Whether a party who is not aggrieved by a decree is competent to appeal against said decree?

It is well settled that a party not aggrieved by a decree is not competent to appeal against the decree on the ground that an issue found against him.

IN THE HIGH COURT OF BOMBAY

F.A. No. 800 of 1989

Decided On: 10.07.1992

Appellants: Balmukund Motiram Anecha
Vs.
Respondent: Suresh Bansilal Anecha and Ors.

Hon'ble Judges/Coram:
V.V. Kamat and S.G. Mutalik, JJ.

Citation: 1992(2)CivilCC(BOMBAY),1993(2) MHLJ1123 Bom

1. Though the Special Civil Suit is fully decreed in plaintiffs favour it was not necessary for the plaintiff to prefer the first appeal, however she has preferred the same against the judgment and decree passed in Special Civil Suit No. 96 of 1974 of the Civil Judge, senior Division, Ahmednagar dated August 12, 1982.

2. The original plaintiff No. 1 (deceased) and plaintiff No. 2 (his daughter) filed a Special Civil Suit for declaration that the decree and order passed in Regular Civil Suit No. 80 of 1974 in the Civil Court of Shevgaon is without jurisdiction and hence null and void and other consequential reliefs against defendants No. 1 and 2. To summarise briefly the contents of the plaint, the defendant No. 1 is the son of defendant No. 3 while defendant No. 2 is the wife of plaintiff No. 1 and mother of plaintiff No. 2. Defendant No. 3 is a busy body of Shevgaon, District Ahmednagar. The plaintiff No. 1 (deceased) was aged and during his old age, his mental condition was not proper. Defendant No. 3 allotted one room from his house to plaintiffs for their residence and thus acquired confidence, subsequently he started creating troubles. The sum of Rs. 87,063.43 was deposited by the plaintiff No. 1 in different bank accounts, the details of the same are given in the plaint. It was totally the self acquired property of the plaintiff No. 1. He wanted to bequeath the same to his daughter (plaintiff No. 2) and accordingly he executed his last will. The deceased (plaintiff NO. 1) had no intention to take defendant No. 1 in adoption at any time, However, with the help of defendant No. 3, defendant No. 1 started Posing to be the adopted son of plaintiff No. 1.

3. Disputes arose in respect of amount of Rs. 87,06.43 and in respect of the same Regular Civil Suit No. 80 of 1974 came to be filed in the Court of Civil Judge. Junior Division. Shevgaon. regular civil Suit No. 80 of 1974 was filed by Suresh Balmukand Anecha (Respondent No. 1) and Sau. Bhukubai Balmukund Anecha (Respondent No. 2) against the deceased plaintiff No. 1 Balmukund Motiram Anecha in the Court of Civil Judge, Junior Division, Shevgaon. the subject matter of the Regular Civil Suit No. 80 of 1974 was the amount of Rs. 87,063.43. Ultimately Regular civil Suit No. 80 of 1974 was compromised between the parties on 21-2-1974. The said compromise decree is challenged in Special Civil Suit No. 96 of 1974 on the ground that the said compromise decree passed in Regular Civil Suit No. 80 of 1974 was without any jurisdiction because at that time the Count of Civil Judge, Junior Division, Shevgaon had no pecuniary jurisdiction to decide the subject matter of which amount was more that Rs. 10,000/- Thus in Special Civil suit No. 96 of 1974, the plaintiff sought the declaration against the defendants that the compromise decree passed in Regular Civil Suit No. 80 of 1974 was without jurisdiction and in fact plaintiffs also succeeded in seeking the said declaration.

4. Defendants filed their written statement and resisted the suit. It is not necessary to summarise the contentions raised by the defendants. In the meantime i.e. after filing of the Special Civil Suit 96 of 1974, plaintiff No. 1 died on November 8, 1974.

5. The learned trial Judge framed as many as 13 issues. After considering the evident both oral as well as documentary, the learned trial Judge came to the conclusion that plaintiff No. 2 has proved that the decree passed in Regular Civil Suit No. 80 of 1974 of shevgaon Court was a decree passed without jurisdiction and hence it is null and void. At the same time the learned trial Judge recorded negative finding to the effect that plaintiff No. 2 failed to prove that said decree was obtained by undue influence and fraud practiced by the defendant No. 3 on deceased Balmukund Anecha. the issue No. 13 was framed regarding the adoption of defendant No. 1 and it was answered in the affirmative. However, in the plaint, it is specifically contended by plaintiffs that plaintiff No. 1 (deceased) never took the defendant No. 1 in adoption. It is further contended that the question of adoption by plaintiff No. 1 (deceased) of defendant No. 1 is not the subject matter of Special Civil Suit No. 96 of 1974 still the learned trial Judge gave such finding.

