KUNHUMARAKKAR HAJI Vs. MUHAMMAD

JUDGEMENT

(1.) This second appeal is by the 2nd defendant in O. S. No. 100 of 1965 of the Munsiff's Court, Ponnani. The respondent as plaintiff instituted the suit for recovery of money due under a hypothecation bond executed by the 1st defendant to him. The 1st defendant pleaded discharge of the amount due under the bond. That contention was negatived by the Munsiff and granted a decree as prayed for by the sale of the property. The defendants 2 and 3, the 2nd defendant being the husband of the 3rd defendant, were impleaded as persons in possession of the property. The 2nd defendant, however, contended that he was an unnecessary party to the suit and as such he would be entitled to his costs. The Munsiff in decreeing the suit allowed the costs of the 2nd defendant to be paid by the plaintiff respondent. The 1st defendant filed an appeal before the lower appellate court against the decree reiterating his contention that the discharge of the mortgage amount was true. The lower appellate court dismissed the appeal, but in allowing the cross objection which was filed by the respondent plaintiff the court set aside the order awarding costs to the appellant, who is the 2nd defendant. The appellant raises the contention that the cross objection as against the 1st defendant, who was the appellant in the lower appellate court, was incompetent as it was directed by one corespondent against the other, the plaintiff and the defendants 2 and 3 being respondents in the appeal filed by the 1st defendant in the lower appellate court. It is contended on behalf of the appellant that in view of the provisions of O.41 R.22 CPC., the respondent had no right to file a cross objection when the appeal in the lower appellate court related only to a question which involved a dispute between the 1st defendant on one side and the plaintiff on the other, as the 2nd defendant had absolutely no interest in the subject matter of the appeal which was pending in the lower appellate court and as such the lower appellate court was not correct in allowing the cross objection as against the appellant and the order passed in the appeal had to be set aside.

(2.) The provision of O.41 R.22(1) CPC. reads as follows:

(3.) The above provision came up for consideration before the courts. The final word on this question was first struck in the judgment of the Madras High Court reported in Vadlamudi Venkateswarlu and another v. Ravipati Ratnamma and another, AIR (37) 1950 Mad. 379 (Full Bench). The view expressed in the above decision is as follows: