JUDGMENT R. H. Zaidi, J.
1. Heard learned counsel for the parties and also perused the record.
2. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing judgment and order dated 26.5.1992 passed by 1st Additional District Judge. Sultanpur, allowing the appeal filed by contesting respondent No. 3 and staying operation of judgment and decree passed in Original Suit No. 189 of 1983.
3. Relevant facts of the case in brief are that the petitioners filed Original Suit. No. 189 of 1983 for partition of the property in dispute. The said suit was decreed on the basis of the compromise vide judgment and decree dated 23.5.1983. Thereafter, respondent No. 3 filed Original Suit No. 619 of 1989 for declaration that Judgment and decree passed in O.S. No. 189 of 1983 was null and void. In the said suit, he had also filed an application for grant of interim injunction under Order XXXIX, Rule 2. C.P.C. with the prayer that the defendants in the said suit be restrained from interfering in his possession over the property in dispute. The trial court by its Judgment and order dated 15.11.1990 granted injunction. The operative portion of the said order is quoted below :
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4. Aggrieved by judgment and order passed by the trial court, the petitioners filed an appeal under Order XLI. Rule 1. C.P.C. Respondent No. 3 in the said appeal filed a cross-objection. The appeal filed by the petitioner and the cross-objections filed by respondent No. 3 were heard together and were ultimately disposed of by judgment and order dated 26.5.1992. Operative portion of the said Judgment is quoted below :
"The appeal filed by Lal Mohd. and others against Mohd. Hantf is dismissed and the order passed on 15.11.1990 is confirmed.
The cross-objection filed by plaintiff-respondent is also allowed. The operation of judgment and decree passed in Regular Suit No. 189 of 1983, Abdul Majid and others v. Mohd. Hanif decided on 23.5.1983 is also suspended till the disposal of the suit.
The parties are directed to bear their own costs of the appeal and the cross-objection.
The parties are directed to appear before the trial court on 7.7.1992."
5. Challenging validity of said order, present petition has been filed as stated above.
6. Learned counsel for the petitioner submitted that the trial court allowed the application filed by respondent No. 3 and granted temporary injunction in his favour. The petitioners feeling aggrieved by the said order filed appeal as he has a right to file appeal under Order XLI, Rule 1. C.P.C., before the Court below. But respondent No. 3 cannot be said to be a person aggrieved by the said order nor he was otherwise aggrieved by the same. The trial court also did not record any finding against him allowing his application for temporary injunction. Therefore, respondent No. 3 has no right to file cross-objection against judgment and order passed by the trial court. The cross-objection filed by him was legally not maintainable. It has further been urged that the Court below exceeded its jurisdiction in staying operation of judgment and decree passed in Regular Suit No. 189 of 1983. On the other hand, learned counsel appearing for contesting respondent No. 3 supported the validity of judgment and order dated 26.5.1992 passed by the Court below. It has been urged that cross-objection filed by respondent No. 3 was legally maintainable and the Court below had jurisdiction to suspend operation of judgment and decree passed in Suit No. 189 of 1983.
7. I have considered submissions made by learned counsel for the parties.
8. Cross-objections are to be filed under order XLI, Rule 22. C.P.C. which reads as under : (only relevant quoted) "22. Upon hearing respondent may object to decree as if he had preferred separate appeal.--(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 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 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.
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 in so far 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."
9. As it is evident from the reading of the aforesaid provision, that a cross-objection could be filed against a decree or/and even against the findings recorded by the Court. in the present case, as stated above, the order was passed in favour of respondent No. 3 and no finding in the said order was recorded against him, therefore, he had no right to file the cross-objection. By order passed by the trial court, respondent No. 3 cannot be said to be a person aggrieved. The Court below without applying its mind to this aspect of the matter dismissed the appeal filed by the petitioners and allowed the cross-objection filed by respondent No. 3. Further, there was no justification for the Court below to stay operation of the Judgment and decree passed in Regular Suit No. 189 of 1983. The Court below has, thus, exceeded his jurisdiction in suspending the operation of the judgment and decree in the said suit. The Judgment and order passed by the Court below is, thus, manifestly erroneous and illegal to the extent it suspends operation of judgment and decree of Regular Suit No. 189 of 1983. In so far as it dismisses the appeal filed by petitioners against judgment and order passed by the trial court granting injunction, I do not find any illegality.
10. In view of the aforesaid discussion, this petition succeeds and is allowed in part. Order passed by the Court below to the extent it suspends operation of decree passed in Regular Suit No. 189 of 1983 is hereby quashed.
11. No orders as to costs.