Judgement JUDGMENT :- This appeal raises the question of the scope and applicability of Order XLI, Rule 33, C.P.C. and it arises in the following circumstances. The plaintiff-appellant sued for specific performance of an agreement of sale. The agreement was executed by the first defendant the father, for himself and on behalf of his undivided minor sons, defendants 2 and 3, on 27-3-1958. In contravetion of this agreement, however, these defendants executed a sale deed in favour of the fourth defendant (Plaintiff) alleged, that the fourth defendant had notice of the agreement of sale in his (Plaintiff's) favour. The first defendant remained ex parte and his minor sons disputed the truth, validity and binding nature of the agreement. The fourth defendant claimed to be a bonafide purchaser, and he further claimed that there was an agreement in his favour anterior to that upon which the plaintiff relied. The trial Court found upon the evidence that the agreement set up by the fourth defendant was not anterior to the plaintiff's agreement. It was also found that the fourth defendant was not a bona fide purchaser and that he had notice of the agreement in favour of the plaintiff. The trial Court held upon the evidence that on the date of the agreement in favour of the plaintiff, there were certain prior debts, one to the Co-operative Bank, and another a mortgage debt. The first was discharged by the first defendant himself with the advance which he had received from the plaintiff. The mortgage debt was however discharged by the fourth defendant after he purchased the properties. The fact was however established that there were anterior debts at the time the first defendant entered into the agreement with the plaintiff and that there was necessity to sell the properties in order to discharge the debts. The trial Court accordingly held that the agreement was binding upon the minor defendants and granted a decree to the plaintiff. 2. This judgment and decree was taken up in appeal, it may be noted, by the fourth defendant only. The minor defendants, whose contention that the agreement was not binding upon them was rejected by the trial Court, did not appeal. 2. This judgment and decree was taken up in appeal, it may be noted, by the fourth defendant only. The minor defendants, whose contention that the agreement was not binding upon them was rejected by the trial Court, did not appeal. The learned District Judge who heard the appeal accepted the finding that the agreement put forward by the fourth defendant as anterior in point of time to the agreement in favour of the plaintiff was a fraudulent antedated document. He also agreed with the trial Court that the fourth defendant had notice of the agreement in favour of the plaintiff. Despite these findings, he proceeded to consider as to how far the agreement in favour of the plaintiff was enforceable against the minor sons of the first defendant and whether in the absence of a cross-appeal challenging the finding against them by defendants 2 and 3, it was competent for the fourth defendant to raise the question of the binding nature of the agreement upon the minor sons of the first defendant. He found that since the property was the ancestral joint family property in which defendants 2 and 3 had a right by birth, it was incumbent upon the plaintiff to show that the sale was for the necessity and benefit of the family before he could claim to enforce the agreement. It was further found that the debts which had to be paid at that point of time amounted only to Rs. 2,000/-, while the properties that were sold consisted of the entire family properties and the sale consideration was for Rs. 4,000/-. There was consequently a projected sale of entire property, and what is more important, of property more than that was required to discharge the debts; nor was there any evidence to show that the balance of the consideration was required for any family purposes. The view was accordingly taken that the agreement of sale had not been proved to be binding upon the minor defendants. He held that the fourth defendant was a party to a fraud for the reason that he had fabricated, Ex. B-l an ante-dated agreement in his favour, with full knowledge of the agreement in favour of the plaintiff. The circumstances that the first defendant executed the sale deed in favour of the fourth defendant for a sum of Rs. He held that the fourth defendant was a party to a fraud for the reason that he had fabricated, Ex. B-l an ante-dated agreement in his favour, with full knowledge of the agreement in favour of the plaintiff. The circumstances that the first defendant executed the sale deed in favour of the fourth defendant for a sum of Rs. 3,500/-only while his agreement in favour of the plaintiff was for a stipulated consideration of Rs. 4,000/- also cast a consideration measure of doubt upon the bona fides of the fourth defendant. From all of these features the learned District Judge concluded :- "It is therefore not open to defendant 4 to contend that defendant 1, the father of defendants 2 and 3, had validly exercised his right as manager of the family of himself and his sons to convey away the right of his sons, defendants 2 and 3 in the suit property to defendant 4.....For the same reason, I hold that it is not open to defendant 4 to contend that the sale in his favour of Ex. B-2 is binding on defendants 2 and 3 and their share in the suit property or to contend that the plaintiff has failed so far as the share of defendants 2 and 3 is concerned, because he has not proved that the agreement of sale in Ex. A-1 is valid and binding on defendants 2 and 3." Finally he observed that on account of the failure of defendants 2 and 3 to challenge the finding against them, the plaintiff was enabled to take advantage of that finding in his favour. He accordingly dismissed the appeal. 