# Surendra Kumar v. Dr. Aditya Kumar Sharma

- **Citation:** (2024) 10 ILRA 817
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-16
- **Case number:** Second Appeal No. 596 of 2014
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-v-dr-aditya-kumar-sharma-51122
- **Pages:** 8

## Headnote

Civil Law - Code of Civil Procedure,1908 -
Order 21 - Rule 97 - filed by the appellant
rejected by the Executing Court - Code of
Civil Procedure,1908 - Order 21 - Rules
97, 98 & 101 and - Code of Civil
Procedure,1908 - Section103 -can
someone who was not a party to the
original suit, could be dispossessed from a
property under execution proceedings
initiated against his brother - not being a
party to the lis giving rise to execution
proceedings
is
not
relevant
for
adjudication of a claim under Order 21
Rule 97 CPC- such objections are filed by
non-parties to such lis-joint tenancy rights
devolved upon the appellant- decree of
eviction passed against joint tenants
would also be binding upon the claimants
under Order 21 Rule 97 CPC when they
are also joint tenants-Order 41 Rule 22
CPC-decree had attained finality-no force
in the appeal-Order 41 Rule 11-Appeal
dismissed at the admission stage itself.k
(paras 10, 13, 14, 15 and 16)

HELD:
818 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, not being a party to the lis giving rise
to execution proceedings is not relevant for
adjudication of a claim under Order 21 Rule 97
CPC. Rather, it can be safely said that such
objections are filed by non-parties to such lis.
Nature of objections under section 47 is
altogether different and that are filed by the
judgment debtor and not by a third party.
Words, "parties to the proceedings" used in S.
Rajeswari (supra) mean "parties to proceedings
under order 21 Rule 97 CPC and not parties to
suit". (para 10)

Placing reliance upon a celebrated judgment of
Supreme Court in the case of Harish Tandon Vs
A.D.M., AIR 1995 SC 676, a Coordinate Bench of
this Court, in the case of Mohd. Ikrail (supra),
held that the decree of eviction passed against
joint tenants would also be binding upon the
claimants under Order 21 Rule 97 CPC when
they are also joint tenants. (Para 13)

It is not in dispute that no cross objections were
filed by the present appellant, being a
respondent in Second Appeal No.819 of 2002,
against the finding of the first appellate court
regarding joint tenancy rights of the present
appellant with Prem Chandra. The said cross
objections, if filed, could have been considered
on merits irrespective of withdrawal of Second
Appeal No. 891 of 2002 as per sub-rule (4) of
Rule 22 of Order 41 but, in absence of such
cross objections having been filed, no contrary
view can be taken as regards the finding
recorded in judgment dated 22.04.2002 passed
in Civil Appeal No.104 of 2000 inter se parties.
(Para 16)

Appeal dismissed. (E-14)

List of cases cited:

## Text

10 All. Surendra Kumar Vs. Dr. Aditya Kumar Sharma
817
crime, but looking into the over all
circumstances
emanating
from
the
depositions of the prosecution witnesses as
well as from the FIR, we find that the
prosecution has failed to establish the
commission of the crime by the accused
beyond reasonable doubt.

46. In view of the discussions
made above, we are of the considered view
that the testimony of the prosecution
witnesses is not trustworthy and it would be
unsafe to record conviction, particularly in
absence of corroborative evidence available
on record. Less to say about credibility of
the FIR and the inquest report.

47. In our view, the Trial Court has
failed to properly evaluate the evidences
available on record, and thus, the appellants
are entitled to be accorded benefit of doubt.
Consequently, the appeals are allowed. The
orders dated 25.07.2019 passed by the
Addl. Sessions Judge, Court No.3, Mathura
in Sessions Trial nos. 803/2013, 299/2013
and 344/2014, by which the appellants have
been convicted under Sections 147, 148,
302 IPC read with Section 149 IPC are set
aside. The appellants are acquitted of all the
charges, of which they have been tried.
They are reported to be in jail. They are set
at liberty forthwith if not wanted in any
other case, subject to compliance of the
provisions of Section 437 of CrPC, 1973/
481 of Bharatiya Nagrik Suraksha Sanhita,
2023, to the satisfaction of the trial court
concerned.

