A S PAPANNA DIKSHITULU Vs. HIS HOLINESS SRIMAN PERIKA KOIL KELVI APPAN SRI SUNDARARAMANUJA PEDDA JEEYANGAR TIRUPATHI

JUDGEMENT

(1.) In this Second Appeal the only substantial question of law that arises for consideration is whether the cross-objections filed by the respondents appellants herein automatically go if the appeal is withdrawn.

(2.) The Second Appeal preferred by the appellants herein arises out of an order dismissing the cross objections, filed by the appellants herein, by the learned Subordinate Judge, Tirupathi on the ground that the appeal itself was withdrawn by the appellant. Now the question is whether the dismissal is against the statutory provisions of Sub-Rule (4) of Rule 22 of Order 41 of C P C.

(3.) The learned counsel for the appellants contended that under Order a 41 Rule 22 (4) CPC the cross-objections should be heard inspite of the appeal being withdrawn. Order 41 Rule 22 is a special provision permitting a respondent who has not appealed from a decree, to object to the said decree in the opposite party's appeal as if he had himself preferred a separate appeal. Where a decree is partly against one suitor and partly against another, one of such parties being satisfied with his partial success, may not prefer an appeal within limitation, but on the other party appealing may like to re-open the adverse part of the decree. In the larger interest of the cause of justice, it is in such circumstances that the party satisfied with partial success is granted another opportunity of challenging the part of the decree against him upon his opponent preferring an appeal of which notice is served on him, by filing cress- objections within one month from the date of the service on him of notice of the hearing of his opponent's appeal. A cross-objection is in the nature of an appeal. A cross-objection is nothing but a part of an appeal, hence legal representatives brought on record in cross-objection enure for the benefit of appeal in which they were not brought on record. It is only after the appeal has been registered that a cross-objection can be filed. Where the memorandum of appeal is rejected for want of Proper Court fee there is no appeal and consequently no cross-objection can be filed. Order 41 Rule 22 permits as a general rule a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases that an objection under this Rule can be directed against the other respondents. Where the relief sought against appellant in cross objection is inter-mixed with the relief granted to the other respondents in such a way that the relief against the respondent cannot be granted without the question being reopened between the objecting respondent and other respondents. cross objections by a respondent or-agaist the other co-respondenis may be allowed (Vide Panna Lal V. State of Bombay 1963 S C 1516at page 1520). Thenew Explanation in sub-rule (1) of Rule 22' added by the Code of Civ I Procedure (Amendment) Act, 1976 empowers the respondent to file cross-objections in respect of a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour. Under Rule 22 a respondent isentitled to ''take any cross-objection to the decree which he could have taken by way of appeal''. If a cross-objection is allowed to be filed in respect of a matter which could not be agitated by means of an appeal, the very purpose of law would be defeated. In a cross-objection, a respondent can challenge a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour. When a suit is decreed in part, each party is entitled to file a cross- objection in so far as the decree is against him without an appeal is filed by the other party. Cross-objection may be filed against the decree as a whole or against a part of it which may not be the subject-matter of the appeal.