JUDGMENT :- Necessity of adjudication of dispute inter se between defendants in suit for specific performance & maintainability of appeal under Section 96 of the Code of Civil Procedure by one of the defendants challenging the findings recorded in favour of other defendant in such suit which has been dismissed against all of them and scope of entitlement of subsequent i.e. lis pendens transferee to join for hearing are the questions argued in this Second Appeal under section 100 thereof. 2. This Appeal is filed by original Defendants no.2 & 3 in Regular Civil Suit 318/1981 challenging the judgment of Lower Appellate Court declaring that sale deeds in their favour vide Exhibit 77 and 78 executed by Defendant no. 1 Namdeo are not legal whereby findings about the right, title, interest and possession delivered in their favour by Trial Court have been set aside. Namdeo, Respondent No.3 in this Appeal is the original owner of field survey number 120/1 admeasuring 1, Hector 92 R. or 4 acres, 28 gunthas at mouza Rahatgaon, pargane Nandgaon Peth, Tahsil and District Amraoti. Regular Civil Suit 318 of 1981 was filed against him by one Shrikant and Vijay together for specific performance of an agreement for sale dated 4/11/1980 (Exhibit 61). Suit was filed on 18/6/1981 and later on Plaintiffs discovered that Namdeo had already sold the property on 11/6/1981 to Bakerbeg & Teslimbeg i.e. Appellants herein and hence they joined Backebeg & Teslimbeg as party defendants in their Suit. Defence of Namdeo in suit was agreement dated 4/11/1980 was not for sale but it was nominal document and real transaction was money lending transaction. He pointed out that sale deeds Exhibits 77 and 78 are also not real sale deeds but only money lending transactions. Present Appellants who were added as Defendant No.2 and Defendant No.3 in that Suit contended that their agreement for sale was prior i.e. dated 28/9/1980 (Exhibit 76) and hence, they have rightly purchased the property. Trial Court on 8/8/1985 partly decreed the Suit filed by Shrikant and Vijay & directed Namdeo to refund earnest amount of Rs.I001/- with 10% interest to them. Shrikant and Vijay then filed Regular Civil Appeal 363 of 1985 while Namdeo filed Regular Civil Appeal 402 of 1985. Both the Appeals have been decided by common judgment on 17/1/ 1994 by Second Additional District Judge, Amraoti. Shrikant and Vijay then filed Regular Civil Appeal 363 of 1985 while Namdeo filed Regular Civil Appeal 402 of 1985. Both the Appeals have been decided by common judgment on 17/1/ 1994 by Second Additional District Judge, Amraoti. Appeal of Plaintiffs was dismissed while Appeal of Namdeo i.e. R.C.A. 402/85 was allowed and the judgment and decree of Trial Court to the extent of findings in respect of the right, title, interest and possession of present Appellants came to be set aside. Present Second Appeal has been admitted on 5/10/1995 on the question whether "In the Suit for specific performance against Respondent No.3 by Respondent number 1 and 2 could a finding be given regarding validity of a subsequent sale deed between the respondent No.3 and the present appellants?" Respondent number 1 and 2 are original Plaintiffs Shrikant and Vijay and they have not challenged the dismissal of their Regular Civil Appeal. Civil Application 673A/1995 was moved by Appellants seeking leave to raise/argue Additional question of law as per provisions of Section 100(5), C.P.C. The additional question as sought only clarifies the substantial question of law already framed and hence that application was allowed on 11/12/ 2007. 3. There are certain other Civil Applications already ordered to be heard at the stage of hearing of Second Appeal. Civil application 4512/2004 is moved jointly by present Respondent No.3 Namdeo & present Appellants for recording of compromise between them and for disposal of second appeal accordingly. Civil application 2035/2004 and 5939/2004 are filed by subsequent purchasers from Namdeo for permission to intervene and to substitute themselves in place of Namdeo. By order dated 11/12/2007, these applications are directed to be heard at the stage of final hearing. Civil Application 3721/2006 was moved by applicants in Civil application 2035/ 2004 contending fabrication of a false order dated 10/9/2004 showing as if passed on Civil application 451212004 by this Court. As per orders dated 1111212007 of this Court, Registrar (Judicial) on 19/12/2007 has submitted a report that there was in fact no such order dated 10/9/ 2004 and such order was brought into existence by using certified copy of the order dated 17/8/ 2004. By subsequent order Registrar was permitted to file appropriate report in this respect with the Commissioner of Police Amraoti & accordingly report has been lodged on 18/1/2008. 4. By subsequent order Registrar was permitted to file appropriate report in this respect with the Commissioner of Police Amraoti & accordingly report has been lodged on 18/1/2008. 4. The substantial questions of law formulated in this Second Appeal are :- 1) Whether in the Suit for specific performance against Respondent No.3 by Respondent number 1 and 2 could a finding be given regarding validity of a subsequent sale deed between the Respondent No.3 and the present appellants? 2) Whether the Suit for specific performance filed by the Respondent number 1 and 2 could be converted into Suit for title between the appellants on one hand and the Respondent No.3 on the other hand ? Here the word "subsequent" used in question no.(1) does not depict controversy clearly as agreement Ex.76 and both sale deeds Exhs.77 & 78 in favour of present Appellants are prior to institution of Suit by Plaintiffs. In fact agreement Exh.76 is prior to agreement sought to be enforced by Plaintiffs. 5. I have heard learned Advocate J. T. Gilda for Appellants. Advocate V. G. Palshikar for Respondent No.3. Advocate R. L. Khapre for Applicants in Civil Application 2035/2004 and Advocate N. S. Saboo for Applicants in Civil Application 5939/2004. 6. Advocate J. T. Gilda has pressed for passing orders on Civil Application 4512/2004 for recording of compromise by contending that the contesting parties in this Second Appeal have amicably settled the matter between themselves. He states that Applicants in other two Civil Applications i.e. 2035 and 5939/2004 who claimed to be purchasers have moved these applications only after learning about the compromise. He states that the applicant Smt. Gopibai claims to have purchased property on 23/2/1998 and then she alleges to have prepared layout and sold some plots in said layout to applicants Smt. Satnam Kaur & Srendra Singh. These purchasers from her have filed Civil Application 2035/2004 pointing out that Smt. Satnam Kaur has purchased 29 plots on 16/7/1999 & Srendra Singh has purchased 28 plots on very same day. It is pointed out that first purchaser Gopibai has approached this Court on 3/9/2004 while the later purchasers moved their Application on 18/ 3/2004. All these purchases are during pendency of second Appeal and this Court on 18/2/2000 passed orders on Civil Application 796/2000 restraining creation of third party interests in Suit property. It is pointed out that first purchaser Gopibai has approached this Court on 3/9/2004 while the later purchasers moved their Application on 18/ 3/2004. All these purchases are during pendency of second Appeal and this Court on 18/2/2000 passed orders on Civil Application 796/2000 restraining creation of third party interests in Suit property. He points out that thereafter efforts were made to get the restraining order vacated but were not successful. He contends that these purchasers had knowledge of litigation & are not bona fide, hence their purchases are not protected in law. They also can not be heard because of their conduct. He therefore requests for dismissal of both the Civil Applications and for recording the compromise and to dispose of the appeal accordingly. He also points out that Smt. Satnam Kaur & Srendra Singh have in fact after the restraining orders of High Court executed further sale deeds and now Applicants in both these applications are themselves not the owners. He states that effort of the applicants is to thwart compromise between Appellant and Respondent No.3. He invites attention to judgment of Hon Apex Court reported at in AIR 2004 S.C. 173 = (2004)1 SCC 191 - Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and urges that leave should not be given to Applicants to participate in hearing in present matter. He invites attention to judgment reported at 2005(6) SCC 733 = A.I.R. 2005 SC 2813 : [2005(5) ALL MR (S.C.) 721] Kasturi Vs. Iyyamperumal to explain restriction on the right of subsequent purchasers in representing defendant transferee in pending matters as also what is scope of Suit and to urge that dispute of such nature could have been gone into in present Suit. He further argues that as these transfers are during pendency of litigation & also after restraining orders of this Court, the permission as sought for cannot be granted and points out judgments of Hon Apex Court reported at 1996(5) SCC 539 - Sarvinder Singh Vs. Dalip Singh (paras 5 & 6), and AIR 1996 S.C. 135 = (1995)6 SCC 50 - Surjit Singh Vs. Harbans Singh. Advocate V. G. Palshikar appearing for Respondent No.3 has adopted these arguments and has also invited attention to reply dated 30/1/2008 filed opposing Civil Application 5939/2004. Dalip Singh (paras 5 & 6), and AIR 1996 S.C. 135 = (1995)6 SCC 50 - Surjit Singh Vs. Harbans Singh. Advocate V. G. Palshikar appearing for Respondent No.3 has adopted these arguments and has also invited attention to reply dated 30/1/2008 filed opposing Civil Application 5939/2004. He states that applicant Smt. Gopibai therein has entered into an express compromise or understanding deed on 10/2/ 1998 wherein she accepted that her sale and its fate would depend upon the decision of pending Second Appeal. He therefore argues that sale deed in her favour is not only hit by provisions of lis-pendens but is also protected by Section 19(b) of Specific Relief Act. He also urges to record compromise and to dispose of the Appeal. According to him bona fides or malafides of parties cannot be looked into while recording compromise. Both advocates also invited attention to judgment delivered by me on 19/12/2007 in FA 325/1992 to point out relative scope of Section 52 of Transfer of Property Act and Section 19(b) of Specific Relief Act. It is pointed out that attention of this Court while delivering this judgment was not invited to judgment of Hon. Apex Court reported at 1995(6) SCC 733 - Deva Ram Vs. Ishwar Chand. The judgment of this Court reported at 1985 Mh.L.J. 625 - Mohammad Hanif Vs. Marian Begum is also pointed out to state that cause of stranger cannot be gone into in such circumstances. 