48. Let a copy of the order
/judgment and the original record of the
lower court be transmitted to trial court
concerned
forthwith
for
necessary
information and compliance. The office is
further directed to enter the judgment in the
compliance register maintained for the said
purposes of the Court.
----------
(2024) 10 ILRA 817
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.10.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 596 of 2014

Surendra Kumar ...Appellant
Versus
Dr. Aditya Kumar Sharma ...Respondent

Counsel for the Appellant:
Sri R.D. Tiwari, Sri Vibhav Goswami, Sri M.D.
Singh Shekhar (Sr. Adv.)

Counsel for the Respondent:
Sri Abu Bakht, Sri Bhanu Bhushan Jauhari

Civil Law - Code of Civil Procedure,1908 -
Order 21 - Rule 97 - filed by the appellant
rejected by the Executing Court - Code of
Civil Procedure,1908 - Order 21 - Rules
97, 98 & 101 and - Code of Civil
Procedure,1908 - Section103 -can
someone who was not a party to the
original suit, could be dispossessed from a
property under execution proceedings
initiated against his brother - not being a
party to the lis giving rise to execution
proceedings
is
not
relevant
for
adjudication of a claim under Order 21
Rule 97 CPC- such objections are filed by
non-parties to such lis-joint tenancy rights
devolved upon the appellant- decree of
eviction passed against joint tenants
would also be binding upon the claimants
under Order 21 Rule 97 CPC when they
are also joint tenants-Order 41 Rule 22
CPC-decree had attained finality-no force
in the appeal-Order 41 Rule 11-Appeal
dismissed at the admission stage itself.k
(paras 10, 13, 14, 15 and 16)

HELD:
818 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, not being a party to the lis giving rise
to execution proceedings is not relevant for
adjudication of a claim under Order 21 Rule 97
CPC. Rather, it can be safely said that such
objections are filed by non-parties to such lis.
Nature of objections under section 47 is
altogether different and that are filed by the
judgment debtor and not by a third party.
Words, "parties to the proceedings" used in S.
Rajeswari (supra) mean "parties to proceedings
under order 21 Rule 97 CPC and not parties to
suit". (para 10)

Placing reliance upon a celebrated judgment of
Supreme Court in the case of Harish Tandon Vs
A.D.M., AIR 1995 SC 676, a Coordinate Bench of
this Court, in the case of Mohd. Ikrail (supra),
held that the decree of eviction passed against
joint tenants would also be binding upon the
claimants under Order 21 Rule 97 CPC when
they are also joint tenants. (Para 13)

It is not in dispute that no cross objections were
filed by the present appellant, being a
respondent in Second Appeal No.819 of 2002,
against the finding of the first appellate court
regarding joint tenancy rights of the present
appellant with Prem Chandra. The said cross
objections, if filed, could have been considered
on merits irrespective of withdrawal of Second
Appeal No. 891 of 2002 as per sub-rule (4) of
Rule 22 of Order 41 but, in absence of such
cross objections having been filed, no contrary
view can be taken as regards the finding
recorded in judgment dated 22.04.2002 passed
in Civil Appeal No.104 of 2000 inter se parties.
(Para 16)

Appeal dismissed. (E-14)

List of cases cited:

1. Atma Prakash Vs Raghubir Prasad Goel: 1996
(1) JCLR 622 All)

2. Krishna Ram Mahale (dead) by his LRs., Vs
Mrs. Shobha Venkat Rao: AIR 1989 SC 2097

3. Mohd. Ikrail & ors. Vs Naushaba A. Sabri &
ors.: 2016 (3) ARC 489

4. S. Rajeswari Vs S.N. Kulasekaran & ors.:
(2006) 4 SCC 412
5. Ashok Chintaman Juker & ors. Vs Kishore
Pandurang

6. Mantri and another: (2001) 5 SCC 1

7. Harish Tandon Vs A.D.M., AIR 1995 SC 676

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. The appeal is listed for admission
under Order 41 Rule 11 C.P.C.

2. Heard Sri M.D. Singh Shekhar,
learned Senior Counsel, assisted by Sri
Vaibhav Goswami, for the appellant and Sri
Bhanu Bhushan Jauhari, learned counsel
for the respondent.

3. The instant second appeal arises
out of adjudication of an application under
Order 21 Rule 97 CPC filed by the
appellant, that has been rejected by the
Executing Court against which a regular
civil appeal was filed, which has also been
dismissed.

