parties will bear their own costs of
the appeal. "
16. It is contended by Sri A.N. Bhargava,
learned counsel for appellant, that once
both Courts below found that agreement
to sell was executed by defendant's
mother, there was no justification to deny
relief (A) and (B) by LAC on the assumed
circumstance
that
consolidation
operations have resulted in substantial
alteration in property when no such issue
1 All]
 Smt. Lalita Devi Vs. Smt. Sayeeda Khatoon
189
was raised by defendant-respondent by
filing either appeal against the judgment
and decree of Trial Court or crossobjection. Even in the written statement,
there was no such pleading that property
mentioned in agreement to sell is not
identifiable
at
all
on
account
of
consolidation
proceedings,
therefore,
performance of agreement is not possible
and agreement has frustrated. He next
contended that LAC has completely erred
in law in setting aside even that part of
judgment of Trial Court whereby relief of
execution of sale-deed was granted, since
defendant-respondent had not preferred
any
appeal
or
cross-objection
and,
therefore, judgment of Trial Court in this
regard attained finality. The LAC could
not have granted such a relief to
defendant-respondent.
17. In order to examine the aforesaid
submissions, two provisions, in my view,
are relevant to be looked into, i.e, Order
41 Rule 22 and Order 41 Rule 33 C.P.C.,
as they stood at relevant time, which read
as under:
"22. Upon hearing, respondent may
object to decree as if he had preferred
separate appeal.- (1) Any respondent,
though he may not have appealed from
any part of the decree, may not only
support the decree but may also state that
the finding against him in the court below
in respect of any issue ought to have been
in his favour; and may also 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 allow.
Explanation: A respondent aggrieved
by a finding of the court in the judgment
on which the decree appealed against is
based may, under this rule, file cross
objection in respect of the decree in so far
as
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 that respondent.
(2) Form of objection and provisions
applicable thereto--Such cross objection
shall be in the form of the memorandum,
and the provisions of Rule 1, so far as
they relate to the form and contents of the
memorandum of appeal, shall apply
thereto. .
(3) Unless the respondent files with
the objection a written acknowledgement
from the party who may be affected by
such objection or his pleader of having
received a copy thereof, the Appellate
Court shall cause a copy to be served as
soon as may be after the filing of the
objection on such party on his pleader at
the expense of the respondent.
(4) Where, in any case in which any
respondent has under this rule filed a
memorandum of objection, the original
appeal is withdrawn or is dismissed for
default, the objection so filed may
nevertheless be heard and determined
after such notice to the other parties as
the Court thinks fit,
(5) The provisions relating to pauper
appeals shall, so far as they can be made
applicable, apply to an objection under
this rule."
"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
190
 INDIAN LAW REPORTS ALLAHABAD SERIES
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 and may, where
there have been decrees in cross-suits or
where two or more decrees are, passed in
one suit, be 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 such order." (emphasis added)
18. A perusal of Rule 22 makes it
clear that the right of a party to challenge
findings of Trial Court by contending that
the same ought to have been decided in
his/her favour is to support the decree and
not to get the decree reversed. Filing of
cross objection is not necessary but
wherever the same is filed, it would be in
respect to the relief negatived to him/her.
A cross-objection can be filed in respect
to a finding on which the decree appealed
against is based.
19. In the case in hand, defendant,
against the decree of Trial Court, neither
filed any appeal nor cross-objection. She
could have challenged findings of Trial
Court which were against her but in
absence of any appeal or cross-objection,
the decree passed against defendant, to
which she has surrendered, ought not
have been reversed by LAC by reversing
findings of Trial Court suo moto. It is no
doubt true that a registered agreement to
sell, dated 31.5.1978, has been found by
both the Courts below, bona fide and
genuine, having been executed between
the parties. It is also true that the said
agreement to sell mentioned certain
numbers of plots which were not owned
by
defendant-respondent
and
for
rectification thereof, both the Court below
have given a concurrent finding against
the plaintiff that no such rectification is
permissible. Thus relief 'A' stands denied
to plaintiff. In respect to the remaining
plots for which there was no dispute of
any error, etc., Trial Court held that
agreement is executable and enforceable
but LAC took an otherwise view and
reversed judgment and decree of Trial
Court though there was neither any appeal
filed by defendant-respondent nor any
cross-objection.
