The decree passed by the trial Court can be supported without filing any cross objection, but if any alteration or modification in said decree is sought, then the same has to be done by filing cross objections. The limitations of invoking section 152 of the Code to modify the decree were also discussed.

A.S. Chandurkar, J.

1. Heard. Admit on the following substantial question of law:

Whether the decree passed by the trial Court to the extent it refuses part of the relief to the plaintiff can be altered in exercise of powers under provisions of Order 41, Rule 33 of the Code of Civil Procedure in absence of any cross objections by the plaintiff.

1-A. In view of order dated 21-4-2014, the learned Counsel for the parties have been heard on aforesaid substantial question of law.

2. The appellant is the original defendant No. 1 against whom the respondent Nos. 1 and 2/plaintiffs had filed suit for declaration that the sale deed dated 8-1-1990 executed by their father-defendant No. 2 in favour of the defendant No. 1 was by practicing fraud and hence not binding on them. Further prayer of permanent injunction was also made by the plaintiffs. The trial Court granted relief of permanent injunction. However, the relief to the extent of declaration that the sale deed in question was obtained by practicing fraud was refused.

3. The defendant No. 1 being aggrieved by aforesaid decree challenged the same by filing appeal under section 96 of the Code of Civil Procedure (for short the Code). The original plaintiffs did not file any cross objections, but argued that in view of the finding given against Issue No. 6B of the judgment of the trial Court, the sale deed in question was required to be declared as null and void. The first Appellate Court accepting said submission modified the decree passed by the trial Court and granted declaration that the sale deed dated 8-1-1990 was null and void. The appeal came to be dismissed and rest of the decree passed by the trial Court came to be confirmed. Hence, the present second appeal by the defendant No. 1.

4. Shri R.I. Agrawal, the learned Counsel appearing for the appellant submitted that the first Appellate Court erred in modifying the decree passed by the trial Court. According to him, in absence of any cross objections filed by the original plaintiffs, the decree insofar as it refused reliefs to the plaintiffs could not have been modified by the first Appellate Court in exercise of powers under Order 41, Rule 33 of the Code. It was further submitted that law in this regard was well settled and the decree as passed by the trial Court could not be altered in absence of any cross objections. In support of the said submissions, the learned Counsel for the appellant relied on the following judgments:

(1) Hardevinder Singh vs. Paramjit Singh and others, 2014(2) Mh.L.J. (S.C.) 126, (2) Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak, 2010(6) Mh.L.J. 295, (3) Choudhary Sahu (Dead) by LRs. vs. State of Bihar, AIR 1982 SC 98, (4) Tummalla Atchaiah vs. Venka Narasingarao, AIR 1978 SC 725, (5) Hasanate Taheriyyah Fidayyiah vs. Mahesh s/o Kishor Saran, 2014(2) Mh.L.J. 884, (6) Surjansingh s/o Mohansingh vs. Jasbir Kaur wd/o Sardar Chanansingh and others, 2008(2) Mh.L.J. 763.

It was further submitted that the first Appellate Court erred in dismissing the appeal despite the fact that the findings in that regard recorded by the trial Court were not based on sufficient evidence.

5. Shri M.B. Naidu, the learned Counsel appearing for the respondent Nos. 1 and 2 supported the decree passed by the first Appellate Court. He submitted that the trial Court while answering Issue No. 6B had recorded a specific finding that the sale deed dated 8-1-1990 was null and void. However, in the operative part of the decree, the aforesaid relief was not granted by the trial Court. According to the learned Counsel failure to grant said relief was on account of an accidental slip or omission. Even otherwise, it was open for the Court to correct the same in exercise of power under section 152 of the Code. He further submitted that as the finding on Issue No. 6B was in his favour/there was no need to file any cross objection challenging said finding. He, therefore, submitted that the first Appellate Court rightly e