JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri A.N. Bhargava, learned counsel for appellant. None appeared on behalf of respondent though the case has been called in revised. Hence, this Court proceed ex parte against respondent. 2. This appeal under Section 100 of Code of Civil Procedure has arisen at the instance of plaintiff-appellant against the judgment and decree dated 8.2.1989 passed by Sri Hari Shanker Lal Srivastava, First Additional District Judge, Jaunpur whereby partly allowing the appeal, Lower Appellate Court (hereinafter referred to as “LAC”) has set aside the judgment and decree of Trial Court insofar as it had directed defendant-respondent to execute sale-deed in respect to plots in dispute in favour of plaintiff, but simultaneously has directed defendant-respondent to refund Rs. 4,000/- which was received as earnest money, alongwith interest, at the rate of 6 per cent per annum, to plaintiff-appellant. 3. After hearing the appeal under Order 41 Rule 11 C.P.C. on 31.3.1987, this Court found adjudication of the following substantial questions of law having arisen, in this appeal: “(A) Whether the Appellate Court having confirmed findings of Trial Court about genuineness of agreement was right in refusing relief of granting execution of sale-deed simply on the ground of identifiability and when there was only slight reduction of area of only two plots? (B) Whether any permission was required when the agreement was with regard to sale of land after the consolidation was over within a period of five years. (C) Whether absence of permission creates any bar for entering into an agreement and sale also specially by Court?” 4. Subsequently, vide order dated 30.10.2014, one more substantial question of law was formulated as under: “(D) Whether the lower appellate Court can dismiss the relief for specific performance granted by trial Court when no appeal was preferred by Defendant-Appellant against the grant of relief for specific performance by trial Court.” 5. Plaintiff-appellant, Smt. Lalita Devi, instituted Original Suit No. 66 of 1983 in the Court of Civil Judge, Jaunpur seeking a decree of rectification in the document dated 31.5.1978 by substituting the numbers 200/1-26 and 200/2-4 instead of 208/1-26 and 208/2-4. She also sought a decree of specific performance of contract, directing defendant to execute sale-deed after receiving a sum of Rs. 6,000/- in respect to disputed plots. 6. She also sought a decree of specific performance of contract, directing defendant to execute sale-deed after receiving a sum of Rs. 6,000/- in respect to disputed plots. 6. The plaint case set up was that disputed property was owned by Smt. Jahida, widow of Munshi and mother of defendant Smt. Sayeeda. Smt. Jahida having died, her property succeeded to defendant Smt. Sayeeda, whose name was mutated as owner of disputed property. Defendant’s mother entered into a registered agreement for sell dated 31.5.1978, for a consideration of Rs. 10,000/- for transfer of her property by sale. Since consolidation proceedings were going on, it was agreed that sale-deed shall be executed after consolidation proceedings are over, or within five years, after obtaining permission. A sum of Rs. 4,000/- was received by mother of defendant as part consideration and Rs. 6,000/- was to be paid at the time of registration of sale-deed. After death of Smt. Jahida (the erstwhile owner), now the defendant is bound by the said agreement. Defendant’s mother also gave possession of disputed property to plaintiff and she is continuously in possession thereof since then, i.e., 1978. Repeatedly plaintiff requested defendant’s mother and thereafter defendant to execute sale-deed but they avoided on one or the other pretext. The property, subject-matter of agreement to sell dated 31.5.1978, was numbered as 205/-20 and 206/1/-25, but during consolidation, its area reduced and now numbered as 205/-11 and 206/1/-26. Plaintiff is ready to proceed for purchase of reduced area and also to pay the agreed consideration. In the agreement, due to mistake of Deed-Writer, Khata numbers were wrongly mentioned as 208/1/-26 and 208/2/-4 though it ought to be 200/1/-26 and 200/2/-4. The correct numbers were 200/1/-26 and 200/2/-4. The aforesaid mistake, however, would not be material so far as the agreement is concerned and defendant is bound to honour the said agreement. Since within five years, the document of sale has not been executed and defendant is not agree to do so, hence the suit. 7. At the bottom of plaint, detail of property, allegedly agreed to be sold by mother of defendant, was mentioned as under: en ¼v½ 199@&01] 201@&61] 203@&14] 204@&13] 205@&20] 206@1@&25] 206@2@&33] 206@3@&02] 208@1@&26] 208@2@&04] 183@1@&02] 202@&11] 202@1@-58& 13 xkVk @2&70 8. 7. At the bottom of plaint, detail of property, allegedly agreed to be sold by mother of defendant, was mentioned as under: en ¼v½ 199@&01] 201@&61] 203@&14] 204@&13] 205@&20] 206@1@&25] 206@2@&33] 206@3@&02] 208@1@&26] 208@2@&04] 183@1@&02] 202@&11] 202@1@-58& 13 xkVk @2&70 8. It was also stated that in place of the aforesaid numbers, after rectification, the corrected numbers and others would be as under: en ¼c½ 199@&01] 201@&61] 203@&14] 204@&13] 205@&11] 206@1@&23] 206@2@&33] 206@3@&02] 200@1@&26] 200@2@&04] 183@1@&02] 202@2@&11] 202@1@&58] & 13 xkVk @2&59 9. The copy of the original “Agreement to Sell” was placed on record as Exhibit-10. 