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Panchei Bewa Vs. Banchhanidhi Padhan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 44 of 1963
Judge
Reported inAIR1965Ori53
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 33
AppellantPanchei Bewa
RespondentBanchhanidhi Padhan and ors.
Appellant AdvocateM.M. Sahu and ;D.N. Sahu, Advs.
Respondent AdvocateK.M. Swain, Adv. for Respondent No. 1
DispositionAppeal partly allowed
Cases ReferredIn Krishna Reddi v. Ramireddi
Excerpt:
.....of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is..........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.....
Judgment:

G.K. Misra, J.

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.

4. Coming to the facts of this case, no case has been made out why this Court would exercise its power under Order 41, Rule 33, C. P. C. in favour of the respondents while the appeal was dismissed by the learned lower appellate Court. The trial Court found that consideration had not been paid. As it decreed the suit on the finding that title had passed, it directed that delivery of possession by the defendants to the plaintiffs would be subject to payment of Rs. 80/-. This was a finding directly adverse to the plaintiffs in the matter of recovery of possession. Plaintiffs could either file an appeal against this part of the decree or could file a cross objection under Order 41, Rule 22, C. P. C. Plaintiff did not choose either course. In view of the lower appellate Court's finding that consideration had been paid, it was unnecessary for it to further discuss whether title passed independent of the payment of the consideration. By the finding that the consideration had been paid, the lower appellate Court confirmed the decree of the trial Court on the question of title though for different reasons. No inequity would be worked out if the trial Court's decree is not set aside with regard to the finding that possession would be delivered subject to payment of Rs. 80/-. In the circumstances, the lower appellate Court was not justified in exercising its jurisdiction under Order 41, Rule 33, C. P. C. when the plaintiffs themselves elected not to assail the adverse decree against them on the question of possession.

5. In the result, the decree of the lower appellate Court reversing the trial Court's decree with regard to possession, subject to payment of Rs. 80/- is set aside and the trial Court's decree is restored.

6. The appeal is allowed to the limited extent. In the circumstances, parties to bear their own costs throughout.


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