7. While dealing with the substantial question of law as framed, Advocate J. T. Gilda points out that valuation of two sales in favour of Appellants together is 24,000/- and prayer made in appeal memo before Lower Appellate Court is to quash and set aside order of refund of earnest money passed by Trial Court. He states that Appeal under section 96, C.P.C. was valued at Rs.lOOl/- only & accordingly court fee has also been paid only on that amount. He therefore urges that in said Appeal Lower Appellate Court could not have rendered nugatory two sale deeds as there was no court fee paid for such challenge and there was no prayer to that effect. Point No. IV framed by Lower Appellate Court therefore could not have been looked into. He therefore urges that in said Appeal Lower Appellate Court could not have rendered nugatory two sale deeds as there was no court fee paid for such challenge and there was no prayer to that effect. Point No. IV framed by Lower Appellate Court therefore could not have been looked into. He further points out that Trial Court has not passed any decree against Namdeo in relation to Exhibits 77 & 78 and CPC provides for remedy of Appeal only against decree. By placing reliance upon judgment of Hon. Apex Court reported at A.I.R. 1974 SC 1126 - Ganga Bai Vs. Vinay Kumar it is contended that Regular Civil Appeal filed by Namdeo vide 402/1985 was itself not maintainable. It is pointed out that present Appellants were joined as party defendants to their Suit for specific performance by Shrikant and Vijay later on and for that purpose plaint was amended. After Namdeo filed his written statement taking stand that sale deeds Exhibits 77 and 78 were nominal or money lending transactions, plaint was not amended to incorporate any such challenge and hence, the issue looked into by Appellate Court in Appeal really did not arise. Attention is invited to judgment of Hon. Apex Court reported at Kasturi Vs. Iyyamperumal [2005(5) ALL MR (S.C.) 721] (supra) and A.I.R. 1999 SC 1236 - Ferro Alloys Corpn. Ltd. Vs. Union ( of India and others to point out what J constitutes or falls within the scope of Suit. He j also points out judgment of Hon. Apex Court h reported at A.I.R. 2003 SC 1989 . Banarsi and r others Vs. Ram Phal, to substantiate his stand. d It is also pointed out that during pendency of d Regular Civil Appeal, Namdeo applied for grant of interim orders and is was opposed by present Appellants who pointed out their peaceful and quiet possession. It is pointed out that during pendency of Regular Civil Appeal prayer was made to restrain Backerbeg & Taslimbeg but it was not granted vide order dated 7/1/1986 and no interim order was operating in favour of Respondent and present Appellants are in possession as per law. 8. Advocates for applicants in Civil Application 2035 and 5959/2004 rely upon judgment delivered by me on 19/12/2007 in FA 325/1992 to establish their status and submit that applicants are only stepping in shoes of Namdeo and represent his estate. 8. Advocates for applicants in Civil Application 2035 and 5959/2004 rely upon judgment delivered by me on 19/12/2007 in FA 325/1992 to establish their status and submit that applicants are only stepping in shoes of Namdeo and represent his estate. It is contended that after selling property to Smt. Gopibai, Namdeo lost title to prosecute this case & has also colluded with present Appellants and hence this Appeal is not being defended bona fide. I only heard them on defences which are available to Namdeo and not on any ground personal to them. Advocate R. L. Khapre has invited attention to scheme of Section 52 of Transfer of Property Act and also Section 19(b) of Specific Relief Act. He alleges that bona fide purchasers without notice are protected and by relying upon judgment of Hon Apex Court reported at A.I.R. 1954 SC 75 - Durga Prasad Vs. Deep Chand, he states that issue as to legality of otherwise of sale deeds at Exhibits 77 and 78 was very much relevant and needed adjudication because had Trial Court granted' specific performance, direction to present Appellants to execute sale deed jointly with Namdeo in favour of original Plaintiffs would have been essential. He further states that in that event Trial Court would have quashed or set aside both sale deeds and balance consideration payable by Plaintiffs to Namdeo could have been ordered to be paid to Appellants. According to him direction to Appellants to hand over possession would also have been necessary, had they been found in possession. Therefore, triable issue raising disputed questions of law as also fact was definitely involved. Adjudication by Trial Court thereon in present matter constitutes "decree" within Section 2(2) of CPC and Appeal under Section 96 thereof was therefore maintainable before Lower Appellate Court. He relied upon another judgment of Hon. Apex Court reported at A.I.R. 1999 SC 1823 - Pawan Kumar Gupta Vs. Rochiram Nagdeo to show how that the decision of Trial Court was not on preliminary point but was on merits of Suit and therefore Appeal of Namdeo was maintainable. Provisions of Order 14, Rule I and 2 of CPC are pointed out to state that law requires Court to deliver judgment on all points after 1976 CPC Amendment and judgment of this Court reported at A.I.R. 1984 Bombay 60 - Usha Sales Ltd. Vs. Malcolm Gomes is relied in support. Provisions of Order 14, Rule I and 2 of CPC are pointed out to state that law requires Court to deliver judgment on all points after 1976 CPC Amendment and judgment of this Court reported at A.I.R. 1984 Bombay 60 - Usha Sales Ltd. Vs. Malcolm Gomes is relied in support. Ferro Alloys Corpn. Ltd. Vs. Union of India (supra) and A.I.R. 2005 SC 2499 Makhija C. and E. Pvt. Ltd. MIs. Vs. Indore Devpt. Authority are relied upon by him to point out that law of res judicata applies between co-respondents also. 9. He further relies upon judgment reported at A.I.R. 2000 SC 1099 - State of Maharashtra V s. Pravin Jethalal Kamdar and 1982 Mh.L.J. 1 - Gangabai Vs. Chhabubai to contend that as sale deeds executed by Namdeo in favour of present Appellants are bogus, it was not necessary to have the same set aside and their such character of i1Iegality could have been pointed out in any collateral proceedings also. He states that silence of Namdeo about real nature of sale deeds Exhibits 77 and 78 would have attracted principles of constructive res-judicata. It was therefore not necessary to value Regular Civil Appeal at face value of sale deeds Exhibits 77 and 78, and Namdeo had raised grounds in his memo of appeal about the validity of sale deeds also. Original Plaintiffs had also filed Regular Civil Appeal challenging the dismissal of their suit for specific performance and thus entire controversy considered by Trial Court was wide open even before Lower Appellate Court. In the alternative he points out that even if finding of Trial Court about both sale deeds is not treated as "decree", still by virtue of provisions ofOrder41, Rule 22, Namdeo could have raised cross objection and could have pointed out that said finding ought to have been in his favour. Attention is also invited to provisions of Order 41, Rule 33 to point out powers available to Appellate Court and reliance is placed upon judgment of Hon Apex Court reported at A.I.R. 1976 SC 634 - Koksingh Vs. Deokabai to argue that even in absence of appeal or cross objection by Namdeo, the Lower Appellate Court could have passed very same order. 10. Advocate N. S. Saboo has adopted same line of arguments. 11. Deokabai to argue that even in absence of appeal or cross objection by Namdeo, the Lower Appellate Court could have passed very same order. 10. Advocate N. S. Saboo has adopted same line of arguments. 11. From arguments of learned Counsel it is at-once apparent that the Appellants have also questioned the competency of Lower Appellate Court to consider the grievance of Namdeo against findings in relation to validity of sale deeds Exhs.77 & 78 in Regular Civil Appeal (RCA) as filed by him. 12. Before proceeding to deal with substantial questions of law & these arguments, it is necessary to consider 3 Civil Applications mentioned above. Civil application 4512/2004 is moved jointly by present Respondent No.3 Namdeo & present Appellants for recording of compromise between them and for disposal of second appeal accordingly. Civil application 203512004 and 5939/2004 are filed by subsequent purchasers from Namdeo for permission to substitute Namdeo. A _____ Section 52 of the Transfer of Property Act is as under: "Transfer of property pending suit relating thereto - During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation - For the purposes of this section, the pendency of a suit of proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force." Bare reading of the Section therefore shows that Suit or proceedings contemplated therein must not be collusive. In present facts, it is apparent that sales executed by Namdeo in favour of Gopibai or thereafter by Gopibai in favour of Smt. Satnam Kaur & Srendra Singh are during pendency of present Second Appeal. Two sales of plots further executed by Gopibai are after the interim restraining orders of this Court. However it is to be noted that after executing these sales, Namdeo has ceased to represent the estate and after recovering money even from such subsequent purchaser Gopibai, he has entered into compromise with Appellants. The compromise is possible only because of pending litigation & effort of Namdeo appears to be to obtain more advantage for himself. It is therefore apparent that he is not contesting the Second Appeal bonafide but it has become collusive. In fact, Namdeo filed Regular Civil Appeal and succeeded in it in establishing that transaction between him & Appellants about 2 sale deeds Exhibits 77 & 78 was not real. On that basis he sold very same property to others and now he wants to surrender to his commitment as per Exhibits 77 and 78. It is obvious that Section 52 of TP Act does not contemplate such collusive situation. Even otherwise Applicants in CA 2035 and 5939/ 2004 are only claiming to substitute Namdeo and are not putting forth their own personal cause or any special reason or defence available to them. They only want to play role of Namdeo which he has abandoned. Gopibai has purchased entire suit property from Namdeo on 23/2/1998 by and she then got a layout prepared on it which is sanctioned on 17-12-1998 town planning. Even non-agricultural use permission is accorded by Collector on 17/12/1998. Satnam Kaur & Surinder Singh have there after purchased plots in this layout. B -------- In F.A. 325 of 1992 Kawalchand Vs. Ramkisan decided on 19/12/2007, I had an occasion to consider similar issue. Therein I have relied on A.I.R. 1948 Privy Council 147 - Gauru Dutt Makaraj Vs. Mohammad, wherein it is held that applicability of Section 52 of Transfer of Property Act cannot depend on matters of proof of strength or weakness of the case on one side or the other in bonafide proceedings. Thereafter, I have observed at the end of para 24 & in para 25 as under:- "24). Mohammad, wherein it is held that applicability of Section 52 of Transfer of Property Act cannot depend on matters of proof of strength or weakness of the case on one side or the other in bonafide proceedings. Thereafter, I have observed at the end of para 24 & in para 25 as under:- "24). Whether Appellant Nos.2 and 3 can contend that as they are purchasers without notice, in view--........