SARADHCHANDRA SUGHADLAL PATEL Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
SHARAD CHANDRA SUGHADLAL PATEL
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(1.) . The plaintiff filed the suit for specific performance of an agreement of sale dated 1st July 1967 and in the alternative prayed for money decree against the defendants. The learned trial Judge dismissed the plaintiffs claim for specific performance of the agreement of sale but passed in favour of the plaintiff decree for a sum of Rs. 8 550 It was passed only against defendants Nos. 1 and 2 and not against defendants Nos. 3 4 and 5. Plaintiff has challenged that decree in First Appeal No. 438 of 1977 which is filed in this Court. tie wanes this Court to pass in his favour decree for specific performance of the agreement of sale. In this appeal defendants Nos. 1 and 2 against whom decree for a sum of Rs. 8 550 has been passed have filed cross-objections against it. So far as defendants Nos. 3 4 and 5 are concerned the suit in its entirety stands dismissed as against them. However the learned trial Judge in his judgment has observed that in case decree for specific performance is passed though the agreement of sale is not binding on defendants Nos. 3 4 and 5 they should join in executing the conveyance. Defendants Nos. 3 4 and 5 after having keen served with the notice of the appeal have filed in this Court a statement in which they have challenged the direction given by the learned trial .Judge that in case decree for specific performance is passed they shall join in executing the conveyance. Question arose whether court-fee was required to be paid on such a statement. Whereas it was contended on behalf of defendants Nos. 3 4 and 5 that no court-fee was payable on such a statement it was contended on behalf of the State that it was payable under the Bombay Court-fees Act. The dispute between the parties was referred to the Taxing Officer under sec. 4 of the Bombay Court-fees Act 1959 He held that court-fee was payable on the statement filed by defendants Nos. 3 4 and 5. It is that order which is challenged by defendants Nos. 3 4 and 5 in this Civil Revision Application which they have filed under sec. 4 of the Bombay Court Fees Act 1969.
(2.) . In order to decide the controversy between the parties it is necessary to note that the suit having been dismissed in its entirety as against defendants Nos. 3 4 and 5 the decree passed by the learned trial Judge is in its entirety in their favour. Therefore there is nothing in that decree which defendants Nos. 3 4 and 5 are required to challenge in this First Appeal. The question of their filing cross-objections therefore does not arise.
(3.) . In Civil Revision Application No. 1209 of 1978 decided by me on 17th October 1978 (JAMALUDIN G. PAINTER V. MUNI. CORPO. ABAD. XX G.L.R. 567) I have pointed out the distinction between cross-objections and a statement which respondents may file against a finding. Whereas cross-objections are directed against a part of the decree which is against the respondents a statement under Order 41 Rule 22 of the Code of Civil Procedure can be filed by a wholly successful respondent challenging a particular finding recorded against him. In the instant case since there is nothing against defendants Nos. 3 4 and 5 in the decree which the learned trial Judge has passed in the suit defendants Nos. 3 4 and 5 are not required to file any cross-objections. All that they have done is to file a statement which is permitted to be filed by a respondent against a mere finding recorded against him. Order 41 Rule 22 itself makes a distinction between a statement against a finding and cross-objections. If both were interchangeable expressions and did not have any distinction between them the Parliament would not have used different expressions. As pointed out above there is a substantial and real distinction between the two.;
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