Haseen Khan & Another @APPELLANT@Hash Ameena Naaz

V.K. Bist, J

Heard learned counsel for the parties.

Admit the Appeal on the following substantial question of law:

“Whether the learned lower Appellate Court erred in law by deciding the Appeal without deciding the cross-objection filed by the appellants?â€​

Facts, in brief, are that, on 18.09.1991, the plaintiff/respondent entered into the agreement with the father of the appellant no. 1, namely, Mr.

Mushraf Ali Khan in respect of property in question for sale of property in question for a consideration of Rs.60,000/-. Rs.35,000/- was paid, as

advance, and remaining amount was to be paid at the time of registration. The plaintiff/ respondent appeared before the Sub-Registrar, Dehradun on

the date fixed for getting the sale deed executed i.e. on 28.02.1992; but, Mr. Mushraf Ali Khan did not turn up. Next day, plaintiff met Mr. Mushraf

Ali Khan. Mr. Mushraf Ali Khan assured the plaintiff/respondent that he will get the sale deed executed very soon; but, the sale deed was not

executed. In the meantime, Mr. Mushraf Ali Khan got expired on 04.03.1994. Thereafter, the plaintiff/ respondent requested the legal heirs of Late

Mr. Mushraf Ali Khan to execute the said sale deed; but they also did not execute the sale deed. Under the compelling circumstances, Original Suit

No.54 of 1995 was filed by the plaintiff/respondent in the Court of Ist Additional Civil Judge (Senior Division), Dehradun. On 13.08.2012, the learned

trial Court framed 5 issues and, ultimately, partly allowed the suit of the plaintiff/respondent by directing the defendants/appellants to pay Rs.35,000/-

to the plaintiff/respondent alongwith 12% annual interest from the date suit was instituted. Such amount was directed to be paid within 2 months from

the date of order. Aggrieved by the said judgment, the plaintiff/respondent, filed Civil Appeal No. 89 of 2012 in the Court of learned IInd Additional

District Judge, Dehradun. On 11.04.2018, the learned IInd Additional District Judge, Dehradun partly allowed the said Civil Appeal and the judgment

& decree passed by the learned trial Judge was modified by directing the defendants/appellants to execute the sale deed within a period of one month

from that day by accepting the balance amount. Feeling aggrieved by the order dated 11.04.2018, the defendants/ appellants have filed the present

Second Appeal.

I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record.

Though, it is written by the learned IInd Additional District Judge, Dehradun in his judgment that, against the judgment & decree passed by the

learned Ist Additional Civil Judge (Senior Division), Dehradun, no Appeal or Cross-Appeal was preferred by the defendants/ appellants; but, it is

admitted to both the parties that the cross-objection was filed and was on the record.

The only question, which is to be answered by this Court, is whether the learned lower Appellate Court erred in law by deciding the Appeal without

deciding the cross-objection filed by the appellants.

Order 41 Rule 22 of the Code of Civil Procedure provides that where Appeal has not been preferred against a judgment & decree by a party, such

a party will be at liberty to file cross-objection. Order 41 Rule 22 of the Code of Civil Procedure reads as under:

“22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. â€

(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the

finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree

which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on

him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

[Explanation- A respondent aggrieved by a finding of the Court in the judgement on which the decree appealed against is based may, under this rule,

file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any

other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]

(2) Form of objection and provisions applicable thereto. â€" Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1,

so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

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(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed

for default, the objection so filled may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.â€​

Against the judgment & decree, aggrieved parties have a right to prefer an Appeal. Order 41 Rule 22 of the Code of Civil Procedure provides for

filing of the cross-objections. Cross-objections have been equated with Cross-Appeal for all particular purposes. If two Appeals are filed against one

judgment & decree by different parties, then both the Appeals should be clubbed together and decided together. Similarly, if cross-objection is filed by

either of the parties in an Appeal, the Court is supposed to decide the Appeal as well as cross-objection simultaneously. Different Appeals filed

against the same judgment & decree are to be decided together; otherwise, if different Appeals are decided at different stages, then, in that event,

there might be all possibility of Court’s taking different view in different Appeals. Similar is the situation in the case where cross-objection is filed

in the pending Appeal.

In my view, the learned IInd Additional District Judge, Dehradun, while deciding the Appeal, should have decided the cross-objection

simultaneously, which has not been done. The learned IInd Additional District Judge, Dehradun has erred in law in not deciding the cross-objection.

Consequently, the question framed by this Court is answered in affirmative. The Second Appeal is allowed. Impugned judgment is set-aside. The

matter is remanded back to the lower Appellate Court for deciding the Appeal as well as cross-objection filed by the appellants afresh. The Appeal as

well as cross-objection filed by the appellants shall be decided within a period of two months from the date of production of a certified copy of this

judgment.

Till the matter is decided, parties are directed to maintain status quo in respect of property in question.