Extraordinary Appellate Power and Its Limitations

Order 41, Rule 33 grants appellate
courts comprehensive authority: “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”.

Scope of
Authority

The provision specifically empowers
appellate courts to:

·      
Pass any decree that should have been passed by the
trial court

·      
Make any order that ought to have been made

·      
Exercise power notwithstanding that the appeal relates to only part
of the decree

·      
Act in favor of respondents who have not filed appeals or
objections

·      
Deal with cross-suits or multiple
decrees even without specific appeals
against them.

Supreme Court’s Restrictive
Interpretation

Extraordinary
Power Doctrine

The Supreme Court in Eastern Coalfields Limited & Ors. v.
Rabindra Kumar Bharti 2022 INSC 404  established the foundational principle that “Order 41 Rule 33 no doubt clothes the
appellate court with an extraordinary power, which however is a rare
jurisdiction”.

The Court emphasized that this power:

·      
“Is to reach justice in the
special facts of a case”

·      
“Is not an ordinary rule to be
applied across the board in all appeals”

·      
Must be
exercised “only in exceptional
cases”

Application to Banarsi v. Ram Phal
Framework

Restriction
Without Cross-Appeals

The Banarsi judgment specifically
addressed the misuse of Order 41, Rule 33 powers. The Supreme Court found that
the High Court had “exceeded its
jurisdictional bounds by modifying the decree without the respondent’s
involvement through proper legal channels”.

Separable
Decree Analysis

In the context of separable decrees
discussed earlier, Order 41, Rule 33 cannot be used to:

·      
Modify separable decree components without proper cross-appellate
participation

·      
Grant relief to passive respondents who have not challenged adverse decree
parts

·      
Unilaterally enhance relief for parties who have not actively
participated in appellate proceedings

Three Fundamental Limitations

Judicial
Constraints on Power Exercise

Courts have identified three specific limitations on Order 41,
Rule 33 powers:

1. No
Prejudice to Non-Parties

The power “cannot be exercised to
the prejudice or disadvantage of a person not a party before the court”.
Any order passed under Rule 33 cannot adversely affect parties without proper
notice and opportunity to be heard.

2. No
Revival of Abandoned Claims

“A claim given up or lost cannot be
revived” through Order 41, Rule 33. If a party has voluntarily
abandoned a claim or defense in the trial court, appellate courts cannot
resurrect it.

3. Active
Participation Requirement

“Such part of the decree which
essentially ought to have been appealed against or objected to by a party”
cannot be modified if that party has chosen not to challenge it through proper
appellate channels.

Contemporary Judicial Approach

Restrictive
Application Standard

Recent Supreme Court decisions
consistently emphasize that Order 41,
Rule 33 should be “applied with care and caution”. The courts have repeatedly held that this provision should not
be used as a substitute for proper appellate participation through
cross-appeals or cross-objections.

Exceptional
Circumstances Test

The power is only justified when:

·      
Special facts demand intervention to prevent manifest injustice

·      
Interconnected decree components require unified treatment

·      
Procedural fairness considerations outweigh technical compliance
requirements

·      
Complete justice cannot be achieved without appellate
intervention.

Relationship to Cross-Appeal
Requirements

Integration
with Banarsi Principles

The restrictive interpretation of Order
41, Rule 33 reinforces the Banarsi framework requiring:

·      
Active participation through cross-appeals for decree
modifications

·      
Procedural compliance before seeking favorable appellate
intervention

·      
Substantive engagement rather than passive reliance on
appellate discretion

Protection
of Procedural Rights

The current approach ensures that “a party in whose favour a decree has
been passed has a substantive and valuable right which should not be lightly
interfered with”, preventing unilateral appellate
modifications that could disadvantage decree holders.

Practical Application Guidelines

When
Order 41, Rule 33 May Be Invoked

Courts may exercise this power when:

·      
Manifest injustice would result from strict adherence to
procedural requirements

·      
Inseparable decree components require unified modification

·      
Technical defects prevent proper relief despite
substantive entitlement

·      
All relevant parties are before the court and have
opportunity for participation

When
Power Should Not Be Exercised

The provision cannot be used to:

·      
Bypass cross-appeal requirements in separable decree cases

·      
Grant enhanced relief to passive respondents

·      
Modify independent decree components without proper challenging

·      
Substitute for proper appellate
procedure in
routine cases

Conclusion

Order 41, Rule 33 of CPC, while
granting broad discretionary powers to appellate courts, operates within strict
limitations established by the Supreme Court’s interpretation in cases like Banarsi v. Ram Phal and Eastern Coalfields Limited. The
provision represents an “extraordinary
power” and “rare
jurisdiction” that must be exercised “only in exceptional cases” to “reach justice in special facts”.

The law firmly establishes that this
power cannot circumvent the fundamental requirement for active appellate
participation through cross-appeals or cross-objections, particularly in cases
involving separable decree components. The current legal position prioritizes
procedural fairness, protects substantive rights, and ensures that appellate
intervention remains an exceptional remedy rather than a routine judicial tool.