In
fact
defendantrespondent surrendered to the judgment
and decree of Trial Court insofar as it had
directed for enforcement of agreement to
sell in respect to plots which were owned
by defendant-respondent by succession,
from her mother. The legal submission of
appellant to this extent is quite sound and
the LAC apparently has committed a
manifest error therein.
20. A similar issue came for
consideration before this Court in a Full
Bench in Rangam Lal Vs. Jhandu 1912
(34) ILR (All) 32. Therein a Zamindar
brought a suit against tenant for rent. He
claimed
Rs.
294-7-0
towards
rent.
Defendant contested the suit claiming that
he has already discharged the claim.
Assistant Collector found that defendant
was entitled to certain credits, but still
there was a balance of Rs. 96-11-11 for
which a decree was passed. Plaintiff
appealed against the decree to the extent
the part of his claim was dismissed.
Defendant neither filed cross appeal nor
objection under Order 41 Rule 22. The
1 All]
 Smt. Lalita Devi Vs. Smt. Sayeeda Khatoon
191
First Appellate Court, i.e., District Judge
held that plaintiff's claim was fully
discharged by defendant and consequently
exercising power under Order 41 Rule 33
dismissed appellant's suit in toto. Plaintiff
came in Second Appeal. Order 41 Rule 33
as it was introduced in Code of Civil
Procedure, 1908 at the relevant time read
as under:
"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."
21. The Court held that though the
words in Rule 33 are very wide but while
exercising power under Rule 33, the
Court
cannot
lose
sight
of
other
provisions of the Code as also that of
Court Fees Act and law of limitation etc.
The Court then referred to Order 41 Rule
22 which at that time read as under:
"Any respondent, though he may not
have appealed from any part of decree,
may not only support the decree on any of
the grounds decided against him before
the court below, but take any crossobjection 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 allow."
22. It held that Rule 22 makes it
clear that the respondent cannot allow to
take exception so much so of a decree as
was against him without complying with
the provisions of Rules. Having said so, in
para 6, 7 and 8 of the judgment, the Court
held:
"6. In a case in which there is no
sufficient
reason
for
a
respondent
neglecting either to appeal or to file
objections, we think the court should
hesitate before all owing him to object at
the hearing of the appeal filed by the
appellant. The object of Rule 33 is
manifestly to enable the court to do
complete justice between the parties to the
appeal. "Where, for example, it is
essential in order to grant relief to an
appellant that some relief should at the
same time be granted to the respondent
also, the court may grant relief to the
respondent, although he has not filed an
appeal or preferred an objection. Of such
cases the 'illustration to the rule is a type.
To the supposed case the appellate court
could not do justice to the appellant
without doing injustice to the respondent
unless it was enabled to make a decree
against " Y."
7. The rule itself is for the most part taken
from Order LVIII, Rule 4, of the rules of
the Supreme Court of Judicature in
England. The case of the Attorney
General v. Simpson [1901] L.R. 2 Ch.
D.671. is another illustration of the class
of cases which calls for the exercise of the
powers conferred by Rule 33. That was a
case in which an action was brought on
behalf of the public for a declaration that
the public were entitled to use certain
locks on the river Ouse without payment
of tolls. A further declaration was claimed
that
the
defendant
was
under
an
obligation to repair, and keep in repair
192
 INDIAN LAW REPORTS ALLAHABAD SERIES
the locks. The court of first instance made
a decree declaring that the public were
entitled to use the locks without payment
of tolls; but it, at the same time, contrary
to the plaintiff's claim, declared that the
defendant was under no obligation to
repair the locks. The Court of Appeal
found that the public were not entitled to
use the locks without payment of tolls to
the defendant. At the same time they were
of opinion that the defendant was under
an obligation to repair the locks. The
plaintiff, however, not unnaturally, had
taken no exception to that part of the
declaration of the court of first instance
which absolved the defendant from the
obligation to keep the looks in repair. The
Court of Appeal felt that they were
justified, while declaring that the public
were liable to pay tolls, to declare that the
defendant was liable to keep the locks in
repair, notwithstanding that no appeal or
objection had been taken to that part of
the decree by the plaintiff.
8. In our opinion the dismissal by the
learned District Judge of the plaintiff's
suit in its entirety was not a proper
exercise by him of the powers conferred
by Order XLI, Rule 33. If the defendant
was aggrieved by the decree against him
for Rs. 96, there was no reason why he
should not have appealed or filed
objections."
23. Order 41 Rule 33 then came to
be considered in Tummalla Atchaiah Vs.
Venka Narasingarao (1979) 1 SCC 166.
