JUDGMENT
Hari Nath Tilhari, J.
1. This claimant’s appeal arises out of the judgment and award dated 19.10.1991, delivered in the Motor Accidents Claim M.V.C. No. 1416 of 1988, whereby the Tribunal No. III, Belgaum has granted and awarded, in total, a sum of Rs. 16,000/- as global compensation to the claimant with interest at the rate of 6% per annum from the date of the petition till the date of realisation and directed that the respondents 1 to 3, shall be jointly and severally liable to pay the amount of compensation awarded and it further directed that as regards remaining 50% of the amount of compensation awarded shall be payable jointly and severally by respondents 4 and 5 to the claim petition.
2. The facts of the case in brief are that on the date of occurrence, that is 11.12.1988, tine claimant-appellant was a pillion rider on Scooter Bajaj — CLT 2626 from Belgaum Market to Kanabargi which was being run in a moderate speed. When the scooter reached the spot of accident at about 9.45 p.m., the KSRTC Bus –MEF 3510, came from the opposite direction in a great speed and dashed against the scooter belonging to respondent No. 4, in the claim petition, that is the claimant in MVC Case No. 473/1989. As an impact of the dashing of the bus with the scooter, claimant-petitioner, who was pillion rider and respondent No. 4, who was the rider, i.e. driver of the scooter sustained serious and grievous injuries and they had to be shifted to the hospital.
The case of the claimant, in the two claim petitions had been that the accident had taken place solely due to the rash and negligent d riving of the bus by respondent No. 1, that is the driver of the KSRTC bus. The claimant further averred that the claimant was, at the time of accident, was healthy, fit and carrying on the business of vegetable vending and his monthly income was about Rs. 2,000/-. The claimant in the claim petition averred that as a result of the accident, he suffered compound fracture of right leg below knee and grievous injuries on other parts of the body. The claimant further alleged that from the date of accident, i.e. 11.12.1988, till the date of filing of the petition, the claimant was under the medical treatment in the hospital. The claimant has mentioned that before the accident, he was hale and healthy and doing vending business for earning livelihood for his family, and has been the sole bread earner. That he claimed a sum of Rs. 1,40,000/-, as compensation under different heads which are mentioned hereinafter :
Rs.
(i) Mental agony, pain and suffer rig 20,000/-
(ii) Loss of present and future income 40,000/-
(iii) Towards permanent disability 30,000/-
(iv) Loss of expectancy of life 15,000/-
(v) Loss of future prospects of life 15,000/-
(vi) Loss of marital obligations etc. 15,000/-
(vii) Medical exp., costs and conveyances 5,000/-
--------------------
Total 1,40,000/-
3. The claim of the claimant was contested by the opposite parties, who filed their written statement. Respondents 1 and 3, filed the objection as well as respondent No. 5, did file objections but no written statement has been filed in MVC 1416 of 88, i.e. in the claim petition or appellant by respondent No. 4, and respondent No, 4, allowed the proceedings of that case to go without contest. It may be mentioned here that this respondent No. 4, had himself filed a claim petition claiming damages and compensation against the KSRTC only.
The respondents 2 and 3, who filed the objections denied the allegations made in the claim petition. It was asserted by respondents 2 and 3 that the bus was being driven by respondent No. 1, in a moderate speed and when the bus reached CBT stand, respondent 1 saw one city bus was taking the turn to ward splat form and slowed down the same as well as stopped the same to allow the other bus to pass and at that point of time, one vehicle Bajaj M. 80 scooter with a pillion rider as well came from the other side, the rider was under the influence of liquor and alcohol, he was running with great speed and dashed against the stationary bus resulting in injuries to the rider and the pillion rider to the scooter and from there the pillion rider and the scooter were removed to the hospital. That they being under the effect of alcohol or liquor were not able to control the vehicle and so, the occurrence did take place. Respondents 2 and 3 denied their liability for the accident and asserted that mere was no negligence or rash driving on the part of the respondent No. 1, in driving the KSRTC bus. They asserted that claimant was not entitled to any compensation. In the alternative, they also took the plea that claim made by the claimant was exorbitant.
4. Respondent No. 5, the Insurance Company, also filed the written statement and stated that with it the scooter was insured. The respondent No. 5, further asserted that the claimant sustained simple injuries in the alleged accident. It was further asserted that accident did take place solely because of the negligent and rash driving of the KSRTC bus by its driver. It also stated that at the time of accident, respondent 4 was not holding a valid driving licence. In the alternative, it was also asserted that the claim for compensation made, has been quashed in an exhorbitant manner-
5. On the basis of the pleadings of the parties, the Tribunal framed the following issues:
1. Whether the petitioner proves that he sustained personal injuries in an accident that occurred on 11.12.1988 due to the rash and negligent driving of the bus driver – respondent 1 ?
or
Whether the respondents 1 and 2 prove that the accident occurred due to the rash and negligent driving of Bajaj M-50 bearing Reg. No. 2626, driven by respondent 4?
2. What is the quantum of compensation to which the petitioner is entitled and from which of the respondents?
Similar issues were also framed in MVC No. 473 of 1989. That the present appeal arises from MVC 1416/88, there is no need to go into that matter any further of MVC 473 of 1989.
6. After having considered the material on record and the evidence of the parties, the Tribunal recorded the following findings:
1. That the accident did take place due to composite negligence of the scooter rider – respondent No. 4, and the bus driver of KSRTC bus to the extent of 50% each. (2) That the claimant suffered injuries as alleged and awarded the global compensation to the tune of Rs. 16,000/- only. It further held that 50% of the compensation was payable by respondents 1 to 3 jointly and severally and the remaining 50% of the compensation to be awarded was payable jointly and severally by respondents 4 and 5.
Having felt dissatisfied with the award and the amount of compensation awarded and feeling the same to have been insufficient and inadequate, the claimant has preferred this appeal No. RFA 383 of 1992, under Section 173 of the Motor Vehicles Act, 1988.
