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Lt. Col. P.H. Choudhary Vs. Altaf Ahmed and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 26 of 1961
Judge
Reported inAIR1963AP382
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 22(4)
AppellantLt. Col. P.H. Choudhary
RespondentAltaf Ahmed and anr.
Appellant AdvocateG. Ramanujulu Nayudu, Adv.
Respondent AdvocateO. Chinnappareddy, Adv.
DispositionAppeal allowed
Excerpt:
civil - cross objection - order 41 rule 22 (4) of code of civil procedure, 1908 - respondent filed memorandum of cross objection - during pendency of appeal defendant-father of appellant died and appeal abated - appellant claimed memorandum of cross objection cannot be prosecuted as appeal abated - high court observed under order 41 rule 22 (4) with abatement of appeal memorandum of cross objection ceased to exist and cannot be disposed off on merits - memorandum of cross objection dismissed and appeal allowed. - - rajani kanta, air1960cal512 ,it is not slated clearly whether the legal representatives of the appellant in the main appeal were impleaded in the memorandum of cross-objections or not......appeal raises a question relating to the impact of the abatement of an appeal on the memorandum of cross-objections.2. the short facts, which are not in dispute, are these. the respondents brought a suit on the foot of two promissory notes executed by the father of the appellant and obtained a decree for rs. 18,409/-. the defendant i.e., the father of the present appellant brought an appeal questioning the validity of the decree only with regard to one item, i.e., rs. 4.000/-.3. on service of notice of this appeal, the respondents, filed a memo of cross-objections contending that they were entitled to the full amount claimed by them, i.e., rs. 23.061-8-0 and there was no justification for the trial court to reduce it to rs. 18,409/-. pending the appeal, the defendant died but his legal.....
Judgment:

P. Chandra Reddy, C.J.

1. This Letters Patent appeal raises a question relating to the impact of the abatement of an appeal on the memorandum of cross-objections.

2. The short facts, which are not in dispute, are these. The respondents brought a suit on the foot of two promissory notes executed by the father of the appellant and obtained a decree for Rs. 18,409/-. The defendant i.e., the father of the present appellant brought an appeal questioning the validity of the decree only with regard to one item, i.e., Rs. 4.000/-.

3. On service of notice of this appeal, the respondents, filed a memo of cross-objections contending that they were entitled to the full amount claimed by them, i.e., Rs. 23.061-8-0 and there was no justification for the trial Court to reduce it to Rs. 18,409/-. Pending the appeal, the defendant died but his legal representatives were not brought on record in time with the result that the appeal abated. However, the present respondents impleaded the legal representatives of the deceased defendant as a party to their memorandum of cross-objections.

4. When the memorandum of cross-objections came on for hearing, it was contended on behalf of the appellant that the memorandum of cross-objections could not be prosecuted for the reason that the appeal had abated. In support of this contention, reliance was placed on a number of decisions.

5. Sanjeeva Row Nayudu, J. disallowed this objection observing that the memorandum of cross-objections could be equated to a cross-appeal haying an independent existence and that its fate did not depend upon the result of the appeal. The learned Judge distinguished the decision of the Madras High Court in Marugappa Chettjar v. Ponnusami Pillai, ILR 44 Mad 828: (AIR 1921 Mad 405) on the ground that in the cited case the legal representative of the deceased party in the memorandum of cross-objections was not brought on record unlike in the case on hand where the legal representative of the deceased defendant was brought on record in the memorandum of cross-objections. In the result, he accepted the memorandum of cross-objections and modified the decree of the trial Court by allowing the respondents an additional sum of Rs. 2,150/-. It is this decree of the learned Judge that is assailed before us in this letters patent appeal under clause (15) of the Letters Patent.

