BABUSINGH Vs. GODAWARI

JUDGEMENT

(1.) 1. As the judgment appealed against does not sufficiently mention the facts, it is necessary to give the same in some detail here. In Civil Suit No. 127 of 1918 a preliminary decree for foreclosure was obtained by two plaintiffs, Godawari and Sunderbai, against four defendants, (1) Babu, (2) Lalsingh, (3), Babusingh and (4) Bhagwandas, in the Court of

(2.) ND Subordinate Judge, Akola, on 8th September 1919. Various appeals were preferred later, the last of which was decided by this Court on 17th December 1924, as Second Appeal No. 188-B of 1923. The preliminary decree, as ultimately modified by this Court, was made absolute on 27th March 1926, ex parte the defendants and possession of the mortgage property was obtained by the plaintiffs decree-holders on 24th June 1927, and the decree was struck off as fully satisfied on 30th July 1927. 2. On 7th April 1926, defendant 3, Babusingh applied to the lower Court for setting aside the ex parte decree absolute for various reasons given in the application which was registered as Misc. Case No. 29 of 1926. On 23rd April 1926, defendant 4, Bhagwandas, made a similar application and this was registered as Misc. Case No. 35 of 1926. Both these cases were contested by the plaintiffs decree-holders and separate orders rejecting the applications were passed by the lower Court on 9th April 1927. Defendant 3, Babusingh, did not prefer any appeal against the adverse order passed against him in Misc. Case No. 29 of 1926. 3. Against the order passed in Misc. Case No. 35 of 1926 defendant 4, Bhagwandas filed an appeal in the Court of the 2nd Additional District Judge, Akola (Misc. Appeal No. 2 of 1927) making the plain-tiffs as the first two respondents and defendants 1 2 and 3 as respondents 3, 4 and 5 respectively. On 19th November 1927, defendant 3 as respondent 5 in the aforesaid appeal filed cross-objections to what he styled as "the final decree for foreclosure passed in this case" on various grounds one of which was that the lower Court should not have passed an ex parte decree absolute when notices were not properly served upon the defendants. On the date of the hearing of the appeal on 1st December 1927, the defendant 4 Bhagwandas, who was the sole appellant through his pleader, withdrew his appeal and in spite of the protest of defendant 3, Babusingh, respondent 4, that his cross-objection should be heard and decided on merits, the lower appellate Court overruled mm on the ground that the so-called cross-objections were not maintainable because they were in the' nature of an appeal against the order passsed in Misc. Case No. 29 of 1926 which was not appealed against. It is against this last order of the lower appellate Court that the present second appeal is filed. The only question for decision is whether the cross-objections filed by the present appellant in the lower appellate Court were in order and if so whether the lower appellate Court was justified in refusing to dispose of them on merits.

(3.) THE order of the learned Additional District Judge is perfectly correct and this appeal fails and is dismissed with all costs.