The appellate Court may pass a decree in favor of a party who has not been heard, but it cannot pass a decree against a person who is not a party to the appeal, or in other words, powers under Rule 33 cannot be exercised to the prejudice of a person who is not given a hearing.

JUDGMENT

Nasim Ali, J. - This is an appeal by the plaintiffs in a suit for declaration of title and for khas possession of certain lands. Plaintiffs' case is that the lands in suit appertained to the jote of Panchananda Debnath and that they purchased the same at an auction sale in execution of a decree against his heirs. Plaintiffs further alleged that they got symbolical possession through Court on 20th September 1921, but were prevented from taking actual possession by the defendants. Defendants 1 to 5 filed a joint written statement contending inter alia that the land in suit was not the exclusive property of Panchananda Debnath, but that he had only eight annas share therein. The trial Court held that the land in suit was the exclusive property of Panchananda Debnath and, in that view, decreed the plaintiffs' suit in full. On appeal by defendant 4, in which the other defendants were not made parties, the lower appellate Court held that Panchananda Debnath had only eight annas share in the land in suit and, in that view, declared the plaintiffs' title in respect of eight annas share of the land in suit and ordered delivery of joint possession of the said eight annas share with all the defendants. Plaintiffs have preferred the present appeal against this decision of the lower appellate Court.

2. The first point urged in support of the appeal is that the lower appellate Court erred in law in varying the decree of the trial Court in favour of the other defendants also, who did not appeal and who were not even made respondents in the appeal before the lower appellate Court. Order 41, Rule 4, Civil P. C, provides that, where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and, thereupon, the appellate Court may reverse or vary the decree in favour of all the plaintiffs or the defendants, as the case may be. From this provision of law it is clear that anyone of the defendants can appeal from the whole decree, if the decree appealed from proceeds on any ground common to all the defendants, and thereupon the appellate Court can vary the decree in favour of all the defendants. It is not however clear from Rule 4 quoted above whether the other defendants or plaintiffs, who have not appealed should be made respondents in the appeal. If however Rule 4 be read along with Rule 33, Order 41, the position appears to be that on an appeal by one of the defendants the appellate Court can pass such decree as the case may require and this power 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. It further appears from Rule 33 that the exercise of this power by the appellate Court is not confined only to the cases of respondents, who are parties to the appeal, but the power can be exercised in favour of persons who are parties to the suit. The learned advocate for the appellants contends that the word "parties" in Rule 33 means parties to the appeal. I am however unable to accept this contention, inasmuch as the rule speaks of respondents or parties and, if parties mean parties to the appeal then the word "respondents" would be redundant. It seems to me therefore that a decree may be varied in favour of a defendant, who has not appealed and has not been made a party to the appeal but who was a party to the suit. Reading therefore Rr. 4 and 33, Order 41 together there can be no doubt that one of the defendants can file an appeal without impleading the other defendants as respondents, if the decree appealed from proceeds on a ground common to all of them and that the appellate Court may thereupon exercise the power of varying the decree in favour of the non-appealing defendants, although they have not been made parties to the appeal. This point was considered