--this Court is not in a position to grant any protection to them." "Division Bench of Hon. Calcutta High Court has in AIR 2003 Cal. 263 - Ceean International Private Limited Vs. Ashok Surana taken similar view and observed that the ground that the defendant No.2 was a bona fide transferee for value without notice cannot be available in the facts and circumstances of case before it. Hon. Bench noticed that principle would have been applicable to him as provided in Section 19(b) SR Act it the transfer was a pre-suit transfer. The transfer there was effected on 19th June, 1995 & suit was filed on 28th of April, 1995. Therefore, this transfer was held as hit by the principles of lis pendens provided in Section 52 of the Transfer of Property Act, 1882. It has been further held that the principle of lis pendens is executed in a suit or proceeding which is collusive and where the right to immovable property is not directly and specifically in question. Case before it was held as not coming under any of the two exceptions. Therefore. the benefit of Section 19(b) of the SR Act was not extended to the defendant No.2 in that case. 25)In view of this position, I find that Section 52, T.P. Act overrides Section 19(b) of Specific Relief Act if the transfer is during pendency of suit of nature envisaged in S.52. However, if it is a case of transfer before institution of suit and defendant has entered into contract with vendor subsequent to plaintiff without notice of previous contract between such vendor & plaintiff, Section 19(b) Specific Relief Act becomes relevant & may by required to be applied. It is also clear that transferee pendente lite only steps in shoes of his vendor defendant and therefore can raise only such defences as are available to his vendor. He cannot point out any defences special or personal to him. It is also clear that transferee pendente lite only steps in shoes of his vendor defendant and therefore can raise only such defences as are available to his vendor. He cannot point out any defences special or personal to him. He has to stand or fall with the pleas open to original defendant with whom plaintiff has a contract which such plaintiff is seeking to specifically enforce. In this connection, I find it appropriate to refer again to Ceean International Private Limited Vs. Ashok Surana (supra) wherein the Hon. Division Bench has considered an application under Order 41, Rule 27, CPC for adducing additional evidence by the defendant No.2, a post-suit purchaser & the doctrine of lis pendens. He had contended that though these documents, which are mostly orders of Courts or such documents, which need not be proved, were in his possession, but he could not adduce the same before the Trial Court because of the decision in Jugraj Singh Vs. Labh Singh - AIR 1995 SC 945 , by reason whereof he i.e. the defendant No.2 was precluded from contesting the absence of readiness and willingness of the plaintiff. But, when the position changed by reason of the decision in Ram Awadh (Dead) by LRs. Vs. Achhaibar Dubey, 2000(2) SCC 428 : ( AIR 2000 SC 860 ) the defendant No.2 was advised to file these documents. Hon. Division Bench has observed : "10. It will make no difference .......... known right. Here it was not a question that the defendant No.2 had given up its known right. Therefore. the principle of waiver cannot be attracted in this case. The principle of estoppal can also not be attracted. Therefore, the defendant No.2 despite having not contested the suit on these points. in view of the changed law it is now entitled to contested the case on all points as has been held in Ram Awadh (supra)." In AIR 2000 S.C. 860 : [2000(2) ALL MR 565 (S.C.)] - Ram Awadh Vs. Achhaibar Dubey, the larger bench of Hon. Apex Court observed :"6. The obligation imposed by Section 16lli upon the Court not to grant specific performance to a plaintiff who has not met the requirements of Clauses (a), (b) and (c) thereof. Achhaibar Dubey, the larger bench of Hon. Apex Court observed :"6. The obligation imposed by Section 16lli upon the Court not to grant specific performance to a plaintiff who has not met the requirements of Clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is. therefore. no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and. depending upon its conclusion. decree or decline to decree the suit. We are of the view that the decision in Jugrai Singh's case (1995 AIR SCW 901 : AIR 1995 SC 945 ) is erroneous." In view of this right available to them, Appellant nos.2 & 3 who are already defendants before Trial Court & co - appellants before me, can also prosecute this appeal & demonstrate that Respondent/ Plaintiff is not entitled to grant of decree of specific performance from their deceased vendor. Hence by mere death of Appellant no.1, the present Appeal does not abate and Appellant nos.2 & 3 are competent to prosecute it. Question no.C is accordingly answered in negative." C -------- Appellants rely upon AIR 2005 S.C. 2813 : [2005(5) ALL MR (S.C.) 721] "Kasturi Vs. Iyyamperumal". There in appellant's suit for specific performance of the contract for sale, the respondent Nos.1 and 4 to 11, who were admittedly not parties to the contract and setting up a claim of independent title and possession over the contracted property, filed an application to get themselves added in the suit as defendants. It was allowed by trial Court & said order was upheld by the High Court. It is no doubt true that these orders are set aside by the Hon. Apex Court. But then the distinguishing facts are apparent from para 13 of this judgment wherein Hon 'ble Apex Court observes : "13. It was allowed by trial Court & said order was upheld by the High Court. It is no doubt true that these orders are set aside by the Hon. Apex Court. But then the distinguishing facts are apparent from para 13 of this judgment wherein Hon 'ble Apex Court observes : "13. Keeping the principles -...-lour opinion, the respondent Nos.1 and 4 to II are not necessary parties as effective decree could be passed in their absence as they had not purchased the contracted property from the vendor after the contract was entered into. They were also not necessary parties as they would not be affected by the contract entered into between the appellant and the respondent Nos.2 and 3." Further, it does not appear that proceedings were being contested in collusion in said matter. Appellants have also relied upon judgment of this Court between Mohammad Hanif Vs. Mariam Begum (supra). Respondent before High Court there brought suit for specific performance against respondent Nos.2 and 3 sought possession from appellant Mohommad contending that he was placed in possession by respondent Nos.2 and 3. It appears that said appellant claimed his title independently because of family partition. Trial court held that Respondent Nos.2 and 3 were not exclusive owners and therefore dismissed the suit. Appellate Court held respondent Nos.2 and 3 to be owners and passed decree for possession against Mohammad. In second appeal this Court considered the question whether it was permissible for appellate Court to pass the decree for possession against the appellants. This Court allowed the appeal by holding that the phrase "under a title which, might have been displaced by the defendant" used in section 19(c) of Specific Relief Act would not encompass cases where strangers set up a title adverse to the property independently and not under the vendor. Thus again, it is apparent that this ruling also has no application in present facts. D______ AIR 2005 S.C. 2209 : [2005(5) ALL MR (S.C.) 458] - Amit Kumar Shaw Vs. Farida Khatoon-relied on by Applicants shows that purchaser during pendency of litigation there were unaware of litigation. Their application for substitution was rejected by High Court and Hon Apex Court observes : "14. An alienee pendente lite is bound by the final decree that may be passed in the suit. Farida Khatoon-relied on by Applicants shows that purchaser during pendency of litigation there were unaware of litigation. Their application for substitution was rejected by High Court and Hon Apex Court observes : "14. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under 0.1, Rule 10. Since under the doctrine of lis pendens passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed. 15. Section 52 of the Transfer of Property Act is an expression of the principle "pending a litigation nothing new should be introduced". It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This Section is based on equity and god conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements mush be present: 1. There must be a suit or proceeding pending in a Court of competent jurisdiction. 2. The suit or proceeding must not be collusive. 3. The litigation must be one in which right to immovable property is directly and specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accuse under the terms of the decree or order. 16. The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the ligation, where the transfer is of the entire interest of the defendant. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the ligation, where the transfer is of the entire interest of the defendant. the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transfer a party: under Order XXII. Rule 10 an alienee pendente lite may be joined as party. As already noticed. the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-ininterest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transfer pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. 