Judgment :- This appeal is by the plaintiff against the defendant-Madurai Corporation in O.S. No. 43 of 1978 on the file of Sub-Court, Madurai. The plaintiff prayed (1) for a declaration that the revision made by the defendant-Corporation as per its special notice dated 9.8.1972 to the plaintiff, increasing the annual rental value from Rs. 15,960/- to Rs. 50,400/- and raising the half yearly property tax from Rs. 2,242.35 to Rs. 7,081.20 in respect of the suit property of the plaintiff, is illegal (2) for consequential injunction to restrain the defendant from realising any amount in excess of such tax which might be found due on the rental value fixed according to Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and, (3) for a direction to the defendant for refunding to the plaintiff a sum of Rs. 29,000/-, which had been collected in excess. 2. The Court below granted the first two prayers, viz., the declaration and injunction, accepting the plea of the plaintiff that the notice of the defendant to the plaintiff dated 9.8.1972 proposing to increase the annual rental value from Rs. 15,960/- to Rs. 50,400/- on the ground that the plaintiff was getting enhanced rent from his tenants, was bad since an increase should be only on the basis of the fair rent under the Tamil Nadu Buildings (Lease and Rent Control) Act and the defendant, without determining such fair rent, had sought to increase the tax on a wrong basis. So far as the declaration and injunction prayers are concerned, the court below decreed the suit, but did not grant the third prayer for refund and dismissed the suit to that extent. Only against the said dismissal, the plaintiff has preferred this appeal. 3. The defendant has not preferred any appeal or cross-objection against the above-said decree for declaration and injunction granted in favour of the plaintiff. But, the learned counsel for the defendant-respondent argues that even without such cross-objection, the defendant can in this appeal, argue that the grant of the above-said two prayers by the court below, is wrong, since the suit itself is not maintainable. Admittedly, the plaintiff initially sought the relief prayed for in this suit before the commissioner or the defendant-Corporation in revision under Rule 20 of Schedule II of Tamil Nadu Act 15 of 1971. Admittedly, the plaintiff initially sought the relief prayed for in this suit before the commissioner or the defendant-Corporation in revision under Rule 20 of Schedule II of Tamil Nadu Act 15 of 1971. But, failing therein, the plaintiff preferred appeal to the Taxation Appeal Committee under Rule 23 thereof. But, there also, the plaintiff failed. Ex. A2 dated 26.2.1973 and Ex. A3 dated 21.7.1976 are the relevant orders of those two Authorities respectively dismissing the plaintiffs revision and appeal respectively. Then, the plaintiff did not prefer the prescribed appeal to the District Court as per Rule 24 thereof. On the other hand, the plaintiff paid, as shown by Ex. B5, dated 11.1.1978, the tax for 13 half years, that is, for the period October, 1971 to March, 1978 as per the revised assessment without any protest. But, on 20.1.1978, he has filed the present suit. As per Rule 27 of the above-said schedule, the orders passed by the Commissioner, the decision of the Taxation Appeals Committee or the adjudication by the District Court on appeal, as the case may be, shall be final. So, the learned counsel for the respondent-corporation contends that the assessment on the plaintiff has become final. Further, the plaintiff had also paid the tax without any protest. Therefore, according to the said counsel, the present suit would not lie at all. But, the learned Counsel for the appellant contends that this arguments is not open to the respondent at all in this appeal by the plaintiff, since the defendant-corporation has not preferred any cross objection. On the other hand, the learned counsel for the respondent-defendant relies on O. 41 R. 33, C.P.C. to substantiate his contention that he cans seek the above-said relief in this appeal itself. 4. On the other hand, the learned counsel for the respondent-defendant relies on O. 41 R. 33, C.P.C. to substantiate his contention that he cans seek the above-said relief in this appeal itself. 4. No doubt O. 41, R. 33, C.P.C. runs as follows:— “33 Power of Court of Appeal 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 be exercised in favour of all or any of the respondents of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, w here there have been decrees in cross-suits or where two or more decrees are 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.” In interpreting this provision, the Supreme Court in Choudhary Sahu v. State of Bihar 1 AIR 1982 Supreme Court 98 quoted the following passage from its earlier decision reported in Nirmala Bala Ghose v. Balai Chand Ghose AIR 1965 S.C. 1874 :— “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. 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 r ule, however, 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.” The Supreme Court in the above referred to A.I.R. 1982 S.C. 98, after quoting the above passage also observed as follows:— “The object of this rule is to avoid 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 reopen 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 lose 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.,” 5. Applying the above ruling, it is obvious that in the present case it is not open to the respondent to invoke O. 41, R. 33, C.P.C. and to have the suit itself dismissed on the ground that it is not maintainable. The present appeal is only against the refusal to order refund of the excess tax collected. Applying the above ruling, it is obvious that in the present case it is not open to the respondent to invoke O. 41, R. 33, C.P.C. and to have the suit itself dismissed on the ground that it is not maintainable. The present appeal is only against the refusal to order refund of the excess tax collected. Even if the appeal is allowed and order is passed for the refund claimed, that order does not necessitate interference also with the decre that has already been passed by the Court below (declaring that the above referred to assessment is illegal and granting the injunction prayed for), and has become final, since the respondent-defendant has not preferred any appeal or cross-objection. In other words, even if this appeal is allowed on the conclusion that the above refund could be ordered, the said conclusion is not inconsistent with the opinion of the court below in granting the decree it had already passed in favour of the appellant. The object of the rule in O. 41, R. 33, C.P.C. is to avoid contradictory and inconsistent decisions on the same question in the same suit, as stated by the Supreme Court. But the allowing of this appeal will not result in any such contradictary and inconsistent decisions. 