10. The defendant contested the suit and filed written statement. The execution of agreement was seriously disputed. It is said to be a fictitious document. Mother of defendant had no son. The plaintiff used to reside in the house of defendant’s mother and used to take her care. She was not capable of moving for the last 4-5 years before death and died in 1979. She was an illiterate pardanashin lady and had a weak eyesight at the time of her death. She wanted to install a diesel pumping set for agricultural purposes in the agricultural holding but having financial difficulty, Sri Sajjad, son-in-law, assured her that he can arrange funds from Government in instalments and on such misrepresentation, got document dated 31.5.1978 executed. She (the defendant) clearly denied that at any point of time she was required to execute sale-deed as claimed by plaintiff. 11. Trial Court formulated the following four issues: ^^1- D;k rkjh[k 31-5-1978 dk eq0 tkfgnk chch eknj eqn~nkysgk us tk;nkn eqrknkfc;k :0 10]000@& esa cspus dk ekeyk r; fd;k Fkk vkSj ml fnu eokgnkukek o; rgjhj fd;k x;k Fkk vkSj ml flyflys esa :0 4000@& c;kuk Hkh fy;k Fkk\ 2- D;k eqn~nkbZ;k ges'kk eqvkfgnkukek ds eqrkfcd cSukek fy[kkus dh [okfg'kean vkSj rS;kj jgh gS vkSj vc Hkh eqvkfgnkukek ds eqrkfcd viuk ^^ikVZ ijQkeZ** djus dks rS;kj gS\ 3- D;k nkok nQk 38@41 dkuwu nknjlh [kkl ls vkfjt gS\ 4- eqn~nbZ;k fdl nknjlh dk gdnkj gS\** “1. Whether Zahida Bibi, mother of the defendant had on 31.5.1978 agree d to sell out the property in question for Rs. 10,000/- and on the same day its draft had been scribed and in relation thereto she had taken Rs. 4,000/- as advance payment ? 2. Whether Zahida Bibi, mother of the defendant had on 31.5.1978 agree d to sell out the property in question for Rs. 10,000/- and on the same day its draft had been scribed and in relation thereto she had taken Rs. 4,000/- as advance payment ? 2. Whether the lady plaintiff has always been keen and ready to get a sale-deed executed as per the agreement and is still ready to perform her part as per the agreement? 3. Whether the claim is barred under Section 38/41 of the Specific Relief Act? 4. To what relief the plaintiff is entitled?” (English Translation by the Court) 12. Trial Court answered Issue No. 1 in favour of plaintiff and held that an agreement for sell dated 31.5.1978 was executed by Smt. Jahida Bibi for a total sale consideration of Rs. 10,000/- whereagainst Rs. 4,000/- was already received by her and thereupon registered agreement was executed. Issue No. 2 was answered in favour of plaintiff holding that she was always ready and willing to execute sale-deed. So far as Issue No. 3 is concerned, whether suit was barred under Section 38/41 of Specific Relief Act, 1963 (hereinafter referred to as “Act, 1963”), defendant did not adduce any evidence or pressed it, hence it was decided against defendant and in favour of plaintiff. Then considering Issue No. 4, Trial Court held that in the agreement, there was mention of the land, i.e., Arazi No. 208/1 area 0.26 acres and 208/2 area 0.04 acres, which Smt. Jahida Bibi did not own and this fact was admitted between the parties. Plaintiff claimed that these two numbers were wrongly mentioned and instead ought to have been 200/1 area 0.26 acre 200/2 area 0.4 acres but this story of mistake could not be proved by plaintiff as to why such mistake occurred. It then held that question of rectification in the document was not permissible. It further held that since plaintiff is still ready to pay Rs. 6,000/- for execution of sale-deed for remaining land, therefore, relief to this extent can be granted. Consequently, Sri, M.Q. Siddiqui, 3rd Additional Civil Judge, Jaunpur vide judgment and decree dated 16.4.1987 decreed the suit in respect to relief (B) and (C) and dismissed in respect to relief (A). It further held that since plaintiff is still ready to pay Rs. 6,000/- for execution of sale-deed for remaining land, therefore, relief to this extent can be granted. Consequently, Sri, M.Q. Siddiqui, 3rd Additional Civil Judge, Jaunpur vide judgment and decree dated 16.4.1987 decreed the suit in respect to relief (B) and (C) and dismissed in respect to relief (A). It directed the defendant to execute sale-deed pursuant to registered agreement to sell dated 31.5.1978, within 45 days, in respect to land/property mentioned in the said agreement except plots No. 208/1 and 208/2, after receiving balance Rs. 6000/- and expenses of execution of sale-deed and its registration. 13. The plaintiff preferred Civil Appeal No. 198 of 1987 against judgment and decree dated 16.4.1987 insofar as it has dismissed the suit of plaintiff with respect to relief A. The defendant neither filed appeal nor any cross-objection under Order 41 Rule 22. 14. The LAC formulated following two points for determination for deciding the appeal: (1) Whether the impugned document which is an agreement to sell is liable to be rectified? (2) Whether the impugned agreement to sell dated 31.5.1978 is genuine one and is enforceable? 