6. Though the learned trial Judge decreed the plaintiffs' suit against the defendants Nos. 1 to 3 by giving the declaration as prayed by them, still plaintiff preferred the present First Appeal. After service of the notice on the respondents the respondents filed cross-objections.

7. We have heard the arguments of Shri S.D. Kulkarni, learned Counsel appointed as amicus curiae for the respondent No. 1, Shri R.N. Dhorde, learned Counsel for the respondent No. 2 and shri U.B. Binwade, learned Counsel for the respondent No. 3. In the cross-objection it is mentioned that the appeal has been admitted and the respondents received the notice of appeal on 13th June, 1983. The appeal has been admitted by Shri Dharmadhikari and Sharad Manohar, JJ. on 24-2-1983. Before commencement of the hearing of the first Appeal, we posed a question to Shri S.D. Kulkarni, learned Counsel for the appellant about the maintainability of the first appeal. We further made query that when the decree is passed in his favour in the entirety, as to how the present first appeal is maintainable? It is submitted by Shri S.D. Kulkarni, learned Counsel for the appellant that the learned trial Judge has given findings against the appellant in respect of issues No. 4 and 13 and that is why he has preferred the present appeal. If the plaintiffs claim is decreed in its entirely and all others issues are answered in his favour, the plaintiff cannot appeal from the decree. In case the plaintiffs claim is decreed in its entirely and one or more of the issue is found against him, the question, is can the plaintiff appeal against such adverse finding? This particular question is to be answered in the negative. The reason is that, the very fact that decree is entirely in plaintiffs favour notwithstanding any finding adverse against him on one of the issues shows that such findings was in answer to the determination of the plaintiffs suit. Such findings does not operate as res judicata; and it is elementary principle that Appeal is not maintainable on any point that does not operate as res judicata. In the present first appeal when the learned trial Judge has given affirmative finding on issue No. 3 to the effect that the plaintiff No. 2 has proved that the decree passed in Regular Civil suit No. 80 of 1974 of the Civil Judge, Junior Division, Shevgaon was a decree passed without jurisdiction, and hence null and void, it has substantially covered the issue No. 4. At the same time issue No. 13 whether defendant No. 1 is adopted son of deceased Balmukund and it is answered in the affirmative. In fact the plaintiff never contended about the so called adoption of defendant No. 1 by Balmukund Anecha (deceased). Even in ruling reported in AIR 1977 Mad. 25, Corporation of Madras v. P.R. Ramachandriah and Ors. it is observed that:

It is well settled that a party not aggrieved by a decree is not competent to appeal against the decree on the ground that an issue found against him.

8. Thus, in view of the discussion stated above, we hold that the present appeal is not maintainable.

9. The next important point for consideration is whether cross-objections are maintainable especially when we have come to the conclusion that the first appeal filed by the appellant is not maintainable. In the ruling reported in MANU/MH/0079/1956: AIR 1956 Bom. 86, Charity Commissioner v. Padmavati and Ors. it was fount that the appeal though admitted was barred by limitation. It has further observed that when the appeal is dismissed as barred by limitation, the cross-objections cannot survive. Same view has been taken in the ruling reported in MANU/GJ/0040/1986 : AIR 1986 Guj 55, Chanchalgauri Ramanlal and Ors. v. Narendrakumar Chandulal and Ors. in which it is held that:

Appeal filed found to be not maintainable in law. Cross objections filed in such an appeal cannot be adjudicated upon.

10. In view of the observations made in both the rulings which are stated above, especially when the first appeal filed by plaintiff is held as not maintainable, cross objections are also not maintainable. Cross objections survive and are to be heard only when the civil appeal is dismissed for default or withdrawn, but cross objections are not maintainable in case if it is found that the civil appeal is fount to be not maintainable though it was admitted at the initial stage.

11. In the result, we hold that the first appeal filed by the plaintiff appellant is not maintainable and consequently the cross-objections filed by the respondents cannot be adjudicated upon. Hence both are dismissed with no order as to costs. We however direct that fees of Rs. 450/ - be paid, to Shri Sunil Kulkarni, learned Counsel appointed as amicus curiae for respondent No. 1.

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