The powers of an appellate court under O.41, R.33, C.P.C., are very wide and can be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed an appeal or objection.

SAHAI, J.:- This is a reference by a learned Single Judge of this Court under Chapter V Rule 6 of the Rules of Court. The following question has been referred to us for answer:

"Whether the interpretation put by the Full Bench has the effect of cutting down the powers conferred by O.41, R.33, and if so, to what extent"?

The Full Bench case to which reference has been made is the case of Rangam Lal v. Chandu 34 All 32 (A).

2. The facts of the case are given in full in the judgment of the learned Single Judge dated 4-9-1953, disposing of the second appeal and in his order dated 1-2-1955 referring the question formulated above to a Bench of two Judges. Under the circumstances it is not necessary for us to give the facts of the case in detail.

3. Briefly stated, the facts of the case are, that the plaintiff filed a suit for removal of obstruction placed by the defendants over a rasta by constructing a wall over it, and for the issue of an injunction. His case was that he was using this rasta, which is an old one, all along. But in 1944 suddenly the defendants closed that rasta. He was allowed for some time to pass through another gate of the Dharamshala. But ultimately that gate too was closed, which necessitated the filing of the present suit

4. The reliefs claimed, in substance, were as follows:

"(a) That a permanent injunction be issued to the defendants directing them to demolish that portion of the wall of the Ahata which the defendants have constructed on the land of Rasta (old No.37) on the eastern side of the road and which was shown in the map by letters A and B, and the defendants may further be directed to put the rasta in its original condition and not to interfere with the passage of the plaintiff in any manner.

(b) In case it was held that the plaintiff was not entitled to get the wall of the Ahata demolished, the defendants may be directed to open the door X through which the plaintiff used to have his passage previously and to restore it in its original condition.

(c) If the Court was of opinion that along with the above mentioned reliefs, the plaintiff was entitled to possession also, a decree for possession may also be passed."

5. The suit was contested by the defendants on a number of grounds. The trial court rejected the pleas taken in defence and decreed the plaintiffs suit in terms of relief B only claimed in the plaint. The plaintiffs did not file any appeal against the decree of the trial court but submitted to it.

6. One of the defendants filed an appeal to the lower appellate court. The lower appellate court modified the decree of the trial court by decreeing the plaintiffs suit by granting the plaintiff a decree in terms of the relief (a) claimed in the plaint instead of relief (b).

7. Thereupon, the aforesaid defendant filed a second appeal to this Court and one of the points urged before the learned Single Judge was that relief (a) having been refused and the plaintiff respondent not having appealed against it, it was not open to the lower appellate court to grant relief (a) which was a broader relief than the relief granted by the trial court. This plea was rejected by the learned Single Judge, on the ground that the lower appellate court had ample powers to grant that relief under the provisions of O.41, R.33, C.P.C.

In the result, none of the points raised by the learned counsel for the appellant found favour with the learned Judge who, by his judgment dated 4-9-1953 dismissed the appeal.

8. On 19-11-1953, an application for review of the judgment was filed by the defendant-appellant, on the ground that in view of the Full Bench decision of this Court in - 34 All 32, (A) the lower appellate court had no jurisdiction to pass the decree that it did. Thereupon the learned Single Judge, before deciding the application for review on merits, referred the aforesaid question to a larger Bench for opinion.

9. O.41, R.33, C.P.C. runs as follows:

"The appellate court shall have power to pass any decree and make any