Law: Civil Procedure Code (V of 1908)

Section: 2

  Custom (Punjab)--- ---- Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S. 2-A---Last Muslim male owner dying in 1902, was governed by custom in matters of succession and alienation---Landed property left by issueless deceased was mutated in the name of his widow  to  be  held  by  her  till  re-marriage  or  death---Widow  died  in 1961---Inheritance---Devolution of property---After widow's death property left by last Muslim male owner, had to be divided amongst his heirs in accordance with Muhammadan Law of inheritance as Punjab Muslim Personal Law (Shariat) Application Act, 1948, had been promulgated and had come into force long before the death of widow. Civil Procedure Code (V of 1908)--- ----0. XLI, R. 33---Decree of Court to be binding upon parties thereto, until set aside in appropriate proceedings---Party wishing to have a decree against him set aside, varied, modified or reversed, must apply with certain requirements as to filing of appeal, cross-objections and so forth---Appellate Court as an ordinary rule, must not reverse or vary a decree in favour of a party which had not 'referred an appeal or cross-objections against it, notwithstanding provisions of O.XLI, R.33, C.P.C.---Provision of R.33 of O.XLI, C.P.C. however, empowers Court in exceptional cases to pass such decree or order as ought to have been passed or as the nature of the case might require, even if such decree would be in favour of non-appealing parties, who did not choose to prefer an appeal or file cross-objections against Trial Court's decree---Exercise of power in O.XLI, R.33, C.P.C. is although discretionary with the Court, yet when an occasion demands, and justice of cause so requires, the Court must perform its full duty and must not refuse to exercise its discretion merely on the ground that the party had not filed an appeal or cross-objections before it---High Court invoking provisions of O.XLI, R.33, C.P.C. modified shares of the parties which had incorrectly been determined by the Trial Court although recipients thereof had failed to file appeal or cross-objections against incorrect…