6. The view pressed upon us by Sri Ramanu-julu Nayudu, learned counsel for the appellant, is that with the abatement of the appeal the memorandum of cross-objections ceased to have any existence and that it could not be disposed of on merits. There is force in this argument. Order 41, Rule 22, Sub-rule (4), C. P. C. contemplates that the memorandum of cross-objections could be heard and determined where the original appeal is withdrawn or dismissed for default. It is worthy of note that this does not include abatement of appeal. It appears to us that but for the provision contained in Sub-rule (4) the memorandum of cross-objections would have to share the same fate as the appeal that has abated. It is to save the memorandum of cross-objections in certain contingencies that this rule was enacted. If really the memorandum of cross-objections stands on the same footing as a cross-appeal and it could be heard and determined on merits ungoverned by the fate of the appeal itself, Order 41, Rule 22, Sub-rule (4), C. P. C. was unnecessary. It follows that memoranda of cross-objections not falling within the purview of this sub-rule, such as when the appeal has abated, cannot be heard and determined. If that were so, the memoranda of cross-objections should be dismissed in limine without further consideration.

7. This view of ours gains confirmation from the rulings of various High Courts. This is the principle underlying ILR 44 Mad 828: (AIR 1921 Mad 405). It is true in this case it docs not appear whether the legal representative of the deceased appellant in the main appeal was brought on record in the memorandum of cross-objections or not. It may fairly be assumed that he was brought on record for the reason that but for that no counsel would have appeared in the memorandum of cross-objections to argue the matter. But that is not that circumstance that entered judicial verdict in all those cases. The judgment was based upon the provisions of Order 21, Rule 22(4), C. P. C. This is also the rule stated in Municipal Council Chicacole V. Satyanarayana Sarma, (1947) 2 Mad Li 339. Here also, it is not clear whether the legal representative of the deceased party was brought on record in the cross-objections or not. In other words, the position obtaining in this case seems to be analogous to ILR 44 Mad 828: (AIR 1921 Mad 405). We must take it that in this case too the legal representatives were brought on record in the memorandum of cross-objections, as otherwise there would not have been any counsel to appear in the cross-objections for the cross-objector. As already observed, that fact did not make material difference in the solution of the problems that posed themselves in those cases.

We may now refer to Abdullamiya Hamdumiya v. Mohomedmiya Gulam Hussein, 1LR 1949 Bom 263: (AIR 1949 Bom 276), which is ad idem with the present case. The learned Judges observed inter alia:

'Therefore, it is clear that the Legislature did not intend that cross-objections should be heard when the appeal had abated'.

Our learned brother declined to follow this case on the ground that it was wrongly decided. With great deference to him, we must observe that the judgment of the Bombay High Court in the above-cited case represents the correct view and no exception could be taken to it.

8. The decisions of the Calcutta, Patna, and Nagpur High Courts are in consonance with the view adopted in Madras and Bombay High Courts. In Gobinda Prosad v. Rajani Kanta, : AIR1960Cal512 , it is not slated clearly whether the legal representatives of the appellant in the main appeal were impleaded in the memorandum of cross-objections or not. But the remarks made by us with reference to ILR 44 Mad 828: (AIR 1921 Mad 405) and (1947) 2 Mad LI 339 apply with full force to this case also. (Vide also Arjun Singh V. Matukdhari, : AIR1955Pat391 and Purushottamdas v. Devaran, AIR 1939 Nag 39).

9. Mst. Bakhtawari v. Sadhu Singh, which contains the same doctrine, is a case where the legal representative was impleaded in the memorandum of cross-objections. Notwithstanding that, a Bench of the Punjab High Court ruled that the cross-objections could not be heard if the appeal had abated even though the respondents had made an application for bringing the legal representative of the appellant on record in the memorandum of cross-objections. Arunachala v. Lakshminarasimham, ILR 1948 Mad 100: (AIR 1948 Mad 32) is a case where the cross-objector brought the legal representatives of the deceased appellant in the main appeal and prosecuted the cross-objections. A Division Bench of the Madras High Court consisting of Gentle, C. J. and Rajamannar, J. allowed the application to bring on record the legal representative. That case has no analogy here as this is not a case where cross-objector brought on record the legal representative of the deceased appellant and had his objections heard and determined on its merits. Therefore, that ruling does not render any assistance to the respondents here. It follows that the memorandum of cross-objections has to be dismissed without consideration of its merits.

10. In the result, the judgment under appeal is set aside and the letters patent appeal allowed. There will be no order as to costs both here and in appeal No. 131 of 1957 and in memorandum of cross-objections.


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