G.T. Nanavati, J.
1. This appeal is filed against the judgment and decree passed by the City Civil Court, Ahmedabad in Civil Suit No. 1157 of 1974.
2. The suit was filed by the respondents-plaintiffs for a permanent injunction restraining original defendants, who are appellants in this appeal, from selling, transferring or dealing with in any manner the suit plot, which according to them was of their co-ownership and was reserved for the benefit of all the co-owners. The defendants claim that they are owners or in any case by adverse possession have become owners of the suit plot. Various issues were raised by the trial Court; and one of the issues was whether the suit was bad for non-joinder or mis-joinder of parties? The trial Court held in favour of the plaintiffs on merits, but then held that the suit was bad for non-joinder of necessary parties and hence dismissed the suit. Though the suit was dismissed, because of adverse findings on merits, (he defendants have filed this appeal. As the respondents-plaintiffs were also aggrieved by certain findings recorded by the trial Court, they have also filed cross-objections.
3. The first question which arises for consideration in this appeal is, whether, the appeal filed by the defendants is competent? Plaintiffs, suit having been dismissed, no decree has been passed against the defendants. The findings recorded in favour of the plaintiffs are not likely to operate as res judicata and affect the defendants adversely in a future litigation. For these reasons, Mr. G.D. Bhatt, conceded that there being nothing to appeal about, there can be no appeal and the present appeal is, thus not competent. In view of the facts of this case and the concession made by the learned advocate for the appellants, I hold that the appeal is incompetent and not maintainable.
4. The next question which arises is whether the cross-objections filed by the respondents can survive? In this connection, Mr. Bhatt invited my attention to the two decisions of the Bombay High Court in Kashiram v. Ranglal A.I.R. 1941 Bombay 242 and Charity Commissioner v. Padmavati : AIR1956Bom86 . Both these decisions support the contention of Mr. Bhatt that if the appeal is rejected as not competent, then the cross-objections would not survive. Mr. Bhatt has also invited my attention to the decision of Himachal Pradesh High Court in Dhani Ram v. Sushila . In that decision also, it has been held that if the appeal is incompetent, the cross-objections have to be rejected as not maintainable.
5. Mr. S.D. Shah, on the other hand submitted that once an appeal is filed and entertained by the Court, then irrespective of the fate of the appeal, the cross-objections would be maintainable; and the Court must deal with the same. In view of the aforesaid two decisions of the Bombay High Court, it is not possible for roe to accept this submission of Mr. Shah. As has been pointed out therein, if the appeal is found to be incompetent, there is no appeal before the Court; and it there is no appeal before the Court, there cannot be any respondent; and the question of considering the cross-objections would not arise at all.
6. Mr. Shah, however, submitted that now after the amendment of Order 41, Rule 22 of the Code of Civil Procedure, the respondent is given a new right distinct from the right 10 support the decree; and that right is to state that the finding against him in the Court below in respect of any issue ought to have been in his favour. This new right is also independent of the right to file cross-objections. Without entering into the controversy as to whether the right which was available under the old Code is more explicitly stated or whether a higher or a better right is given to the respondents under the new Code, it can be said without any hesitation that the right to state that the finding against him in the Court below in respect of any issue ought to have been decided in his favour in essence is a right to support the decree as against a right to take cross-objections, which right in essence is a right to challenge that part of the decree which has gone against the respondent, it is implicit in the said right that there must be valid or a competent appeal which is required to be decided on merits. The situation where any respondent would be required to support a decree or to state that the finding against him in the Court below in respect of any issue ought to have been in his favour would arise only when the Court is called upon to decide the appeal on merits, if, however, this appeal is rejected on the ground that it is not competent and is, therefore, not maintainable, the occasion for exercise of this right would not arise at all. There fore, in my opinion, even the right conferred by the first part of Order 41, Rule 22 can be availed of if there is before the Court a valid and competent appeal. I am also of the view that the observations made by the Bombay High Court in the two decisions referred to above, with respect to right to take cross-objection, would apply to the right conferred by the first part of Rule 22 of Order 41. Mr. Shah, however, invited my attention to the following observations of the Supreme Court in Raja Kulkarni v. State of Bombay A.I.R. 1954 S.C. 78:
Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard....
7. On the basis of the aforesaid observations; Mr. Shah urged that, even for deciding the question whether the appeal is valid of competent, it will be necessary for this Court to hear that appeal and then come to the conclusion that the appeal is either invalid or incompetent. Once the appeal is required to be heard, the respondent gets a right either to support the decree or to state that the finding against him in the Court below in respect of any issue ought to have been in his favour, irrespective of the conclusion which the Court may ultimately arrive at as regards the validity or competency of the appeal. The above observations came to be made by the Supreme Court in an entirely different context, while interpreting Sections 24 and 27 of the Industrial Disputes Act; and in my opinion, they have no bearing on the question which is required to be decided in this appeal. In the result, the cross-objections filed by the respondents in this case will have to be dismissed on the ground that they do not survive.
8. The appeal and the cross-objections are, therefore, dismissed, Each party will bear its own costs.