17. In the instant case, ........prayed for. The High Court proceeded on wrong premise that the appellants had made the application for addition of party whereas the application under consideration was for substitution as the owner had sold the suit property to the appellants and had no interest in the pending litigation." E -------- In fact before me, it cannot be said that Applicants in CA 5939/2004 or 2035/2004 were unaware of litigation. Though these applications are pending since 2004, Namdeo has tendered his reply at the fag end of final hearing i.e. on 30/1/2008 and has filed along with it alleged deed of compromise or understanding between himself & Gopibai which appears to have been prepared on 10/2/1998. Advocate R. L. Khapre has objected to this attempt at late or last stage and such disclosure of the document at 11th hour, that too without seeking leave of Court. The document of alleged understanding apart from making reference to other irrelevant matters, states that Gopibai would spend for High Court litigation & if case is lost, she would not claim any compensation and agreement or sale deed would stand cancelled. The document of alleged understanding apart from making reference to other irrelevant matters, states that Gopibai would spend for High Court litigation & if case is lost, she would not claim any compensation and agreement or sale deed would stand cancelled. If this was really an understanding reached in 1998, Gopibai would have taken steps to contest the matter and would not have waited till 2004. Similarly; the document or at least reply blaming her or ascribing knowledge to her of pending litigation would have been filed in reasonable time by Namdeo. The way in which reply is filed or manner in which reply is sworn or affidavit in support of such document is worded does not show any bonafide or honest effort on his part. Which paragraphs of said reply are true to his knowledge or which portion thereof is true to his belief is not separately specified. When the history of litigation is looked into, reasons given for not filing reply or document earlier also are not satisfactory. Along with this reply one notarized document alleged to be compromise between Namdeo & present Appellants is also attempted to be produced. Apparently said compromise is dated 30/8/2003 & it has not been produced for recording immediately. On 9/1012003 i.e. about 5 weeks after alleged compromise this Court has rejected Namdeo's CA. 5513/2003 for vacation of stay granted on 18/2/2000. This civil application 5513/2003 has been filed by Namdeo on 1/8/2003 and reply of present Appellants thereto is dated 3/10/2003. In said reply Appellant no.2 has stated that on complaint of Appellants, police station at Nandgaon peth had registered offence under Section 420 r/w. Section 468 on 13/9/2003 against Namdeo. Surprisingly what is available on record is only carbon copy of said reply without even sign of Appellant no.2 or his advocate. It does not even have stamp number & therefore appears to have been tendered directly in Court. These facts militate with story of compromise dated 30/8/2003 between parties. CA. 7081/2003 was then filed by Namdeo on 10/11/2003 after serving its copy on Appellants for review of this order dated 9/ 10/2003 and for vacation of stay which is still pending. On this occasion also the fact of compromise dated 30/8/2003 was very vitali relevant and none of the parties thereto have taken precaution to point it out. Even in CA. On this occasion also the fact of compromise dated 30/8/2003 was very vitali relevant and none of the parties thereto have taken precaution to point it out. Even in CA. 4512/2004 filed on 15/712004 for recording of compromise jointly, this document dated 30/8/2003 has not been pointed out. Respondent no.3 along with his reply affidavit dated 11/12/2007 submitted to civil application 3721/2006 for taking action for perjury appears to have filed zerox copy of compromise application dated 22/ 3/2004 tendered before Tahasildar, Amraoti signed by him and Appellant no.2 Taslimbeg. It again does not point out earlier compromise dated 30/8/2003. However, his affidavit does not mention this document at all. It is accompaniment to Namdeo's complaint dated 12/5/2006 to Commissioner, Amraoti making grievance against his advocate Shri. Bhende. No occasion therefore would have arisen had there been a compromise in terms of alleged notarized document dated 30/8/2003. Neither Namdeo nor any body else has certified zero x copies of these annextures dated 10/2/98 or 30/ 8/2003 to be true copies. All these facts apart from earlier conduct of Namdeo show the necessity of permitting applicants in both Civil Applications to contest the matter within limits available to them in law. In fact after admitted sale to Gopibai, Namdeo ceased to be a person representing suit property. Namdeo has in reply affidavit dated 12/10/2001 to oppose application CA 7961200 under Section 151 filed by Appellants accepted these sale-deeds and pointed out that he has also parted with possession. He has also pleaded that persons in possession need to be brought on record. He was aware of pending Second Appeal & his inability to defeat its outcome, if it be adverse to him. All his rights in suit property were thus contingent on this adjudication and he sold the suit property subject to such rights i.e. at the risk of purchaser. Hence, thereafter there is no title or right or interest left in him to enable him to enter into any compromise with present Appellants. F -------- In Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb (supra), relied on by Adv. Gilda the petitioner purchased the property during pendency of the suit and without seeking leave of the Courtas required by S .52 of the Transfer of Property Act. F -------- In Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb (supra), relied on by Adv. Gilda the petitioner purchased the property during pendency of the suit and without seeking leave of the Courtas required by S .52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the Court cannot, as of right, seek impleadment as a party in the suit which was long pending since 1983. Hon. Apex Court observed that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest. But in that case, the trial Court had assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial Court saw an attempt on the part of the petitioner to complicate and delay the pending suits. Then in para 10 in case of Sarvinder Singh (supra-relied by Adv. Gilda) is considered & it has been noticed that there is no absolute rule that the transferee pendente lite without leave of the Court should in all cases be allowed to join and contest the pending suits. Following observations in para 11 are important:"11. In case of Dhurandhar Prasad Singh ( AIR 2001 SC 2552 ), observations relevant for the purpose of these appeals read thus :"Where a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, yet he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary." G ________ In Surjit Singh V s. Harbans Singh (supra) also cited by the Appellants, Hon. Apex Court found that in defiance of the restraint order, the alienation or assignment was made and it could not have been ignored, as it would defeat the ends of justice and the prevalent public policy. It is observed that when the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/ assignment as having not taken place at all for its purposes. It observed that therefore, Pritam Singh and his assignees, respondents before it, could not claim to be impleaded as parties on the basis of assignment. Therefore, the assignees respondents could not have been impleaded by the trial Court as parties to the suit in disobedience of its orders. Hon. Apex Court clarified that the principles of lis pendens are altogether on a different footing and it did not propose to examine their involvement. H________Observation of Hon. Apex Court in 2004 AIR sew 470 - Raj C. P. Sen Vs. Sardari Lal, shows that the doctrine of "lis pendens" expressed in the maxim "ut lite pendente nihil innoventur" (during a litigations nothing new should be introduced) has been statutorily incorporated in S.52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of law as are preventative-in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither the defendant has chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him not the transferee has chosen to come on record by taking recourse to 0.22, R.10 of the CPC. In the case of an assignment, creation or devolution of any interest during the pendency of any suit, 0.22, Rule 10 of the CPC confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree. I --------In present matter Gopibai has executed sale deed of plot No.29-B, area 1727 square feet in favour of Smt. Sarla Dhote and plot No.29A, area 1834 square feet in favour of Sushakar Savarkar on 6/11/2000 i.e. after interim orders of this Court dated 18/2/2000 asking' Namdeo not to create any third party interest. It appears that after preparation of layout Gopibai sold total 57 plots to the Applicants in CA 2035/2004 before these orders and her own purchase is also before these restraining orders. It is therefore clear that when Namdeo created third party interest, restraining orders were not operating. Though applicants have not pleaded ignorance of pending litigation, taking overall view of matter, it is clear that they step in the shoes of Namdeo, Namdeo, after reaping all possible benefits out of property has again gone to Appellants to get something more & he is not acting honestly or bonafide. He is not bothered about sales to Gopibai and is now colluding with Appellants. He cannot be thus permitted to abuse the process of law. Hence applications filed by subsequent purchasers vide CA 2035 & 5939/2004 are partly allowed and they are permitted to come on record as respondents 4,5, & 6 respectively. Necessary amendment be carried out forthwith. The applicants are not pointing out any independent cause or title and have restricted their contentions within limits of role of Namdeo. Thus the scope of consideration in Second Appeal does not change at all. As stated above, they are only heard on points available to Namdeo. Appellants have already lost in Lower Appellate Court & they can not now consolidate their position because of this favour being shown to them by Namdeo. The finding of fact on merits delivered by the Lower Appellate Court holding sale deeds at Exhs.77 & 78 to be bad has attained finality. Only competency of said court to deliver that finding forms subject matter of argument in present Second Appeal. In view of these findings said question needs to be answered on merits. Hence, CA 4512/2004 for recording compromise can not be allowed & same is accordingly rejected. 13. Only competency of said court to deliver that finding forms subject matter of argument in present Second Appeal. In view of these findings said question needs to be answered on merits. Hence, CA 4512/2004 for recording compromise can not be allowed & same is accordingly rejected. 