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Hasan Ali Vs. Maktab Beg and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All551
AppellantHasan Ali
RespondentMaktab Beg and ors.
Excerpt:
civil procedure code, section 561 - objections by respondent--withdrawal of appeal. - .....revise. i am of opinion that the applicants had no claim, under the circumstances, to have their objections heard when the appeal itself was not heard. the terms of section 561 are, that a respondent may, upon the hearing, support the decree on any grounds decided against him in the court below, or take any objection to the decree which he could have taken by way of appeal, but he can only do so upon the hearing, that is, if the appeal comes to be heard. this view is supported by coomar puresh narain roy v. watson & co. 23 w.r. 229 and dhondi jagannath v. the collector of salt revenue i.l.r. 9 bom. 28 the latter decision proceeding upon the same ratio decidendi. this application must therefore be dismissed.mahmood, j.2. i am entirely of the same opinion, and would add that the.....
Judgment:

Oldfield, J.

1. This is an application, under Section 622 of the Civil Procedure Code, to revise an order of the Lower Appellate Court passed in an appeal from a decree of the Munsif of Muhammadabad. The plaintiff brought a suit against the applicants before us for damages for breach of contract. The Munsif decreed a portion of the claim and dismissed the remainder. The plaintiff preferred an appeal, and the applicants before us, who were respondents, filed objections under Section 561 of the Code. Before the hearing began the plaintiff-appellant applied to withdraw his appeal, and it was dismissed, and the applicants' objection were at the same time dismissed, without the Lower Appellate Court going into them. It is this order of the Judge we are asked to revise. I am of opinion that the applicants had no claim, under the circumstances, to have their objections heard when the appeal itself was not heard. The terms of Section 561 are, that a respondent may, upon the hearing, support the decree on any grounds decided against him in the Court below, or take any objection to the decree which he could have taken by way of appeal, but he can only do so upon the hearing, that is, if the appeal comes to be heard. This view is supported by Coomar Puresh Narain Roy v. Watson & Co. 23 W.R. 229 and Dhondi Jagannath v. The Collector of Salt Revenue I.L.R. 9 Bom. 28 the latter decision proceeding upon the same ratio decidendi. This application must therefore be dismissed.

Mahmood, J.

2. I am entirely of the same opinion, and would add that the principle of this decision is in accord with that which the Procedure Code and the law recognizes as applicable in cases where the action of one party to a suit is dependent on that of the other. It proceeds upon the hypothesis that had the applicants really desired to object to the lower Court's decision, they would themselves have preferred a separate appeal. The right of a respondent to have his objections heard as if he had appealed must, I think, depend on the appellant's appeal, and should only be allowed when the appellant proceeds with his appeal to a hearing. In my experience these objections are generally filed long after the time allowed for appealing has expired, and the hearing of them is subject to the condition of the appellant proceeding with his appeal to a hearing. The right to have these objections heard vanishes when the condition upon which they depend vanishes, and this upon general principles. In this case the appeal itself was never heard.


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