Thus to the extent of specific performance, it was number a decree outright it was a companyditional decree.
The High Court opined that it was open for the respondent number to file any appeal against the Trial Courts decree on the belief that he would either get his money back within the short time provided under the decree or would have the companytract specifically performed.
The State was held also number to have benefited by the performance of the plaintiff.
A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is number inseparably companynected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate companyrt exercising power under Rule 33 of Order 41.
Feeling aggrieved by the judgment and decree of the High Court the appellants have filed these two appeals by special leave.
While dismissing an appeal and though companyfirming the impugned decree, the appellate companyrt may still direct passing of such decree or making of such order which ought to have been passed or made by the companyrt below in accordance with the findings of fact and law arrived at by the companyrt below and which it would have done had it been companyscious of the error companymitted by it and numbericed by the Appellate Court.
Order 41 Rule 22 Text as amended by Act 104 of 1976 w.e.f.
The overriding companysideration is achieving the ends of justice.
2,40,000 with interest 1 within two months and after that make the endorsement of the receipt of the entire money on the back of the Agreement dated 15.7.1991 by the Defendant Ramphal and after companyfirming the remaining order, modifying the impugned order and decree to that extent, are hereby dismissed.
The power is subject to at least three limitations firstly, the power cannot be exercised to the prejudice or disadvantage of a person number a party before the Court secondly, a claim given up or lost cannot be revived and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party.
50,000 in the companyrt may get the sale deed executed in respect of the land in dispute in his favour or in favour of the person numberinated by him, from the defendants.
The plaintiff Shri Ramphal is directed that in case the above amount is deposited during the above mentioned period, he will return the original agreement after endorsing the receipt of the entire amount on the back of the original Agreement dated 15.7.91 and return this to the defendants or do the alienation at their expense in their favour and get it registered.
By an interim order dated 20.12.99, the High Court directed the execution of the decrees appealed against to remain stayed subject to the appellants depositing an amount of Rs.
One of the pleas advanced on behalf of the appellants before the High Court was that the first Appellate Court companyld number have, in the purported exercise of power under Order 41 Rule 33 of the CPC, reversed the decree in respect of the refund of money and directed the suit for specific performance to be decreed in favour of the respondent without there being any appeal or cross objection preferred by the respondent.
While holding the appeals preferred by the appellants liable to be dismissed, the first appellate Court framed the operative part of the judgment as under both the appeals are liable to be rejected with this modification that the suit of the plaintiff Ramphal is liable to be decreed for specific relief and the original suit number63 of 1993 Banarsi Versus Ramphal is liable to be rejected.
By an interim order dated 13.7.94 passed in one of the appeals, the High Court directed execution of decree under appeal to remain stayed subject to the appellants depositing an amount of Rs.
It empowers the appellate companyrt number only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as the case may require.
While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate companyrt may pass or make such further or other, decree or order, as the case would require being done, companysistently with the findings arrived at by the appellate companyrt.
However, on account of the stay order obtained by the appellants, the payment of decretal amount was number made by the appellants to the respondent as per the terms of the decree and in such circumstances, the first Appellate Court companymitted numbererror of law in exercising power under Order 41 Rule 33 of the CPC and passing a decree for specific performance in favour of the respondent.
The suit was decreed against the State.
During the companyrse of its judgment the Trial Court recorded a specific finding that the appellants were cultivating the land that land in dispute was very necessary for the maintenance of their family and that if execution of sale deed was directed they would suffer too much hardship.
Panna Lal v. State of Bombay and Ors.,
ORDER Both the appeals, while rejecting this order passed by the Court below in the impugned judgment and decree dated 20.5.1984 that deposit the amount Rs.
60,000 but the respondent had added advance interest and capitalized the same and that the amount of loan with interest was returned and yet the respondent had failed to deliver back as fully discharged the agreements dated 03.11.1988 and 15.7.1991.
The operative part of the judgment, incorporated in the decree, reads as under The defendants Shri Banarsi etc.
A suit for specific performance of an agreement to sell entered into between the parties on 03.11.1988 and later on numberated by an agreement dated 15.7.1991, was filed by the respondent herein.
The defendant filed an appeal.
50,000 as per the agreement dated 15.7.1991 within a period of one months execute the sale deed and hand over the possession otherwise the plaintiff shall be at liberty to get the above work done through Court.
The Trial Court granted a decree companysisting of two reliefs i the declaration as prayed for, and ii an injunction permanently restraining the defendant from running the workshop except with the terms of a valid permission and licence under Sections 436 and 437 of Calcutta Municipal Act, 1951 from the Municipal Corporation.
On this finding, the High Court set aside the Trial Courts decree passed against the State government.
2,40,000, after adjusting the amount already deposited by them pursuant to the earlier order of the High Court, within a period of eight weeks, which amount along with the amount already deposited should be kept in fixed deposit.
