JADUNANDAN PROSAD SINGHA Vs. KOER KALLYAN SINGH

JUDGEMENT

(1.) This appeal is directed against the decree in a suit to enforce a mortgage security executed by the first defendant in favour of the plaintiff. The second defendant is alleged to have subsequently acquired an interest in the equity of redemption and has been joined as a party in that character. The third and fourth defendants claim to be mortgagees under an instrument, dated the 21st January 1908 : the fifth defendant sets up a mort-gage alleged to have been granted on the 13th January 1903. The sixth defendant holds a mortgage executed on the 14th September 1907, and the seventh defendant sets up a mortgage granted on the 6th January 1908. The date of the mortgage-bond, which the plaintiff seeks to enforce, is the 19th January 1908, but it appears on the face of it to have been altered to the 23rd January 1908. In the Court of first instance, there were two matters substantially in controversy between the parties, namely, first, whether the mortgage of the plaintiff took effect from 19th January 1908, i e., whether it was entitled to priority over the mortgage of the third and fourth defendants; and, secondly, whether the mortgage set up by the fifth defendant represented a genuine transaction. The Court held upon the first question in favour of the plaintiff, and upon the second question against the fifth defendant. The fifth defendant there- upon appealed to the Subordinate Judge and he joined as parties respondents, the plaintiff and the remaining defendants. Of the latter, the third and fourth defendants preferred a cross- objection, under Rule 22 of Order XLI of the Civil Procedure Code, to the effect that the mortgage set up by the plaintiff took effect only from the 23rd January 1908, and was not entitled to priority over their security. The Subordinate Judge allowed the appeal as also the cross-objection. He found upon the evidence that the mortgage set up by the fifth defendant was not a collusive transaction and that the mortgage sought to be enforced by the plaintiff took effect from the altered date, the 23rd January 1908. The plaintiff has now appealed to this Court, and on his behalf the decision of the Subordinate Judge has been assailed on three grounds, namely, first, that the mortgage of the fifth defendant is collusive and the finding of the Subordinate Judge to the contrary is not supported by the reasons assigned by him, secondly, that it was not competent to the third and fourth defendants to prefer a cross- objection against the plaintiff upon an appeal preferred by the fifth defendant, and thirdly, that, upon the facts found, the mortgage of the plaintiff took effect from the date of execution and not from any subsequent period.

(2.) In so far as the first ground is concerned, it cannot be supported. We have examined the reasons assigned by the Subordinate Judge in support of his conclusion as to the true character of the mortgage set up by the fifth defendant. These grounds do not involve any error of law, and it is not open to this Court to consider whether the Subordinate Judge has taken a correct view of the facts. The first ground, therefore, fails.

(3.) In so far as the second ground is concerned, it raises an important question which was not suggested in the Court below. No objection appears to have been taken before the Subordinate Judge as to the competency of the cross-objection by the third and fourth defendants: that, however, does not preclude a consideration of the point by this Court : if the cross-objection was really incompetent, the omission of the plaintiff to take exception to it could not possibly validate the same. Now, it is not disputed that Order XLI, Rule 22, Sub-rule (1) of the Court of 1908, is comprehensive enough, so far as its language is concerned, to admit of a cross-objection by one respondent against another. But it has been urged that the reason of the rule requires that some limitation should be put upon its scope and application. Reference has been made to judicial decisions under the Codes of 1859 (Act VIII of 1859, Section 348) and 1882 (Act XIV of 1882, Section 561) to show that such restriction is justifiable on principle. Anwar Jan v. Azmut Ali 15 W.R. 26; Bishun Churn v. Jogendra Nath 26 C. 114; Shabiuddin v. Deomoorat Koir 30 C. 655 and Kallu v. Manni 23 A. 93. That principle is that, as a general rule, the right of any respondent to urge a cross-objection should be limited to his urging it only against the appellant : and it is only by way of exception to this general rule, that one respondent may urge a cross-objection as against another respondent: the exception, it is said, holds good in those cases where the appeal opens up questions which cannot be disposed of completely without matters being allowed to be opened up as between co-respondents. This may be accepted as a sound principle, but, as was pointed out by Mr. Justice Banerjee in Bishun Charan v. Jogendra Nath 26 C. 114 no exhaustive rule on the subject can be formulated, and the true test ought to be, whether, for the ends of justice, it is necessary that upon the appeal of one of the parties the matter should be re-opened only so far as he is concerned or the whole case should be reviewed and soma of the respondents allowed the opportunity to urge a cross-objection against their co-respondents. One test of a negative character is sometimes useful : if the party against whom a cross-objection is sought to be urged by his fellow-respondent, is not a necessary party to the appeal, the cross- objection can hardly be allowed to be urged. But if he is a necessary and proper party respondent to the appeal, the answer to the question whether the cross-objection should be allowed to be urged must depend upon the circumstances of the case. The test to be applied is whether the questions which arise between the several sets of parties are so connected that one of them ought not to be allowed to reopen matters, so far as he is concerned, without opportunity allowed, in the interests of justice, to another to protect himself by urging his objections, even though they be directed, not against the appellant, but against a o respondent. Oases of the type of Abdul Ghani v. Muhammad Fasih 28 A. 95 : 2 A.L.J. 667 : A.W.N. (1905) 200 are fairly simple; if the defendants have a common ground, upon an appeal by one of them, the plaintiff may very well be allowed to urge a cross-objection against a defendant-respondent. The case before us, however, is of a special character, and is unlike any of those to be found in the books. Here the plaintiff and third and fourth defendants were so far united that their common interest was to defeat the fifth defendant, who set up a heavy prior charge which, if real, was entitled to precedence over both of them. If the fifth defendant was defeated, the question of priority as between themselves might be immaterial if the property was of sufficient value to satisfy the claim of both of them, (Section 48, Transfer of Property Act). Good reasons might, therefore, be assigned as to why the 3rd and 4th defendants did not prefer an appeal against the plaintiff, although the first Court had overruled their contention that they were entitled to priority. But when they found that the fifth defendant had preferred an appeal, they might, in justice, contend that if that appeal was successful, it would be material for them to urge that the decree of the first Court was erroneous in so far as it gave the plaintiff a priority over them. To put the matter briefly, as soon as the plaintiff and the 3rd and 4th defendants became unsuccessful against their common enemy, the fifth defendant, the conflict of interest between them became important from a practical point of view. We are, therefore, not prepared to accept the contention that the rule on the subject should be narrowly defined and that a cross-objection should not be allowed unless the appeal directly opens up a question between co-respondents. In our opinion, the principle ought to be liberally applied and the case before us, under the circumstances stated, falls rather within the exception than within the rule. We may point out that Order XLI, Rule 22, Sub-rule (3), introduces a modification of the rule as embodied in Section 561 of the Code of 1882: the effect of the alteration is to leave no doubt that a respondent may prefer a cross-objection against a co-respondent: the limits of the rule, however, are not attempted to be defined and Sub-rule (4), which has been added in the Code of 1908, may possibly create a difficulty in some cases. The present base, however, is reasonably free from difficulty, and we must hold that the cross-objection was competent. If the contrary view were maintained, the result would have followed that the first and fourth defendants would have been driven to prefera separate appeal, although if the fifth defendant did not prefer any appeal it might be wholly unnecessary for the 3rd and 4th defendants to proceed with their appeal for the protection of their own interest. The second ground urged by the appellant, therefore, fails.