15. LAC after considering evidence came to the conclusion that plaintiff-appellant has succeeded to establish his case that Smt. Jahida Bibi executed a deed of agreement to sell on 31.5.1978. It consequently held, “Therefore, I hold that deed of agreement to sell was executed by Smt. Jahida Bibi.” It then proceeded to decide whether defendant-respondent is liable to execute sale-deed after taking Rs. 6,000/- from plaintiff on the basis of agreement to sell dated 31.5.1978 executed by her mother. On this aspect LAC held that during consolidation proceedings, the land has undergone substantial change. The agreement was executed on 31.5.1978. The Executant Smt. Jahida died on 12.10.1979. Notice for specific performance was given for the first time on 20.6.1981. No application for permission was ever moved before consolidation authorities. It shows that there was no effort for getting the sale-deed executed. In any case, after change of circumstances, due to consolidation operation, execution of sale-deed was not proper. Consequently, it held that plaintiff is entitled for refund of Rs. 4,000/- but not for execution of sale-deed and rectification. No application for permission was ever moved before consolidation authorities. It shows that there was no effort for getting the sale-deed executed. In any case, after change of circumstances, due to consolidation operation, execution of sale-deed was not proper. Consequently, it held that plaintiff is entitled for refund of Rs. 4,000/- but not for execution of sale-deed and rectification. Lower Appellate Court then dismissed the suit in respect to Prayer (A) and (B), both, and held that only relief, the plaintiff-appellant entitled, is, refund of earnest money/advance money, it had paid to defendant’s mother. Consequently, it passed following judgment and decree: “In view of discussion made above, appeal is partly allowed. Judgement and decree dated 16.4.87 passed by learned Civil Judge, relating order for executing sale-deed of the disputed plots by defendant-appellant Smt. Saiyada Khatoon is set aside. But the defendant-appellant is directed to pay Rs. 4000/- (Four thousand) which was paid to her mother Smt. Jahida Bibi as an earnest money alongwith interest at the rate of six percent per annum from 31.5.78 till today to plaintiff-respondent Smt. Lalita Devi. In the peculiar circumstances of the case parties will bear their own costs of the appeal. “ 16. It is contended by Sri A.N. Bhargava, learned counsel for appellant, that once both Courts below found that agreement to sell was executed by defendant’s mother, there was no justification to deny relief (A) and (B) by LAC on the assumed circumstance that consolidation operations have resulted in substantial alteration in property when no such issue was raised by defendant-respondent by filing either appeal against the judgment and decree of Trial Court or cross-objection. Even in the written statement, there was no such pleading that property mentioned in agreement to sell is not identifiable at all on account of consolidation proceedings, therefore, performance of agreement is not possible and agreement has frustrated. He next contended that LAC has completely erred in law in setting aside even that part of judgment of Trial Court whereby relief of execution of sale-deed was granted, since defendant-respondent had not preferred any appeal or cross-objection and, therefore, judgment of Trial Court in this regard attained finality. The LAC could not have granted such a relief to defendant-respondent. 17. The LAC could not have granted such a relief to defendant-respondent. 17. In order to examine the aforesaid submissions, two provisions, in my view, are relevant to be looked into, i.e, Order 41 Rule 22 and Order 41 Rule 33 C.P.C., as they stood at relevant time, which read as under: “22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.—(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Explanation: A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or In part, in favour of that respondent. (2) Form of objection and provisions applicable thereto—Such cross-objection shall be in the form of the memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served as soon as may be after the filing of the objection on such party on his pleader at the expense of the respondent. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit, (5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule.” “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 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 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: Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.” (emphasis added) 18. A perusal of Rule 22 makes it clear that the right of a party to challenge findings of Trial Court by contending that the same ought to have been decided in his/her favour is to support the decree and not to get the decree reversed. Filing of cross-objection is not necessary but wherever the same is filed, it would be in respect to the relief negatived to him/her. A cross-objection can be filed in respect to a finding on which the decree appealed against is based. 