The plaintiff and other defendants including the Deputy Commissioner were impleaded as respondents.
The appellants had also filed their own suit seeking cancellation of the agreement dated 03.11.1988 on the ground that the nature of transaction between the parties was one of loan that the amount of loan taken by the appellants was only Rs.
2,40,000 with interest calculated at the rate of 1 per month with effect from 3.11.1988 on Rs.
Vide the judgment and decree dated 20.5.1994, disposing of both the suits, the Trial Court held that looking at the real nature of the transaction entered into between the parties and the evidence adduced to show the actual amount which passed from the respondent to the appellants it was just and proper that the appellants returned the amount of Rs.
The object sought to be achieved by companyferment of such power on the appellate companyrt is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order companying into existence.
Versus Ram Phal is dismissed with companyts.
If there was numberimpediment in law the High Court in appeal companyld, therefore, though allowing the appeal of the defendant appellant by dismissing the plaintiff s suit against it, give the plaintiff respondent a decree against any or all the other defendants who were parties to the appeal as respondents.
Dated 20.5.94 The appellants herein filed two appeals in the High Court.
During the pendency of the first appeals, the pecuniary jurisdiction of the District Courts was enhanced companysequent whereupon the first appeals came to be transferred from the High Court to the District Court.
Rule 22 of Order 41, as amended by CPC Amendment Act 104 of 1976, with effect from 1.2.1977 is reproduced hereunder in juxtaposition with the text of the provision as it stood prior to the amendment.
Accordingly, the order is given to the defendants that they after executing the above sale deed in favour of the plaintiff give the same to the plaintiff.
The suit was filed by the plaintiff impleading the State government and the Deputy Commissioner seeking recovery of companypensation for the work done under a companytract and the price of the goods supplied.
In this manner the suit of the Plaintiff Ramphal for the specific relief is decreed with companyts against the original Suit No.
The State preferred an appeal in the High Court.
50,000 to be received at the time of execution and registration of the sale deed.
The respondent did number prefer any appeal of his own number filed any cross objection.
80,000 in the High Court.
Both the appeals came to be heard and decided by the learned Additional District Judge vide his judgment dated 21.9.99.
2,40,000 was acknowledged by the vendor to have been received, leaving a balance of Rs.
Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate companyrt is so inseparably companynected with the portion number appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow.
80,000 on or before 31st March, 1995.
In an appeal to this Court, the Constitution Bench held that it was a fit case for the exercise of jurisdiction under Order 41 Rule 33 of the CPC.
According to the latter agreement, the companysideration for sale was appointed at Rs.
While the very words of the rule make this position abundantly clear the Illustration puts the position beyond argument.
Original Suit number63 of 1993 Banarsi etc.
emphasis supplied The appellants preferred two second appeals before the High Court.
The two suits were companysolidated and tried together by the learned Civil Judge.
Disagreeing with the Trial Court, the High Court held that the companytract entered into by the Deputy Commissioner was number binding on the State government that the Deputy Commissioner signed the companytract at his own discretion and further, that the companytract number having been entered into in the form as required under Section 175 3 of the Government of India Act, 1935, was number enforceable against the State government.
2,40,000 from 3.11.88 to 15.7.91 within two months for the plaintiff, in the companyrt.
Vide the impugned companymon judgment in the two appeals dated 10.8.2001, the High Court has directed both the second appeals filed by the appellants to be dismissed as raising numbersubstantial question of law.
On 10.2.2000, the appellants deposited an amount of Rs.
Both the parties would bear their respective companyts of both the appeals.
On 24.3.95, the appellants deposited the amount of Rs.
In the land in dispute, all those lands are included which have been allotted to the defendants after modification in the companysolidation.
Both the amounts deposited by the appellants, i.e. Rs.
1964 1 SCR 980 so sets out the scope of Order 41 Rule 33 in the widest terms.
The High Court also held that the government companyld number be held to have ratified the action of the companytract entered into by the Deputy Commissioner.
1,60,000 in the Court of Civil Judge Senior Division, Kairana Nagar .
Both the parties to bear their respective companyts.
1,80,000 and with effect from 15.7.1991 on Rs.
60,000 total Rs.
38 of 1993 in the matter of the defendant Banarsi etc.
Both the appeals were dismissed.
60,000.
If the above defendants Shri Banarsi etc.
2,90,000 out of which an amount of Rs.
are hereby ordered that they should deposit the amount of Rs.
1,80,000 and Rs.
The Trial Court held that the State was liable as it had beyond doubt benefited by the performance of the plaintiff.
Copy of this order be kept in the companycerned file.
and the Defendant Banarsi etc.
Wider the power, higher the need for caution and care while exercising the power.
are here by directed that they after receiving the balance amount of Rs.
The wide wording of O.41 R.33 was intended to empower the appellate companyrt to make whatever order it thinks fit, number only as between the appellant and the respondent but also as between a respondent and a respondent.
80,000 and Rs.
