1. This is an appeal by the plaintiffs in a suit for arrearsof rent. The plaintiffs claimed rent at the rate of Rs. 34-6-0 a year. Thedefendants admitted that rent was payable at the rate of Rs. 24 a year. TheCourt of first instance decreed the suit in part and allowed the claim at therate of Rs. 24 a year. The plaintiffs appealed against this decree. Thedefendants were satisfied with this decree; they did not prefer an appeal nordid they file a cross-objection as provided in the Code. But the District Judgeon the appeal by the plaintiffs has dismissed the entire suit. The plaintiffshave now appealed to this Court and have argued that the District Judge shouldnot on their appeal have deprived them of the benefit of the decree of theTrial Court. In support of this contention, reliance has been placed upon thecases of Rangamlal v. Jhandu 11 Ind. Cas. 640; 34 A. 32; 8 A.L.J. 111 and GangaDhar Muradi v. Banabashi Padhari (2). On behalf of the defendants-respondents,reliance has been placed upon Rule 33 of Order 41 of the Code, which authorisesthe Appellate Court to pass any decree and make any order which ought to havebeen passed or made and to pass or make such further or other decree or orderas the case may require. The rule further lays down that this power may beexercised by the Court notwithstanding that the appeal is as to part only ofthe decree and may be exercised in favour of all or any of the respondents orparties, although such respondents or parties may not have filed any appeal orobjection.

2. This rule is, no doubt, very widely expressed; but,clearly, it should not be applied so as to enable a party litigant to ignorethe other provisions of the Code or the provisions of Statute, like those whichrelate to limitation or payment of Court-fees. Rule 22 of Order 41 of the Codeprovides that any respondent, who has not appealed from any part of the decree,may take cross-objection to the decree which he could have taken by way ofappeal, provided he has filed such objection in the Appellate Court within onemonth from the date of service, on him or his Pleader, of notice of the dayfixed for hearing the appeal or within such further time as the Appellate Courtmay deem fit to allow. Court-fee ad valorem, is also required to be paid on thememorandum of cross-objection under Article, 1 Schedule I, of the Court FeesAct, 1870. In the case before us, the defendants not only did not prefer anappeal against the decree of the Trial Court in so far as it was adverse tothem, they did not file a memorandum of cross-objection. When the DistrictJudge permitted them to contend before him that the decree against them shouldbe discharged on the appeal preferred by the plaintiffs, he allowed them insubstance to evade the provisions of the Civil Procedure Code, the LimitationAct and the Court Fees Act. We are of opinion that even if it be assumed thatRule 33 is applicable to a case of this description, the judicial discretionvested in the Court of Appear below has not been properly exercised. We mayalso observe that, as was pointed by Jenkins, C.J., in Ganga Dhar Muradi v.Banabashi Padhari 24 Ind. Cas. 208; 22 C.L.J. 390 ordinarily Rule 33 should belimited to those cases where as a result of the Appellate Courts interferencewith the decree in favour of the appellant, further interference is required inorder to adjust the rights of the parties in accordance with justice, equityand good conscience. This is the rule recognised in England under Order 58,Rule 4, Rules of Supreme Court, which furnished the basis for Order XLI, Rule34 of our Code [Attorney-General v. Simpson (1901) 2 Ch. D. 671; 70 L.J. Ch.828; 85 L.T. 325; 17 T.L.R. 768; Middleman v. Wilson (1875) 10 Ch. App. 230; 44L.J. Ch. 476; 32 L.T. 105; 23 W.R. 301]; though a different rule was possiblyrecognised in earlier decisions [Rawlins v. Powel. (1715) 1 P. Wms. 297; 24E.R. 397; Waits v. Symes (1851) 1 De G. (sic) G. 240; 21 L.J. Ch. 713; 16 Jur.114; 42 E.R. 644; 91 R.R. 69]. If the course followed by the Court of Appealbelow were approved, a party would be penalised merely because he had preferredan appeal against the decree of the Court of first instance. We cannot persuadeourselves to hold that this could have been the intention of the Legislature.

3. The result is that this appeal is allowed, the decree ofthe District Judge set aside and that of the Court of first instance restoredwith costs both here and in the Court of Appeal below.

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Abjal Majhi and Ors.vs. Intu Bepari and Ors.(27.07.1915 - CALHC)