7. I have heard Mrs. Sona Vakund for Mr. N.B. Nargund, learned Counsel for the appellant and Mr. M.S. Mandanna, as well as Mr. Mohammed Ather, learned Counsel for respondents 2 and 3 and Mr. H.G. Ramesh, learned Counsel for respondent No. 5, that is Oriental Insurance Company Limited, at good length of time. The learned Counsel for the appellant contended that the scope of this appeal is primarily limited to the quantum of compensation that has been awarded. Mr. Sona Vakund, learned Counsel for the appellant invited my attention to the injuries that had been caused to the pillion rider, that is the present appellant as well as to the extent of disability caused because of the injury. She submitted that the appellant–apart from suffering contusion over right frontal region or lacerated wound on the right knee joint lateral to injury,–had also suffered the fracture of right knee. She submitted that on account of the fracture of the right knee and the other injuries which were in the opinion of the doctor grievous in nature and while the other simple injuries, the appellant had to be retained from the hospital for about one month, as he was admitted on 11.12.1988 and was discharged from the hospital on 10.1.1989. She further submitted that due to fracture of the right knee joint, the petitioner had suffered disability to the extent of 40% as per Ex. P5. Learned Counsel submitted that this affects and continues to affect the enjoyment of normal life as well as this has disabled the claimant, from carrying on his usual business. Learned Counsel submitted that has resulted in loss of earnings and income to the family. She submitted that grant of total sum of Rs. 16,000/- only as global compensation for suffering of loss of amenities, earnings, medical expenses. This, in lumpsum, is too insufficient and inadequate. She submitted that the patient had to remain in hospital for a month and he had incurred expenditure to the tune of Rs. 4,000/-. This should have been awarded under separate head and the general damages should have been awarded under different heads. Learned Counsel for the appellant contended that no appeal or cross-objection has been filed by any of the respondents. So, finding to the effect as to the cause of accident was rash and negligent driving of bus by its driver has become final and binding on the parties.
8. On behalf of the respondents, on effort was made to shift the liability on each other. No doubt, the Counsels for the respondents admitted that the claimant suffered fatal injuries as alleged and that he had been admitted in the hospital, but both the sides denied their liability for accident. Mr. H.G. Ramesh, learned Counsel for respondent-5, contended that the finding recorded by the Tribunal that accident did take place not only because of negligence and rash driving of the bus driver of the KSRTC, but also because of the negligence or rash driving of the motor-cycle by respondent No. 4, is incorrect. Mr. Ramesh, contended that respondent No. 4, was having the learner’s licence and he was a learner’s licence holder, while the claimant was sitting as pillion rider and there was a ‘L’ Board or signal or indicator on the vehicle that the driver was a learner. Mr. Ramesh contended that when a person is learner, and with learner’s licence on the road, a greater responsibility is fastened on regular drivers when driving the motor vehicle. The learner is a learner, Mr. Ramesh contended, the duty of care is more and the duty to take care is higher on the ordinary driver than the learner driver and in this case, liability of accident should be fastened solely on the KSRTC bus driver for the accident. He submitted that as the liability was solely of the driver of the bus, the claim should have been decreed solely and exclusively against respondents 1 to 3 and as such, 50% of the liability has been wrongly fastened on respondents 4 and 5. This contention of Mr. Ramesh, was contested by Counsel for respondent No. 1. The Counsel for respondent No. 1 submitted that no cross objection having been filed, it is not open to respondent 4 pr5 to challenge the findings recorded by the Tribunal that negligence was 50%, 50%, that is 50% of the driver of the motor cycle and 50% of the driver of the KSRTC bus.
9. That the respondent No. 4 in spite of being served with notice of appeal, has neither filed the appeal nor filed the cross-objections and the decree that has been passed fastening liability for the compensation to the extent of 50% on respondents 4 and 5 and 50% on respondents 1 to 3, has become final. The learned Counsel for respondent No. 1 submitted that decree determines the rights and liability of the parties. But here in the present case, the decree that has been passed which is the one determining the liability of the respondents for payment of compensation oh one hand and on the other hand, right of the claimant to realise compensation from each set of respondents and also the extent to which claimant can realise from each of the sets. As such, the learned Counsel for respondents 1, 2 and 3 contended that the challenge to this finding that negligence was 50%, 50% of both the sets of respondents tantamounts to challenging the decree of the Tribunal which has determined the liability of two sets of respondents in this case to pay and the extent of right of the claimant to realise the money from either of the two opposite parties and as such it is not open to challenge. In the alternative, Counsel for the respondents 2 and 3, that is the KSRTC submitted that the accident indicates that really, the accident did not have taken place on account of rash and negligent driving of the motor cycle by the motor-cycle rider and compensation should be made payable in entirety by respondents 4 and 5 and not by the KSRTC. As regards the amount of compensation, the Counsel on behalf of respondent I .o. 5 – Insurance Company submitted that compensation that has been awarded is just, proper and sufficient. The learned Counsel contended that the injury was not due to fracture, but even earlier to that, the claimant was suffering from polio in both the legs and as such, the disability which has been determined to 40% is erroneous. At the most, the disability might have been arisen out of the accident, if at all, would be if lesser in percentage, and the learned Counsel for respondent No. 5, submitted that the claimant is earning and continuously earning. The Counsel submitted that even, at the time of determination of compensation, the claimant was doing his business. As regards matrimonial disability, the learned Counsel for the respondents have not been able to contest and dispute that, as submitted by the learned Counsel for the appellant and submitted that it is for the Court to take its own view, instead of any submission being met looking to the evidence. The learned Counsel for the Respondent No. 5 submitted that it is open to him to challenge the finding on the question of compensation awarded as well as on the question of negligence which has been assessed to be 50% each in view of the provisions of Order 41, Rule 22 of the Civil Procedure Code, fort short the ‘Code’. In support of this last contention that he is entitled to challenge that finding, the learned Counsel for the 5th respondent – Insurance Company made reference to the decision of this Court in Kunha Naika v. Laxmimathi Shedthi, 1991 (3) Kar. LJ (Supp.) 73. He also made reference to the decision of the Madras High Court in Caddem Chinna Venkata Rao v. Koralla Satya AIR 1943 Madras 698 and to the case of Sri Chandra Prabhujijain Temple v. Harikrishna ..
10. Mr. Mohammed Ather, Counsel for the KSRTC, submitted that as the finding which is sought to be challenged by the respondent No. 5, is nothing but an attempt to challenge the part of the decree where under, the liability of respondents 4 and 5 has been fixed to the extent of 50% of the compensation, for payment thereof and liability of respondents 1 to 3, that is KSRTC and others has been fixed to the extent of 50% of the compensation and if is allowed to be challenged as is sought to be challenged, the natural consequences thereof, being nothing but that the decree should be set aside or modified in case of challenge being upheld so, it is not open to respondents to challenge such findings without filing of appeal or cross-objection by them. He made a reference to the following decisions:
(1) Chondhary Sahu (dead) v. State of Bihar,
(2) Balkrishna Das Agarwal v. Smt. Radha Devi,
(3) Tarachand Agarwalla v. Union of India, AIR Calcutta 268
(4) Jayakunvar Manilal Shah v. Syndicate Bank, ILR 1992 (2) Karnataka 1053.
