Ali Ahmad vs Amarnath

Harnam Singh, J.—This order disposes of Regula(SIC) Second Appeal No. 2424 of 1946 and the connected cross objections.

On the 11th of March, 1944 Amar Nath Plaintiff instituted Civil Suit No. 167, of 1944 for Perpetual injunction directing the Defendant to closed the ''parnala'' shown in red colour at letter ''A'' or the plan attached to the plaint.

Ali Ahmed Defendant resisted the suit which was dismissed by the trial Court on the 31st on May, 1945 leaving the parties to bear their own costs.

From the decree passed by the trial Court on the 31st of May, 1945 Amar Nath Plaintiff appealed in the Court of the Senior Subordinate Judge at Jullundur. The appeal failed and was dismissed. In appeal the parties were left to bear their own costs.

In deciding issue No. 1 the appellate Court said :

I hold that the place marked S.N.O.T. in that plan marked Exhibit A.1, is the property of (SIC) Plaintiff, while the place marked M.S.T.L. in (SIC) is a part of the ''kucha'' and I decide according.

In second appeal Ali Mohammad Defendant-Appellant urges that the lower appellate Court was in error in holding that the place marked S.N.O.T. in the plan Exhibit A.1 was the property of that Plaintiff.

As stated above, the Plaintiff''s suit was dismissed by the trial Court and Plaintiff''s appeal from (SIC) of the trial Court was dismissed by the (SIC) Subordinate Judge.

In order to give a party a right of appeal two (SIC) must be satisfied : (1) the subject-matter (SIC) must be a decree, and (2) the party appeal must have been adversely affected by the under appeal.

Clearly, where a decree is ''absolutely in (SIC) of a party but some issues are found against he has no right of appeal against the findings (SIC) he is, ''firstly'', not ''adversely affected'' there (SIC) secondly because, such findings are not (SIC) in and do not form part of the decree. Section 100 of the CPC (SIC) for an appeal from a decree passed in (SIC) conditions stated therein. That being so, (SIC) who has obtained a decree in his favour (SIC) prefer an appeal on the ground that he is (SIC) with a finding in the judgment.

Then it may be said that a decision, ''as a (SIC) Rule, cannot be said to adversely affect a (SIC) unless it will operate as ''res judicata'', in a (SIC) suit between the parties. In order to it whether a decision will operate as ''res (SIC) the substance of the decree must be con (SIC).

In the present case, the decree passed by (SIC) appellate Court affirms the decree of the Court dismissing the suit. Clearly, finding of (SIC) appellate Court on issue No. 1 cannot (SIC) as ''res judicata'' against Ali Mohammad (SIC) in a subsequent suit because the finding (SIC) taken to have been superseded by the (SIC) thus not having been heard and finally (SIC) or the reasons given above I find that Ali Defendant-Appellant has no appealable gri- (SIC) R.S.A. No. 2424 of 1946.

Amar Nath Plaintiff has cross-objected. In (SIC) objections he maintains that the suit for (SIC) could not be dismissed.

(SIC) Anand Mohan Suri urges that the cross-(SIC) are barred by time and that Mr. Ram Malhotra had no authority to file the cross (SIC) (SIC)aling with the question of limitation I (SIC) Amar Nath Plaintiff was served in appeal of February, 1947 and the cross-objections (SIC) on the 13th of March, 1947. Clearly, the Sections are barred by time. On the 6th (SIC) 1947 Mr. Malhotra received telegraphic (SIC) to file cross-objections. The cross-ob (SIC), however, filed by him on the 13th (SIC) 1947. That being so, there is no justifica-(SIC) (SIC)itending the period for filing the cross-(SIC).

Anand Mohan Suri then contends that Ram Nath Malhotra had no authority to file objections. No power of attorney autho Ram Nath Malhotra to file cross-objections the record of these proceedings. Indeed, (SIC) filed the cross-objections on tele-(SIC)ructions received by him from Dilbagh (SIC) is nothing on the record to show the (SIC) Dilbagh Rai. Indeed, Counsel for Amar (SIC) ojector has no information as to the the said Dilbagh Rai. On these facts (SIC) Mathotra had no authority to file (SIC) (SIC) result R.S.A. No. 2424 of 1946 and the (SIC) objectlons fail and are dismissed.

(SIC)lering the circumstances of the case I parties to bear their own costs in pro-(SIC) his court.