Cross appeal
Neeraj Kaushal
(Querist) 27 March 2012
This query is : Resolved
i want to file a cross appeal in which order or rule i can file the cross appeal , and there is any limitation regarding cross appeal.
SAINATH DEVALLA
(Expert) 27 March 2012
Dear Neeraj,
You can file cross appeal under the following sections cpc.
41. Result of execution proceedings to be certified.
The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.
96. Appeal from original decree.
(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex partee.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
1[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed 2[ten thousand rupees].
(i) When an ex parte decree is passed the defendant has two clear options. One to file an appeal and another to file an application under O. 9, R. 13 to set aside the order. Once application under O. 9, R. 13 is dismissed, he cannot by filing first appeal dispute the correctness of order posting suit for ex parte hearing or show cause for his non-appearance; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.
(ii) The subsequent events in first and second appeals cannot be taken indiscriminately into account. It may be permitted to be taken into account by appellate court by means of amendment of pleadings, in order to avoid multiplicity of proceedings but not where such amendment could cause prejudice to vested right of plaintiff and render him remedied; Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24.
(iii) New plea relating to question of fact cannot be allowed to be raised for the first time before the Ist appellate court; K. Shivalingaiah v. B.V. Chandra Shekara Gowda, AIR 1993 Kant 29: 1992 (2) Kant LJ 536: ILR (Kar) (1992) 1996
R.K Nanda
(Expert) 27 March 2012
You can file x appeal under order 41 of CPC.
Advocate Bhartesh goyal
(Expert) 27 March 2012
Order 41 rule 22 of civil procedure code:-
22. Upon hearing respondent may object to decree as if he had preferred a separate appeal
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 1[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 Appellant 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.
Adv.R.P.Chugh
(Expert) 27 March 2012
Your appeal would lie u/s 96 r/w O.41 of the CPC, in addition to the above you can take the very grounds in a cross objection within the appeal of your opponent, even if your opponent's appeal is dismissed your cross objections would be taken as independant appeal. The provisions related are O41 R22 as advised by Goyal Sir.
