NATHU LAL Vs. RAGHUBIR SINGH

JUDGEMENT

(1.) This is an application for leave to appeal to their Lordships of the Privy Council by one of the defendants in a suit for setting aside a sale and the decree on the ground of fraud. The ostensible sale consideration was about Rs. 8,000 but it was alleged that the property transferred was of considerable value and the valuation of the suit was fixed at Rs. 50,000. The allegations of fraud were denied by the defendants who pleaded the payment of sale consideration. The Court of first instance found that fraud had been established but that the passing of one part of the consideration amounting to Rs. 1,760 was proved. It accordingly passed a decree on condition of the payment of this amount by the plaintiffs.

(2.) Nathu Lal, one of the defendants, appealed to this Court from this decree without impleading the other defendants. The others did not join him as appellants but the ground taken was common to them all. The plaintiffs did not file any separate appeal of their own but filed a cross-objection under Order 41, Rule 22, challenging the finding that the payment of Rs. 1,760 had been established. The High Court came to the conclusion that the finding of the first Court as regards fraud was correct but that the payment of Rs. 1,760 was not proved. It accordingly dismissed the appeal of the defendant with costs but allowed the cross-objection of that plaintiffs with costs. As there was no separate appeal filed by the plaintiffs there was only one decree prepared by this Court.

(3.) The defendant Nathu Lal desires to appeal to their Lordships of the Privy Council and claims that ha is entitled to appeal as of right because the decree of the Court below has not been affirmed by the High Court.