The appellate court has the power to modify a decree in favor of non-appealing respondents under Order XLI, Rule 33, C.P.C., even if the decree is not separable as against those defendants.

JUDGMENT :- This appeal raises the question of the scope and applicability of Order XLI, Rule 33, C.P.C. and it arises in the following circumstances. The plaintiff-appellant sued for specific performance of an agreement of sale. The agreement was executed by the first defendant the father, for himself and on behalf of his undivided minor sons, defendants 2 and 3, on 27-3-1958. In contravetion of this agreement, however, these defendants executed a sale deed in favour of the fourth defendant (Plaintiff) alleged, that the fourth defendant had notice of the agreement of sale in his (Plaintiff's) favour. The first defendant remained ex parte and his minor sons disputed the truth, validity and binding nature of the agreement. The fourth defendant claimed to be a bonafide purchaser, and he further claimed that there was an agreement in his favour anterior to that upon which the plaintiff relied. The trial Court found upon the evidence that the agreement set up by the fourth defendant was not anterior to the plaintiff's agreement. It was also found that the fourth defendant was not a bona fide purchaser and that he had notice of the agreement in favour of the plaintiff. The trial Court held upon the evidence that on the date of the agreement in favour of the plaintiff, there were certain prior debts, one to the Co-operative Bank, and another a mortgage debt. The first was discharged by the first defendant himself with the advance which he had received from the plaintiff. The mortgage debt was however discharged by the fourth defendant after he purchased the properties. The fact was however established that there were anterior debts at the time the first defendant entered into the agreement with the plaintiff and that there was necessity to sell the properties in order to discharge the debts. The trial Court accordingly held that the agreement was binding upon the minor defendants and granted a decree to the plaintiff.

2. This judgment and decree was taken up in appeal, it may be noted, by the fourth defendant only. The minor defendants, whose contention that the agreement was not binding upon them was rejected by the trial Court, did not appeal. The learned District Judge who heard the appeal accepted the finding that the agreement put forward by the fourth defendant as anterior in point of time to the agreement in favour of the plaintiff was a fraudulent antedated document. He also agreed with the trial Court that the fourth defendant had notice of the agreement in favour of the plaintiff. Despite these findings, he proceeded to consider as to how far the agreement in favour of the plaintiff was enforceable against the minor sons of the first defendant and whether in the absence of a cross-appeal challenging the finding against them by defendants 2 and 3, it was competent for the fourth defendant to raise the question of the binding nature of the agreement upon the minor sons of the first defendant. He found that since the property was the ancestral joint family property in which defendants 2 and 3 had a right by birth, it was incumbent upon the plaintiff to show that the sale was for the necessity and benefit of the family before he could claim to enforce the agreement. It was further found that the debts which had to be paid at that point of time amounted only to Rs. 2,000/-, while the properties that were sold consisted of the entire family properties and the sale consideration was for Rs. 4,000/-. There was consequently a projected sale of entire property, and what is more important, of property more than that was required to discharge the debts; nor was there any evidence to show that the balance of the consideration was required for any family purposes. The view was accordingly taken that the agreement of sale had not been proved to be binding upon the minor defendants. He held that the fourth defendant was a party to a fraud for the reason that he had fabricated, Ex. B-l an ante-dated agreement in his favour, with fu