1. This is an appeal from an order by an appellate Court sending the case back on remand for determination of the counter-claim by the defendant No. 1. The plaintiff made various prayers; the plaintiff withdrew many of them, but the plaintiff succeeded in getting only a decree for ejectment in the trial court. In the trial Court the defendant No. 1 made a counter-claim as against the plaintiff. But on reasons not material at the present stage the counter-claim was dismissed 'as not placed for the time being'. Againstthat decree for ejectment an appeal was filed by the defendant No. 1. But the appeal was remanded on the question of counter-claim and the appeal against the decree for ejectment failed. There was no appeal so far as the counter-claim was concerned. The appeal court however dismissed the defendant's appeal so far as the claim for ejectment is concerned. But with regard to the counter-claim it remanded the suit to the trial court for determination only on the point of counter-claim of the defendants. Against that decree for dismissal of the appeal relating to the question of ejectment there was a second appeal to this Court by defendant No. 1 and the said second appeal has been dismissed; the plaintiff filed an appeal against the order directing the trial court to decide the question of counter-claim. A petition under section 115 of the Code of Civil Procedure was also filed as there would be doubt as to whether the order of remand was appealable or not. The order of remand presumably under Section 151 of the Code was not appealable because it was not an order under Order 41, Rule 23 of the Code of Civil Procedure and therefore the appeal is not maintainable. But we have before us the petition under Section 115 of the Code of Civil Procedure. It is urged by Mr. Dasgupta on behalf of the plaintiff petitioner that the defendant not having filed any appeal with regard to the counter-claim in the court of appeal below the court of appeal below had no jurisdiction to remand the suit to the trial court so far as the counter-claim was concerned. Mr. Mitter on behalf of the Opposite Party, defendant No. 1 submits even though no appeal was filed with regard to the counter-claim there was in appeal by the defendant No. 1 with regard to the question of ejectment and therefore the appellate Court under Order 41, Rule 33 could direct remand with respect to the counter-claim as well. Order 41, Rule 33 for our relevant purpose reads as follows:
'The appellate court shall have power to make any order which ought to have been passed or to pass such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as the part only of the decree
Mr. Mitter therefore submits that there was an appeal to the lower appellate court as against a part of the decree, viz., decree for ejectment as there has been an appeal against a part of the decree, viz., the decree for ejectment, the appellate court has power to make further orders with regard to the other part of the decree, namely, the dismissal of the counter-claim.
2. We are unable to accept the argument. Order 41, Rule 33 of the Code of Civil Procedure empowers the Court to pass such further or other decree only in case where the case requires it. The decree for ejectment did not require any decree for the counter-claim. The decree for counter-claim is an independent matter. In fact, one is on the prayer of the plaintiff and the other is on the prayer of the defendant and one is not dependant on the other. The power can only be exercised wherethe portion of the decree appealed against is so inseparably connected with the portion under appeal, that Justice cannot be done and a complete consistent decree cannot be passed unless the latter portion is as well interfered with. We may refer to the case of a decree for ejectment against a tenant and for mesne profits. If the defendant files an appeal against a decree so far as the ejectment is concerned and if that decree is allowed, the decree for mesne profits cannot stand because if the plaintiffs and the defendants are landlords and tenants i. e. if the defendant has title to the properties as a tenant he would not be bound to pay mesne profits and in such cases the court may have power to set aside the decree for mesne profits as well even though that part of the decree was not appealed against.
3. Mr. Mitter has referred to the decision of the Supreme Court in Pannalal v. State of Bombay, reported in : 1SCR980 and the Supreme Court stated law as follows:
'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.'
Here a decree for ejectment granted in favour of the plaintiff does not nor does the case require setting aside of the decree for dismissal of the defendant's counter claim. We must, therefore, overrule the objection of Mr. Mitter and hold Order 41, Rule 33 has no application to the facts and circumstances of this case and the court has no power under Order 41, Rule 33 or under any other provision of law to direct a remand and for further enquiry with regard to a matter on which there was no appeal.
4. Mr. Mitter next submits that even if it be so, we should not exercise our discretionary powers under Section 115 of the Code of Civil Procedure because by that order justice has been done. It is not for us to say at this stage as to whether justice has been done or not. Defendant No. 1 did not press his claim in the trial court for good reasons or improperly. The appellate court has not gone into the merits of the matter and we are unable to say what would be the requirement of justice in this case; but we have no doubt that the requirement of law does not justify the order made by the appellate court. We must, therefore, over-rule this argument of Mr. Mitter as well and we hold that the appellate court had no jurisdiction to remand me case to the trial court for determination of the question of counter-claim, there being no appeal on the question of counter-claim before the appellate court.
5. The application under Section 115 of the Code is, therefore, allowed and the order of remand to the trial court is set aside. In the circumstances, we make no order as to costs. The appeal is dismissed as not maintainable.
Amaresh Roy, J.
6. I agree.