CONTENTION OF APPELLANT

4.

Learned
Senior
Counsel
appearing for the appellant submits that an
Original Suit No. 323 of 1977 was filed by
the respondent against one Prem Chandra
claiming a decree for ejectment on the plea
of tenancy of the defendant. The said suit
was decreed by the trial court and Civil
Appeal No. 139 of 1986 arising therefrom
was
dismissed.
The
defendant-Prem
Chandra filed Second Appeal No.444 of
1996 which is pending before this Court. In
so far as the present appellant is concerned,
he was plaintiff no.2 in another Original
Suit No.216 of 1996 (Nattho Devi and
another Vs. Dr. Aditya Kumar Sharma) that
was instituted claiming a decree for
injunction restraining the defendant from
interfering in possession of the plaintiffs
10 All. Surendra Kumar Vs. Dr. Aditya Kumar Sharma
819
and from dispossessing them except in
accordance with law. The trial court
dismissed the said suit, however, Civil
Appeal No.104 of 2000 was allowed and,
consequently, the suit was decreed. Second
Appeal No.891 of 2002 filed by the
defendant-Dr. Aditya Kumar Sharma has
recently been dismissed as withdrawn by
order dated 09.09.2024 and, therefore,
according to Sri Shekhar, the decree has
attained finality and, hence, the respondent
cannot dispossess the appellant except in
accordance with law.

5. As regards the judgments and
decrees impugned in the instant second
appeal, it is contended by Sri Shekhar that
the same have been passed in execution
proceedings arising out of a decree drawn
against his real brother Prem Chandra in
Original Suit No.323 of 1977 in which the
appellant was not a party and, hence, he
cannot be dispossessed from the property,
particularly
when
he
has
his
own
independent decree against the respondent,
as drawn in Original Suit No. 216 of 1996.
It is further contended that when the first
appellate court, at an earlier point of time,
dismissed the Civil Appeal No.130 of 2013
against the order dated 06.07.2013 by
which the application under Order 21 Rule
97 CPC had been rejected by the executing
court, the appellant filed Second Appeal
No.88 of 2014 before this Court which was
allowed by order dated 06.02.2014 and it
was held that the appellant having raised an
independent right in the property, rejection
of his objections under Order 21 Rule 97
CPC on the ground of rejection of
objections filed by the judgment debtor
under Section 47 CPC, was unjustified.
Further submission is that the title of
respondent having been dislodged in
separate proceedings arising from Original
Suit No.309 of 1998, he otherwise cannot
dispossess the appellant. Sri Shekhar also
referred to the written statement filed by
the respondent in Original Suit No.216 of
1996 where he did not recognize the
appellant herein as tenant in the property
but asserted tenancy rights only in Prem
Chandra. The submission, therefore, is that
the respondent being bound by his
admission,
he
cannot
dispossess
the
appellant in a proceeding launched against
the tenant Prem Chandra and, hence, the
impugned judgments and decrees are
unsustainable.

6. In support of his submissions on
the point that a person, may be a trespasser,
cannot be dispossessed except through due
process of law, learned Senior Counsel for
the appellant has placed reliance upon
following authorities:-

(i)
Atma
Prakash
Vs.
Raghubir Prasad Goel: 1996 (1)
JCLR 622 All); and
(ii) Krishna Ram Mahale
(dead) by his LRs., Vs. Mrs.
Shobha Venkat Rao: AIR 1989 SC
2097.
CONTENTION OF
RESPONDENT