19. In the case in hand, defendant, against the decree of Trial Court, neither filed any appeal nor cross-objection. She could have challenged findings of Trial Court which were against her but in absence of any appeal or cross-objection, the decree passed against defendant, to which she has surrendered, ought not have been reversed by LAC by reversing findings of Trial Court suo moto. She could have challenged findings of Trial Court which were against her but in absence of any appeal or cross-objection, the decree passed against defendant, to which she has surrendered, ought not have been reversed by LAC by reversing findings of Trial Court suo moto. It is no doubt true that a registered agreement to sell, dated 31.5.1978, has been found by both the Courts below, bona fide and genuine, having been executed between the parties. It is also true that the said agreement to sell mentioned certain numbers of plots which were not owned by defendant-respondent and for rectification thereof, both the Court below have given a concurrent finding against the plaintiff that no such rectification is permissible. Thus relief ‘A’ stands denied to plaintiff. In respect to the remaining plots for which there was no dispute of any error, etc., Trial Court held that agreement is executable and enforceable but LAC took an otherwise view and reversed judgment and decree of Trial Court though there was neither any appeal filed by defendant-respondent nor any cross-objection. In fact defendant-respondent surrendered to the judgment and decree of Trial Court insofar as it had directed for enforcement of agreement to sell in respect to plots which were owned by defendant-respondent by succession, from her mother. The legal submission of appellant to this extent is quite sound and the LAC apparently has committed a manifest error therein. 20. A similar issue came for consideration before this Court in a Full Bench in Rangam Lal v. Jhandu, 1912 (34) ILR (All) 32. Therein a Zamindar brought a suit against tenant for rent. He claimed Rs. 294-7-0 towards rent. Defendant contested the suit claiming that he has already discharged the claim. Assistant Collector found that defendant was entitled to certain credits, but still there was a balance of Rs. 96-11-11 for which a decree was passed. Plaintiff appealed against the decree to the extent the part of his claim was dismissed. Defendant neither filed cross appeal nor objection under Order 41 Rule 22. The First Appellate Court, i.e., District Judge held that plaintiff’s claim was fully discharged by defendant and consequently exercising power under Order 41 Rule 33 dismissed appellant’s suit in toto. Plaintiff came in Second Appeal. Defendant neither filed cross appeal nor objection under Order 41 Rule 22. The First Appellate Court, i.e., District Judge held that plaintiff’s claim was fully discharged by defendant and consequently exercising power under Order 41 Rule 33 dismissed appellant’s suit in toto. Plaintiff came in Second Appeal. Order 41 Rule 33 as it was introduced in Code of Civil Procedure, 1908 at the relevant time read as under: “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 that 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 or parties although such respondents or parties may not have filed any appeal or objection.” 21. The Court held that though the words in Rule 33 are very wide but while exercising power under Rule 33, the Court cannot lose sight of other provisions of the Code as also that of Court Fees Act and law of limitation etc. The Court then referred to Order 41 Rule 22 which at that time read as under: “Any respondent, though he may not have appealed from any part of decree, may not only support the decree on any of the grounds decided against him before the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the appellate Court may see fit to allow.” 22. It held that Rule 22 makes it clear that the respondent cannot allow to take exception so much so of a decree as was against him without complying with the provisions of Rules. Having said so, in para 6, 7 and 8 of the judgment, the Court held: “6. It held that Rule 22 makes it clear that the respondent cannot allow to take exception so much so of a decree as was against him without complying with the provisions of Rules. Having said so, in para 6, 7 and 8 of the judgment, the Court held: “6. In a case in which there is no sufficient reason for a respondent neglecting either to appeal or to file objections, we think the Court should hesitate before all owing him to object at the hearing of the appeal filed by the appellant. The object of Rule 33 is manifestly to enable the Court to do complete justice between the parties to the appeal. “Where, for example, it is essential in order to grant relief to an appellant that some relief should at the same time be granted to the respondent also, the Court may grant relief to the respondent, although he has not filed an appeal or preferred an objection. Of such cases the ‘illustration to the rule is a type. To the supposed case the appellate Court could not do justice to the appellant without doing injustice to the respondent unless it was