Law: Civil Procedure Code (V of 1908)

Section: O.4,r.33,115,110

(a) Civil Procedure Code (V of 1908), O. 4, r. 33----­Appeal against part of decree-Court may deal with whole decree. When an appeal directed only against a part of the decree has been filed, the Court of appeal can, in view of Order 41 rule 33, deal with the whole decree. That a juris­diction to interfere with the whole decree exists even when the claim in appeal relates to a part cannot be doubted though it may be objected that the provision is exceptional and only grants a power which may or may not: be exercised. This objection does not, however, render the argument without force. In the first place, while the powers which are recognized by rule 33 would be exercised only, in exceptional cases, the provision itself is not exceptional. It explains the function of a Court of appeal. In the second place, though the powers may be exercised in exceptional cases, it would be the duty of a Court to see whether it should or should not exercise such powers. It may refuse to interfere in a particular case even on the ground that the party has not thought fit to file an appeal. But the duty to consider the matter as well as the discretion to interfere in spite of the fact that a cross appeal has not been filed exists. When a Court possesses a discretion, it is its duty to consider whether or not to exercise the discretion. (b) Civil Procedure Code (V of 1908), S. 115-Failure on part of lower appellate Court to consider whether to exercise power under, O. 41, r. 33 is revisable. If a District judge while hearing an appeal failed to con­sider whether he should exercise his powers under Order 41, rule 33, there would be legitimate ground for interference with his decree under section 115 C. P. C. A I R 1926 Pat: 40 ref., (c) Civil Procedure Code (V of 1908), S. 110-Decrees in appeals arising out of same suit not to be regarded as distinict decrees for purposes of section 110, C. P. C. That the legislature regards cross-appeals as one pro­ceeding for the purpose of appeal to the Federal Court is supported' by Order 45, rule 4 which relates to consolidation of appeals to Federal Court. Under this rule suits dealt with by the same can be consolidated with respect to their…

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