7. Per contra, Sri Bhanu Bhushan
Jauhari, learned counsel for the respondent
submits that, admittedly, one Jethwa was
tenant in the property and after his death,
he was succeeded by his wife Nattho Devi
and two sons, namely, Surendra Kumar
(present appellant) and Prem Chandra
(judgment debtor in Original Suit No.323
of 1977). As regards the decree drawn in
Original Suit No. 216 of 1996, it is
contended that the said suit was dismissed
and while allowing the civil appeal filed by
the appellant, the first appellate court
recorded a finding that after the death of
820 INDIAN LAW REPORTS ALLAHABAD SERIES
Jethwa, plaintiffs, i.e. Nattho Devi and
Surendra Kumar, had succeeded joint
tenancy rights alongwith Prem Chandra.
The submission is that though Second
Appeal No.891 of 2002 filed by the
respondent against the said decree has been
withdrawn
on
09.09.2024,
the
first
appellate court's judgment has attained
finality and, therefore, finding on joint
tenancy rights has become final inter se
parties to this appeal also. He further
submits that both the courts below have
rightly
held
that
since
execution
proceedings arising out of decree drawn in
Original Suit No.323 of 1977 are the
proceedings in accordance with law, the
same would remain maintainable against
the appellant, despite a decree existing in
his favour arising out of proceedings of
Original Suit No. 216 of 1996. Further
submission is that once tenancy rights have
jointly devolved upon all the legal heirs of
Jethwa,
irrespective
of
any
contrary
admission made in the written statement in
Original Suit No. 216 of 1996, finality
attached to such devolution of joint tenancy
rights under the judgment dated 22.04.2002
passed in Civil Appeal No.104 of 2000
arising out of Original Suit No. 216 of
1996, would render every contention of any
party
as
without
any
force
and,
consequently, both the courts below have
rightly adjudicated the claim under Order
21 Rule 97 CPC. In support of his
submissions, learned counsel for the
respondent has placed reliance upon
following authorities:-

(i) Mohd. Ikrail and 2
others Vs. Naushaba A. Sabri and 7
others: 2016 (3) ARC 489;

(ii) S. Rajeswari Vs. S.N.
Kulasekaran and others: (2006) 4
SCC 412;
(iii)
Ashok
Chintaman
Juker and others Vs. Kishore
Pandurang Mantri and another:
(2001) 5 SCC 1.

ANALYSIS OF RIVAL
CONTENTIONS

8. Having heard learned counsel
for the parties, first of all, the Court deems
it appropriate to refer the provisions of
Order 21 Rules 97, 98, 101 and 103 CPC,
which are reproduced as under:-

"97.
Resistance
or
obstruction
to
possession
of
immovable property.- (1) Where
the holder of a decree for the
possession of immovable property
or the purchaser of any such
property sold in execution of a
decree is resisted or obstructed by
any person in obtaining possession
of the property, he may make an
application
to
the
Court
complaining of such resistance or
obstruction.
(2) Where any application
is made under sub-rule (1), the
Court shall proceed to adjudicate
upon the application in accordance
with
the
provisions
herein
contained.
98.
Orders
after
adjudication.-
(1)
Upon
the
determination of the questions
referred to in rule 101, the Court
shall, in accordance with such
determination and subject to the
provisions of sub-rule (2),-
(a) make an order allowing
the application and directing that
the applicant be put into the
possession of the property or
dismissing the application; or
10 All. Surendra Kumar Vs. Dr. Aditya Kumar Sharma
821
(b) pass such other order
as, in the circumstances of the case,
it may deem fit.
(2)
Where,
upon
such
determination, the Court is satisfied
that the resistance or obstruction
was occasioned without any just
cause by the judgment-debtor or by
some other person at his instigation
or on his behalf, or by any
transferee, where such transfer was
made during the pendency of the
suit or execution proceeding, it
shall direct that the applicant be put
into possession of the property, and
where the applicant is still resisted
or
obstructed
in
obtaining
possession, the Court may also, at
the instance of the applicant, order
the judgment-debtor, or any person
acting at his instigation or on his
behalf, to be detained in the civil
prison for a term which may extend
to thirty days.
101.
Question
to
be
determined.-
All
questions
(including questions relating to
right, title or interest in the
property)
arising
between
the
parties to a proceeding on an
application under Rule 97 or Rule
99 or their representatives, and
relevant to the adjudication of the
application, shall be determined by
the
Court
dealing
with
the
application and not by a separate
suit and for this purpose, the Court
shall, notwithstanding anything to
the contrary contained in any other
law for the time being in force, be
deemed to have jurisdiction to
decide such questions.
103. Orders to be treated
as decrees.- Where any application
has been adjudicated upon under
Rule 98 or Rule 100 the order made
thereon shall have the same force
and be subject to the same
conditions as to an appeal or
otherwise as if it were a decree."

