Mr. J. K. Mehra, J.

( 1 ) THIS is an application under Order 41 Rule 33read with Section 151 of the Code of Civil Procedure wherein the appellantshave prayed as under :

"that it is essential in the interest of justice and in order toarrive at the fair amount of compensation payable to the claimants,that the aforesaid submissions which are based on facts on therecord and which are based on the law laid down by the variouscourts, may be taken into consideration by this Hon ble Court andthe appeal may be heard on all the points raised by the appellantsin their Grounds of Appeal and the appellants may be awarded theamount of Rs. 1. 50,000. 00 as compensation carrying interest @ 15%per annum w. e. f. the date of filing of the petition till payment. Any other relief which this Court deems fit and proper underthe circumstances of the case may also be granted to theappellants. "

( 2 ) IN this case, the age of the deceased at the time of his death inthe accident in question was held to be 42 years and the Court had appliedthe multiplier of 16 in computing the compensation i. e. upto normal age ofretirement in government service, in addition, the Motor Accidents Claimstribunal also awarded interest on the said amount of compensation at therate of 12% p. a. The appellants challenged the award of the M. A. C. T. mainly on two counts, one that multiplier of 28 should have been appliedinstead of 16 taking the expected earning age of the deceased as 70 years andthe other was against the award of 12% interest instead of 15% as was beingclaimed. All these ground were considered at the time of admission andwhile admitting the Court confined the challenge to the award only to thequestion of interest. The admission order reads-"admit only on the question of interest". In other words, all other pleas contained the Memorandumof Appeal are deemed to have been considered and rejected at the very outset, while admitting the appeal for hearing. This is not a case where reviewof the order of admission is sought.

( 3 ) COUNSEL for the appellant has laid lot of stress on the provisionsof Order 41 Rule 33 of Civil Procedure Code which read as under :

0. 41 R. 33. Power of Court of Appeal- The Appellate Courtshall have power to pass any decree and make any order whichought to have been passed or made and to pass or make such further or other decree or order as the case may require, and thispower may be exercised by the Court notwithstanding that theappeal is as to part only of the decree and may be exercised infavour of all or any of the respondents or parties, although suchrespondents or parties may not have filed any appeal or objectionand may, where there have been decrees in cross-suits or where twoor more decrees are passed in one suit, be exercised in respect of allor any of the decrees, although an appeal may not have been filedagainst such decrees:provided that the Appellate Court shall not make any orderunder Section 35-A, in pursuance of any objection on which thecourt from whose decree the appeal is preferred has omitted orrefused to make such order. "

( 4 ) A number of authorities in support of the contention that theappellate Court has the powers to grant relief even though not prayed forand even if by the party deserving the relief has not filed a separate appeal incase the compensation awarded is grossly inadequate.

( 5 ) IN my view, no hard and fast rule can be laid down as to thecircumstances in which this power can be exercised and each case mustdepend on its own facts. Normally the appellate Court would not interferewith the decree in exercise of power under Order 41 Rule 33. Although ruleis expressed in terms which are wide, but it has to be applied with discretionand to cases where such exercise in favour of a party necessitates interferencealso with a decree which has by acceptance of acquiescence become final soas to enable the Court to adjust the rights of the parties. The rule does notconfer an unrestricted right to re-open the decrees

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