11. As regards the quantum of compensation, Counsel for respondent Nos. 1 to 3, submitted that Order 41, Rule 22 of the Code should be read harmoniously with the other provisions of the Code and he submitted that it is not open to the 5th respondent to challenge a finding which has the effect of rendering directly or indirectly the reversal or modification of the decree, unless the 4th and 5th respondents have filed the cross objection or appeal and as such, scope of the first part of Rule 22 of Order 41, CPC which provides that the respondent may state a finding which has been recorded against him should have been in his favour, only relates to the finding against such a person, which do not have the effect of reversal or modification of thedecree passed by Court below. He submitted, to support the decree means, to support the decree as passed by the lower Court or the Tribunal.
12. I have applied my mind to the contentions made by the learned Counsels for both the parties. In this case, there is no question of any contributory negligence of the injured. He suffered injuries, because of negligence of respondent Nos. 1 and 4 or if at all the arguments of respondent No. 5, is to be considered, it may be said that because of negligence of respondent No. 1, but that is a separate question to be considered, provided and if respondent No. 5 can raise that plea. That so far as the appellant is concerned, there is no doubt, he suffered the following injuries on account of the occurrence of accident as per Ex. P4 — the wound certificate. The injuries are:
1. A contusion over right frontal region 21/2″ x 2l1/2″
2. A lacerated wound over the right knee 1/2 x 1/2 x 1/2″
3. A lacerated wound on the right knee joint lateral to injury No. 21/2″ x 1/2 x 1/4″
4. Fracture dislocating of right knee.
X-ray report , 12.12.88 (1): Right knee fracture of lower and of right femur.
7459 13.12.88 Right femur (1) fracture lower end of right femur
(2) fracture lower pole of patella, (3) fracture upper
end of right tibia.
3.1.89 Right knee thigh commuted fracture lowerly right femur fracture patella.
That the doctor as PW 2 has deposed about the above injuries and fracture in right knee as well as fracture of right femur, fracture of patella and fracture of upper end of right tibia in his deposition. Exh. P5 is the report of Dr. R.K. Sharma. This report is dated 29.9.1989. It indicates that the claimant was admitted to hospital. Exh. P4 also indicated that the claimant was admitted in the hospital on 11.12.1988, that is the date of accident. It may be taken note that on 11.12.1988, the claimant was admitted in the Civil Hospital and was relieved there from on 10.1.1989. Thereafter, he was again admitted in the Clinic of Dr. R.K. Sharma. The report indicates that the claimant had complained about unability to work properly, unability to bend the knee and to squat etc. The Doctor has given the opinion in his report that there is a permanent disability and it is unlikely to improve. He has further mentioned that in view of the severity of the fracture, pain and inability to squat for toilet purposes, shortening of limb, wasting of muscles, malposition, and Osteoarthritis, the Doctor has assessed his disability as 40% of the right lower limb. The doctor has further mentioned that there is likelihood of deterioration in future in knees functioning. So, taking totality of the matter, he has given opinion that there is 40% of the disability. PW1, that is Shankar, has stated in his examination-in-chief of his deposition that he suffered injuries on his right leg and other parts of the body and was not completely cured. He also disclosed that he was discharged from Civil Hospital and, thereafter, he had to take treatment from the Doctor at Belgaum. It is also clear that the statement of this witness and his other evidence that he cannot stand for a long time nor can he squat. He also deposed on oath that he cannot bend his right leg. This statement of PW 1 finds support from the medical report or injury certificate of the Doctor. PW 2 – Dr. R.K. Sharma, has proved the certificate also and stated that the fracture in right knee was detected when X-ray was taken. Doctor has deposed that on examination, he found that the petitioner was limping when walking. Gravitation was also felt in the movement of the knee and he has deposed that according to his opinion, petitioner was suffering from permanent physical disability of 40% in the right femur. The Doctor denied the suggestion to the effect that the petitioner had not at all suffered any disability or that he could do his normal duties. The doctor has mentioned the shortening of the leg in the case of the claimant has been due to fracture.
13. Considering the material evidence on record, I agree with the opinion expressed by the Tribunal that the evidence on record including Ex. P4, clearly established that the claimant suffered fracture on the right knee joint injury which was caused on account of his accident and the movement of his right limb was also affected there was shortening of the leg to certain extent and in such circumstances, the claimant was adversely affected by the disability caused in carrying on his daily routine activities of life including the enjoyment of his normal life as well as his doing the business in proper manner. The Tribunal has observed as under:
However, it is clear that he suffered fracture of the right knee joint and, consequently, the movement is affected by the disability and the said disability comes in the way of enjoyment of his life.
The Tribunal has after recording the finding has awarded Rs. 16,000/- as global compensation. The learned Counsel for the respondent No. 5 has invited my attention to the statement in the course of examination particularly of the statement of PW 1 contained in paragraph 4, where PW 1 states that: I am suffering from polio since my birth to my both the legs. Merely because the petitioner had some polio, it did not give a licence to the opposite parties, that is respondents 1 and 4 to cause injury to his knee or fracture of his limb. It may be considered as a minimising factor of the disability, but it cannot give a licence to the persons to cause fracture by colluding their vehicles. The report of the Doctor and the wound certificate no doubt, indicate doctor’s opinion that his disability was upto 40%, as Doctor has very specifically said that shortening of the leg was due to the fracture, it means it was not due to something like his polio.
