Judgment :- The plaintiff is the appellant before me. He filed the suit for redemption of two mortgages executed on 11.8.1967 under Ex. A1 and 6-3-1972 under Ex. A2. According to the plaintiff, he was liable to pay only a sum of Rs. 2,365/- which he had already deposited to the credit of O.S. No. 1398 of 1978, an earlier suit filed by the plaintiff for redemption claiming benefits under Tamil Nadu Act 40 of 1978. The earlier suit had to be dismissed as infructuous in view of the passing of Tamil Nadu Act 40 of 1979. In the present suit, the contention of the plaintiff is that he is not liable to pay any other amount to the mortgagee as he is entitled to the benefits of Tamil Nadu Act of 1979. 2. The trial court held that the plaintiff was liable to pay a sum of Rs. 7,700/- in all and after deducting Rs. 2,365/- deposited by him to the credit of the earlier suit O.S. No. 1398, of 1978 he should deposit a sum of Rs. 5,335/- for redeeming the property. The defendants filed an appeal in the Court of the Additional Subordinate Judge, Madurai. The plaintiff did not prefer any appeal or cross-objections against the direction of the trial court to deposit Rs. 5,335/-. When the appeal was argued, the plaintiff raised the contention that he was liable to pay only a sum of Rs. 700/- and not even the sum of Rs. 2,365/- which he admitted in the plaint to be the amount due to the mortgagee. The appellate court rejected that contention holding that the plaintiff was not entitled to question the decree of the trial court directing him to deposit the sum of Rs. 5,335/- as he had not filed any appeal or memorandum of cross-objections, challenging the decree of the trial court. Ultimately, the appellate court dismissed the appeal filed by the defendants, confirming the decree passed by the trial court. 3. The present second appeal has been filed by the plaintiff claiming that he is not liable to pay anything more than Rs. 700/-. Ultimately, the appellate court dismissed the appeal filed by the defendants, confirming the decree passed by the trial court. 3. The present second appeal has been filed by the plaintiff claiming that he is not liable to pay anything more than Rs. 700/-. A preliminary objection is raised by the respondents that the appeal is not maintainable as the plaintiff did not challenge the decree of the trial court in the lower appellate court by preferring an appeal or memorandum of cross objections and consequently, he is not entitled to question the same in the second appeal. It is contended by learned counsel for the appellant that the lower appellate court ought to have exercised its powers under O. 41, R. 33, C.P.C., and accepted the contention put forward by the appellant that the amount due was only Rs. 700/- and nothing more. It is also argued that the lower appellate court having failed to exercise the jurisdiction vested in it by O. 41, R. 33, C.P.C., it is for this court to set aside the judgment of the lower appellate court and direct it to exercise the powers under O. 41, R. 33, C.P.C. 4. In support of the contention urged by the appellant, reliance is placed upon the judgment of a Full Bench of this Court in Subramanian v. Sinnammal 1 . The Full Bench held that in a proper case the appellate court had jurisdiction to exercise its powers in favour of the respondent by dismissing the plaintiffs case in toto though the respondent did not prefer a cross-appeal or a memorandum of objections challenging the decree passed by the, court it is not necessary to refer to the facts of that case. The proposition laid down by the Full Bench is that in a proper case the Court is entitled to exercise its powers under O. 41, R. 33, C.P.C., and grant relief to a person who has not chosen to file an appeal for a memorandum of cross-objections challenging the decree passed by the trial court against him. The Full Bench observed that the question whether the appellate court should exercise the powers conferred by the provisions of O. 41, R. 33, C.P.C. would depend upon the special facts and circumstances of each case. The Full Bench observed that the question whether the appellate court should exercise the powers conferred by the provisions of O. 41, R. 33, C.P.C. would depend upon the special facts and circumstances of each case. It is pointed out by the Full Bench that the illustration to R. 33 of O. 41 C.P.C., is a type of one class of cases which calls for the exercise of the powers conferred by the Rule and it does not exhaust the class of cases in which the powers of the appellate court may be invoked. The ruling of the Full Bench would only mean that the power can be exercised by the appellate court in similar class of cases. While referring to the ruling of the Calcutta High Court in