enabled to make a decree against “ Y.” 7. The rule itself is for the most part taken from Order LVIII, Rule 4, of the rules of the Supreme Court of Judicature in England. The case of the Attorney General v. Simpson [1901] LR 2 Ch D 671, is another illustration of the class of cases which calls for the exercise of the powers conferred by Rule 33. That was a case in which an action was brought on behalf of the public for a declaration that the public were entitled to use certain locks on the river Ouse without payment of tolls. A further declaration was claimed that the defendant was under an obligation to repair, and keep in repair the locks. The Court of first instance made a decree declaring that the public were entitled to use the locks without payment of tolls; but it, at the same time, contrary to the plaintiff’s claim, declared that the defendant was under no obligation to repair the locks. The Court of Appeal found that the public were not entitled to use the locks without payment of tolls to the defendant. The Court of Appeal found that the public were not entitled to use the locks without payment of tolls to the defendant. At the same time they were of opinion that the defendant was under an obligation to repair the locks. The plaintiff, however, not unnaturally, had taken no exception to that part of the declaration of the Court of first instance which absolved the defendant from the obligation to keep the looks in repair. The Court of Appeal felt that they were justified, while declaring that the public were liable to pay tolls, to declare that the defendant was liable to keep the locks in repair, notwithstanding that no appeal or objection had been taken to that part of the decree by the plaintiff. 8. In our opinion the dismissal by the learned District Judge of the plaintiff’s suit in its entirety was not a proper exercise by him of the powers conferred by Order XLI, Rule 33. If the defendant was aggrieved by the decree against him for Rs. 96, there was no reason why he should not have appealed or filed objections.” 23. Order 41 Rule 33 then came to be considered in Tummalla Atchaiah v. Venka Narasingarao, (1979) 1 SCC 166 . Therein the plaintiff instituted a suit for cancellation or setting aside of a registered assignment deed dated 31.10.1957 and for recovery of possession of scheduled properties and for mesne profits. Trial Court decreed the suit in part and granted a decree for cancellation of assignment-deed on plaintiff’s payment of Rs. 13,000/- to the defendant. Under the decree, defendant was required to deliver possession of suit property to plaintiff, subject to payment of Rs. 13,000/-. Defendant filed appeal and plaintiff filed cross-objection wherein only two grounds were taken, namely costs and mesne profits. Plaintiff in his cross-objection took no ground attacking the decree of Trial Court in respect to payment of Rs. 13,000/- and defendant’s liability to deliver possession of suit property on such payment. High Court hearing the First Appeal, varied decree of Trial Court, in purported exercise of power under Order 41 Rule 33 C.P.C., in respect to direction of payment of Rs. 13,000/-, though in plaintiff’s cross-objection no such ground was taken. High Court granted decree of mesne profit under Order 41 Rule 33 and dismissed the appeal of defendant. High Court hearing the First Appeal, varied decree of Trial Court, in purported exercise of power under Order 41 Rule 33 C.P.C., in respect to direction of payment of Rs. 13,000/-, though in plaintiff’s cross-objection no such ground was taken. High Court granted decree of mesne profit under Order 41 Rule 33 and dismissed the appeal of defendant. The Supreme Court held that recourse to Order 41 Rule 33 C.P.C. by interfering with the decree of Trial Court in relation to payment of Rs. 13,000/- was impermissible for the High Court while exercising its power of First Appeal. The Court said that plaintiff was a party in the appeal, filed cross-objection but did not attack decree of Trial Court making him liable to return Rs. 13,000/- before he could take back possession from defendant. It then held, “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 Order 41, Rule 33, C.P.C.” 24. A similar view was taken in Choudhary Sahu (Dead) by Lrs. v. State of Bihar, (1982) 1 SCC 232 . The appellant was a land holder in terms of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. A notice under Section 8(1) of the said Act was issued to appellant therein calling upon him to submit return with all the particulars of land held by him. The response was filed. After verification, Additional Collector came to the conclusion that appellant was entitled to five units and ordered for publication of draft statement under Section 10 of the said Act. Another notice was served upon appellant under Section 10 (2) of the Act. An objection was filed. Collector after considering objection, held, that appellant was entitled for 12 units instead of 5 units. Appellant still dissatisfied, went in appeal before Commissioner. State of Bihar, however, did not file any appeal against the order of Collector. It also failed to appear before Appellate Authority, i.e. Commissioner despite