B. PRAKASH RAO, J.

( 1 ) THIS matter is coming up before us for consideration on a reference made by one of us (bpr, j.) On the question as to, whether in an appeal filed at the instance of defendant against a decree obtained by the plaintiff for recovery of money, though not awarding interest, the appellate court can award interest in exercise of powers under Rule 33 of order xli C. P. C. in the absence of any appeal preferred by the plaintiff.

( 2 ) HEARD Sri M. S. Ramachandra Rao, learned counsel apearing for the appellants and Sri K. Subramanyam, the learned counsel appearing for the respondents.

( 3 ) THE facts, which are not in dispute and in brief, are that the appellants herein are the defendants 1 and 2 and the suit filed by the respondents/plaintiffs herein is for dissolution of firm and rendering accounts against the defendant No. 1 and payment of amounts found due. After contest, a preliminary decree was passed dissolving the firm and fixing the liability to render accounts and the extent of shares held by the plaintiffs and the defendant Nos. 1 to 4. Subsequently, in pursuance of final decree proceedings, after considering the report of the commissioner, a final decree was passed holding that the plaintiffs were entitled to recover a sum of Rs. 31,000/- from the defendant No. 1, on payment of the required court fee. Thereupon, the appellants herein filed a regular appeal wherein the lower appellate court, after hearing both sides, while partly allowing the appeal, reducing the amount to Rs. 15,932-93 ps. , has awared interest in favour of the plaintiffs, purported to be in exercise of powers under rule 33 of order xli C. P. C. it is to be noticed that no appeal has been filed by the plaintiffs as against the decree of the trial court not awarding interest in their favour.

( 4 ) LEARNED counsel appearing for the appellants by placing reliance on a decision reported in Banarasi and others v. Ram Phal apart from other decisions which would be considered at a later stage, contended that in the absence of any appeal by the plaintiff, the lower appellate court could not have exercised the power under rule 33 of order xli C. P. C. so as to grant such relief.

( 5 ) THE learned counsel appearing for the respondents stressing more reliance on the decision of the division bench of this court in Makkala Narsimlu v. Gunnala Raghunandan Rao and another decision reported in chandramohan ramchandra patil and others v. Bapu koyappa patil and others sought to support the findings of the power appellate court in awarding the interest.

( 6 ) THUS, before we consider the question was referred, it necessitates to refer the relevant provisions under the code of civil procedure. Rule 33 of the order xli of the C. P. C. reads 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 as the 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 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. "

( 7 ) THE other relevant rule which requires to be considered is rule 22 of order xli C. P. C. , which reads as follows:"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 fr

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