2003 Supreme(SC) 189

2003(3) Supreme 31
SUPREME COURT OF INDIA
(From Allahabad High Court)
R.C. Lahoti & Brijesh Kumar, JJ.
Banarsi & Ors. -Appellants
versus
Ram Phal -Respondent
Civil Appeal Nos. 1376-1377 of 2003
(Arising out of SLP (C) Nos. 21859-21860/2001)
Decided on 17-2-2003
Counsel for the Parties :
For the Appellants : Dinesh Kumar Garg, Advocate.
For the Respondent : Mukesh K. Giri and Praveen Singh, Advocates.

IMPORTANT POINT
The first appellate Court ought not to have, while dismissing the appeals filed by the defendant-appellants before it modified the decree in favour of respondent before it in the absence of cross-appeal or cross objections. High Court ought to have interfered to correct this error of law in further appeals to it.

Headnote:(i) Civil Procedure Code, 1908-Order 41, Rules 22 and 33-Power of the appellate Court to interfere with and reverse or modify the decree appealed against by the appellants in the absence of any cross-appeal or cross-objection by respondent under Order 41 Rule 22 f=act:10444>CPC and the scope of the power conferred on appellate Court under Rule 33 of Order 41 of the CPC.

       Held : We are, therefore, of the opinion that in the absence of cross appeal preferred or cross objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross objection. (Para 13)

       (ii) Constitution of India-Article 136-Appeal by special leave-Court finding 1st appellate Court modified decree without having any cross objection-Voluntary offer to get rid of onerous part of decree-Whether be accepted-Appeals allowed accordingly.

       Held : In the case before us, the Trial Court found the defendant not entitled to decree for specific performance and found him entitled only for money decree. In addition, a conditional decree was also passed directing execution of sale deed if only the defendant defaulted any paying or depositing the money within two months. Thus to the extent of specific performance, it was not a decree outright; it was a conditional decree. Rather, the latter part of the decree was a direction in terrorem so as to secure compliance by the appellant of the money part of the decree in the scheduled time frame. In the event of the appellant having made the payment within a period of two months, the respondent would not be, and would never have been, entitled to the relief of specific performance. The latter decree is not inseparably connected with the former decree. The two reliefs are surely separable from each other and one can exist without the other. Nothing prevented the respondent from filing his own appeal or taking cross-objection against that part of the decree which refused straightaway a decree for specific performance in his favour based on the finding of comparative hardship recorded earlier in the judgment. The dismissal of appeals filed by the appellant was not resulting in any inconsistent, iniquitous, contradictory or unworkable decree coming into existence so as to warrant exercise of power under Rule 33 of Order 41. It was not a case of interference with decree having been so interfered with as to call for adjustment of equities between respondents inter se. By his failure to prefer an appeal or to take cross-objection the respondent has allowed the part of the Trial Court s decree to achieve a finality which was adverse to him. For the foregoing reasons we are of the opinion that the first Appellate Court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first Appellate Court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first Appellate Court. During the course of hearing, the learned counsel for the appellants made a statement under instructions, that the appellants have a large family to support which is entirely dependent on the suit land for maintaining itself and they have no other means of livelihood. (This statement finds support from the finding arrived at by the Trial Court). He further stated that, in any case, to get rid of the onerous part of the decree, the appellants volunteer to pay a further amount of Rs.1,20,000/- by way of compensation to the respondent over and above the amount of Rs. 2,40,000/- already deposited by them in the Court pursuant to interim orders alongwith the bank interest accrued thereon. That statement is taken on record and being a very fair voluntary offer deserves to be accepted and incorporated in the decree. The appeals are allowed. The judgment and decree of the first Appellate Court are set aside and instead those of the Trial Court restored. In view of the appellants having deposited the money due and payable under the money part of the decree, it is held that they are relieved from specifically performing the agreement and executing sale deed in pursuance thereof. The delay in deposit, if any, deserves to be condoned in view of the interim orders passed by the High Court and is hereby condoned. The time for deposit, as appointed by the Trial Court, shall be deemed to have been extended upto the dates of actual deposits made by the appellants. The amount of Rs. 2,40,000/- lying deposited in the Court and invested in fixed deposits shall, along with the interest earned, be released to the respondents. In addition the appellants shall, as offered by them, deposit with the executing court for payment to the respondent another amount of Rs.1,20,000/- within a period of eight weeks from today. On that being done, the decree passed by the Trial Court shall be deemed to have been fully satisfied. The respondent shall deliver the agreements dated 30.11.1988 and 15.7.1991 to the appellants endorsing upon the agreements the amount of money received and that the agreements stand discharged and need not be performed. The costs shall be borne by the parties as incurred throughout. (Paras 21 to 24)