Debendra Narain Sinha v. Narendra Narain Sinha 1 and Jogendra Kishore Roy v. Nazimuddin Sardar 2 , the Full Bench held that the test laid down by the Calcutta High Court was not the only test. The Calcutta High Court had taken the view that in order to exercise the powers under O. 41, R. 33, C.P.C. the Court should find it necessary to adjust the rights of parties when it chooses to interfere with the decree of the Court below with a view to grant relief to the appellants. The Full Bench pointed out that there will be other cases which will fall within the wide terms of Order 41, Rule 33, C.P.C. 5. Much water has flown under the bridge after the decision of the Full Bench. A Division Bench of this court had an occasion to consider the matter in detail and it laid down the proper tests to be applied in Krishna Reddi v. Rami Reddi 3 . The Division Bench consisting of Rajamannar, C.J., and Venkatarama Ayyar, J. observed as follows:— “Though O. 41, R. 33 confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well defined principles in accordance with which that jurisdiction should be exercised. Normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under O. 41, R. 33. Normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under O. 41, R. 33. As observed in Jawahar Bano v. Shujaat Hussain Beg AIR 1921 All. 367 explaining the decision of the Full Bench in Rangamlal v. Chandu 34 All. 32 (I): “Where there is sufficient reason for a respondent neglecting either to appeal or to file objections the courts will hesitate before allowing him to object at the hearing of the appeal.” In Abjal Majhi v. Intu Bepart 4 (Mukherjee, J.) observed. “This rule is no doubt very widely expressed, but clearly, it should not be applied so as to enable a party litigant to ignore the other provisions of the Code or provisions of statutes like those which relate to the limitation of payment of Court-fees”. Vide also Akimunnessa v. Bepin Behani AIR 1916 Cal. 261 (K) But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. .. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A 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.” 6. In Panna Lal v. State of Bombay 5 it is held that it cannot be said that the appellate court can under no circumstances give relief to a party under O. 41, R. 33, C.P.C. if he could have filed a cross objection under O. 41, R. 22, C.P.C. and had not done so. In Panna Lal v. State of Bombay 5 it is held that it cannot be said that the appellate court can under no circumstances give relief to a party under O. 41, R. 33, C.P.C. if he could have filed a cross objection under O. 41, R. 22, C.P.C. and had not done so. It does not mean that in all cases in which a party has failed to file a memorandum of cross-objections or an independent appeal, he is entitled to get relief under O. 41, R. 33, C.P.C. 7. In Ginani Ram v. Ramji Lal 6 it was held that if the appellate court is of the view that any decree which ought in law to have been passed but was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require . (underlining is mine). It is clear from the above observations that each case has to be decided on the facts thereof and the court must be convinced that justice of the case requires the exercise of powers under O. 41, R. 33, C.P.C. 8. In T. Atohaiah v. V. Narasinga Rao 1 the trial court passed a decree granting the prayer for recovery of possession on condition that the plaintiff shall pay a sum of Rs. 13,000/- before he could take possession from the defendant. There was no challenge of that part of the decree by the plaintiff even though he filed a memorandum of cross-objections in the appeal filed by the defendant. In the appeal, the High Courts reduced the amount to Rs. 7,600/-. The Supreme Court held that the High Court was in error in interfering with the decree of the trial court when there was no ground in the memorandum of cross-objections filed by the plaintiff attaking that part of the decree. The Supreme Court found that it was not a case for exercising powers under O. 41, R. 33, C.P.C.. The relevant passage in the judgment of the Supreme Court reads as follows:— “We are of the view that the High Court was clearly wrong in taking recourse to O. 41, R. 33, C.P.C. in interfering with the decree of the trial court in relation to payment of Rs. 13,000/-. The cases relied upon by the High Court are clearly distinguishable. 