Therein the plaintiff instituted a suit for
cancellation
or
setting
aside
of
a
registered
assignment
deed
dated
31.10.1957 and for recovery of possession
of scheduled properties and for mesne
profits. Trial Court decreed the suit in part
and granted a decree for cancellation of
assignment-deed on plaintiff's payment of
Rs. 13,000/- to the defendant. Under the
decree, defendant was required to deliver
possession of suit property to plaintiff,
subject to payment of Rs. 13,000/-.
Defendant filed appeal and plaintiff filed
cross objection wherein only two grounds
were taken, namely costs and mesne
profits. Plaintiff in his cross objection
took no ground attacking the decree of
Trial Court in respect to payment of Rs.
13,000/- and defendant's liability to
deliver possession of suit property on
such payment. High Court hearing the
First Appeal, varied decree of Trial Court,
in purported exercise of power under
Order 41 Rule 33 C.P.C., in respect to
direction of payment of Rs. 13,000/-,
though in plaintiff's cross-objection no
such ground was taken. High Court
granted decree of mesne profit under
Order 41 Rule 33 and dismissed the
appeal of defendant. The Supreme Court
held that recourse to Order 41 Rule 33
C.P.C. by interfering with the decree of
Trial Court in relation to payment of Rs.
13,000/- was impermissible for the High
Court while exercising its power of First
Appeal. The Court said that plaintiff was
a party in the appeal, filed cross objection
but did not attack decree of Trial Court
making him liable to return Rs. 13,000/-
before he could take back possession from
defendant. It then held, "Without a
specific ground in the cross objection and
without payment of Court-fees on the said
amount he was not entitled to get any
relief by the Court under Order 41, Rule
33, C.P.C."
24. A similar view was taken in
Choudhary Sahu (Dead) by Lrs. Vs. State
of Bihar (1982) 1 SCC 232. The appellant
was a land holder in terms of Bihar Land
Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961.
1 All]
 Smt. Lalita Devi Vs. Smt. Sayeeda Khatoon
193
A notice under Section 8(1) of the said
Act was issued to appellant therein calling
upon him to submit return with all the
particulars of land held by him. The
response was filed. After verification,
Additional
Collector
came
to
the
conclusion that appellant was entitled to
five units and ordered for publication of
draft statement under Section 10 of the
said Act. Another notice was served upon
appellant under Section 10 (2) of the Act.
An objection was filed. Collector after
considering objection, held, that appellant
was entitled for 12 units instead of 5
units. Appellant still dissatisfied, went in
appeal before Commissioner. State of
Bihar, however, did not file any appeal
against the order of Collector. It also
failed
to
appear
before
Appellate
Authority, i.e. Commissioner despite
issuance
of
notice.
Commissioner,
however, allowed appeal and set aside
order of Collector, remanded the matter
for disposal again. It was pointed out that
appellant had challenged the order of
Collector on various grounds insofar as
Assistant Collector's order was against
him but the order of Collector insofar as it
was in favour of appellant was not
challenged, still Commissioner set aside
findings of Collector even in respect to 12
units which was decided in favour of
appellant, though no appeal was filed by
State
of
Bihar.
The
order
of
Commissioner, therefore, was challenged
by appellant in High Court in a writ
petition but the same was dismissed.
Hence the matter went to Supreme Court.
The only question considered was, in
absence of any appeal or cross-objection
by State of Bihar, whether, Commissioner
was justified in reversing findings of
Collector which were in favour of
appellant. The Court considered Rules 22
and 33, Order 41, in the aforesaid case.
With reference to Order 41 Rule 22, the
Court said that first part of Rule
authorizes respondent to support decree
not only on the grounds decided in his
favour but also on any of grounds decided
against him in the Court below. First part,
thus, authorizes the respondent only to
support the decree. It does not authorizes
him to challenge the decree. If the
respondent wants to challenge the decree,
he has to take recourse of second part, i.e.,
he has to file a cross-objection, if has not
already filed an appeal against the decree.
Where the respondent has neither filed
any appeal nor cross-objection, the decree
passed against respondent cannot be
challenged but it can only support the
decree by referring to Rule 22(1) of Order
41 C.P.C.
25. Then coming to Order 41 Rule
33, the Court in para 12, 13 and 14 of
judgment said as under:
"12. The object of this rule is to
avoid contradictory 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 crossobjection, it must be exercised with care
and caution. 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.
