The main legal point established in the judgment is that the power of the Appellate Court under Order 41 Rule 33 is discretionary and intended to do complete justice between the parties, without standing on technicalities.

Prabha Sridevan, J.

The learned Single Judge did not go into the merits and dismissed the appeal only on the ground of res judicata. Against that, present appeal has been filed.

2. A very elegant point is raised in this appeal which involves the construction of Order 41 Rule 33 as it stands amended now. There is no dispute that there were two suits. One was filed by the appellant herein and the other by the respondent. The appellants suit for declaration that the aforesaid sale deed is sham and nominal. The Trial Court decreed the respondents suit and dismissed the appellants suit. An appeal was filed only against the decree granted in the respondents suit. Against the dismissal of the appellants suit no appeal was filed and therefore, the learned Single Judge held that the decree passed in O.S.No.20 of 1986 would operate as resjudicata and therefore, there cannot be any appeal against the decree in O.S.No.27 of 1985.

3. Order 41 Rule 33 reads thus:

33. Power of Court of Appeal .-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]:

Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."

4. The learned counsel for the appellant submitted that since both the suits were disposed of by a common judgment, there is no former judgment for Section 11 to come into play. Further Order 41 Rule 33 is very clear that all the questions raised in the appeal may be considered by the Appellate Court, even though an appeal has not been filed, there have been several decrees in cross suits or where two or more decrees passed in one suit, then the appellate jurisdiction may be exercised in all or any of the decrees so that an appeal may not be filed between that decrees. The learned counsel submitted that all the decisions which held that the non-filing of the appeal would operate res judicata either arose out of matters which were before 1976 amendment of CPC or this aspect has not been considered. The learned counsel appearing for the respondent submitted that case laws decided hold that the decision is res judicata. In ILR 1965 Madras 1(Subbiah Udayar Vs. Karuppiah Odayar alias Pichai Odayar) even before this amendment was enacted, the Division Bench of this Court hearing the appeal against the order of the Estates Abolition Tribunal had to consider whether the decision passed in O.P.No.331 of 1961 under Section 51(1) of the Madras Act XXVI of 1948 having been allowed to become final would operate as res judicata in O.P.No.332 of 1961 as both of them had been disposed of by a common order. The Division Bench of this Court presided over by Ramachandra Iyer, C.J., as he then was, relied on 1962 (3) SCR 759(Narayan Singh Vs. Kamdeo Prasad Singh) where it was observed thus:

"The question of res judicata raises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of