13. In order to show that issue of validity of sale deeds at Exhibits 77 and 78 was very much involved and relevant/significant in adjudication between parties in Suit as also in both the Appeals before Lower Appellate Court, Advocate R. L. Khapre has relied upon the judgment of Hon. Apex Court reported at AIR 1999 S.C. 1236 - Ferro Alloys Corpn. Ltd. Vs. Union of India to show in what circumstances doctrine of constructive res judicata operates between co-respondents or codefendants. There Central Govt. granted approval to renewal of lease of chrome mining area to TISCO confining it to only half area and not entire area. In Writ petition against it by TISCO, High Court directed Central Govt. to reconsider matter. Central Govt. appointed Sharma committee which gave personal hearing to rival claimants including appellant (FACOR) before Hon. Apex Court and recommended renewal of lease for small area only as also directed State to distribute balance area between rival claimants (FACOR). This order of Sharma Committee came to be confirmed by Hon. Apex Court in SLP filed by TISCO. Writ petition then came to be filed by FACOR challenging order of Sharma Committee on grounds that assessment of need of F ACOR for chrome was under-estimated. Hon. Apex Court held it to be not barred by principles of res-judicata or constructive res-judicata. Hon. Apex Court observes that principle of constructive resjudicata can be invoked even inter se respondents, but, it must be shown that such a plea was required to be raised by the contesting respondents to meet the claim of the appellant in such proceedings. If such a plea is not required to be raised by the contesting respondents with a view to successfully meet the case of the appellant, then such a plea inter se contesting respondents would remain in the domain of an independent proceedings giving an entirely different cause of action inter se the contesting respondents with which the appellants would not be concerned. Such pleas based on independent causes of action inter se respondents cannot be said to be barred by constructive res-judicata in the earlier proceedings where the lis is between the appellants on the one hand and all the contesting respondents on the other. In other words, when the appellants are not concerned with the inter se disputes between the contesting respondents such inter se dispute amongst respondents would not give rise to a situation wherein it can be said that such contesting respondents might and ought to have raised such a ground of defence or attack for decision of the Court. It was found that in the said proceedings, the dispute between the contesting parties was a limited one, namely, whether TISCO and IDCOL should be granted lease of the entire land in question or whether the contesting respondents including the appellant were entitled to get their assessed requirements for chrome ore as considered by the authorities upheld while considering the question of re-grant of appropriate mining lease to TISCO. It becomes at once clear that the inter se dispute between the appellant, on the one hand, and the other contesting three claimants on the other centering round the correct assessment of their respective requirements, of chrome ore was not in the anvil of controversy between the contesting Respondents including the appellant in those proceedings. In fact they all had a common defence against TISCO and IDCOL who were the appellants before Hon. Apex Court. In Makhija C. and E. Pvt. Ltd., M/s. Vs. Indore Devpt. Authority (supra), it is observed in paragraph 16 as under :- "16. However, the appellant is entitled to succeed on the ground that the order of the Division Bench disposing of Crescent's appeal operated as res judicata to bind not only Crescent but also Jagriti and the appellant. It makes no difference that Jagriti was a co-respondent with the appellant. The principle of res judicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between codefendants (or co-respondents as the case nay be). This statement of the law has been approved as for back as in 1939 in Munni Bibi Vs. Trilokinath, 58 IA 158, 165, where it has been said that to apply the rule of res judicata as between co-defendants three conditions are requisite. This statement of the law has been approved as for back as in 1939 in Munni Bibi Vs. Trilokinath, 58 IA 158, 165, where it has been said that to apply the rule of res judicata as between co-defendants three conditions are requisite. (1) The must be a conflict of interest between the defendants concerned: (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims: and (3) the question between the defendants must have been finally decided." 17. This view has been consistently followed by this Court. (See: If Iftikhar Ahmed V s. Sahid Meharban Ali, (1974)2 SCC 151 ) where the principle was extended to bind co-plaintiffs; Mahboob Sahab Vs. Syed Ismail, AIR 1995 SC 1205 ). AIR 1974 SC 749 ." Apart from three norms mentioned above one more norm i.e. 4th one is specified in AIR 1995 S.C. 1205 - Mahboob Sahab Vs. Syed Ismail, & it reads "(4) the co-defendants were necessary or proper parties in the former suit". In other words, if a plaintiff cannot get his right without trying and deciding a case between codefendants, the court will try and decide the case, and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any issue between co-defendants, the co-defendants will not be bound as between each other. 14. It is now to be seen whether in present matter finding on legality of sale-deeds Exhs.77 & 78 was necessary and hence dispute inter se between Namdeo & present Appellants needed adjudication to grant to Plaintiffs the relief claimed by them. A -------- In Durga Prasad V s. Deep Chand (supra), relied upon by Advocate R. L. Khapre, proper form of decree in a suit for specific performance by prior purchaser against his vendor and subsequent purchaser is considered by Hon Apex Court. It is noticed that where there is a sale of the same property if) favour of a prior and subsequent transferee and the subsequent transferee has, under the conveyance outstanding in his favour, paid the purchase-money to the vendor, that in a suit for specific performance brought by the prior transferee, in case he succeeds, the question arises as to the proper form of decree in such a case. The practice of the Courts in India has not been noticed to be uniform and three distinct lines of thought are seen to emerge by Hon Apex Court. According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone. According to the Hon. Apex Court, the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. He does not join in any special covenants made between the prior transferee and his vendor; all he does is no pass on his title to the prior transferee. Further, the balance of the purchase-money may be required to be paid to the subsequent transferee up to the extent of the consideration paid by him. It is observed that there may be equities between the vendor and the subsequent transferee which would make that improper, so unless they fight the question out as between themselves and it is decided as an issue in the case, the normal rule should be to require that the money be paid to the vendor. Hon Apex Court, in paragraph 43 of its judgment also finds that there may be exception to this normal course arising, as it did in case before it, out of circumstances peculiar to the case. B-------In the facts before me, it was also necessary to find out whether present Appellants i,e. original defendant number 2 and 3 before Trial Court, were entitled to receive back any amount of sale consideration in balance with original Plaintiffs or it was payable to Namdeo, in case Plaintiffs were to succeed. Sale deeds in favour of Appellants were prior to institution of suit and if agreement with original Plaintiffs by Namdeo would also have been earlier to agreement of Appellants with Namdeo or agreement of Appellants were found nominal or fabricated, Trial Court could have decreed suit for specific performance. Sale deeds in favour of Appellants were prior to institution of suit and if agreement with original Plaintiffs by Namdeo would also have been earlier to agreement of Appellants with Namdeo or agreement of Appellants were found nominal or fabricated, Trial Court could have decreed suit for specific performance. It also might have in that case, depending on its findings, directed original Plaintiffs to pay balance of sale consideration with them to Appellants and not to Namdeo. Therefore only Namdeo pointed out invalidity of those sale deeds i.e. Exhibits 77 and 78 so as to prove his entitlement to receive balance sale consideration from original Plaintiffs. In that contingency, Trial Court have also ordered Appellants to join in execution of sale deed in favour of original Plaintiffs with Namdeo and depending upon its finding about the possession of suit land, might have also issued appropriate directions for handing over possession to successful Plaintiffs. Thus lis definitely existed before Trial Court between Namdeo on one hand and original Defendant number 2 & 3 together on other hand. Plaintiffs could have succeeded by proving that their agreement was genuine and agreement/sales with Defendant no.2 & 3 were nominal. Trial Court has framed relevant issues vide Exhibit 27 much before the parties laid their evidence. Issue No.12 required Namdeo to prove that both sale deeds executed by him in favour of present Appellants were without consideration and nominally executed as a security for loan. Trial Court has answered this issue against Namdeo. While answering issue No.13, Trial Court has recorded that Namdeo could not prove that he never parted with rights, title, interest and possession in the suit land. Vide issue No.14, Trial Court held that present Appellants succeeded in proving that there contract for sale with Namdeo was prior to the contract of Plaintiffs and Plaintiffs were aware of it. Its finding against issue No.17 is that, present Appellants established that they are in actual possession of suit land. It is obvious that none of these issues were objected to by present Appellants. they laid their evidence to substantiate their stand and succeed before Trial Court. Answer to all these issues was essential to decide entitlement of original Plaintiffs to decree in their favour. Original Plaintiffs then filed Regular Civil appeal 363 of 1985 and later on, Namdeo also filed Regular Civil Appeal 402 of 1985. they laid their evidence to substantiate their stand and succeed before Trial Court. Answer to all these issues was essential to decide entitlement of original Plaintiffs to decree in their favour. Original Plaintiffs then filed Regular Civil appeal 363 of 1985 and later on, Namdeo also filed Regular Civil Appeal 402 of 1985. It is obvious that the entire controversy 1S before Trial Curt was against fully thrown open in view of these two Appeals. Perusal of l1emo of Regular Civil Appeal NoA02/1985 clearly shows that findings about sale deeds Exhibit 77 and 78 against him by Trial Court were challenged specifically by Namdeo. The present Appellants in Second Appeal are respondent No.3 and 4 in this Regular Civil Appeal filed by Namdeo. Appeal memo contains a specific prayer that all findings about their right, title and interest or about possession by Trial Court were without any propriety and illegal. Prayer was to uphold and confirm right, title, interest and possession of Namdeo. All courses of muddling the relief open to Trial Court were also available for consideration to Appellate Court depending upon its findings on facts. It was open to it to answer all or any of the issues answered in particular way by Trial Court in exactly opposite or different manner. The present Appellants were very much aware of the same. Perusal of paragraph 16 of the judgment of Lower Appellant Court reveals that learned advocate appearing for Namdeo there contended that Trial Court committed gross error in giving findings against him in relation to controversy between Defendants inter se. It was contended that when original Plaintiffs failed to prove their entitlement, further scrutiny of matter by Trial Court was unwarranted. The Lower Appellate Court also found that exercise undertaken by Trial Court was necessary in case Plaintiffs succeeded in their suit. Then it proceeded to consider challenge of Namdeo to agreement Exhibit 76 and sale deeds Exhibit 77 and 78 and rejected argument of present Appellants that there were no sufficient pleadings in that respect on record and at the end of