issuance of notice. Commissioner, however, allowed appeal and set aside order of Collector, remanded the matter for disposal again. Appellant still dissatisfied, went in appeal before Commissioner. State of Bihar, however, did not file any appeal against the order of Collector. It also failed to appear before Appellate Authority, i.e. Commissioner despite issuance of notice. Commissioner, however, allowed appeal and set aside order of Collector, remanded the matter for disposal again. It was pointed out that appellant had challenged the order of Collector on various grounds insofar as Assistant Collector’s order was against him but the order of Collector insofar as it was in favour of appellant was not challenged, still Commissioner set aside findings of Collector even in respect to 12 units which was decided in favour of appellant, though no appeal was filed by State of Bihar. The order of Commissioner, therefore, was challenged by appellant in High Court in a writ petition but the same was dismissed. Hence the matter went to Supreme Court. The only question considered was, in absence of any appeal or cross-objection by State of Bihar, whether, Commissioner was justified in reversing findings of Collector which were in favour of appellant. The Court considered Rules 22 and 33, Order 41, in the aforesaid case. With reference to Order 41 Rule 22, the Court said that first part of Rule authorizes respondent to support decree not only on the grounds decided in his favour but also on any of grounds decided against him in the Court below. First part, thus, authorizes the respondent only to support the decree. It does not authorizes him to challenge the decree. If the respondent wants to challenge the decree, he has to take recourse of second part, i.e., he has to file a cross-objection, if has not already filed an appeal against the decree. Where the respondent has neither filed any appeal nor cross-objection, the decree passed against respondent cannot be challenged but it can only support the decree by referring to Rule 22(1) of Order 41 C.P.C. 25. Then coming to Order 41 Rule 33, the Court in para 12, 13 and 14 of judgment said as under: “12. 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 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 re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from. 13. 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 the Limitation or the Law of Court Fees etc. 14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order 41, Rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.” (emphasis added) 26. In State of Punjab and others v. Bakshish Singh, (1998) 8 SCC 222 , it was held that Appellate Court cannot, in the garb of exercising power under Order 41 Rule 33, enlarge scope of appeal. 27. Almost a similar case, as is one up for consideration in this appeal, came up for consideration in Banarasi and others v. Ram Phal, (2003) 9 SCC 606 . 27. Almost a similar case, as is one up for consideration in this appeal, came up for consideration in Banarasi and others v. Ram Phal, (2003) 9 SCC 606 . A suit for specific performance of an agreement-to-sell was filed. The total sale consideration was Rs. 2,90,000/- out of which 2,40,000/- was acknowledged by vendor leaving balance of Rs. 50,000/- which was to be paid at the time of execution and registration of sale-deed. A cross suit was filed by vendor seeking cancellation of aforesaid agreement-to-sell. Trial Court upheld agreement-to-sell but instead of enforcing agreement by specific performance, it directed the vendor to return part consideration of Rs. 2,40,0000/-, he had received, alongwith interest. Specific performance was denied on the ground that land was being cultivated by vendor and in case execution of sale-deed is directed, vendor would suffer great hardship. Vendor filed two appeals against the judgment of Trial Court but vendee neither filed any appeal nor cross-objection. Lower Appellate Court though dismissed both the appeals of vendor but modified operative part of Trial Court’s judgment by directing that plaintiff-vendee’s suit for specific performance is also decreed and suit of vendor is dismissed in entirety. In the appeal preferred before High Court, modification of decree of Trial Court by First Appellate Court was upheld by High Court with reference to Order 41 Rule 33 C.P.C. In further appeal before Supreme Court, question up for consideration was power of Appellate Court to interfere with, reverse and modify decree, appealed against, in absence of any cross-appeal or cross-objection by respondent under Order 41 Rule 22 and scope of power of Appellate Court under Order 41 Rule 33. Order 41 Rule 22 was substituted by Act 104 of 1976 with effect from 1.2.1977. The Court considered various provisions of C.P.C. and held that an appeal is to be filed by a person aggrieved by decree. Unless one is prejudiced or adversely affected by a decree, he is not entitled to file an appeal. No appeal lies against a mere finding. The appeal lies against the decree and not against judgment. The Court considered various provisions of C.P.C. and held that an appeal is to be filed by a person aggrieved by decree. Unless one is