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2011 DIGILAW 179 (ORI)

SAKUNTALA SAHU v. SUSANTA KUMAR PANIGRAHI

2011-03-18

V.GOPALA GOWDA

body2011
ORDER V. Gopala Gowda, C.J. - This appeal is at the instance of the regal heirs of Defendant No. 2 challenging the judgment & decree in Money Appeal No. 13/1985, particularly challenging in allowing the cross objection at the instance of Defendant No. 12 filed in the said appeal. 2. Though two substantial questions are framed, Learned Counsel Mr. Rath on behalf of the Appellants does not act on the first substantial question of law contending that he is not pressing the same. The only question i.e. question No. (b) remains the substantial question of law which reads thus: (i) Whether a decree could be passed against the present Appellants on the cross objection preferred by the Defendant No. 12 in the Lower Appellate Court? In this regard he has placed reliance upon Order 41, Rule-22 contending that the cross objection filed by the Defendant No. 12 against whom neither there is any pleadings nor there is any allegation made against him, who is not a necessary & proper party & no decree is passed against him in the impugned judgment passed by the Trial Court. Therefore, the Defendant No. 12 could not have filed any cross objection in the appeal filed by Defendant No. 3 against whom judgment & decree was passed who had challenged the same. Therefore, he requested this Court to answer the said substantial question of law in favour, of the Appellants-Defendant No. 2-A to C. 3. Learned Counsel has invited my attention to the pleadings & the findings & the reasons recorded on the contentious Issue No. 2 & 3 in the relevant portion of the judgment. On a careful reading of the findings & reasons recorded by the Trial Court on the above contentious issue in the impugned judgment passed by the Learned Trial Court, there is neither any averments in the pleadings nor any decree is passed against Defendant No. 12 by the Trial Court. The judgment was passed against Defendant Nos. 1,3 & 11 in contest & ex parte against Defendant No. 4. Therefore, Defendant No. 3 has a right to challenge the same. The dismissal of the decree passed against the Defendant No. 12, the Plaintiff has not filed any appeal before the first Appellate Court. The judgment was passed against Defendant Nos. 1,3 & 11 in contest & ex parte against Defendant No. 4. Therefore, Defendant No. 3 has a right to challenge the same. The dismissal of the decree passed against the Defendant No. 12, the Plaintiff has not filed any appeal before the first Appellate Court. While hearing the appeal of Defendant No. 3, the first Appellate Court though dismissed the appeal, the cross objection at the instance of Defendant No. 12 was allowed passing a decree against these Appellants. The same is illegal & therefore, the cross objection is not maintainable in law. In the said appeal filed by Defendant No. 3, the Plaintiff has never raised anything regarding findings on the contentious issue. Therefore, invoking Order-41, Rule-22 by the Defendant No. 12 was not correct. In the cross objection in the appeal of Defendant No. 3 by the cross objector of Defendant No. 12, the judgment & decree is modified fastening the liability upon the Appellants is contrary to law. In support of his submission he has placed reliance upon the judgments of this Court in the case of Arjuna Kamila (dead) and after him his legal heirs and Anr. v. Umesh Chandra Rana and Ors. 78 (1994) CLT 69, Pragnya Rout Vs. Hemaprava Ray and Others Ratha Charan Routray Vs. Mohan Lal Gupta @ M.L. Gupta and Others, & in the case of Khirod Chandra Dash and Others Vs. Bimal Dash and Others. The Defendant No. 12 is not a aggrieved party of the judgment & decree of the Trial Court. Therefore, he could not have filed cross objection in the appeal of Defendant No. 3. In the absence of the Plaintiff challenging the findings on the contentious issue & not passing the judgment against Defendant No. 2 A to C as provided under Order-41, Rule-35, the Trial Court should not have passed orders allowing the cross objection of Defendant No. 12, fastening the liability upon the Appellant herein. Hence the appeal is erroneous in law. Accordingly, I have to answer the substantial question in favour of Defendant No. 2 A to C. Accordingly, the judgment dated 15.2.1988 & Decree dated 10.3.1988 respectively passed in M.A. No. 13 of 1985 so far it relates to allowing of cross objection in favour of Defendant No. 12 is set aside. Accordingly, the appeal is allowed. Final Result : Allowed