3. The matter however did not end there, for the fourth defendant preferred a second appeal before this Court. Venkatadri J., who disposed of the second appeal, observed that some documentary evidence in the case had not been considered by the lower appellate court. He accordingly allowed the appeal, remanded the matter and directed the lower appellate Court to "re-hear" the appeal on the evidence on record, paying particular consideration to certain documents referred to by the learned Judge. The appeal was re-heard by the succeeding District Judge. It would be convenient to set out the findings recorded by the Court below. Firstly, it was held that the agreement Ex. The appeal was re-heard by the succeeding District Judge. It would be convenient to set out the findings recorded by the Court below. Firstly, it was held that the agreement Ex. A-1 in favour of the plaintiff is true and that in pursuance thereof, the first defendant received an advance of Rs. 750/-. Next it was found, on a consideration of the entire evidence, that the agreement propounded by the fourth defendant in his favour and as one anterior in point of time to the agreement in favour of the plaintiff was a fraudulent and ante-dated one and that it should have been executed not on the date it bears but on the date of the sale in favour of the fourth defendant. It was also found that the fourth defendant was not a bona fide purchaser for value without notice of the agreement in the plaintiff's favour. In so far as these findings are concerned, they are in accord with the findings of the trial Court itself and with the findings recorded at the time of the first hearing of the appeal. There are thus concurrent findings of fact of the trial and appellate Courts on these questions. 4. The last question which engaged the attention of the lower appellate Court was whether the agreement of sale in favour of the plaintiff is binding upon the minor defendants and whether in the absence of an appeal by these minor defendants, it is open to the fourth defendant to canvass this question. The learned District Judge relying upon certain decisions which have interpreted Order XLI, Rule 33, C.P.C. took the view that since defendants 2 and 3 had specifically raised the contention of the binding nature of the agreement in their written statement, notwithstanding that they had not filed an appeal or a memorandum of cross-objections, it is open to the appellate Court to go into this question in order to render justice. The lower appellate Court also repelled the contention that on the prior occasion when the appeal was heard, the fourth defendant's attempt to put forward this plea of the binding nature had been rejected by that Court, for the reason that the entire judgment rendered on that occasion had been set aside in second appeal and the matter had been remitted for re-hearing of the appeal itself. Going into the facts, the learned District Judge found that there was proof of debts binding upon the family only to the extent of Rs. 1,744-50 and that the sale of the entire property for Rs. 4,000/- could not be supported on the ground of family necessity; nor could it be regarded as beneficial in the interests of the minors. In that view, the lower appellate Court granted a decree for specific performance of the agreement by sale of only one-third of the suit property and gave other appropriate directions in conformity with this decision. The plaintiff appeals from this judgment and decree, his principal contention being that in the circumstances of the case which have been set out in more than adequate detail above, the lower appellate Court was not justified in permitting the fourth defendant to raise the question of the binding nature of the agreement and that the principle of Order XLI, Rule 33, C.P.C. has been misapplied in the instant case. 5. There is no substance in the contention that the fourth defendant is no longer competent to raise the question of the binding nature of the debts for the reason that at the time of the original hearing of the first appeal, this point was found against that contention. That Judgment was later set aside in S. A. No. 111 of 1961 and the entire appeal was directed to be heard afresh though only on the evidence on record. It cannot therefore be contended that this question is not open for consideration afresh. Equally untenable is the contention that the decision of the trial Court had become final in so far as the minor defendants are concerned, as they did not appeal against that decision, and only the fourth defendant appealed. Notwithstanding the fact that these two minor defendants did not appeal against the decree as passed by the trial Court that would not for that reason alone deprive the fourth defendant from putting forward such claims as he could put forward in so far as he had acquired the interests of these minor defendants. Notwithstanding the fact that these two minor defendants did not appeal against the decree as passed by the trial Court that would not for that reason alone deprive the fourth defendant from putting forward such claims as he could put forward in so far as he had acquired the interests of these minor defendants. But what has been vehemently urged in the course of the hearing of this second appeal is that the terms of Order XLI, Rule 33, C.P.C. are not so wide that the trial court's judgment and decree could be interfered with by the lower appellate Court in the peculiar circumstances of the case, when in second appeal this Court was seized of only a limited aspect of the matter on the appeal preferred by the fourth defendant. The question is whether in the circumstances of the case, the lower appellate Court could vary the terms of the decree on the appeal only by one defendant in so far as that decree affected the other defendants. 