Dawson Miller, C.J:— (after stating the facts, as set out above, proceeded as follows):—
The only question which we have to determine is whether in the circumstances found, the lower appellate Court was entitled, under Order XLI, rule 33, of the Civil Procedure Code, to pass a decree in favour of the respondents who had not appealed dismissing the whole of the suit. In my opinion Order XLI, rule 33, has no application to a case like this. The plaintiff succeeded in that suit in part, that is to say, although he claimed a higher rent, he in fact succeeded in obtaining the smaller rent. He obtained a part of that which he claimed and that was the result of certain findings of the Munsif that the holdings had in fact been split up and that the plaintiff was entitled to sue for rent in the one case in respect of a holding of 6.94 acres, and although he had claimed a greater rent than he was entitled to he was certainly entitled to the rent proportionate to that area. The defendants, after that decision was given and the decree passed against them, were content and remained satisfied with that decree. They made no attempt to appeal and even when the plaintiff appealed they entered no cross-appeal or cross objection, and in my opinion it was not competent to the learned Judge, when the only question before him was whether the plaintiff was entitle to the extra rent which had been refused him, to enter into the question whether or not he was entitled to any rent. This matter was not before the learned Judge and although the wording of Order XLI, rule 33, may be very wide and give a large discretion to the Court, is in my view, clearly not meant to apply to a case like the present. The object of that Order is, speaking generally, to enable the appellate Court, where its decision interferes with or modifies or extends the decision of the lower Court, to give effect to that decision by interfering, if necessary, even with the rights and liabilities of those who are not in fact appealing from the decision of the trial Court. Unless it is necessary in the interests of justice to give effect to the appellate Court's decision by interfering in some way or other with the rights of those parties which are not the subject of appeal before us then it seems to me that the appellate Court has no right whatever to interfere. The illustration given to that rule is a very good instance of the cases in which a Court may well interfere. Again, in the case of Rangam Lal v. Jhandu, the very question which arises in the present case had to be considered, and it was decided by the Allahabad High Court that the Court in such circumstances had no right to interfere under Order XLI, rule 33. The head-note is this:
“The plaintiff sued the defendant for rent and obtained a decree for a portion of his claim. The plaintiff then appealed against the disallowance of the balance of the amount claimed” (exactly as here) “but the defendants submitted to the decree” (again, exactly as here) “and neither filed a cross-appeal nor took objections under Order XLI, rule 22, of the Code of Civil Procedure, 1908. Held, that it was not competent to the appellate Court acting under Order XLI, rule 33, to interfere with the decree obtained by the plaintiff in so far as it had not been challenged by the defendants,”
and in support of that decision the Court, consisting of the Chief Justice and Bannerji and Tudball, JJ., referred to the case of the Attorney-General v. Simpson which points out certain principles which ought to govern the Court in acting under powers conferred by rule 33. In my opinion that case was perfectly properly decided and it seems to me to govern the present case. I think, therefore, that this appeal should be decreed with costs, the decision of the learned Subordinate Judge will be set aside and the decree of the Munsif will be restored.
Foster, J.:— I agree.
Decision reversed.