DEO NARAIN SAHU Vs. GANESH RAM

JUDGEMENT

(1.) This is an appeal in an action on a bahi-khata account in which the plaintiffs claimed Rs. 14,682-14-0 being principal and interest. The plaintiffs succeeded in the Court below against Mohon Lal, Moti Lal, Ramautar Sahu, Deo Narain Sahu and Ugrah Narain Sahu, who were held to be members of a joint Hindu family business. It would appear that the last three persons, I mention, who are defendants 3 to 5 and are appellants before this Court, were joined at the instance of the first two defendants, namely, Mohan Lal and Moti Lal, and as regards those defendants, that is to say defendants 3 to 5 who are the appellants, and the plaintiffs, the appeal is disposed of on the terms of a compromise now presented. As regards defendants 1 and 2, who are respondents with the plaintiffs, the appeal of defendants 3 to 5 is withdrawn. The terms of the compromise are that the decree of the trial Court against defendants 3 to 5 is set aside and the decree is modified accordingly and that the appellants will bear their own costs throughout. It is asserted in the petition of appeal that the compromise is for the benefit of the minor appellant, namely, defendant 3, which it clearly is, as he has been dismissed from the action. We have to deal however with the other defendants 1 and 2, and their position is this: they filed an appeal against the decree of the Court below which was out of time, and on 21 September 1933 the application by them to this Court, to have the time extended under Section 5, Lim. Act, was dismissed. The learned Judges who dealt with that application made this observation: No case has been made out by respondents 3 and 4 under Section 5, Lim. Act, for condoning delay in filing the memorandum of appeal which however will be treated as a memorandum of cross-objection; and then the learned Judges went on to deal with the question of costs. The effect of that order clearly was to dismiss the appeal of defendants 1 and 2, and as indicated by the order they have filed a cross-objection. It is contended by Mr. Mahabir Prasad on behalf of the respondent-plaintiff that the cross-objection does not lie. Mr. Varma who appears on behalf of defendants 1 and 2, the cross-objectors, relies upon Order 41, Rule 22, Civil P.C., which is to the effect: Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader.

(2.) Now it is quite clear that whatever defendants 1 and 2 may call their cross- objection, it was nothing more than an appeal. Their objection is not to the relief which the appellants, namely, defendants 3 to 5, are claiming in the appeal, but their objection is to the decree which has been pronounced in favour of the plaintiff-respondents. I am quite clearly of the opinion that the cross-objection so called under those circumstances is not contemplated by Order 41, Rule 22. This matter has been dealt with by this Court in Mt. Chanda Bibi V/s. Mohanram Sahu 1934 Pat 134. Dhavle, J. in circumstances not dissimilar to those in the present case, made this observation in discussing the effect of Order 41, Rule 22, and Order 41, Rule 33: I would, therefore, hold that the plaintiffs-respondents are not entitled, as a matter of right, to urge their so called cross-objection against those respondents who were defendants 2 to 6 in the suit. But objections of this kind, not coming under Order 41, Rule 22, have been entertained under Order 41, Rule 33, in oases of an exceptional kind.

(3.) I do not know whether it is necessary in the case to decide the effect of Order 41, Rule 33, but if it were I am clearly of the opinion that Order 41, Rule 33, does not allow an objection of this kind to be made but merely places the Court in a position of doing justice between the parties, that is to say, if the effect of the decision at which the Court arrives is to affect the rights of a person who is not a party to the appeal, yet relief may be granted to that person so long as that person was a party to the action in the first instance. I am clearly of the opinion, I repeat myself, that Order 41, Rule 33, does not justify a cross-objection of this description. I think it is best expressed in a decision of the Allahabad High Court in Hugain Yar Begam V/s. Radha Kishan 1935 All 134, "a cross-objection," so it is said, cannot be permitted by respondent against another where the effect of the cross-objection, if successful, cannot be adverse to the appellant to any extent.