Deoki Nandan, J. - (1.) THIS is a plaintiff's second appeal. The suit was for cancellation of a sale -deed executed by defendant No. 3 in favour of defendant Nos. 1 and 12 in respect of a shop in a house and agricultural land. It is not necessary to state the facts in any detail as the matter may be disposed of very shortly.
(2.) THE trial Court decreed the suit for cancellation of the sale -deed in respect of two plots of land Nos. 317 and 318 of village Bahwaliar and dismissed the rest of the claim. The plaintiff appealed from that decree but neither of the defendants preferred any appeal from the decree cancelling the sale -deed in respect of the plots No. 317 and 318 of village Bahwaliar. The lower appellate Court dismissed the plaintiff's appeal but at the same time set aside the decree cancelling the sale -deed in respect of plot Nos. 317 and 318 of village Bahwaliar and dismissed the suit in toto. The first point raised in this second appeal by Sri H.P. Dubey is that the decree of the lower appellate Court setting aside the trial Court's decree in respect of plot Nos. 317 and 318 of village Bahwaliar is wholly without jurisdiction. Learned counsel is, I think plainly right, for order 41, Rule 33 Code of Civil Procedure postulates the existence of an appeal from a decree with reference to which the appellate Court's power of interference are defined. If the whole of the decree of Court is appealed from, the appellate Court may interfere as it thinks just and proper in favour of the appellant or in favour of the respondent also, or may alter a decree by passing it against the respondent other than the one against whom it was passed by the trial Court or it may modify the decree in other respects. But when the rule speaks of the exercise of the power of the Court of appeal in a case where the appeal is "as to a part only of the decree", the power of the Court of appeal conferred or postulated by Rule 33 of Order 41 C.P.C. is limited to that part of the decree only which has been no appeal by any of the parties. In this connection reference may also be made to Mohan Singh v. Chandrika Bari and others, 1979 ALJ 1181ppealed from. It does not confer any power on an appellate Court to interfere with a decree or a part of the decree from which there has .
(3.) IT was then urged by Mr. Dubey that the decree refusing to cancel the sale deed in respect of the house was also bad. But I do not think there is any substance in that point. In the result, the appeal succeeds and is allowed. The decree of the lower appellate Court is set aside and the decree of the trial Court is restored. As no one has appeared for the respondents in this Court, there will be no order as to costs.;