13. 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
and good conscience. While exercising
194
 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
14. 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 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 become final
and rights of the State of Bihar had come
to an end to that extent by not filing any
appeal or cross-objection within the
period of limitation." (emphasis added)
26. In State of Punjab and others Vs.
Bakshish Singh (1998) 8 SCC 222, it was
held that Appellate Court cannot, in the
garb of exercising power under Order 41
Rule 33, enlarge scope of appeal.
27. Almost a similar case, as is one
up for consideration in this appeal, came
up for consideration in Banarasi and
others Vs. Ram Phal (2003) 9 SCC 606. A
suit for specific performance of an
agreement-to-sell was filed. The total sale
consideration was Rs. 2,90,000/- out of
which 2,40,000/- was acknowledged by
vendor leaving balance of Rs. 50,000/-
which was to be paid at the time of
execution and registration of sale-deed. A
cross suit was filed by vendor seeking
cancellation of aforesaid agreement-tosell. Trial Court upheld agreement-to-sell
but instead of enforcing agreement by
specific performance, it directed the
vendor to return part consideration of Rs.
2,40,0000/-, he had received, along with
interest. Specific performance was denied
on the ground that land was being
cultivated
by
vendor
and
in
case
execution of sale-deed is directed, vendor
would suffer great hardship. Vendor filed
two appeals against the judgment of Trial
Court but vendee neither filed any appeal
nor cross objection. Lower Appellate
Court though dismissed both the appeals
of vendor but modified operative part of
Trial Court's judgment by directing that
plaintiff-vendee's
suit
for
specific
performance is also decreed and suit of
vendor is dismissed in entirety. In the
appeal preferred before High Court,
modification of decree of Trial Court by
First Appellate Court was upheld by High
Court with reference to Order 41 Rule 33
C.P.C. In further appeal before Supreme
Court, question up for consideration was
power of Appellate Court to interfere
with, reverse and modify decree, appealed
against, in absence of any cross-appeal or
cross-objection
by
respondent
under
Order 41 Rule 22 and scope of power of
Appellate Court under Order 41 Rule 33.
Order 41 Rule 22 was substituted by Act
104 of 1976 with effect from 1.2.1977.
The Court considered various provisions
of C.P.C. and held that an appeal is to be
filed by a person aggrieved by decree.
Unless one is prejudiced or adversely
affected by a decree, he is not entitled to
file an appeal. No appeal lies against a
mere finding. The appeal lies against the
decree
and
not
against
judgment.
Considering the nature of cross-objection
and right of a person to support decree
1 All]
 Smt. Lalita Devi Vs. Smt. Sayeeda Khatoon
195
even if no appeal has been filed, it was
observed that any respondent, though may
not have filed an appeal from any part of
decree, may still support the decree to the
extent to which it is already in his favour
by laying challenge to a finding recorded
in the impugned judgment against him.
Where a plaintiff seeks a decree against
defendant on grounds (A) and (B), any
one of two grounds being enough to
entitle plaintiff to a decree, and the Court
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 defendant, inspite of finding
on Ground (A) being reversed, plaintiff as
a respondent can still seek to support the
decree by challenging finding on ground
(B) and persuade Appellate Court to form
an opinion that inspite of finding on
ground (A) being reversed to the benefit
of defendant-appellant, the decree could
still be sustained by reversing finding on
Ground
(B)
though
the
plaintiffrespondent 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
form.
Right
given
to
a
respondent in a appeal to file cross
objection is a right given to same extent
as is right of appeal to lay challenge to the
impugned decree if he can be said to be
aggrieved thereby. Taking a crossobjection is the exercise of right of 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 decree. A party who has
fully succeeded in the suit, needs neither
to prefer an appeal nor take any cross
objection though certain finding may be
against him. Appeal or cross-objection
both are filed against decree and not
against judgment. It was not to be filed
against any finding recorded in a
judgment and this was well settled
exposition of law under un-amended
Order 41 Rule 22 C.P.C. The amendment
in 1976 also has not materially or
substantially altered the position. There is
only some marginal difference. Under the
amended provision, Sub-rule (1) has
permitted
respondent
to
file
crossobjection against a finding. Respondent
may defend himself without filing any
cross-objection to the extent to which
decree is in his favour. If he proposes to
attack any part of decree, he must take
cross objection. Explaining the scope and
effect of amendment made in 1976, the
Court said:
"The amendment inserted by 1976
amendment is clarificatory and also
enabling and this may be made precise by
analysing the provision.