Shankar Lal v. Madari Singh And Ors.

1. This appeal involves a short and simple point. The plaintiff sued the defendants for recovery of money under a mortgage of 1895, by sale of the mortgaged property. He gave credit for Rs. 245, which he declared to be the value of certain grain and cattle delivered to him by the mortgagor. The defendants alleged that the value of the grain and cattle was Rs. 350, and not Rs. 245 and they also alleged a further payment of Rs. 320. The Court of first instance was of opinion that the value of the grain and the cattle was Rs. 245 but it was also of opinion that the plaintiff was not entitled to compound interest. It accordingly made a decree for Rs. 316. The plaintiff appealed. The learned Judge held that the plaintiff was entitled to compound interest, that he had received from the defendant a sum of Rs. 320 and that the value of the grain and the cattle delivered to him was Rs. 350, and not Rs. 245. In the result he made a decree for Rs. 741-7-10. The plaintiff has preferred this appeal and it is contended on his behalf that as the defendants did not prefer an appeal from the finding of the first Court as to the value of the goods and cattle delivered, it was not open to the lower appellate Court to consider whether that finding was correct or not and give credit to the defendants for a larger sum than Rs. 245, on account of grain and cattle. I am of opinion that this contention is untenable. Under Order XLI, Rule 22, Clause (1), a respondent, although he may not have appealed against any part of the decree, may support the decree on any of the grounds decided against him in the Court below. The defendants did not dispute the correctness of the amount decreed against them. It was not necessary for them to appeal or to prefer objections under that rule but they were competent to support the decree upon a ground which had. been decided against them by the first Court. Therefore they could show in the Court below that the amount for which credit had been given by the first Court had been wrongly calculated so far as the value of the grain and the cattle delivered was concerned. It is only if they took any exception to the decree in regard in which they could have preferred an appeal that they were bound to take cross-objections but as they accepted the correctness of the decree, they had no reason to appeal and they were not bound to file cross-objections. The lower appellate Court was, therefore, competent to go into the question of the amount for which the defendants were entitled to obtain credit. The result is that the appeal fails and is dismissed with costs.