9. In paragraph no.11 of the
judgment in S. Rajeswari (supra), the
Supreme Court observed as under:-

"11. Having heard learned
counsel for the parties, we are
satisfied that in a case of this
nature, Respondent 1 ought to have
filed an application under Order 21
Rule 97 of the Code of Civil
Procedure. Order 21 Rule 97
clearly
provides
that
where
execution of decree is resisted or
obstructed by any person, the
decree
holder
may
make
an
application
to
the
court
complaining of such resistance or
obstruction, whereupon the court
shall proceed to adjudicate upon
the application in accordance with
provisions contained in the Code.
Rules 98 to 100 are the Rules
which provide the manner in which
such an application has to be dealt
with. Under Rule 101, all questions
including the questions relating to
right, title and interest of property
arising between the parties to the
proceeding and relevant to the
adjudication of the application,
have to be determined by the court
dealing with the said application.
............"
(emphasis supplied)

10. Therefore, not being a party to
the lis giving rise to execution proceedings
is not relevant for adjudication of a claim
under Order 21 Rule 97 CPC. Rather, it can
822 INDIAN LAW REPORTS ALLAHABAD SERIES
be safely said that such objections are filed
by non-parties to such lis. Nature of
objections under section 47 is altogether
different and that are filed by the judgment
debtor and not by a third party. Words,
"parties to the proceedings" used in S.
Rajeswari
(supra)
mean
"parties
to
proceedings under order 21 Rule 97 CPC
and not parties to suit".
(emphasis supplied)

11. There is no dispute about the
fact that the appellant was not a party to
Original Suit No.323 of 1977 and,
therefore, when his claim under Order 21
Rule 97 CPC was earlier rejected by the
first appellate court by order dated
13.01.2014 dismissing Civil Appeal No.130
of 2013 on the ground that the objections
under Section 47 CPC preferred by
judgment debtor-Prem Chandra had been
rejected, he rightly assailed the said order
by filing Second Appeal No.88 of 2014.
This Court set aside the appellate court's
judgment and held that Order 21 Rule 97
being a provision dealing with independent
rights in respect of the property in dispute,
mere rejection of objections under Section
47 CPC preferred by judgment debtor or
even dismissal of revision arising therefrom
would not come in the way of the appellant.
No clear finding on merits of the rights
claimed by the appellant was recorded by
this Court and the matter was remanded to
the first appellate court.

12. After this Court revived Civil
Appeal No.130 of 2013, the first appellate
court has decided the same on merits. It
recorded a finding that, admittedly, the
appellant being a successor of Jethwa, who
was tenant in the property, joint tenancy
rights would devolve upon him along withPrem Chandra. It also observed that
irrespective of appellant not being a party
to Original Suit No.323 of 1977, his status
being that of a joint tenant in view of
authorities referred to in the order, the
application under Order 21 Rule 97 did not
have any force. As far as the executing
court's judgment dated 06.07.2013, though
it wrongly emphasized upon rejection of
objections of judgment debtor under
Section 47 CPC, since the appellate court
independently examined the claim raised
under Order 21 Rule 97 CPC on merits
rightly ignoring the objections under
Section 47 CPC, validity of appellate
court's judgment dated 07.05.2014 has to
be examined in the instant second appeal.

13. Placing reliance upon a
celebrated judgment of Supreme Court in
the case of Harish Tandon Vs. A.D.M.,
AIR 1995 SC 676, a Co-ordinate Bench of
this Court, in the case of Mohd. Ikrail
(supra), held that the decree of eviction
passed against joint tenants would also be
binding upon the claimants under Order 21
Rule 97 CPC when they are also joint
tenants. In paragraph no.14 of the report in
Ashok Chintaman Juker (supra), the
Supreme Court about joint tenancy held as
under:-

"14. This Court in the case
of H.C. Pandey vs. G.C. Paul,
(1989) 3 SCC 77: AIR 1989 SC
1470 taking note of the settled
position that on the death of the
original tenant, subject to any
provision to the contrary either
negativing
or
limiting
the
succession,
the
tenancy
rights
devolve on the heirs of the
deceased tenant, held that it is a
single tenancy which devolves on
the heirs. There is no division of
the premises or of the rent payable
thereafter and that is the position as
10 All. Surendra Kumar Vs. Dr. Aditya Kumar Sharma
823
between the landlord and the heirs
of the deceased tenant. In other
words, the heirs succeed to the
tenancy as joint tenants. This Court
further held that the respondent
acted on behalf of the tenants; he
paid rent on behalf of his father and
he accepted notice on behalf of all;
in the circumstances the notice
served under section 106 of the
Transfer of Property Act on the
respondent was sufficient and it
was a valid notice."
(emphasis supplied)