paragraph 19 of its judgment concluded that all these 3 documents were nominal and never intended to be acted upon. In operative part, Lower Appellate Court set aside the judgment of Trial Court to the extent of findings about the right, title interest and possession of Defendants number 2 and 3 before Trial Court. In operative part, Lower Appellate Court set aside the judgment of Trial Court to the extent of findings about the right, title interest and possession of Defendants number 2 and 3 before Trial Court. Maintainability of Regular Civil Appeal by Namdeo with grounds directed against present Appellants was not challenged before Lower Appellant Court. No objection was raised before it by present Appellant to legality of propriety or exercise undertaken by Trial Curt in considering issues 12, 13, 14 and 17 as mentioned above. Appellants therefore did not make any grievance when findings of Trial Court were in their favour and after Appellate Court delivered a reversing judgment, issue of maintainability of said Appeal by Namdeo is being canvassed with scope of controversy in Suit itself as substantial question of law. In view of provisions of Order 14, Rule 2, CPC and judgment of this Court reported at A.I.R. 1984 Bombay 60 in case of Usha Sales Ltd. Vs. Malcolm Gomes, it is apparent that Trial Court was duty bound to decide all issues and could not leave any relevant issue arising before it undecided because of its finding on any earlier or preliminary issue. In a hypothetical situation, after holding that Exh. 76,77 & 78 were nominal documents, it was open to Lower Appellate Court to decree suit for specific performance by allowing the Appeal of original Plaintiffs. 15. Advocate R. L. Khapre has argued that Appeal filed by Namdeo before Lower Appellate Court could have been treated as cross-objection and in view of provisions of Order 41, Rule 22, Namdeo could have challenged even adverse finding. Attention has been invited to Order 41 and Rule 33 to point out power of Appellate Court and to urge that even in absence of cross-objection, Appellate Court could have given relief to Namdeo. Support is being drawn from Koksingh Vs. Deokabai (supra). Advocate J. T. Gilda on the other hand has contended that the Regular Civil Appeal was only against findings and not maintainable in view of clear bar in C.P.C. & as held in judgments reported at Deva Ram Vs. Ishwar Chand (supra) and Gangabai Vs. Vijay Kumar (Supra). . A ______ Observations of Hon. Apex Court in Pawan Kumar Gupta Vs. Ishwar Chand (supra) and Gangabai Vs. Vijay Kumar (Supra). . A ______ Observations of Hon. Apex Court in Pawan Kumar Gupta Vs. Rochiram Nagdco (supra) show that in the last para to its judgment the trial Court there said that suit was "dismissed" and both parties were directed to bear their own costs. Though the word "dismissed" has been employed in the last paragraph of the judgment, a reading of it, as a whole, showed that the plaintiff had won the suit. The trial Court found against the plea of the defendant that plaintiff was not the rightful owner of the building. The reasoning adopted by the High Court for rejecting the plea of resjudicata in subsequent suit brought by defendant was as earlier suit stood dismissed, the appellant/defendant was not aggrieved and he had no right of appeal. Following observations of Hon. Apex Court clear the position :"16. The rule of res-judicata incorporated in S.l1 of the Code of Civil Procedure (CPC) prohibits the Court from trying and issue which "has been directly and substantially in issue in a former suit between the same parties," and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as re-judicata. It is not correct to say that the party has no right of appeal against swishy decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues. 17. The two decisions of the Nagpur High Court relied on by the learned single Judge (in the impugned judgment) have followed the rule set by the Privy Council in an early (earlier) decision in Mindapur Namindari Company Vs. Naresh Narayan Roy, AIR 1922 PC 241. It seems that the legal principle formulated by the Privy Council in the aforesaid decision regarding this facet of res-judicata has since been approved and followed by the Courts in India as the correct position. Naresh Narayan Roy, AIR 1922 PC 241. It seems that the legal principle formulated by the Privy Council in the aforesaid decision regarding this facet of res-judicata has since been approved and followed by the Courts in India as the correct position. The said rule was founded on the following facts: When a zamindar used for possession against the tenant the latter contested the suit on two alternative grounds, one by claiming occupancy right and the other by contending that the suit was premature. The Court had repelled the plea of the tenant regarding occupancy right, but dismissed the suit as premature. In the subsequent suit fled by the zamindar against the same tenant their Lordships of the Privy Council did not agree that the finding regarding occupancy right in the first suit would operate as res-iudicata "for the tenant having succeeded on the other plea. had no occasion to go further as to the findings against him." The reason is that such adverse finding in the aforesaid suit would only be orbiter dicta. 18.However. the Madras High Court in Veeraswamy Mudali Vs. Palaniyappan. (AIR 1924 Mad 626) and the Calcutta High Court in Murad Biswas Vs. Basti MandaI. AIR 1929 Cal. 448 distinguished the said principle in cases where the first suit was dismissed due to want to valid notice to quit and findings on disputed issues on title were held sufficient to operate as res-iudicata in subsequent suit between the same parties. 19. Thus the second legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the iudgment adverse to the defendant would not operati ve as resiudicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein wou1d operate as res iudicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed againstor not. If he does not choose to file the appeal he cannot thereby avert the bar of resiudicata in the subsequent suit. 20. In this case the position is still stronger for the appellant. It is for the defendant in such a suit to choose whether the judgment should be appealed againstor not. If he does not choose to file the appeal he cannot thereby avert the bar of resiudicata in the subsequent suit. 20. In this case the position is still stronger for the appellant. Dismissal of the first suit was only on account of what the respondent did during the pendency of the suit i.e. depositing the arrears of rent claimed by the appellant. The Court permitted the plaintiffs to withdraw that amount under deposit for satisfying his claim. Such a decree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be orbiter dicta. The finding made in OS 75N90 that appellant was the real owner of the building as per Ext.P.11-sale deed became final. If the respondent disputed that finding he should have filed an appeal in challenge of it. 21. We therefore agree with the plea of the appellant that there is bar of res-judicata in reagitating on the issue regarding appellant's title to the building." B __ In Deva Ram Vs. Ishwar Chand (supra) relied upon by Adv. J. T. Gilda there are following observations :- "24. Let us now consider the plea regarding the effect of an adverse finding recorded by the Court against a party in whose favour hate suit or the appeal is ultimately decided. 25.It is provided in Section 96 of the C.P.C. that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeal from the decision of such Court. So also Section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the provisions if the decree and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie under Section 100 of the Civil Procedure Code. Similarly, an appeal lies against an 'order' under Section 104 read with Order 43, Rule 1 of the Civil Procedure Code where the "orders" against which appeal would lie have enumerated. Unless there is an "order" as defined in Section 2(14) and unless that "order" falls within the list of "orders" indicate in Order 43, am appeal would not lie. 26. Unless there is an "order" as defined in Section 2(14) and unless that "order" falls within the list of "orders" indicate in Order 43, am appeal would not lie. 26. Thus, an appeal does not lie against mere 'findings' recorded by a Court unless the findings amount to a "decree" or "order". Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue, has not right of appeal and he cannot question those findings before the appellate Court. (See Ganga Bai Vs. Vinay Kumar, (1974)3 SCR 882 : ( AIR 1974 SC 1126 )]. 27.In Midanpur Zamindari Co. Ltd. Vs. Naresh Narayan Roy, AIR 1922 PC 241, it was observed as under: " Their Lordships do not consider this will be found an actual plea of res judicata, for the defendants, having succeeded on the other plea had no occasion to go further as to the finding against them; but it is the finding of a Court which was dealing with facts nearer of their ken than he facts are to the Board now, and it certainly creates a paramount duty on the appellant to displace the finding, a duty which they have now been able to perform." 28. Similar view was also expressed in an earlier decision in Run Bahadur Singh Vs. Lucnokoer, (1885) ILR 11 CAL 301, (PC). 29. The Oudh Chief Court in Pateshwari Din Vs. Mahant Sarjudass, AIR 1938 Oudh 18, held that where a decree in previous suit is wholly in favour of a person and gives him all the reliefs sought for by him, he has no right of appeal against the decrees so as to enable him to context any adverse finding against him in such suit. Hence, such adverse finding cannot operate as re judicata as against him in a subsequent suit. 30. The High Court of Andhra Pradesh in Bansi Lal Ratwa Vs. Laxminarayan, (1969)2 Andhra Weekly Reporter 246, and the Full Bench of the High Court of Patna in Arjun Singh Vs. Tara Das Ghosh, AIR 1974 Patna 1, have taken the view that an appeal would not lie against mere adverse finding unless such finding would constitute res-judicata in subsequent proceedings. We are. however. Laxminarayan, (1969)2 Andhra Weekly Reporter 246, and the Full Bench of the High Court of Patna in Arjun Singh Vs. Tara Das Ghosh, AIR 1974 Patna 1, have taken the view that an appeal would not lie against mere adverse finding unless such finding would constitute res-judicata in subsequent proceedings. We are. however. not concerned with this aspect of the matter in the present case nor are we concerned with the earlier aspect as the plea of res-iudicata having not been raised in the written statement. the appellant cannot be permitted to raise the plea here." I find that no view is expressed by the Hon. Apex Court here as it found that there was no occasion warranting the same. C _____m Adv. J. T. Gilda has placed strong reliance on Ganga Bai Vs. Vinay Kumar (supra). There Hon. Apex Court while reversing decision of this High Court, held that the provisions of Sections 96, 100, 104(1), 105 read with Order 43, Rule 1 of the Civil Procedure Code show that