6. To re-state the facts; the first defendant, the father, on his behalf and on behalf of his minor sons, defendants 2 and 3 executed an agreement of sale covering the suit properties in favour of the plaintiff, but he sold the properties to the fourth defendant. The fourth defendant's plea that he had a prior agreement of sale in his favour was found against and the trial Court granted a decree in favour of the plaintiff. On appeal by the fourth defendant who claimed to be a bona fide purchaser for value, the contention was advanced that the agreement of sale executed by the first defendant was not valid and binding on the minor defendants. If the agreement of sale was not so binding upon the interests of the minor defendants, title to their share of the properties could pass to the fourth defendant, who had obtained a sale deed in respect of the entire properties, which, however, would, to the extent of the first defendant's share, not be valid and in respect of which share the agreement to sell executed by the first defendant would prevail over the later sale in favour of the fourth defendant. The fourth defendant having a sale deed executed in his favour could thus put forward the claim that his sale is valid to the extent of the interest of the minor defendants. The fourth defendant having a sale deed executed in his favour could thus put forward the claim that his sale is valid to the extent of the interest of the minor defendants. Whether or not the minor defendants appealed against the decree of the trial Court upholding the agreement to sell in favour of the plaintiff even in respect of their shares, the fourth defendant, as the person standing in the shoes of the minor defendants in respect of their interests covered by the sale deed in his favour could undoubtedly put forward the claim that the sale in his favour must be regarded as good, at least to the extent of the minors' interest and what is more important, the Court would have jurisdiction to go into the question of the binding nature of the agreement upon the minors' interest in order to give relief to the fourth defendant. But it is urged that the minor defendants not having appealed cannot raise it now and if that should be so, the fourth defendant would be equally prevented from raising that question of the binding nature of the agreement on the minors' shares, notwithstanding Order XLI, Rule 33, C.P.C. which, it is the contention of Mr. Gopalaswami Ayyangar, is not so broad as thought by the Court below. 7. The scope of Order XLI, Rule 33, C.P.C. came up for consideration in Nirmala Bala Ghose V. Balai Chand, ( AIR 1965 SC 1874 ). In that case, their Lordships observe that Order XLI, Rule 33, C.P.C. is no doubt expressed in very wide terms, but it has to be applied with discretion. It is applicable even to cases where interference in favour of the appellant necessitates interference also with the decree which has become final so as to enable the court to adjust the rights of the parties. Their Lordships say : "Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from, and in adjusting the right claimed by the appellant it is necessary to grant a relief to a person who has not appealed, the power conferred by Order XLI, Rule 33, may be invoked." But they caution that this rule does not confer an unrestricted right to reopen open the case. Order XLI, Rule 33, C.P.C. itself clearly enables the court to exercise the power in favour of all or any of the respondents or parties, although such respondents or parties might not have filed any appeal or objection. In the circumstances of the present case, we may undoubtedly, regard defendants 2 and 3 as such respondents who did not appeal, or in another way we can regard the fourth defendant, the appellant himself, as entitled to put forward this contention namely, that the agreement to sell in favour of the plaintiff is not binding upon the minor defendants (who had not appealed) because their interests had passed to him by a subsequent sale deed. As I have pointed out the fourth defendant is not prevented from putting forward this plea solely because the appeal that was filed originally had been dismissed for the decree of dismissal by the lower appellate Court was set aside in toto and all the points in controversy set at large. The decision in Krishna Reddi V. Kami Reddi ILR (1954) Mad 1126 : ( AIR 1954 Mad 848 ) does not really support the contentions of the plaintiff appellant herein for that was a case where the interests of the several defendants were mutually exclusive and it was not necessary to set aside the decree against the non-appealing defendants in order to give relief to the appealing defendants. That was a case where a reversioner filed a single suit against several defendants challenging different alienations and seeking to