14. In the claim petition, the claimant had claimed Rs. 5,000/- towards medical treatment no doubt in course of his statement, he has stated that he had incurred expenditure to the tune of Rs. 8 to 9 thousands and had denied the suggestion which was made to him that he had falsely deposed in his examination-in-chief that he spent Rs. 8 to 9 thousands. May be there be some exaggeration in the figure of Rs. 8,000/- to Rs. 9,000/-, but there is no doubt, he must have incurred expenditure to the tune of Rs. 5,000/-. PW1 has stated that Dr. Sharma has charged Rs. 2,000/- towards the treatment given to him and looking to this figure, it can be assumed that the expenditure to the tune of Rs. 5,000/- night have been incurred. If this figure of Rs. 5,000/- is substracted from Rs. 16,000/-, then what remains will only be Rs. 10 or 11 thousands as the general damages. As submitted by the 4th and 5th respondents’ Counsels that claimant suffered disability from the polio, but the claimant has suffered more disability on account of the occurrence or by incident or motor accident that had taken place. In case, I take that disability at a reduced figure from 40% to 15% or 20% and calculate towards general damages on the basis of the daily earnings of the person by monthly income and yearly income multiplied by the multiplier of 10, if there would have been total damage of full disability, the damages could have been awarded to the tune of almost Rs. 2,50,000/- and in that case, if disability is taken to be 15%, the amount would have come to a sum of Rs. 45,000/-. This may be taken to be and I think it would be proper in such a case to award and to hold that claimant will be entitled to compensation to the tune of Rs. 45,000/- under the head ‘general damages’ which may include damages for pain and suffering, for loss or diminishing of the earning capacity and the enjoyment of life. In respect of medical expenditure as special damages, the claimant may be held to be entitled to a sum of Rs. 5,000 /- as claimed. The claimant has been a vendor of the vegetables. According to the statement, he had been earning Rs. 80/- per day and he had paid Rs. 2,000/- to Dr. Sharma and for other expenses also. Thus considered in my opinion, the claimant to be entitled as under general damages Rs. 45,000/- and special damages of Rs. 5,000/-; in total the amount of damages will be Rs. 50,000/-.
The Tribunal has recorded the finding that there had been negligence of both, that is of the driver of the KSRTC bus as well as of the rider of the Scooter to the extent of 50% each.
15. On behalf of respondent No. 5, the finding has been sought to be challenged that there had been 50% negligence of the driver of the bus and 50% negligence on the part of the driver of the scooter. The scooter had been insured with respondent No. 5. In this case, the learned Counsel for respondent No. 5 tried to rely on Order 41, Rule 22 of the Code to challenge the finding that there was no negligence on the part of the rider of the motor cycle. He submitted that he does not want to challenge the decree which has been passed against him to the extent of 50%, but he only supports the decree by staying that there was 50% of the negligence and under Order 41, Rule 22, it is open to him to challenge it. Before I proceed any further, it will be just and proper to refer to the provisions of Order 41, Rule 22, as it existed prior to 1970 and later on as has been amended by Act No. 104 of 1976. Rule 22(1) of Order 41 unamended as stood originally reads as under:
Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objections to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
By Section 87 of Act No. 104 of 1976, for the words “on any of the grounds decided against him in the Court below, but taking any cross-objection, the words “but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection”, had been substituted in Rule22, Sub-rule 1 of Order 41 and explanation had also been inserted in Rule 22(1)of Order 41. The amendment by way of explanation-1 to amended Rule 22(1) of Order 41 reads as under:
Explanation : A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
16. A perusal of Order 22(1), Order 41 perse reveals that, although respondent may not have filed an appeal from a part of the decree, but was conferred a right to support the decree passed by the Court below even on the grounds decided against him by the Court below, but in case where he wants to do something more than supporting the decree, that is he wanted to challenge the decree or part of the decree, he could do that either by filing the appeal or the cross-objections, but he simply wanted to support that decree passed by the Court below, then it was open to him to support that decree. In other words it means that, to say, on the grounds which had been decided against him, if those findings would have been favourable to him, even in that case also, the decree as stands or stood at the time of filing of the appeal would have been like the case, where the plaintiff files a suit for recovery of money or/and for damages either on the basis of contract or like the present case on the basis of negligence on part of the driver of a motor vehicle which is alleged to have caused injury to the claimant or the plaintiff. The Trial Court deciding the issues dismisses the suit on merits against the plaintiff, but records a finding on question of limitation and resjudicata in plaintiff’s favour and against the defendant . and holds the suit not to be barred by such pleas of limitation and res judicata and dismisses it. That on the plaintiff’s filing the appeal challenging that decree of dismissal of the suit, even without filing any appeal or cross objection, it will be open to defendant to show when the appeal is. being argued, suit was not filed within limitation and finding on question of limitation or on question of maintainability of the suit had wrongly been given, and that if those findings on those issues of limitation or resjudicata should be in his favour and suit ought to have held as barred and not maintainable and even on merits finding being in favour of plaintiff, the suit could not have been decreed, the decree that has been passed by the Court below dismissing the suit would stand and thus, support the decree dismissing the suit.
‘Supporting the decree’, to support means, an act to maintain something in itself, as it is not an act to dislodge that thing. When a person wants to dislodge decree or that thing, it may be challenging that decree, but where he says that even in spite of finding on merits having been recorded in favour of the plaintiff, in appeal, the fate of suit will remain same, i.e. dismissal, had the finding recorded by Trial Court against him, been in his favour, such stand may be one supporting the decree as it stands. Taking other illustrations, the suit is partly decreed and partly dismissed with respect to the claim. Plaintiff files the appeal against the part of that decree by which the suit has been dismissed. The defendant does not file any appeal or cross-objection against the part of the decree, decreeing the plaintiff’s suit. In such a case, if the defendant urges that no suit would have been maintainable even when the finding on limitation would have been there, the entire suit should have been dismissed and no decree should have been passed. The question I put to myself is: Whether it will be a case supporting the decree, it appears to me to be not a case supporting the decree as passed by Trial Court, i.e. not a case of supporting the decree as standing, that is decreeing the suit in part and dismissing the suit in part, that decree should be supported, but when a respondent without filing the cross-objection or cross-appeal against that part of decree, whereby suit has been decreed, in course of plaintiff’s appeal against that part of decree, whereby Trial Court had dismissed the claim part, urges that no part of suit should have been decreed as suit was barred by limitation and Appellate Court accepts his contention on the impression of recording a finding, and the Court holds that suit in entirety liable to be dismissed and so, plaintiff’s appeal cannot be allowed. Then because of the contention raised by respondent under Rule 22 of Order 41 of the Code, what may follow may not result in supporting sustaining of the decree, but in creating two conflicting decrees, a situation, which may not be a happy one that in the very suit, two decrees have to stand. The Appellate Court may then be required further to hold, as the entire suit is to be found to have become barred by limitation. So in pursuance of Rule 33 of Order 41 of the Code, the Appellate Court would be required to upset entire Trial Court’s decree and it can no way be said to be supporting the decree. But challenging the decree that has already been passed and that decree which had been passed was against the defendant, then such a course if be permitted to such a defendant who has neither filed any appeal for part of decree decreeing plaintiff’s suit against him nor has preferred a cross-objection within time, will a mount to allowing him to challenge the decree or part of decree which became final by not being challenged by the filing of appeal or cross objection. A finality is attached to the decree against which no appeal is filed. No doubt, Rule 22 of Order 41 gives a right to file a cross-objection with a further latitude to file cross-objections within the period prescribed, that is within the period of 30 days or within a period of one month from the date of notice, but even inspite of the respondent in that case being allowed the period to file cross-objection does not file the objections. The question is: When he has neither filed the cross objection nor the appeal can he be allowed to say that he is only challenging the finding on question of limitation? Or that he states that the decree should be set aside when the impact would be that, there would be two conflicting decrees and the Court would be required to exercise power under Order 41, Rule 33 to set aside the whole decree.