prejudiced or adversely affected by a decree, he is not entitled to file an appeal. No appeal lies against a mere finding. The appeal lies against the decree and not against judgment. Considering the nature of cross-objection and right of a person to support decree even if no appeal has been filed, it was observed that any respondent, though may not have filed an appeal from any part of decree, may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against defendant on grounds (A) and (B), any one of two grounds being enough to entitle plaintiff to a decree, and the Court passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by defendant, inspite of finding on Ground (A) being reversed, plaintiff as a respondent can still seek to support the decree by challenging finding on ground (B) and persuade Appellate Court to form an opinion that inspite of finding on ground (A) being reversed to the benefit of defendant-appellant, the decree could still be sustained by reversing finding on Ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross-objection. A right to file cross-objection is the exercise of right to appeal though in a different form. Right given to a respondent in a appeal to file cross-objection is a right given to same extent as is right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking a cross-objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Just as an appeal is preferred by a person aggrieved by the decree, so also a cross-objection is preferred by one who can be said to be aggrieved by decree. A party who has fully succeeded in the suit, needs neither to prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal or cross-objection both are filed against decree and not against judgment. A party who has fully succeeded in the suit, needs neither to prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal or cross-objection both are filed against decree and not against judgment. It was not to be filed against any finding recorded in a judgment and this was well-settled exposition of law under un-amended Order 41 Rule 22 C.P.C. The amendment in 1976 also has not materially or substantially altered the position. There is only some marginal difference. Under the amended provision, Sub-rule (1) has permitted respondent to file cross-objection against a finding. Respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour. If he proposes to attack any part of decree, he must take cross-objection. Explaining the scope and effect of amendment made in 1976, the Court said: “The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations : (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent; (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent; (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to & finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.” 28. The Court then proceeded to hold, if to some extent a decree is against respondent and he wishes to get rid of it, he should have either filed an appeal of his own or have taken cross-objection failing which the decree to that extent cannot be insisted on by respondent for being interfered, set aside or modified to his advantage. 29. In the context of suit for specific performance it was categorically held in Banarasi and others v. Ram Phal (supra) that a plaintiff has a right to file appeal against original decree if relief of specific performance is refused and any other relief is granted. The plaintiff would be a person aggrieved by decree inspite of one of the alternative having been allowed to him since larger relief having been denied, smaller relief has been preferred by Court granting decree. A defendant against whom decree of specific performance has been granted, can file appeal to challenge the decree in its entirety or to claim that instead of larger relief of specific performance smaller relief ought to have been granted to plaintiff. A defendant against whom decree of specific performance has been granted, can file appeal to challenge the decree in its entirety or to claim that instead of larger relief of specific performance smaller relief ought to have been granted to plaintiff. In an appeal filed by defendant, laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, plaintiff as a respondent cannot seek relief of specific performance of a contract or modification of the impugned decree except of filing an appeal of his own or by taking cross-objection. Then considering the scope of Order 41 Rule 33, the Court said as under: “... Wider the power, higher the need for caution and care in discretion while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate Court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate Court exercising power under Rule 33 of Order 41.” 30. The Court also referred to a 3-Judge decision in Nirmala Bala Ghose and another v. Balai Chand Ghose and another, 1965 (3) SCR 550 , wherein it was held that 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. 