High Court of Karnataka Allows Appeal in Property Suit — Remand Order Set Aside Due to Lack of Jurisdiction Under Order XLI Rule 33 CPC. Appellate Court Exceeded Powers by Setting Aside Final Decree in Unconnected Suit Without Appeal or Cross-Objection.

High Court: Karnataka High Court Bench: DHARWAD

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2026-05-18 15:52:28

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Case Note & Summary

The appellant, Smt. Shantawwa, filed a Miscellaneous Second Appeal under Section 43 Rule 1(u) read with Section 104 of the Code of Civil Procedure, 1908 (CPC), challenging the order dated 30.11.2020 passed by the learned Senior Civil Judge, Saundatti, in R.A. No.14/2019. The background of the case involves two suits: O.S. No.358/2015, which was a suit for partition and separate possession, and O.S. No.98/2016, which was a suit for injunction. In O.S. No.358/2015, a compromise was entered into, and a final decree was passed on 20.01.2016. Subsequently, the respondent filed O.S. No.98/2016 for injunction, which was dismissed by the trial court on 30.03.2019. The respondent appealed against the dismissal of O.S. No.98/2016 in R.A. No.14/2019. The First Appellate Court, purportedly acting under Order XLI Rule 33 CPC, set aside the judgment and decree in O.S. No.98/2016, set aside the final decree in O.S. No.358/2015, and remanded O.S. No.98/2016 for fresh adjudication. The appellant contended that the First Appellate Court had no jurisdiction to set aside the final decree in O.S. No.358/2015 as no appeal or cross-objection was filed against that decree. The High Court agreed, holding that Order XLI Rule 33 CPC cannot be used to set aside a decree in a suit not appealed against, especially when no cross-objection or appeal is filed. The court also noted that the remand under Order XLI Rule 23 CPC was not justified as the conditions for setting aside the decree and necessity of retrial were not satisfied. Consequently, the High Court allowed the appeal, set aside the order of the First Appellate Court, and restored the judgment and decree of the trial court in O.S. No.98/2016.

Headnote

A) Civil Procedure Code - Order XLI Rule 33 CPC - Power of Appellate Court - Scope - The First Appellate Court exceeded its jurisdiction by setting aside the final decree in O.S. No.358/2015 under Order XLI Rule 33 CPC when the appeal was only against the judgment in O.S. No.98/2016 and no appeal or cross-objection was filed against the decree in O.S. No.358/2015 - Held that Order XLI Rule 33 CPC cannot be used to set aside a decree in a suit not appealed against, especially when no cross-objection or appeal is filed (Paras 6-8).

B) Civil Procedure Code - Remand - Order XLI Rule 23 CPC - Conditions - The First Appellate Court remanded the suit in O.S. No.98/2016 without satisfying the conditions for setting aside the decree and necessity of retrial - Held that remand under Order XLI Rule 23 CPC requires satisfaction of conditions for setting aside decree and necessity of retrial (Para 8).

Issue of Consideration

Whether the First Appellate Court could exercise power under Order XLI Rule 33 CPC to set aside the final decree in O.S. No.358/2015 when the appeal was only against the judgment in O.S. No.98/2016 and no appeal or cross-objection was filed against the decree in O.S. No.358/2015.

Final Decision

The High Court allowed the appeal, set aside the order of the First Appellate Court dated 30.11.2020 in R.A. No.14/2019, and restored the judgment and decree of the trial court dated 30.03.2019 in O.S. No.98/2016.

Law Points

Order XLI Rule 33 CPC cannot be used to set aside a decree in a suit not appealed against
especially when no cross-objection or appeal is filed
Scope of Order XLI Rule 33 CPC is limited to parties to the appeal and matters arising from the same subject matter
Remand under Order XLI Rule 23 CPC requires satisfaction of conditions for setting aside decree and necessity of retrial

Case Details

2024 LawText (KAR) (02) 59

Miscellaneous Second Appeal No.100010 of 2021

2024-02-02

V.Srishananda

Laxman T.Mantagani (for appellant), O.B. Joshi and Sanjay S.Katageri (for respondent)

Smt. Shantawwa W/o. Balappa Bhajanatri

Shri. Hanamant Bhimappa Bhajantri

Nature of Litigation

Civil appeal against order of First Appellate Court setting aside final decree in partition suit and remanding injunction suit.

Remedy Sought

Appellant sought to set aside the order of the First Appellate Court and restore the trial court's judgment dismissing the injunction suit.

Filing Reason

The First Appellate Court exceeded its jurisdiction under Order XLI Rule 33 CPC by setting aside a final decree in a suit not appealed against.

Previous Decisions

Trial court dismissed O.S. No.98/2016 on 30.03.2019; First Appellate Court in R.A. No.14/2019 set aside that decree, set aside final decree in O.S. No.358/2015, and remanded O.S. No.98/2016.

Issues

Whether the First Appellate Court could exercise power under Order XLI Rule 33 CPC to set aside the final decree in O.S. No.358/2015 when the appeal was only against the judgment in O.S. No.98/2016 and no appeal or cross-objection was filed against the decree in O.S. No.358/2015. Whether the remand under Order XLI Rule 23 CPC was justified.

Submissions/Arguments

Appellant argued that the First Appellate Court had no jurisdiction to set aside the final decree in O.S. No.358/2015 as no appeal or cross-objection was filed against that decree. Respondent argued that the First Appellate Court acted within its powers under Order XLI Rule 33 CPC to pass necessary orders to do complete justice.

Ratio Decidendi

Order XLI Rule 33 CPC cannot be used to set aside a decree in a suit not appealed against, especially when no cross-objection or appeal is filed. The power under Order XLI Rule 33 CPC is limited to parties to the appeal and matters arising from the same subject matter. Remand under Order XLI Rule 23 CPC requires satisfaction of conditions for setting aside decree and necessity of retrial.

Judgment Excerpts

Order XLI Rule 33 CPC cannot be used to set aside a decree in a suit not appealed against, especially when no cross-objection or appeal is filed. The First Appellate Court exceeded its jurisdiction by setting aside the final decree in O.S. No.358/2015 under Order XLI Rule 33 CPC.

Procedural History

O.S. No.358/2015 (partition suit) compromised and final decree passed on 20.01.2016. O.S. No.98/2016 (injunction suit) dismissed on 30.03.2019. Respondent appealed in R.A. No.14/2019. First Appellate Court on 30.11.2020 set aside both decrees and remanded O.S. No.98/2016. Appellant filed MSA No.100010/2021 in High Court.