Hardhan Mahto vs Gokhul Mahto

Jwala Prasad, J.—The question is, whether the cross-objection filed by the plaintiffs on the 28th February, 1923, is out of time.

The plaintiffs brought a suit for partition (Title Suit No. 1606 of 1920). The suit was decreed in part. The defendants and the plaintiffs both preferred separate appeals from the decree passed by the first court. The defendants'' appeal was numbered as Title Appeal No. 77 of 1922 and the plaintiff''s as Title Appeal No. 83 of 1922. The defendants'' appeal was dismissed with costs, except "in regard to the 145th share of Bihari". The plaintiff''s appeal was dismissed in toto. The defendants preferred Second Appeal No. 1419 of 1922 from the decree made by the court below in their Appeal No. 77 of 1922. Notice of the appeal was served upon the plaintiffs-respondents on 29th January, 1923. The plaintiffs-respondents filed their cross-objection on 28th February, 1923. Under Rule 22 of Order 41 of the CPC the cross-objection of the plaintiffs is within time.

It is, however, said that the cross-objection is actually a Memorandum of Appeal in so far as it attacks the whole decree, and not only the portion of the decree passed by the court below in the defendants'' Appeal No. 77 of 1922, against which the defendants-appellants have filed a second appeal in this Court. The distinction sought to be made is a nice one, but the decree of the court below in Title Appeal No. 77 of 1922, against which the appeal has been filed by the defendants in this Court, has really incorporated the decree of the original court in the partition suit except "the 4/5th share of Bihari". The decree of the original court was one decree passed in one suit for partition. It was a decree partly in favour and partly against both the parties. Therefore, both the parties had a right to prefer separate appeals against the same decree in so far as the decree was against them, but they had also a right to file a cross-objection against the decree in case the other party had filed an appeal. In order words when a suit is decreed in part, each party is entitled to file a cross-objection when an appeal is filed by the other party. Therefore, the plaintiffs-respondents in the present case could file the cross-objection in the appeal filed by the defendants in the court below, If they had done so, and the decree against which they have now appealed was passed by the lower appellate court, then, certainly, they had a right to file a cross-objection in the appeal filed by the defendants opposite party. Therefore, the fact that they had also filed an appeal in the court below does not deprive them of their right of filing a cross-objection in the present appeal. Rule 22 of Order 41 enables a party to file a cross-objection in the nature of Ian appeal beyond the time fixed for filing an appeal provided the opposite party has filed an appeal. The object of this Rule is that, when a partial decree is made, a party may choose to abide by the decree if he is not in any way disturbed by an appeal filed by the opposite party and when the opposite party chooses to disturb the decree by filing an appeal the Section gives him an opportunity of seeking'' relief against the decree in the same way as he could have got if he had originally appealed against the decree. Therefore, I see no difference made in the present case in the position of the plaintiffs by the fact that an appeal I was also preferred by them against the original decree made partly in their favour in the lowers appellate court. The right to file the cross-objection to the decree, in such circumstances, seems to me to be unconditional. The law does not impose any condition or restriction upon the right to file-any cross-objection to the decree when the other side files an appeal against the same decree, and I do not think we are permitted to impose any restriction upon the right conferred by the Statute. In this view it would appear that the cross-objection cannot be treated as an appeal and thus held to be out of time, We have not been referred to any authority applicable to the present case. The case of Ramji Das v. Ajudhya Prasad (1903) 25 All. 623 far from supporting the contention that the cross-objection is out of time, seems by implication to support the view that has been taken by us, though the case is not on all fours with the present one.

The learned Vakil on behalf to the appellants contends that the objections to the decree taken in the memo, of cross-objection by the respondents are not such as the respondents could have taken by way of an appeal from the decree in question. This is a matter to be considered at the time of hearing the cross-objection. At this stage we have no power to reject any cross-objection or to direct an amendment thereof. All that we have to see is whether the cross- objection to the decree is within the time fixed by Rule 22 of Order 41. The cross-objection being within the time, the hearing of it must proceed in the ordinary way.

Ross, J.

I agree.