17. In Webster’s Dictionary (Collegiate Edition), the meaning of expression “to support” has been given: to bear or hold up, to sustain, to tolerate; to uphold or it means maintenance, or maintaining and ‘supporter’ has been defined to mean as one who aids, maintains, or supports another person, a defender (see at Pages. 1541 and 1542).
In Chamber’s 20th Century Dictionary (New Edition) at Page 1300, the meaning of expression ‘support’ is given to bear the weight of; to hold up : to sustain; to maintain; to uphold; to supply with means of living; to strengthen : or it means an act or fact of supporting or the act which supports, or maintains. In Black’s Law Dictionary (5th Edition), the meaning of expression ‘support’ has been given at Page-1291, support, v. furnishing funds or means for maintenance; to maintain; to enable to continue; to uphold with aid or countenance, that which furnishes a livelihood; a source or means of living; subsistence, sustenance or living. In a broad sense, the term includes all such means of living as would enable one to live in the decree of comfort suitable and becoming to his station of life.
In Words and Phrases (Permanent Edition), Page 40A at Page 392, dealing with ‘support’, it has been observed:
Support according to Webster’s means to sustain to supply funds or means of continuing. At Page 391 of the same Dictionary, it has been mentioned, the word support implies sustaining from beneath as is indicated by its definition to bear or being under and its derivation.
18. A challenge to a finding on the basis of which the decree has been passed against a person imposing liability on him and conferring right on the claimant to realise or to enforce his right cannot be said to be an act of supporting the decree passed, because if very basis or the basement on which the decree is allowed to be challenged without filing of any appeal, or without cross-objection being filed it may have the effect not of supporting the decree, but allowing a person, who has been negligent in the conduct of his case by neither filing the appeal nor cross-objection with limitation, to challenge the decree indirectly on the pretence of supporting the decree. This will have the effect of nullifying, in fact the law contained in the other provisions of the Code, namely the requirement of either filing the appeal within limitation or of filing the cross-objection within the time prescribed on one hand and on the other hand, it may have the effect of adversely keeping the decree which has become, final always in jeopardy and in a way not to allow it to become final, and even it may have the effect of nullifying effect and the object of law under Section 3 of the Limitation Act which imposes a duty on the Court to dismiss the suitor an appeal filed before it or application or cross objection made before it if it has been filed beyond the period of limitation. Once the appeal filed beyond limitation is dismissed or cross-objection has not been filed within the time prescribed, allowing such a person to do the same, which may have the tendency to nullify the other provisions of law in my opinion, this could not be the intention of the framers of law, who enacted Order 41, Rule 22 or who introduced an amendment in Rule 22. Findings which may not affect the decree, but which may support the decree, though recorded against the respondent, no doubt the defendant-respondent could not have filed the appeal or cross-objection in respect of such findings, no doubt, he has been given rights to challenge those findings while arguing, and to show that if the finding in itself favours, decree will remain the same as passed by the Trial Court. But, this clause does not empower him or authorise him to challenge the finding on which the decree is based or part of decree is based.A reading of the explanation further fortifies the opinion, because it provides that a respondent aggrieved from the finding in a judgment which forms the basis of the decree can be challenged by filing the cross-objection. In respect of a decree which is based on that finding, again limit has been put, that in cross-objection, that finding can be challenged to the extent that decree is based. It means, where decree is not based, on the finding which has been recorded by Trial Court, i.e. lower Court, the respondent in the appeal without filing the cross-appeal or cross-objection can urge and show that the finding recorded against him was wrong and it should have been in his favour and if it is recorded in his favour, the result will be same, i.e. decree passed by Court below cannot be reversed on the basis of appellant’s contentions and challenged in appeal and that the final conclusion and decree would remain the same, as passed by the Court below.
That under Order 41, Rule 33 of the Code, Appellate Court has been given power to pass any decree of make any order which ought to have been passed or made and to pass or make such further order or decree as the case may require. This rule further clarifies that this power which has been conferred by Rule 33 is exercisable by the Court of Appeal notwithstanding the fact that the appeal is, as to the part only of thedecree, and the power may be exercised in favour of all or any of the respondents or parties irrespective of the fact that such respondents or parties may not have filed any appeal or objection and this power may also be exercised where there may have been decrees more than one in the cross suits or there would have been two decrees passed in one suit, in which appeals or cross-appeals or cross-objections might not have been filed against such decrees. To this power or exercise of this power under Order 41, Rule 33 of the Code, there is only one exception that has been provided in the proviso to Rule 33. That how this power is exercisable, the relevant principles have been laid down by their Lordships of the Supreme Court that may also provide a guidance in the matter of exercise of powers and right as incorporated in the provisions of Rule 22 itself. In Choudhdry Sahu (Dead) By LRs. v. State of Bihar (supra), their Lordships of the Supreme Court at Paragraphs 6 and 7,dealtwith Order 41,Rule22,asitexisted prior to its amendment Act No. 104 of 76 and laid it down as under:
The first part of this rule authorises tine respondent to support the decree not only on the grounds decided in his favour but also on any of the ground s decided against him in the Court below. The first part thus authorises the respondent only to support the decree. It does not authorise him to challenge the decree. If he wants to challenge the decree, he has to take recou rse to the second part, that is, he has to file a cross objection if he has not already filed an appeal against the decree. Admittedly, the State of Bihar had neither filed any appeal nor cross-objection. Obviously, therefore, on the strength of the first part of Sub-clause (1) of Rule 22 of Order 41 the State of Bihar could only support the decree not only on the ground decided in its favour but also on the grounds decided against it. The Commissioner, however, has not aside the finding in favour of the appellant on the strength of Order 41, Rule 22(1). In our opinion this he could not do.