13,000/-. The cases relied upon by the High Court are clearly distinguishable. The plaintiff was a party to the appeal. He had filed a cross-objection but did not attack the decree of the trial court making him liable to return Rs. 13,000/- before he could take back possession from the defendant. Without a specific ground in the cross objection and without payment Of court-fees on the said amount, he was not entitled to get any relief by the Court, under O. 41, R. 33, C.P.C..” 9. In Choudhary Sahu v. State of Bihar 2 the scope of powers under O. 41, R. 33, C.P.C., is discussed and delineated by the Supreme Court. It is held that the Rule does not confer a unrestricted right on the appellate court to re-open decrees which had become final merely because the appellate court does not agree with the opinion of the Court appealed from. The State of Bihar did not file an appeal or cross-objections against the order of the Collector when the matter was taken up before the Commissioner by the other party. The relevant passage in the judgment of the Supreme Court reads thus: “The object of this Rule is to a void contradictory and inconsistent decisions on the same questions in the same suit. As the power under this Rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the Court appealed from. 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. While exercising the power under this rule the court should not loose sight of the other provisions of the Code itself nor the provisions of other laws, viz. the law of Limitation or the Law of Cou rt fees etc.” 10. While exercising the power under this rule the court should not loose sight of the other provisions of the Code itself nor the provisions of other laws, viz. the law of Limitation or the Law of Cou rt fees etc.” 10. If the test prescribed by the Supreme Court is applied, the most important matter to be considered is that a party cannot escape the provisions of the Law of Limitation and the law of Court-Fees and claim a relief in the appellate court by invoking O. 41, R. 33, C.P.C. The Rule provides an exception under which the power should be exercised with great care and caution. It cannot be exercised just because the party has chosen to raise an argument at the stage of the hearing of the appeal. There must be sufficient explanation by the party concerned as to why an appeal was not preferred or a memorandum of cross-objection was not filed. The party should make out that justice of the case requires the exercise of the power under O. 41 R. 33 C.P.C. The Rule only confers a power on the Court to grant relief depending upon the exigencies of the circumstances and the situation in a particular case in order to render justice and does not confer any right on the party to say that he would be entitled to canvass the correctness of the decree which he has not chosen to challenge by way of an appeal or a memorandum of cross-objection. 11. It is not necessary for me to refer to the other judgments cited at the Bar by counsel on both sides. The Supreme Court having laid down the relevant tests, I consider it wholly unnecessary to discuss the matter at any length. The cases citated by learned counsel for the appellant turned only on the facts of those cases. The principle which lies underneath has been clearly brought out by the Division Bench of this court in Krishna Reddi v. Ram Reddi 1 and the Supreme Court in Choudhary Sahu v. State of Bihar 2. 12. Hence, I agree with learned counsel for the respondent and uphold the preliminary objection raised by him. The contention of the appellant that the court ought to have exercised its power under O. 41, R. 33, C.P.C. in the present case is unsustainable. 12. Hence, I agree with learned counsel for the respondent and uphold the preliminary objection raised by him. The contention of the appellant that the court ought to have exercised its power under O. 41, R. 33, C.P.C. in the present case is unsustainable. No circumstance has been placed before me to say that justice of the case required the exercise of the power. Learned counsel for the appellant contends that the decision of this court in Sivanu Mudaliar N.S.S. v. C. Siva Backia Nadar 3 became available to him only when the appeal was pending in the lower appellate court and he could place reliance thereon only at the time of arguments. According to him, that judgment supported his case fully on the merits and it should have been followed by the lower appellate court. This contention cannot be accepted in view of the fact that the plaintiff claimed relief in the plaint even before the said judgment was rendered and was contending that the amount due was Rs. 2,365/- only. Even to that extent the plaintiff had not chosen to fife a memorandum of cross-objection or an appeal before the lower appellate court. 13. I do not find any circumstance whatever in this case which warranted the exercise of the powers under O. 41, R. 33 C.P.C. by the lower appellate court. The conclusion of the lower appellate court on the facts of the case is perfectly justified and the second appeal has to fail and is dismissed with