6. Further, the Supreme Court also points out that the said rule does not confer 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. So, even if I come to the conclusion that the suit is not maintainable, merely on that fact, (even though that conclusion may oust the very jurisdiction of the Court below to try the suit) I cannot invoke O. 41, R. 33, C.P.C. and dismiss the very suit in this appeal filed by the plaintiff. The Supreme Court also points out that in exercising the power under the said rule, the Court should not lose sight of the other provisions of the Code itself, nor the provisions of other laws, viz., the law of limitation or the law of court-fee etc. The Supreme Court also points out that in exercising the power under the said rule, the Court should not lose sight of the other provisions of the Code itself, nor the provisions of other laws, viz., the law of limitation or the law of court-fee etc. Therefore, I hold that the respondent-defendant cannot invoke O. 41, R. 33, C.P.C. I may also make it clear that regarding maintainability of the suit neither I have come to a decision, in this appeal, nor I can do so, one way or the other since the respondent-defendant is not permitted to invoke O. 41, R. 33, C.P.C. 7. No doubt, the learned counsel for the respondent cited Giani Ram v. Ramji Lal AIR 1969 S.C. 1144 , where while interpreting O. 41, R. 33, C.P.C., the Supreme Court observes if the appellate court is of the view that any decree, which ought in law to have been passed, is in fact not passed by the Subordinate Court, it may pass or such further or other decree or order as justice of the case may require. But, that decision also is taken into consideration by the later decision, viz., the above referred to A.I.R. 1982 S.C. 98. So, it boils down to this, viz., that even where the appellate court is of the view that any decree which ought in law to have been passed, was in fact not passed by the Subordinate Court, the appellate court cannot straightaway resort to the exercise of the power under O. 41, R. 33, C.P.C., but it should take into consideration the other requirements referred to in A.I.R. 1982 S.C. 98 and Nirmala Bala v. Balai Chand AIR 1965 S.C. 1874 , as necessary for exercise of the power under O. 41, R. 33, C.P.C., 8. The learned counsel for the respondent also drew my attention to Kok Singh v. Deokabai AIR 1976 S.C. 634 . In that case, the trial Court dismissed that claim for enforcement of a charge against a property, but gave a personal decree against the appellate for a particular amount. The High Court negatived the respondents claim for personal decree, but granted a decree for enforcement of the charge. In that case, the trial Court dismissed that claim for enforcement of a charge against a property, but gave a personal decree against the appellate for a particular amount. The High Court negatived the respondents claim for personal decree, but granted a decree for enforcement of the charge. In the appeal filed to the Supreme Court, it dismissed the appeal, holding that the High Court was competent to pass such a decree under O. 41, R. 33, C.P.C. notwithstanding that the respondent did not file any appeal from the decree negativing the claim for charge in the property. But, this decision is only in conformity with the observation of the Supreme Court in the above referred to A.I.R. 1982 S.C. 98 that the power conferred by O. 41, R. 33, C.P.C. will ordinarily be confirmed 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. 9. I may also point out the decision reported in Padmadevi v. Kabalsingh AIR 1985 Bombay 357 cited by the learned counsel for the appellant. There, Motor Accidents Claims Tribunal passed an Award for compensation, based on the finding on the issue of negligence, in favour of the claimants-minor children. But, compensation was negatived to the other claimant, viz., the widow of the deceased victim. In the appeal filed against the said dismissal of the claim made by the widow, the respondents, who did not prefer any appeal or cross-objection challenged the Award itself on the ground that there w as no negligence. In that context, the Bombay High Court, has held following the above referred to A.I.R. 1982 S.C. 98 that unless a cross-objection is filed, it will not be open to the said respondents to challenge the above-said finding of negligence and the Award already passed, and observed as follows:— “In the present case, Shri. Trivedi practically wants that not only the appeal should be dismissed, but the claim made by the claimants should be dismissed in toto, which means that we should pass an order to the prejudice of the claimants, though the opponents have not filed any appeal or cross-objections and the Award passed by the Tribunal has become final, so far as the opponents are concerned. In our view, the wide powers conferred upon this court under O. 41, R. 33. cannot be exercised to achieve such a design. This is not legally permissible, nor is it equitable.” The above said observation squarely applies to the present case. 10. Then the only question that remains to be decided is whether the prayer for refund which was negatived by the Court below, should be granted in this appeal. The Court below did not grant refund on the ground that it was always open to the defendant-Corporation to reassess the building afresh on the oasis of the aforesaid fair rent, and that in that event, adjustment could be made towards the excess tax already paid by the plaintiff. But, the learned, counsel for the appellant points out that once the assessment is held to be illegal, the refund should automatically follow and that there is no law preventing such a refund, nor any law provides for any such adjustment when there is no plea of set off or counter claim. No doubt, it is pointed out by the learned counsel for the defendant-Corporation that a demand notice has been sent to the plaintiff by the defendant corporation recently on 14.3.1991, demanding arrears of tax to the extent of Rs. 49,331.30 (for the period after March, 1978 till September, 1990, that is for the period subsequent to the suit period) the said demand being only at the old rate, that is, on the basis that the rental value was only Rs. 15,960/-. But the learned counsel for the appellant submits that the said demand will be barred by limitation. At any rate, since there is no law preventing refund once the Assessment is held to be illegal, I cannot refrain from passing on order of refund. However, if any plea of set off is made at the execution stage, the execution court can no doubt consider the same and pass suitable orders. 11. In the result, the appeal is allowed with costs and the suit, in regard to the relief of refund of excess tax of Rs. 29,000/- to the plaintiff, is also decreed as prayed for with costs.