14. As far as judgments in Atma
Prakash (supra) and Krishan Ram
Mahale (supra) relied upon from the
appellant side are concerned, there is no
quarrel with the proposition laid down in
the said authorities to the effect that a
person in settled possession of the property
cannot be dispossessed by the owner of the
property except by taking recourse of law.
However, in the instant case, the appellant
shall not be benefited by these authorities,
inasmuch as the said cases were decided
when the attempts were made to forcibly
dispossess
the
concerned
party
in
possession of the property without taking
recourse to law. In the instant case, as
discussed above, the appellant, being one
of the sons of tenant Jethwa, is being
dispossessed in the execution proceedings
arising out of decree drawn in Original Suit
No.323 of 1977 on the ground that he has
succeeded joint tenancy rights alongwith
his brother Prem Chandra, i.e. the judgment
debtor. Even proceedings under Order 21
Rule 97 CPC are statutory proceedings
recognized by the Code where the claim
raised by the present appellant has been
adjudicated
upon
by
two
courts
of
competent jurisdiction. There is nothing
like forcible or unlawful dispossession of
the appellant herein and, hence, it cannot be
accepted that if the appellant is being
dispossessed in the aforesaid execution
proceedings, the same is without following
due process of law.

15. While above is the settled legal
position as regards devolution of joint
tenancy rights and there being no dispute
that the appellant is son of late Jethwa, this
Court cannot take a different view as
regards independent rights of the appellant
in the property. As far as admission of the
respondent
contained
in
the
written
statement filed in Original Suit No.216 of
1996 that he did not recognize the appellant
as his tenant but asserted only Prem
Chandra as tenant, the Court may observe
that whatever objections are raised before a
court of law, it is the decree that prevails
upon the contentions and finality attached
to adjudication of rights would determine
the real controversy. Admittedly, the decree
drawn in Civil Appeal No.104 of 2000 has
attained finality in terms of dismissal of
Second Appeal No.891 of 2002. Therefore,
the findings recorded in first appellate
court's judgment have also attained finality
unless the same are set aside on cross
objections preferred by the respondent in
the said second appeal, who is the appellant
in the instant second appeal. In this regard,
reference to Order 41 Rule 22 CPC can be
made that reads as under:-

"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
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
824 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
(2) Form of objection and
provisions applicable thereto.- Such
cross-objection shall be in the form of a
memorandum, and the provisions of
rule 1, so far as they relate to the form
and contents of the memorandum of
appeal, shall apply thereto.
(3) xxxx
(4) Where, in any case in
which any respondent has under this
rule filed a memorandum of objection,
the original appeal is withdrawn or is
dismissed for default, the objection so
filed may nevertheless be heard and
determined after such notice to the other
parties as the Court thinks fit.
(5) The provisions-relating to
appeals by indigent persons shall, so far
as they can be made applicable apply to
an objection under this rule."
(emphasis supplied)

16. It is not in dispute that no cross
objections were filed by the present appellant,
being a respondent in Second Appeal No.819 of
2002, against the finding of the first appellate
court regarding joint tenancy rights of the present
appellant with Prem Chandra. The said cross
objections, if filed, could have been considered
on merits irrespective of withdrawal of Second
Appeal No. 891 of 2002 as per sub-rule (4) of
Rule 22 of Order 41 but, in absence of such cross
objections having been filed, no contrary view
can be taken as regards the finding recorded in
judgment dated 22.04.2002 passed in Civil
Appeal No.104 of 2000 inter se parties.
(emphasis supplied)

17. For all the aforesaid reasons, having
found no fault in the judgment dated 07.05.2014
passed in Civil Appeal No.130 of 2013, this
Court does not find any merit in the instant
second appeal. Consequently, the second appeal
stands dismissed at the admission stage itself.

18. Office is directed to send the record
of both the courts below to the District Judge,
Hapur for being preserved and maintained in
accordance with General Rules (Civil), 1957.
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(2024) 10 ILRA 824
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.10.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Bail Application No. 30292 of
2024

Rajendra Prasad ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
M.P. Srivastava, Manoj Kumar Kushwaha

Counsel for the Opposite Parties:
G.A.