Dealing with Order 41, Rule 33 of the Code, their Lordships observed : This rule is widely expressed and it must be applied with great caution. The object of this rule is to empower the Appellate Court to do complete justice between the parties. Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection.
The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed; the power conferred by Order 41, Rule 33 may properly be invoked. The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from.
Their Lordships further observed in paragraphs 12 and 13 that:
The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from.
Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of the Limitation or the Law of Court Tees etc.
19. A reading of these just above quoted and marked observations and principles perse reveals that ordinarily, where decree is based on a finding and on such a finding being allowed to be challenged by a respondent (who has neither filed any appeal, cross-appeal or cross objection), there is likelihood of decree or part of decree becoming unsustainable or in result there likelihood of coming into effect of two conflicting decrees, ordinarily such power may not be exercised to re-open the decrees by permitting the respondent, who has neither filed the appeal nor cross-objection and who has allowed the time to expire in a leisurely manner. The case which has been cited by the learned Counsel for the respondent No. 5, in paragraph 23 of the judgment in that case, i.e., of C.PJ. Temple v. Harikrishna, , it has been observed as para ’29A’:
It is no doubt true that respondent cannot be allowed to impugne the decree passed in favour of appellant as they did not file any appeal from that decree.
But we think that there is no reason why they should not be allowed to urge the plea that the orders of section were invalid when appellants not only to maintain the decree passed but also to get decree charging the entire property. In other words, the bar against urging the plea of invalidity of the orders of sanction would apply only if respondents seek to impugne the decree already obtained by appellant but not when the appellants seek to obtain further relief in appeal on the basis of such order.
We think that there is no reason why, when in defence to the claim by the appellants for a decree charging the entire interest in the properties, in the appeal, the respondent is should not be allowed to show that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent. If the Court were to refuse to pass a decree allowing the appellants to recover the money on the rest of the minor’s interest in the properties, the basis of that refusal would be on a ground destructive of the decree passed by the High Court. In other words, the High Court granted the decree on the basis that the orders of sanction for mortgaging the properties were valid. If we are to refuse to pass a decree for recovery of the mortgage money from the entire interest of the minor in these properties, on the ground that the orders sanctioning the mortgages were invalid, that would be contradictory to the finding of the High Court on the basis of which it passed the decree. Order 41, Rule 33 of the Civil Procedure Code clothes the Appellate Court with the power to pass any decree or order which the Trial Court ought to have passed or made and to pass or make such further or other decree or order as the justice of the case may require.
A reading of these observations with reference to the contentions referred in paragraph 19 of the judgment, per se reveal that the parties could have impressed upon the Court for exercise of powers under Order 41, Rule 33, if there would be possibility of two contradictory decrees, one rejecting the claim and the other maintaining the claim. So, the entire decree has to be reversed or modified on the ground that orders sanctioning mortgage were invalid. Then, in the circumstances of that case exercised the power under Order 41, Rule 33 of the Code.
In the present case, permitting the plea sought in argument as referred to above will only amount to giving a licence to the unexplained laches, delays and inactions of the respondent, who could have filed the appeal or cross-objections, if he wanted to challenge that finding that there was 50% negligence of the motor cycle rider and 50% liability of the KSRTC bus driver. The appeal should have been filed either by the rider of the motor cycle or by the Insurance Company. None filed the appeal nor any body filed any cross-objections. That such finding could be challenged by filing appeal or cross-appeal or the cross-objections as it formed the basis of decree determining liabilities to two sets of opposite parties or respondents in the claim petition, as really challenge to such finding may go to completely demolish the whole decree or may be said to have tendency of resulting in two conflicting decrees. The case cannot be said to be as has tried to be made by the respondent to be one covered by the expression ‘to support the decree’. Any other view will really render in fructuous or may adversely affect the operation of the other provisions of the Code and of Limitation Act, provisions giving finality to decree as well as of other law and may amount to giving a licence to such persons, and any such interpretation is not to be adopted which may render any provision ineffective or inoperative.
20. Another case that has been referred by Mr. Ramesh is–1991 (3) Kar. Law Journal (Supp), 73, dealing with Order 41, Rule 22(1), the learned Single Judge of this Court has been pleased to refer to two cases, one is AIR 1943 Madras, Page 698 and another , and observed therein that, ‘It is dearly stated that it is open to defendant, who has not taken any cross objection to the part of the decree against him, to urge in opposition of the appeal of the plaintiff, a contention which if accepted, would have resulted in the total dismissal of the suit. But, the only limitation is that partial decree passed against respondent becomes final and cannot be avoided and on this basis, it is observed that it is always open to him to contend that plaintiff is not entitled to increase in decree by showing the Court, that the plaintiff’s suit should have been dismissed in toto and then, referred to the case of CPJ Temple (supra). The quotations in paragraph 20, has been referred in that decision of the learned Single Judge, but the learned Single Judge’s attention has not been invited to the consequence of the finding which if it is arrived, that plaintiff’s suit would not have been maintainable and was liable to be dismissed. How could that two contradictory decrees be maintained by saying that decree passed against him shall remain maintained, while the suit in entirety will be dismissed upholding that plea the suit to be not maintainable.
21. In the Chandraprnbhuji’s case (supra), their Lordships observed that Court may exercise in such cases, the power under Order 41, Rule 33, as and when there is any possibility of two contradictory decrees, in such a situation, Court may exercise powers to the justice to the parties and dismiss the entire suit. Then, it will be amounting to the doing of nothing else but challenging the decree and getting it set aside in an indirect manner and to be giving a licence to a negligent litigant, who does not file the appeal nor comes to file the cross-objections in time and let the time to pass on thereafter, seeks that he should be allowed to urge that the finding on particular point is bad and, therefore, entire suit should be dismissed. It will be nothing but allowing a person to do something which he cannot do directly without filing the appeal or cross-objections which may also render the provisions of laws and acts nugatory and useless. Such could not be taken to be the intention of the Legislature.
