Boutique Litigation Law Firm - Retain Lawyers - Research based Law Firm - Complete legal services

Property Lawyer: A party holding decree in his favour can challenge finding, if any, against it - without filing cross objections in appeal of an opposite party; SC.

Supreme Court of India

Justice Hemant Gupta and Justice L Nageswara Rao

The SC holds that when the decree passed in the suit by the trial Court is in favour of the party, but the finding in the judgment on any of the issue is against that party who has decree in his favour - no appeal lies against that finding as the right to appeal is a creation of a statute, and an appeal lies only against the decree and not finding as per the provisions of appeal in CPC. It was also held that after amendment in CPC, the cross objections under Order 41 Rule 22 of the Code can be filed, but such filing of cross objections is not necessary to dispute the findings recorded against the person, in whose favour the ultimate decree has been passed.

It was held that the respondents in appeal have a right to support the ultimate decree passed by the trial Court on grounds other than which weighed with the trial Court while passing a decree, in an appeal filed by the opposite party, without filing cross objections. It was also held that even in terms of Order 41 Rule 33 CPC the appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it. Therefore, once the ultimate decree is in favour of the party, against which an appeal does not lie, and the finding can be challenged by the party in whose favour the ultimate decree has been passed, without filing cross objections, therefore, in that case, non-filing of cross objection would not attract the bar of res judicata qua the findings which are against the party having decree in its favour.

In the present case, the SC {State of Andhra Pradesh and Others v. B Ranga Reddy (D) by LR's and Others}, in view of the above discussion, sets aside the judgment of the High Court - which dismissed the appeal of the appellant as being hit by principles of res judicata, on the ground that the appellant had not challenged by filing cross objections, the findings in other two suits in which the appeals were filed by the opposite parties (against whom decree was passed of dismissal of suit), wherein there were adverse findings on some issues by the trial Court against the appellant herein, therefore, the HC held that an appeal in third suit is barred by res judicata as those adverse findings have become final qua the appellant herein and cannot be challenged in the appeal against the decree in third suit. The said judgment of the High Court was set aside by the SC and the appeal was restored before the HC for disposal on merits.


Leave a comment

Please note, comments must be approved before they are published