§ Order XLI Rule 33 (in substance)

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

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

where there have been decrees in cross-suits, or where two or more decrees are passed in one suit, in respect of all or any of those 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.

An appellate court decides the appeal before it, and no more

It may pass any decree or order WHICH OUGHT TO HAVE BEEN PASSED, and such further or other decree as the case may require

An appeal against part of a decree puts only that part in issue

The power may be exercised NOTWITHSTANDING that the appeal is as to part only of the decree

Relief goes to the party who asked for it

It may be exercised IN FAVOUR OF ALL OR ANY OF THE RESPONDENTS OR PARTIES, although they filed no appeal or objection

A decree not appealed from stands

Where there are decrees in CROSS-SUITS, or two or more decrees in one suit, the power extends to all or any of them although no appeal was filed

§ The proviso: the one express limit

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 an order.

Section 35A is the compensatory costs provision, which allows a court to award costs against a party who raises a false or vexatious claim or defence.

The reason for the exclusion. An award of compensatory costs is quasi-penal and turns on the trial court's assessment of the conduct before it. Where that court, having heard the objection, declined to make such an order, the appellate court is not to substitute its own view under the wide power in Rule 33.

§ The purpose, in three propositions

• To enable complete justice between the parties. An appellate court that has found the trial court wrong should not be compelled to leave part of a wrong decree standing merely because nobody appealed against that part.

• To deal with interwoven rights. The rule is most often needed where relief to the appellant necessarily affects a co-defendant or a co-plaintiff, so that a decree correct as between two parties becomes incorrect once the appeal is allowed.

• To avoid inconsistent decrees. Where there are cross-suits or two decrees in one suit, correcting one and leaving the other untouched can produce results that contradict each other, and the rule lets the court avoid that.

§ The restraints the courts apply

Sparingly, and not as a matter of course. The rule is an enabling provision for the ends of justice, not a general licence to redo the decree in every respect.

Not in favour of a party who has accepted the decree. Where a respondent has taken the benefit of the decree, or has allowed it to become final as against him deliberately, the court will not ordinarily use Rule 33 to improve his position.

Not to revive a claim that is barred. The power does not defeat limitation, and it is not used to give a party relief he could no longer have obtained by an appeal of his own.

Not without a hearing. A party whose position is to be altered must have an opportunity of being heard on the point, since an order under the rule may affect someone who is before the court only as a respondent.

And the question must arise on the appeal. The power is exercised in relation to matters connected with what the appeal has decided, not to reopen unconnected parts of the litigation.

Order XLI Rule 22

A respondent to SUPPORT the decree on grounds decided against him, and to file a CROSS-OBJECTION within one month of notice

The respondent acts for himself; under Rule 33 the court acts of its own motion in his favour, even though he filed nothing

Order XLI Rule 24

The appellate court to FINALLY DETERMINE THE SUIT where the evidence on record is sufficient

About deciding the suit itself rather than about the persons and parts the decree may cover

Order XLI Rule 25

To FRAME ISSUES AND REFER them for trial where the trial court omitted to frame or try an issue

A step in aid of deciding the appeal, not a power to widen the relief

Section 107(2)

The appellate court to have the same powers and perform as nearly as may be the same duties as a court of original jurisdiction

The general enabling provision; Rule 33 is the specific extension of the scope of relief