Poonam Srivastava, J. - (1.) Heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Anoop Trivedi, Counsel for the appellants and Sri P.P. Srivastava, Senior Advocate, assisted by Smt. Tulika Prakash, Sri Diwakar Rai Sharma and Sri Pradeep Chandra Advocates for the respondents.
(2.) This is connected second appeal and arises out of judgment and decree dated 16.11.2005 passed by the Additional District Judge, Aligarh in Civil Appeal No. 80 of 2004. This appeal is at the instance of the defendants IInd set in the suit. The suit was instituted by the plaintiff-respondents against the defendants 1st set and relief claimed in the suit was permanent prohibitory injunction in favour of the plaintiffs and defendants IInd set. The suit was decreed only against the plaintiffs vide judgment and decree dated 7.4.2004. The trial Court did not decree the suit in favour of the defendants IInd set and no first appeal was preferred by them. The defendants 1 set filed Civil Appeal No. 80 of 2004 before the learned District Judge, Aligarh. The defendants IInd set were also arrayed as respondents Nos. 9 and 32. The appeal was allowed and the second appeal , No. 876 of 2005 was preferred by the plaintiffs whereas the defendants IInd set were arrayed as respondent Nos. 4 to 27. After the arguments were concluded in the second appeal No. 876 of 2005 this second appeal has been preferred at the instance of the defendants IInd set. Since the judgment and decree dated 16.11.2005 challenged in this appeal is one and the same, therefore, the decision given on merit in the second appeal No. 876 of 2005 will be applicable in the f instant second appeal as well.
(3.) A preliminary objection has been raised by the defendant-respondents 1st set regarding maintainability of this second appeal since no first appeal was preferred by the defendants IInd set. Sri Shashi Nandan has advanced argument on the provisions of Order 41, Rule 33 C.P.C. Rule 33 C.P.C. is quoted below:- "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.;