Power of Court of Appeal
Appeals From Original Decrees, in the First Schedule to The Code of Civil Procedure, 1908
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 1[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] :
2[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.[
Illustration
A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.
1. Ins. by Act 104 of 1976, s. 87 (w.e.f. 1-2-1977).
2. Ins. by Act 9 of 1922, s. 4, which under s. 1(2) thereof, may be brought into force in any State by the State Government on any specified date. The Act has been brought into force in Bombay, Bengal, U.P., Punjab, Bihar, C.P. Assam, Orissa and Tamil Nadu.
How this Rule is cited
It is written both ways, and both mean this Rule: Order XLI Rule 33 CPC and Order 41 Rule 33 CPC. Pleadings usually take the arabic form, judgments usually the numeral.
Orders of the courts under it: Order 41 Rule 33 CPC, Order XLI Rule 33 CPC. Each opens the full-text search over every order eCourtsIndia holds.
This Order may be one Rule short. India Code publishes the Rules of the First Schedule without recording which Order each one belongs to. We recover that from the Government's own consolidated text of the Code, and for this Order one Rule did not settle beyond doubt. Rather than print it under an Order it might not belong to, it is left out and this note put in its place. Everything shown here is where the Code puts it.
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. This page is not a substitute for legal advice.