PETITIONER:

CHOUDHARY SAHU (DEAD) BY LRS.

Vs.

RESPONDENT:

STATE OF BIHAR DATE OF JUDGMENT14/12/1981 BENCH:

MISRA, R.B. (J)

BENCH:

MISRA, R.B. (J)

FAZALALI, SYED MURTAZA CITATION:

1982 AIR 98 1982 SCR (2) 178

1982 SCC (1) 232 1982 SCALE (1)161 ACT:

Code of Civil Procedure order XLI, Rules 22 and 33 scope of. HEADNOTE:

The appellant is a land-owner in terms of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. While considering the objection of the appellant in response to the notice issued under section 10(2) of the Act, the Collector, by his order dated 23rd of February, 1975 ordered allotment of twelve units of lands.

By Rule 49 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules. 1963, order XLI of the Civil Procedure Code has been made applicable in disposing of the appeals under the Act. The appellant, feeling aggrieved by the Collector’s order went up in appeal before the Commissioner of the Division. The respondent-State submitted to the order, did not go in appeal and allowed the appeal to be decided ex-parte. The appellant, who challenged the order of the Collector on various grounds did not challenge the finding recorded by The Collector regarding The twelve units allotted to him as against fifteen prayed for. The Commissioner heard the appeal on 27th of April, 1976, allowed the appeal by its order dated 14th of May, 1976, set aside the Collector’s order in toto and remanded the case to him for disposal according to law. The appellant filed a Petition under Article 226 of the Constitution to challenge the order of the Commissioner but the High Court dismissed the petition and confirmed the order of the Commissioner on the basis of the provisions of order XLI, Rule 22. Hence the appeals by special leave.

Allowing the appeals, the Court ^

HELD: 1. The first part of Rule 22 of order XLI of the Civil Procedure Code authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below. The first part thus authorises the respondent only to support the decree. It does not authorise him to challenge the decree. If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross-objection if he has not filed an appeal against the decree. [181 G]

In the instant case, admittedly the State of Bihar had neither filed any appeal or cross-objection. Obviously, therefore, on the strength of the first part of sub-clause (1) of Rule 22 of order XLI, the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds

179 decided against it. The Commissioner could not set aside the finding in favour A of the appellant on the strength of order XLI, Rule 22(1) C.P.C. [181 H-182A]

2:1. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order XLI, Rule 33. Rule 33 of order XLI Civil Procedure Code is widely expressed and it must be applied with caution. The objects of this rule re: (i) to empower the Appellate Court to do complete justice between the parties. Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection; (ii) to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. [184 G, 182 G, 184 C]

2:2. The rule does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the court appealed from. Ordinarily, t