In the present case, there is no question of suit being dismissed. No such argument has been advanced that the suit should be dismissed and that decree may be maintained. There is no such argument that the suit or claim was not maintainable, otherwise I might have thought to refer to the matter to the larger Bench. Here, the respondent No. 4 urges that finding about negligence recorded by the Tribunal should be set aside or modified and should be recorded in his favour that there was no negligence on the part of the motor-cycle rider, but there was complete negligence on the part of the bus driver. This would further amount to taking a correspondent by surprise, and such arguments cannot be allowed. Apart from that, this very finding that there has been 50% or equal negligence of both the rider of the motor cycle as well as of the bus driver of the KSRTC, both were equally negligent and rash and so, the accident did take place, and each one, that is rider of motorcycle and bus driver of KSRTC bus was negligent to tune of 50% each. It is on the basis of that finding, the Court has granted the decree to the effect that respondents 1 to 3 at one hand and respondents 4 and 5 on the other will be found to bear the decree and will be liable to pay the decrial amount to the extent of 50% by each set, that is respondents 1 to 3, will be liable to pay 50% of the amount of compensation to the claimant and respondents 4 and 5 jointly and severally will be liable to pay 50% of the compensation amount. So, the basis of the decree is nothing but the finding arrived at by the Court below. If this finding is set aside, then consequence would be to set aside that part of the decree and will be tantamount to allowing the defendant — Insurance Company, that is respondent No. 5, to challenge the decree or part of the decree which is against him. It appears to be that it is an indirect way of attacking the decree which has been passed against the respondents without filing the cross objections. Such attempts cannot be permitted or be encouraged particularly, when the co-respondent is taken by surprise. When I so opine, find support from the decision of the Division Bench of the Bombay High Court in the case of Smt. Padmadevi Shankar Rao Jadhav v. Kabalsing Garmilsing Sardarji , at this juncture I quote in extenso the following observations of Their Lordships of the Bombay High Court which are contained in Paragraph 7:
So far as the question as to whether the opponents can challenge the finding qua negligence of the opponent No. 1 – Kabalsing is concerned, in our view, it is not open to opponents to challenge the said finding in the absence of filing of an independent appeal or a cross-objection. It is not disputed that in an appeal filed under the provisions of the Motor Vehicles Act, it is open to the opposite party to file cross-objections, since the provisions of Order 41, Rule 22 will aptly apply to such an appeal This position is not disputed even by Mr. Trivedi and in our opinion, rightly. As held by the various High Courts, including Karnataka, Allahabad, Gujarat and Andhra Pradesh, in , K. Chandrashekara Naik v. Naraxjana; (FB), lip. State Road Transport Corporation v. Smt. Janki Devi, , National Insurance Company, Baroda v. Dwaliben, and , Srisailam Devastanam v. Bhavani Pratnilamma, the provisions of the Civil Procedure Code will be applicable to an appeal filed under Section 110-D of the Motor Vehicles Act. As a necessary corollary of this, cross-objections could be filed in such an appeal. In our view, this position is placed beyond doubt by the amendment to the provisions of Order 41, Rule 22 of the Code of Civil Procedure. The Explanation to Order 41, Rule 22 clearly provides that a respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent. In the present case/admittedly the ultimate award for compensation passed by the Tribunal is based on the finding on the issue of negligence. Unless it was held that the truck driver was negligent in driving the truck and the accident took place because of his negligence, the award for compensation against the opponents cannot follow. Even if it is held that it was the case of contributory negligence on the part of the truck driver as well as the deceased, then also unless a finding in that behalf is recorded, an award for compensation cannot be passed in favour of the claimants. Therefore, the finding on the question or issue of negligence is not only germane, but is the foundation for awarding compensation. Hence, a cross-objection could have been filed by the opponents challenging the said award based on the said finding. This has not been admittedly done. Therefore, in our view, unless a cross-objection is filed, it will not be open to the opponents to challenge the finding in that behalf. We are fortified in this view by the latest decision of the Supreme Court in Choudhary Sahu (dead) by LRs. v. State of Bihar, (supra). Precisely a similar question fell for the consideration of the Supreme Court in the context of the provisions of Order 41, Rule 22 and Order 41, Rule 33 of the Code of Civil Procedure. After making a reference to its earlier decisions in and , this is what the Supreme Court has observed in paras 12,13 and 14 of the judgment.:
12. The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to reopen decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from.
13. Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of the other laws viz. the Law of Limitation or the Law of Court Fees etc.
14. In these appeals the Collector on the basis of the material placed before his allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under Order 41, Rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.’
In our view, these observations aptly apply to the present case also. This Court cannot exercise power under Order 41, Rule 33 by losing sight of the other provisions of the Code, or the provisions of other laws viz. the Law of Limitation, the Law of Court Fees etc. In the present case, Mr. Trivedi practically wants that not only the appeal should be dismissed, but the claim made by the claimants should be dismissed in toto, which means that we should pass an order to the prejudice of the claimants, though the opponents have not filed any appeal or cross-objections and the award passed by the Tribunal has become final, so far as the opponents are concerned. In our view, the wide powers conferred upon this Court under Order 41, Rule 33 cannot be exercised to achieve such a design. This is not legally permissible, nor is it equitable.
22. There cannot be any dispute that the cross-objections are maintainable, if there is a finding recorded against a respondent which forms the basis of the decree against him (See also U.P. State Road Transport Corporation v. Smt. Janki Devi, , and K. Chandrashekara Naik v. Narayana, AIR 1975 Karnataka 18).
23. A Division Bench in the case of Jayakunvar Manilal Shah v. Syndicate Bank (supra), dealing with the provisions of Order 41, Rule 22, has been pleased to observe in paragraph 68 as under:
It is contended by learned Counsel for the plaintiff that the learned trial Judge has ordered simple interest from the date of the suit at the rate of 15% on the principal sum due under the SODH account 8/82 and at 18.5% on the PCL loan from the date of the suit till the date of the decree. It is submitted by the learned Counsel for the plaintiff that even in respect of the cur rent and future interest upto the date of repayment, compounding of interest ought to have been allowed. Learned Counsel has placed reliance on a decision of the Supreme Court in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda . We do not consider it necessary to go into the correctness of this contention because even if the contention of Mr. Aswatharam, learned Counsel for the plaintiff, is accepted as correct, the relief cannot be granted because it results in enhancing the decretal liability and increasing the decretal amount for which there is no cross-objection or appeal preferred by the plaintiff-Bank. However, reliance is placed on the provisions contained in Order 7, Rule 7 and Order 41, Rule 22 of the Code of Civil Procedure and it is contended that in the light of these provisions even in the absence of an appeal or cross-objection by the respondent-plaintiff relief can be granted enhancing the decretal liability. No doubt, under Order 41, Rule 22 of the Code of Civil Procedure, it is open to the respondent in the appeal to support the decree without filing an appeal or cross-objection challenging the findings recorded against him, but it does not enable the respondent to have the decree modified and the liability enhanced without preferring cross-objection or an appeal. Similarly, Order 7, Rule 7 of the CPC, cannot be availed for granting such a relief which would be beyond the scope of the appeal and which would result in substantial variation in the decree to the disadvantage of the appellant. Hence, we decline to accept the contention.