recover possession of several items of property. Only some of the defendants preferred an appeal against the trial Court's decree. The learned Judges observe that such a suit is in reality a combination of several suits in one. They point out: "The third class of cases in which this rule has been applied is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed, and there is an appeal only by some of the defendants and if the relief is granted only to the appellants, there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory...... In such cases, if the suit is decreed, and there is an appeal only by some of the defendants and if the relief is granted only to the appellants, there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory...... These are well recognised classes of cases in which it would be legitimate to exercise the powers under that rule, though there was no appeal relating to the subject-matter. . ." Then they point out with regard to the facts of the case before them: "A reversionery files a suit to recover possession of his share on eight items of properties. They are held by different defendants under different alienations, some of which might be valid and others not. There is no community of interest between them. Indeed, the plaintiff could have filed a separate suit in respect of each item and impleaded as defendant therein only the alienee interested in that item, in that event if all the suits were decreed, but an appeal were to be preferred against the decree in only one of them and that appeal allowed, that would not operate as the reversal of the decrees in other suits, nor would there be any power in the court to set aside those decrees under Order XLI, Rule 33 ..... Such a case does not fall within any of the recognised categories in which courts have interfered under Order XLI, Rule 33. It is not necessary for granting relief to the alienee appellant that the decree against the non-appealing alienees should be allowed......" It is clear therefore that if the relief could be granted to the appealing defendant without interfering with the decree as against the other defendants, there would be no scope for the application of Order XLI, Rule 33, C.P.C. and that is one of the limitations on the Court when it proceeds to exercise its powers under that provision. To the same effect is the decision in Union of India v. Moti Lal, (AIR 1962 Pat 384) where a Bench of that High Court held that the power of the Court to vary a decree in favour of the parties who have not appealed cannot be exercised where the decree is separable against the non-appealing defendants, really adopting the principle laid down in ILR (1954) Mad 1126 : ( AIR 1954 Mad 848 ). 8. In Panna Lal v. State of Bombay, ( AIR 1963 SC 1516 ) their Lordships point out that the wide wording of Order XLI, Rule 33, C.P.C. is intended to enable the appellate Court to mould the relief it grants not only as between the appellant and the respondent but as between respondent and respondent and that power will enable the court to grant relief even to a respondent who has not objected to the decree by way of cross-objections. 9. It seems to me accordingly that there could be no doubt that the court's competence to modify the decree in favour of the non-appealing respondents, defendants 2 and 3 cannot be denied. As pointed in (ILR (1954) Mad 1126) : ( AIR 1954 Mad 848 ) the decree in the present case was one which was not separable as against those defendants, and if relief had to be given to the fourth defendant, the appellant, it was undoubtedly necessary that the decree as a whole should be interfered with. I have already dealt with the contention that the fourth defendant is not competent to raise this question in appeal for the reason that the appellate court on an earlier occasion dismissed the claim. In the present case, the judgment of the court below confining the decree for specific performance only to a third share of the property could be maintained on either of two grounds; firstly, by its undisputed power under O. XLI, Rule 33, C.P.C. or secondly, regarding the fourth defendant as the appellant in respect of the two-thirds share belonging to defendants 2 and 3, which had passed to him by reason of the sale. In that view, it was competent to the fourth defendant to put forward the contention that the agreement of sale was not binding on the interest of two of his vendors, namely, defendants 2 and 3. 10. In that view, it was competent to the fourth defendant to put forward the contention that the agreement of sale was not binding on the interest of two of his vendors, namely, defendants 2 and 3. 10. In Baluswami Iyer v. Lakshmana Iyer, ILR 44 Mad 605 : (AIR 1921 Mad 172) a Full Bench of this Court has laid down that where the managing member of a joint Hindu family agrees to convey a specific item of joint family property for purposes not binding upon other coparceners and without their concurrence, the purchaser cannot enforce specific performance of the entire contract; courts can however grant specific performance by a conveyance of that share to which the vendor was entitled. In view of the finding that the agreement to sell executed by the first defendant was not for binding purposes, this decision would justify the decree as passed by the Court below. 11. It follows that the judgment of the court below is correct. The second appeal is dismissed, but in the circumstances there will be no order as to costs. 12. Leave granted. Appeal dismissed.