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Abdullamiya Hamdumiya Vs. Mahomedmiya Gulamhusein - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 83 of 1944
Judge
Reported inAIR1949Bom276; (1949)51BOMLR241
AppellantAbdullamiya Hamdumiya
RespondentMahomedmiya Gulamhusein
Excerpt:
civil procedure code (act v of 1908), order xli, rule 22-abatement of appeal-memorandum of cross-objections filed by respondent-whether such cross-objections survive.;where an appeal abates on the death of the appellant, the respondent cannot have his cross-objections heard under order xli, rule 22(4), of the civil procedure code, 1908. - .....on record within the time prescribed by the law of limitation. mr. shah's clients have filed cross-objections to the appeal and mr. shah contends that although the appeal has abated, he has a right to have his cross-objections heard since he has brought the heirs of the appellant on the record for the purpose of his cross-objections.2. now, the provision with regard to the hearing of cross-objections is to be found in order xli, rule 22, and in order to understand and appreciate the present position in law one must look at the history of legislation as contained in this particular rule. under the old code of 1882, section 561 contained the corresponding provisions and under that section the language used was that any respondent may upon the hearing of the appeal not only support.....
Judgment:

M.C. Chagla, C.J.

1. This appeal has abated as the appellant died and the legal representatives have not been brought on record within the time prescribed by the law of limitation. Mr. Shah's clients have filed cross-objections to the appeal and Mr. Shah contends that although the appeal has abated, he has a right to have his cross-objections heard since he has brought the heirs of the appellant on the record for the purpose of his cross-objections.

2. Now, the provision with regard to the hearing of cross-objections is to be found in Order XLI, Rule 22, and in order to understand and appreciate the present position in law one must look at the history of legislation as contained in this particular rule. Under the old Code of 1882, Section 561 contained the corresponding provisions and under that section the language used was that any respondent may upon the hearing of the appeal not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal. Therefore, the position under the old law was that it was only when an appeal was heard that the cross-objections could be also heard. The Code was amended in 1908 and the amendments made to Section 561 were two-fold. The expression 'upon the hearing' was omitted and a new sub-clause was added which was Sub-rule (4), which is in the following terms :-

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.

3. Therefore, under Sub-rule (4) when an appeal is withdrawn or is dismissed, the cross-objections may nevertheless be heard. Therefore, the original rigour of the law has been relaxed, but it has been relaxed only to this extent, viz. in the two cases laid down in Sub-rule (4)(1) where the appeal is withdrawn, and (2) where the appeal is dismissed. It is significant to note that Sub-rule (4) does not provide for a case of an abatement of an appeal. Therefore, it is clear that the Legislature did not intend that cross-objections should be heard when the appeal had abated. Under the circumstances, as this case is not a ease of a withdrawal of an appeal or a dismissal of an appeal, but is a case of an abatement of an appeal, Mr. Shah's clients have no right to have their cross-objections heard.

4. The result, therefore, will be that on the abatement of the appeal the cross-objections must stand dismissed. As regards the costs of the appeal, Mr. Shah's clients would be entitled to have the costs out of the estate of the appellant. With regard to the costs of the cross-objections, there will be no order as to costs.


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