24. A Division Bench of the Allahabad High Court in the case of Balkrishna Das Aganval v. Smt. Radha Devi and Ors. (supra), considered the scope of Order 41, Rule 22, after having quoted the amended Rule 22(1) alongwith explanation and observed at Paragraphs 23 to 26, as under:
23. In objects and reasons of Act 104 of 1976 by which the Code of Civil Procedure was extensively amended and which also introduced changes in Rule 22 of Order 41, the reasons given for the proposed amendment were as under:
‘Rule 22 gives two distinct rights to the respondent in appeal. The first is the right of upholding the decree of the Court of first instance on any of the grounds on which that Court decided against him, and the second right is that of taking any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case, tine respondent supports a decree and in the second he attacks the decree. The language of the rule, however, requires some modification and a person cannot support the decree by asserting that the matter decided against him should have been decided in his favour. The rule is being amended to make it clear.
An Explanation is also being added to Rule 22 empowering the respondent to file cross-objection in respect of a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour.’
24. We must then examine whether a party can be said to be attacking the decree or merely supporting it. If we find that the person seeking to support the decree could in fact do so only by attacking it, then he cannot be heard to support the decree and he must do so either by filing an appeal or filing that by x ray of cross-objection. This incidentally raises the question as to who can file the appeal ? All that Section 96 and Section 100 of the Code prescribe is that an appeal shall lie from every decree. These sections do not prescribe as to at whose instance such an appeal shall lie. It is, however, fundamental in view of the very nature of tailings that an appeal should lie only at the instance of a person who may be aggrieved by the judgment sought to be appealed against. A party who would benefit from change in the judgment, therefore, would have an appeal able interest.
25. What is of importance to note is that the person filing an appeal must have a legal grievance against a decision which had wrongfully deprived him of some thing or affects his title to something. In Corpus Juris Secondum Vol. IV this phrase has been defined thus:
Broadly speaking a party or person is aggrieved by a decision only when it operates directly and injuriously upon his personal pecuniary or proprietary rights.
26. Keeping these principles in mind, we find that the plaintiffs here had not suffered in any way on account of the judgment since their suit had been decreed, finding on the point of due execution of the Will notwithstanding. If the plaintiffs were not aggrieved by the judgment, they could hardly have a cause to file an appeal and for that matter even to file a cross-objection. That being so, the plaintiffs are entitled to support the decree even on those points that have been decided by the judgment under appeal against them. In our view, therefore, the respondent is entitled to challenge the finding on the question of the due execution of the Will, even though a cross-objection in that regard has not been filed. We, therefore, overrule the preliminary objection by the appellant.”
These above mentioned decisions of the Supreme Court in Choudhaty Sahu’s case (supra), and the decision of this Court and High Courts of Allahabad and Bombay clearly reveal that under the first part of the rule, respondent is to support the decree not merely on the ground decided in his favour, but even on those grounds which have been decided against him. That first part of the rule, however, does not authorise him to challenge the decree. If respondent wants to challenge the decree,he must have recourse to the 2nd part of the rule, that is by way of filing the cross-objection, if that part or decree has not already been challenged by him in appeal. Then, it is for the Court to examine whether the contention that is sought to be raised challenging the finding by the respondent, whether the challenge to the finding amounts to a challenge to the decree passed or part of the decree passed against him or it is not a challenge to the decree or attack on the decree, instead it is only challenge to the finding in order to support the decree, that is to maintain the decree as passed by the Court. If the challenge to the finding results in challenge to the decree or part of the decree passed against the respondent, then unless and until a person has filed the cross-objection challenging the finding and the decree, he cannot be allowed to challenge them. But, where it is not a challenge, instead it is another approach simplicitor to maintain the decree as it is or it may be, said to be the one supporting the decree.
25. Here in the present case, respondent No. 5 has not made any challenge to the fact or finding that accident had taken place due to the negligence of respondents 1 and 4. The challenge is that there was no negligence of respondent No. 4, or that negligence may be said to be lesser than 50%. The challenge is really to the finding that negligence has been 50% and decree is based on that finding. The consequence of accepting his contention and his contention if upheld, then it would tantamount to saying that decree that had been granted against him by making him liable to 50% of the amount of damages is illegal and it should be set aside or modified, then such a contention or challenge to the finding cannot itself be said to be a challenge to finding, instead it may amount to a challenge to the decree and the decree granted against him. It may result in either modification or such challenge to decree, may result even if in dislodging of the decree with respect to respondent No. 5. But that cannot be permitted without the finding and decree based on that finding being challenged by filing the appeal or cross-objection. Fortunately, it has not been contended that there has been no negligence on part of respondent No. 4, at all but if, such contention would have raised again, it would have been challenging the decree and the award as has been granted would have amounted not to sustain the decree and it would have been an effort to demolish decree and not be termed as one supporting the decree and could not be raised by any of the respondents without filing the appeal or cross-objection as laid down by law.
26. In this view of the matter, as discussed just above, the appeal of the appellant is partly allowed and it is hereby ordered as under:
The appellant is entitled to get compensation to the tune of Rs. 50,000/- as indicated in the body of this judgment which may be bifurcated as Rs. 45,000/-, as general damages and Rs. 5,000/- as special damages for medical expenses etc. The appellant will be entitled to interest at the rate of 9% on unpaid amount so far and also on enhanced amount of compensation. The amount that has already been deposited, the interest will remain at the rate of 6% p.a. The respondents 1 to 3, on one hand shall be liable to bear and to pay amount under modified award to the extent of 50%, while respondent Nos. 4 and 5 shall be liable to pay to the extent of 50% of the amount of compensation and interest awarded thereon. The amount if already been paid towards compensation that may be adjusted with reference to the amount awarded. The appeal is thus partly allowed. The costs of this appeal shall be borne by all the parties proportionately, but costs of the Subordinate Court orTribunal shall be realisable from the respondents in proportion of 50%, as the liability has been indicated in the award.
