Case Note & Summary
The case involves a second appeal before the Bombay High Court at Nagpur arising from a land dispute. The appellants, original defendant nos. 1, 2, 3, 5, and 6, challenged the judgment of the lower appellate court dated 01.07.2013 in Regular Civil Appeal No. 85 of 2008. The trial court in Regular Civil Suit No. 3 of 2005 had passed a decree on 30.06.2008 holding that Nagabai could not have sold 85R of land initially to defendant no. 4 and subsequently by defendant no. 4 to defendant nos. 5 and 6 on 23.07.2004. The trial court directed immediate delivery of possession of the said 85R of land to the plaintiff and granted liberty to the defendants to file a suit for partition and separate possession of 60R of land against Panchsheelabai. The lower appellate court dismissed the appeal but modified the decree. The High Court noted that the lower appellate court, having dismissed the appeal, could not have modified the decree without any cross-objection being filed. The matter was adjourned to enable the parties to consider the position. Both counsels submitted that they had taken instructions and consented to restore the trial court decree with the liberty granted by the trial court for filing a separate suit for partition and separate possession of 60R of land. Consequently, the High Court allowed the second appeal and restored the trial court decree.
Headnote
A) Civil Procedure - Appellate Court's Power - Modification of Decree Without Cross-Objection - Code of Civil Procedure, 1908, Order 41 Rule 33 - The lower appellate court, having dismissed the appeal, could not have modified the decree passed by the trial court without there being any cross-objection filed by the respondent. The decree passed by the trial court should not have been disturbed. (Paras 4-5) B) Civil Procedure - Consent Decree - Restoration of Trial Court Decree - Code of Civil Procedure, 1908 - Both parties consented to restore the trial court decree with liberty to file a separate suit for partition and separate possession of 60R of land. The second appeal was allowed accordingly. (Paras 5-6)
Issue of Consideration
Whether the lower appellate court could modify the trial court decree while dismissing the appeal without any cross-objection being filed.
Final Decision
Second appeal allowed. The decree passed by the trial court is restored with liberty as was granted by the trial court for filing a separate suit for partition and separate possession of 60R of land.
Law Points
- Appellate court cannot modify decree while dismissing appeal without cross-objection
- Consent of parties can restore trial court decree
