This Second Appeal has been admitted by treating questions at Sr. Nos. I, II, VI, IX & X of para 5 of memo of Second Appeal as substantial questions of law on 14.10.2002.

2. I have heard Shri Sirpurkar, learned counsel for the appellant . original plaintiff and Shri Ghare, learned counsel for the respondents original defendants. The questions mentioned above read as under : “I. Whether, the finding which is recorded adversely against the respondents, can be challenged by the respondents without filing cross objection under Order 41, Rule 22 of the Code of Civil Procedure after the amendment of Code of Civil Procedure in 1976 ? II. Whether the question regarding maintainability of the suit under Order 23, Rule 1(4) of the Code of Civil Procedure could be tried as a preliminary issue; as the same required the examination of facts and the causes of action in the previous suit as well as in subsequent suit and also the subsequent events which led to the filing of the second suit ?

VI. Whether the Appellate Court was justified in holding that there was a partnership without deciding the factual aspect in absence of any evidence recorded by the Court ?