an appeal lies only as against a decree or an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does no provide for any such appeal. In a suit to enforce a mortgage of joint family property executed by the father manager a preliminary decree for sale was passed only against the half share of the father in the mortgaged property and the suit was dismissed against the sons on the ground that the mortgage not being for legal necessity was not binding on the son's interest under the Hindu law. The sons filled an appeal not against any part of the preliminary decree but only against the finding of the trial Court that the partition between father and sons effected subsequent to the mortgage in suit was a sham and colourable transaction. Hon. Apex Court has held that the appeal filed by the sons was not maintainable in law as it was directed against a mere finding recorded by the trial Court. But its discussion in para 25 is important : "25. The position here is similar to that in the Calcutta case. Hon. Apex Court has held that the appeal filed by the sons was not maintainable in law as it was directed against a mere finding recorded by the trial Court. But its discussion in para 25 is important : "25. The position here is similar to that in the Calcutta case. The trial Court decreed the mortgage's suit only as against defendant I, the father, and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, defendants 2 and 3. Whether the partition between the father and sons was sham or real had no impact on the judgment of the trial Court and made no material difference to the decree passed by it. The finding recorded by the trial Court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the Court were to find that the partition was genuine. the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu Law, would bind the interest of the sons. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation; or else, a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition amongst the members of the joint family. As the matter relating to the partition was not directly and substantially in issue in the suit. the finding that the partition was sham cannot operate as res-iudicata. Therefore, the appeal filed by defendant 2 and 3 against the finding was not maintainable, even on the assumption that the High Court of "Calcutta is right in its view that though under the Code there could be no appeal against a finding. yet "On grounds of iustice" an appeal may lie against a finding. Therefore, the appeal filed by defendant 2 and 3 against the finding was not maintainable, even on the assumption that the High Court of "Calcutta is right in its view that though under the Code there could be no appeal against a finding. yet "On grounds of iustice" an appeal may lie against a finding. provided that it would operate as res iudicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. It is not necessary here to determine whether the view of the Calcutta High Court is correct" 16. If Namdeo had filed independent suit for same purpose against present Appellants, his appeal or cross-objection challenging answer to various issues by the trial court would have been tenable. Here Namdeo merely raised same challenge to defend suit of original Plaintiffs and defence raised by him is already found to be relevant. Finding on issues by Trial Court was bound to operate as resjudicata. Hence Appeal by Namdeo was very much maintainable in present facts. 17. Here I find it proper to find out whether Lower Appellate Court could have given same relief to Namdeo even in absence of his R.C.A. or cross-objection in view of O.41, R.33 of C.P.C.. Order 41, Rule 33 reads thus:- "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellant Court shall not make any order under Sec.35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." A---------In Koksingh Vs. Deokabai (supra), Hon. Apex Court noticed Gaini Ram Vs. Ramji Lal, (1969)3 SCR 944 : ( AIR 1969 SC 1144 ) as also Radhika Mohan Vs. Sudhir Chandra, AIR 1937 Cal. 10 & observed:- 4. Deokabai (supra), Hon. Apex Court noticed Gaini Ram Vs. Ramji Lal, (1969)3 SCR 944 : ( AIR 1969 SC 1144 ) as also Radhika Mohan Vs. Sudhir Chandra, AIR 1937 Cal. 10 & observed:- 4. "The second point raised by the appellant was that the respondent did not appeal from the decree of the trial Court negativing her claim in the suit for a charge on the property. It was contended that the High Court was wrong in granting a decree for enforcement of the charge as the decree of the trial Court because final so far as the respondent was concerned as she did not file any appeal therefrom. We are unable to accept this contention. Under Order 41. Rule 33 of the Civil P.C. the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree." B -------- Adv. J. T. Gilda has also relied on Banarsi Vs. Ram Phal (supra) where question answered by Hon. Apex Court is formulated in para 7 as under : "7. The first question. is whether without cross-objection by the respondent, could the appellant Court have set aside the decree passed by the Trial eourt and instead granted straightway a decree for specific performance of contract 1" After considering Rule 22 of Order 41, as amended by cpe Amendment Act 104 of 1976, with effect from 1-2-77 in juxtaposition with the text of the provisions as it stood prior to the amendment in Para 7, it observes in para 8 :"8.Section 96 and 100 of the epe make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is preiudicially or adversely affected, by the decree he is not entitled to file an appeal. SCC Poolchand and another Vs. Gopal Lal, 1967(3) SCR 153 ; Smt. Jatan Kanwar Golcha Vs. M/s. Golcha Properties (P.) Ltd., 1970(3) SCC 573 ; Smt. Ganja Bai Vs. Vijay Kumar and others, (1974)2 SCC 393 . No appeal lies against a mere finding. SCC Poolchand and another Vs. Gopal Lal, 1967(3) SCR 153 ; Smt. Jatan Kanwar Golcha Vs. M/s. Golcha Properties (P.) Ltd., 1970(3) SCC 573 ; Smt. Ganja Bai Vs. Vijay Kumar and others, (1974)2 SCC 393 . No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment." In paras 10 & 11 it finds : "10. CPC Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41, Rule 2, sub-rule (1) a party in whose favour the decree stands in its entirely is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The different which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if the prepares to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:(i) The impugned decree is partly in favour of the appellant and party in favour of the respondent; II (ii) The decree is entirely in favour of the respondents though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so pot amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. The law remains so pot amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection, the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicate upon on merits which remedy was not available to the respondent under the unmended CPC. In pre-amendment era, the withdrawal or dismissed for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent." then answers the question as under : "12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking specific performance of an agreement to sell governed by the provisions of the Specific Relief Act, 1963 the Court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be granted by the Court unless it has been specifically claimed in the plaint by the plaintiff. No compensation or any other relief including the relief of refund shall be granted by the Court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or nay other relief including the refund of nay money has a right, to file an appeal against the origin decree if the relief of specific performance is refused and other relief is granted. The plaintiffs would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or nay other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the above said statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross-objection" From para 14 onwards of the report Hon. Apex Court then considers the contention of the respondent that even in the absence of appeal preferred by the plaintiff or cross-objection taken by the plaintiff-respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC. At the end of para 15 conclusions drawn are : "15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of .........the appellate Court. The object sought to be achieved by conferment of such power on the appellate Court is to avoid inconsistency, inequity, inequality in relief granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care is discretion while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate Court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follows. The power is subject to at least three limitations, firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court, secondly, a claim given up or lost cannot be revived and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one refused while the other due is granted and the former is not inseparably connected with or necessarily depend ending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate Court exercising power under Rule 33 of Order 41." C -------- When some fundamental or basic issue necessary to adjudicate rights of parties is adjudicated, finding thereon recorded against successful party can be & needs to be challenged by it or else it becomes final. Division Bench of this Court in AIR 1985 Born. 357 Padmadevi Vs. Division Bench of this Court in AIR 1985 Born. 357 Padmadevi Vs. Kabalsing, while considering application of 0.41, R.22 and R.33 in appeal challenging award of motor accident claims tribunal held that due to omission to file cross-objection in such appeal, when award for compensation passed by Motor Accidents Claims Tribunal was based on finding on issue of negligence; opponents cannot challenge finding in that behalf. Following observations are important for present case :- "7. So far as the question as to whether the opponents can challenge the finding qua negligence of the opponent No.1............., the provisions of the Civil Procedure Code will be applicable to an appeal filed under Sections IIO-D of the Motor Vehicles Act. As a necessary corollary of this, cross-objections could be filed in such an appeal. In our view, this position is placed beyond doubt by the amendment to the provisions of Order 41, Rule 22 of the Code of Civil Procedure. The Explanation to Order 41, Rule 22 clearly provides that a respondent aggrieved by a finding of the Court in the judgment 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. In the present case, admittedly the ultimate award for compensation passed by the Tribunal is based on the finding on the issue of negligence. Unless it was held that the truck driver was negligent in driving the truck and the accident took place because of his negligence, the award for compensation against the opponents cannot follow. Even if it is held that it was the case of contributory negligence on the part of the truck driver as well as deceased, then also unless a finding in that behalf is recorded, an award for compensation cannot be passed in favour of the claimants. Therefore, the finding on the question or issue of negligence is not only germane, but is the foundation for awarding compensation. Hence a cross-objection could have been filed by the opponents challenging the said award based on the said finding. This has not been admittedly done. Therefore, in our view. Therefore, the finding on the question or issue of negligence is not only germane, but is the foundation for awarding compensation. Hence a cross-objection could have been filed by the opponents challenging the said award based on the said finding. This has not been admittedly done. Therefore, in our view. unless a cross-objection is filed, it will not be open to the opponents to challenge the finding in that behalf. We are fortified in this view by the latest decision of the Supreme Court in Choudhary Sahu (dead) by LRs. Vs. State of Bihar, AIR 1982 SC 98 ." 