This appeal arises from the judgment and decree passed by the District Judge, Barpeta in T.A. No.10 of 1985 allowing partly the appeal from the judgment and decree of the Assistant District Judge Barpeta passed in T.S. No. 8/84. 2. Facts giving rise to this appeal, shortly stated, are thus. The plaintiff-appellants instituted T.S. No. 8/84 in the Court of the Assistant District Judge Barpeta against the defendant-respond­ents for enforcement of an award made on 15.5.83 by six (6) arbitrators on the oral submission. The arbitrators were appointed by three brothers, namely plaintiff-1 Golap Chand Agarwalla, defendant-1 Madanlal Simolia (Agarwalla) and defendant-2 Sri Sudanlal Simolia (Agarwalla). The awards relates to partition of both movable and immovable properties of the joint family. The trial Court decreed the suit in respect of the immovable properties and dismissed the suit in respect of the movable property on the ground that the award in respect of the movable property is vague. On appeal by the plaintiff-appellants, the District Judge in T.A. No. 10/85 partly allowed the appeal dismissing the suit in respect of the immovable property on the ground that the award was not registered under the Registration Act and decreeing the suit in respect of the movable property. Hence this appeal. 3. Mr. K. Sarma, the learned counsel for the appellants, has submitted that the lower appellate Court ought to have decreed the suit in respect of the immovable properties also. Mr. Sarma has relied on a decision reported in AIR 1974 Ker 51 , P. Naray­anan hair vs. E. Achuthan Nair. Mr. A. K. Phukan, the learned counsel for the respondents, has submitted that the arbitration was not in accordance with the provisions of the Arbitration Act, 1940 and, therefore, the award is not enforceable in a suit. 4. The question which arises for determination is whether the award can be enforced in a suit. In the present case, admittedly, it was an oral agreement to submit the differences to arbitration. 4. The question which arises for determination is whether the award can be enforced in a suit. In the present case, admittedly, it was an oral agreement to submit the differences to arbitration. But section 2(a) of the Arbitration Act, 1940 defines ' "arbitration agreement" to mean a written agreement to submit present or future differences to arbitration, -whether an arbitrator - is named therein or not and section 47 of the Arbitration Act, 1940 clearly provides that subject to the provisions of section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of the Arbi­tration Act shall apply to all arbitrations and to all proceedings thereunder. 5. In view of the provision under section 47, all the arbitrations shall be in accordance with the Arbitration Act, or special law, as the case may be, and, therefore, the oral submission is not in accordance with Arbitration Act and the award on oral submission cannot be the basis of the suit. Let me now deal with the decision of the Kerala High Court in Narayanan's case ( AIR 1974 Ker 51 ) on which reliance has been placed by Mr. Sarma, the learned counsel for the appellants. In Narayanan's case, it has been held that every agreement entered into for the purpose of avoiding a dispute cannot be said to be an arbitration agreement. From the decision of the Kerala High Court it is evident that an agreement entered into for the purpose of avoiding a dispute by mediation of the persons though called arbitrators is not an arbitration agreement. Therefore, the decision of the Kerala High Court does not support the appellants, but it supports my conclusion above. For the reasons stated, the suit is not maintain­able and Courts below have not passed any decree or made any order which ought in law to have been passed or made and, therefore, the appeal is to be dismissed. 6. The next question which arises for consideration is whether the plaint can be rejected in dismissing the appeal, by exercising the power of the appellate Court under O 41 R 33, CFC read with O 7 R II, CPC although the respondents have not appealed or filed cross-objection. 7. 6. The next question which arises for consideration is whether the plaint can be rejected in dismissing the appeal, by exercising the power of the appellate Court under O 41 R 33, CFC read with O 7 R II, CPC although the respondents have not appealed or filed cross-objection. 7. Order 41 Rule 33, CPC provides : ''The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may by exercised in favour of all or any of the respondent or parties, although such respondents or parties may not have filed any appeal or objec­tion and may, where there have been decrees in cross-suits or where two or more decrees as, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate Court shall not make any order under section 3 5A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." 8. In Nirmala Balavs. Balni Chand, AIR1965 SC 1874, the Supreme Court observed: "The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties, 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 relief to a person who has not appealed, the power conferred by O. 41 R.33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decree which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from." 9. The rule however does not confer an unrestricted right to re-open decree which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from." 9. In Choudhary Sahu vs. State of Bihar, AIR 1982 SC 98 , the Supreme Court reiterated the above observation made in Nlrmala's case ( AIR 1965 SC 1874 ) and further observed s "Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. White exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of the other laws, viz., the Law of Limitation or the Law of Court-fees etc." 10. Rule 33 is general in its terms, which are wide, but the rule contains no words to suggest that the rule is applicable only to the cases where the appellate Court interferes in appellant's favour. Therefore, the case of the Supreme Court cited above are not the authority for the proposition that the jurisdiction of the appellate Court under Rule 33 cannot be exercised to pass any decree or make any order in favour of the respondent, in dismissing the appeal, if the respondent has not appealed or filed cross-objection. How­ever, as it may cause injustice to the party appealing if the respond­ent has dm appealed or filed cross-objection, ordinarily the juris­diction under Rule 31 will be confined to those cases where, as a result of the interference in favour of the appellant, further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to the justice, equity and good conscience. For these reasons, the appellate Court has jurisd­iction, while dismissing an appeal, to rectify an error in the judgment and decree of the lower Court, if the lower Court has not passed any decree or made any order which ought in law to have been passed or made, although the respondent has not appealed or filed cross-objection. But the exercise of the power depends on its own circumstances. 11. But the exercise of the power depends on its own circumstances. 11. The next question which, therefore, arises for consideration is whether, in the present case, the appellate Court should exercise the power under Rule 33. It has already been c included that the suit is not maintainable as the award in question cannot be enforced, or the suit cannot be based on such an award, in view of the provisions under section 47 of the Arbitration Act, and that the Courts below have not passed any decree or made any order which ought in law to have been passed or made. Such errors should not be allowed to remain on records. That apart, I am of the view that, if the plaint is rejected under O 7 R 11, CPC on the ground that it does not disclose a cause of action as the suit cannot be based on the award in ques­tion, or, that the suit is not maintainable as the award is hit by section 47 of the Arbitration Act, it will avoid the future complication of the matter in dispute and will meet the ends of justice. I do so accordingly. 12. For the foregoing reasons, the appeal is dismissed and the decrees of the Courts below are set aside. The plaint is rejected. No costs