MT. VITHI Vs. PAIKU TELI

JUDGEMENT

(1.) MACNAIR , J.C. 1. The plain tiff-respondent Paiku sued for restitution of conjugal rights. He also claimed an injunction against the appellant Vithi's mother and grandfather on the ground that they obstructed him from asserting these rights. The trial Judge passed a decree against Mt. Vithi alone. Vithi appealed and did not implead the other defendants. The plaintiff filed a cross-objection asking that an injunction should be passed against the other defendants. The appellate Court dismissed the appeal and allowed the cross-objection. A second appeal has been filed by the three appellants.

(2.) IT is first urged that as the plaintiff had filed no appeal against defendants 2. and 3 and the period of limitation had expired he could obtain no relief against them by means of a cross-objection. The learned Additional District Judge has relied on Ramchand v. Rikhabdass (1910) 6 NLR 50. In that case certain defendants had been made respondents to an appeal and it was held that a cross-objection could be filed against them although they were not appellants. Skinner, A. J. G., hack not to decide whether a cross-objection-would lie against persons who were not parties to the appeal. In my opinion Order 41, Rule 22, Schedule 1, Civil P. C., does not permit a cross-objection to be filed against a person who is not a parts to the appeal. It would be unfortunate if a defendant against whom the plaintiff's claim had been dismissed could be impleaded after the period of limitation, when the plaintiff's claim against him was entirely separate from the claim against other defendants. This view was taken in Rukia v. Mewa Lal and in Rajendra Nath v. Moheshata Debi AIR 1926 Cal 533. It is urged that if Rule 22 has no application, Rules 20 and 33 allowed the appellate Court to pass a decree against defendants 2 and 3. But Rule 20 does not apply as these defendants cannot be said to be interested in the result of the appeal, which referred solely to a decree against Mt. Vithi. The learned Additional District Judge has not decided whether the discretion given by Rule 33 should be exercised and I have to decide this point. I am of opinion that the discretion given by Rule 33 should not be exercised unless success of the appeal filed would render it just that relief should be granted against a party who had not appealed : for instance, where the suit was against two defendants in the alternative.

(3.) THE appellant's counsel next urges that no decree should have been passed against Mt. Vithi. The findings of fact that marriage had taken place and that the plaintiff is a pure Teli have not been challenged. It is first urged that no decree should have been passed because the decree is incapable of execution, but the decree can be executed in the manner provided by the Civil Procedure Code : it was not for the plaintiff to state in his plaint that Mt. Vithi possessed soma property. The next point urged is that the restitution of conjugal rights can only be granted if conjugal rights have at a previous time been enjoyed. The description of suits such as these as suits for restitution may not be entirely correct, but it seems clear that suits for the custody of the person of a wife are competent. Dr. Gour as author takes a view opposed to that of Dr. Gour as counsel. In Gour's Hindu Code, Edn. 3, para. 582, it is stated : On marriage, the husband becomes entitled to the custody and care of his wife, and he may assert his right by either getting himself appointed as the certificated guardian of his wife or by maintaining a suit for the restitution of conjugal rights.