18. The discussion above therefore clearly shows that in order to decide whether to grant relief of specific performance to original Plaintiffs Shrikant and Vijay, it was necessary for Trial court to find out nature of right acquired by transferees from Namdeo i.e. present Appellants. Adjudication of said controversy was also essential to find out what type of relief could be given to Plaintiffs and whether Namdeo or then present Appellants were entitled to receive amount of balance consideration from original Plaintiffs. Subsequent transferees were joined by original Plaintiffs for pointing out their superior right over and above sale deeds Exhibits 77 and 78 were nominal and not intended to be acted upon as fact of sale deeds executed by him in favour of present Appellants including its propriety and legality was very much involved and essential for final decisions of controversy. The consideration of all these issues either by Trial Court or by Appellate Court was therefore essential or rather fundamental. The effect of such findings on controversy inter se between present Appellants and Namdeo is obvious. In view of defence taken by Namdeo, the suit for specific performance filed by the present Respondent number 1 and 2 got converted into. Suit for title between the Appellants on one hand and the Respondent No.3 on the other hand. As pointed out above, necessary issues were framed by Trial Court and these Appellants, without any request to recast the issues, adduced evidence to get answer thereto in their favour. In facts of present case, said Suit for specific performance could not have been decided by Trial Court without recording a finding regarding validity of sale deeds between the Respondent No.3 and the present Appellants. Lower Appellate Court was also duty bound to consider all these aspects as already held above. In facts of present case, said Suit for specific performance could not have been decided by Trial Court without recording a finding regarding validity of sale deeds between the Respondent No.3 and the present Appellants. Lower Appellate Court was also duty bound to consider all these aspects as already held above. Appellants did not even raise any such challenge to the arguments of Namdeo as they wanted findings of Trial Court on various issues in their favour to be maintained. Though Suit of Plaintiffs was dismissed, the case the Namdeo in relation to Exhs.76, 77 & 78 was negatived by the Trial Court. All relevant issues in relation thereto were answered against Namdeo by it. Namdeo therefore could have assailed those findings by filing cross appeal in R.C.A. of original Plaintiffs before Lower Appellate Court. At the same time he also had right to assail said adjudication on issues by filing appeal as he needed or was seeking a declaration of invalidity of Exs.76, 77 & 78. Otherwise the decision of Trial Court on those issues would have operated as res-judicata against him & in favour of present Appellants. No filing crossobjection or appeal by Namdeo would have constituted abandonment of his right to challenge said issues. As Namdeo was seeking complete reversal of Trial Court's verdict and he had lost before it, he could not have been given such relief under 0.41, R.33, C.P.C. I therefore hold that both Trial as well as Appellate Court were within their limits in considering the defences as raised and answering the same. Both substantial questions of law formulated in this Second Appeal therefore need to be answered in affirmative i.e. against present Appellants. 19. To meet the argument of Appellants that issues regarding validity of Exhs.77 & 78 could not have been gone into by Lower Appellate Court as Namdeo paid court fee only on Rs. 1001/- i.e. the amount of earnest he was asked to refund as per decree of Trial Court, Applicants in C.A. 2035 & 593912004 have contended that court fee if payable can be paid even now & non-payment would not strike at the root of jurisdiction of Lower Appellate Court, in the alternative, it is contended that as sale deeds at Exhibits 77 and 78 were found to be nominal & not intended to be acted upon. The said challenge need not have been specifically raised before Appellate Court, and while hearing Appeal the Lower Appellate Court could have looked into such challenge as collateral issue. Reliance has been placed upon judgments of Hon. Apex Court. In AIR 1954 SC 340 - Kiran Singh Vs. Chaman Pas wan it is held that it is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set upon whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorially or whether, it is in respect of the subject- mater of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. In AIR 2000 SC 1099 "State of Maharashtra Vs. Pravin Jethalal Kamdar", possession taken by State by denying owner permission for transfer under S.27 of Urban Land Ceiling Act and by exercising option to purchase - Order denying permission and consequential purchase by State becoming void as S.27 was declared unconstitutional. Thus, it was not disputed that the order dated 26th May, 1976, was without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order was also nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration was held to be of no consequence. When possession was been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act applied and the limitation to file the suit was found to be 12 years. When these documents are null and avoid, ignoring them a suit for possession simplicitor could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj Vs. Moti s/o. Mussadi, (1991)3 SCC 136 : (1991 AIR SCW 1576 : AIR 1991 SC 1600 ) Ron. When these documents are null and avoid, ignoring them a suit for possession simplicitor could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj Vs. Moti s/o. Mussadi, (1991)3 SCC 136 : (1991 AIR SCW 1576 : AIR 1991 SC 1600 ) Ron. Apex Court said that if the order has been passed with out jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred was therefore found to be having no merit. Judgment of Ron. Apex Court in 1982 Mh.L.J. page - 1- Gangabai Vs. Chhabubai, is one more ruling sought to be relied upon by Applicants but in view of above referred judgments of Ron. Apex Court itself, I do not find it necessary to refer to it. The sale deeds are contracts entered into between parties and Lower Appellate Court has recorded finding about true arraignment the envisaged by parties. Sale deeds are not found against public policy or prohibited by any law. Rence they were not void ab inito & express challenge to it was necessary. Therefore only Namdeo in Regular Civil Appeal raised that challenge. Need to raise such challenge by Namdeo and its maintainability is already considered by me above. Above ruling of Ron. Apex Court are therefore not applicable in present facts. In AIR 1971 SC 1374 - Mannan Lal Vs. Chhotka Bibi, Ron. Apex Court has held :- "21. The words used in that judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appeal was presented in terms of Order 41, Rule 1 of the Code inasmuch as an that this provisions of law requires for an appeal to be preferred is the presentation in the form of memorandum as therein prescribed. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in the fees is made good in terms of an order of the court. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in the fees is made good in terms of an order of the court. it must be held that though the curing of the defect takes place on the date of the making good of the deficiency, the defect must be treated as remained from the date of its original institution." 20. Thus defect, if any, in valuation of his Appeal under Section 96 by Namdeo does not strike at the root of jurisdiction of Lower Appellate Court. Moreover no such objection was raised before Trial Court or Lower Appellate Court by anybody during hearing of his appeal. Had such objection been raised within time i.e. when said first Appeal was pending, Namdeo could have very will taken steps to cure the defect either by meeting such objection or by paying requisite court fee. In present Second Appeal before me no substantial question of law has been sought on this account and has also not been forumulatd. In changed circumstances, Namdeo is not going to pay any court fee on his Regular Civil Appeal as its final decision is now not to his liking. I therefore find that no substantial question of law arises on the account in present matter. 1------- Accordingly Civil Applications filed by subsequent purchasers vide C.A. 2035 & 5939/2004 are partly allowed and they are permitted to come on record as respondents 4, 5 & 6 respectively. Necessary amendment be carried out forthwith. 2 mum C.A.4512/2004 for recording compromise cannot be allowed &. same is accordingly rejected. 3 _____ C.A.7081/2003 filed by Namdeo on 10-11-2003 for review of order dated 9-10-2003 and for vacation of stay is rendered infructuous & is also dismissed. 4 _____ There is no merit in this Second Appeal and the same is accordingly dismissed. Judgment & decree dated 17-1-1994 delivered by Second Additional District Judge, Amraoti, in R.C.A. 402/85 is maintained. 5 -------- In the circumstances of the case there shall be no order as to costs. 6 -------- Decree be drawn accordingly. At this stage Shri. Gilda, Advocate for the appellants states that interim order was operating in the field since 2001 and it should be continued further so as to enable the appellants to approach the Hon'ble Apex Court in the mater. 6 -------- Decree be drawn accordingly. At this stage Shri. Gilda, Advocate for the appellants states that interim order was operating in the field since 2001 and it should be continued further so as to enable the appellants to approach the Hon'ble Apex Court in the mater. Shri. Khapre, Advocate for the respondents opposes the request and states that only order of status-quo was operating. As the order of status-quo was operating till today, I am inclined to extend it for a further period of eight weeks so as to enable the appellants to approach the Hon 'ble Apex Court in the matter. This order shall cease to operate automatically after a period of eight weeks from today. Second appeal dismissed.