31. In S. Nazeer Ahmed v. State Bank of Mysore and others, (2007) 11 SCC 75 , the appellant S. Nazeer Ahmed borrowed from Bank a sum of Rs. 1,10,000/-. Bank filed suit for recovery of money due. Suit was decreed. Bank proceeded against hypothecated Bus in execution of decree. However, Bus could not be traced and hence decree could not be executed. Bank then tried to proceed against mortgaged properties. The borrower resisted execution on the ground that there was no decree on the mortgage hence Bank cannot proceed to sell the properties. The objection of borrower was upheld. Bank then filed another suit for enforcement of equitable mortgage. Borrower resisted suit of Bank pleading that it is barred by Order 2 Rule 2. He also contended that transaction of loan stood satisfied by a tripartite settlement and transfer of vehicle to one Fernandes, that there was no valid equitable mortgage created and no amount can be recovered from him and the suit is barred by limitation. Trial Court held that the suit was not hit by Order 2 Rule 2. It also held that borrower could not prove that loan transaction has come to an end due to satisfaction. However, it dismissed the suit on the ground of limitation. It also held that there was no valid equitable mortgage since it was not registered. Bank filed appeal. Appellate Court held that no registration of equitable mortgage was required in the memorandum. It also held that suit was within limitation. It also held that suit was hit by Order 2 Rule 2 but since the appellant has not challenged finding of Trial Court on the issue of Order 2 Rule 2, hence invoking Order 41 Rule 33, it granted decree to the Bank against appellant but refused decree against guarantor. Court also held that in the case in hand, Order 41 Rule 33 has no application at all. Court also held that in the case in hand, Order 41 Rule 33 has no application at all. It said: “Order XLI Rule 33 enables the appellate Court to pass any decree that ought to have been passed by the trial Court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed. There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI Rule 33 of the Code.” 32. In the present case, in respect to the decree of Trial Court with regard to relief (B) and (C), neither any appeal was filed by plaintiff since he has no occasion to do so nor any appeal or cross-objection was filed by defendant-respondent. Appeal of plaintiff was only in respect to relief (A), i.e., rectification in the agreement to sell which by itself has nothing to do with relief (B) and (C). In the garb of considering question of validity of agreement to sell dated 31.5.1978 insofar as it was relevant in the context of considering Relief-(A), LAC was not entitled to look into the aforesaid aspect and to that extent, defendant even if had filed any appeal or cross-objection could have defended finding in her favour but in the garb of considering question of relief (A), I have no manner of doubt that it was not open to LAC to clothe itself with the power of considering whether relief (B) and (C) in entirety or partly should have been granted or a smaller relief thereof should have been granted since that was not the subject-matter of appeal of either side. 33. 33. Therefore on the principle of exposition of law as argued by Sri A.N. Bhargava, I find substance that LAC erred in law in modifying decree of Trial Court in respect to relief (B) and (C) when defendant-respondent has not filed either cross appeal or cross-objection. The judgment of LAC, therefore, to this extent cannot sustain. 34. However, so far as rectification of agreement to sell is concerned, there is a concurrent finding recorded by both the Courts below on this aspect and this Court has not been shown any legal or otherwise error therein or that any admissible evidence has been ignored or there is any misreading of evidence etc. Hence I do not find any justification to interfere with the concurrent findings of both the Courts below for denying relief (A) to the plaintiff-appellant. 35. Now there is another aspect of matter regarding interference with decree of Trial Court on the ground of identifiability though no such objection or pleading was taken by defendant-respondent. It is now well-settled that Court cannot make out a case outside the plea of parties and it is the case pleaded by both of them which has to be seen. I am fortified in taking the aforesaid view by the decision in Messrs. Trojan and Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235 , Raruha Singh v. Achal Singh, AIR 1961 SC 1097 and Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others, (1977) 3 SCC 532 . In the later case, i.e. Siddu Venkappa Devadiga (supra), which is a judgment of three Hon’ble Judges, the Court said: “..the decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be found. The High Court therefore went wrong in ignoring this basic principle of law, and in making out an entirely new case which was not pleaded and was not the subject-matter of the trial.” 36. The substantial question of law, therefore, are answered in favour of plaintiff-appellant. The appeal is partly allowed. The judgement of Lower Appellate Court dated 8.2.1989 to the extent it has dismissed the suit of plaintiff-appellant in respect to Relief (B) and (C) is hereby set aside and judgment of Trial Court dated 16.4.1987 is hereby restored and confirmed. 37. There shall be no order as to costs. ———————