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Hemraj and ors. Vs. Musammat Bibi Kuar - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All299; 39Ind.Cas.947
AppellantHemraj and ors.
RespondentMusammat Bibi Kuar
Excerpt:
civil procedure code (act v of 1908,), order xli, rule 22, clause (4) - appeal withdrawn--gross-objections, whether can be filed. - .....appeal. on the 24th of august 1916 the respondent, who was the plaintiff in the original suit, filed objections under order xli, rule 22, of the code of civil procedure. the learned judge refused to hear the objections on the ground that the appeal having already been withdrawn before the objections were filed and there being no pending appeal, no objections could be filed in the case. prom this decision the present appeal has been filed and the fourth paragraph of rule 22, order xli, has been relied upon. in my opinion the court below was right. under order xli, rule 22, a respondent may without riling an appeal of his own prefer objections in respect of the decree of the court below in an appeal filed by the opposite party, and if after the filing of such objections the appeal is.....
Judgment:

P.C. Banerjee, J.

1. In my opinion this appeal is untenable. The facts are these: A suit was brought in the Court of the Assistant Collector which was partly decreed and partly dismissed. The defendants filed an appeal from the decree on the 25th of July 1916. On the 17th of August 1916 they withdrew the appeal and on the same date the appeal was, as the record shows, dismissed; so that on the 17th of August 1916 it ceased to be a pending appeal. On the 24th of August 1916 the respondent, who was the plaintiff in the original suit, filed objections under Order XLI, Rule 22, of the Code of Civil Procedure. The learned Judge refused to hear the objections on the ground that the appeal having already been withdrawn before the objections were filed and there being no pending appeal, no objections could be filed in the case. Prom this decision the present appeal has been filed and the fourth paragraph of Rule 22, Order XLI, has been relied upon. In my opinion the Court below was right. Under Order XLI, Rule 22, a respondent may without riling an appeal of his own prefer objections in respect of the decree of the Court below in an appeal filed by the opposite party, and if after the filing of such objections the appeal is with drawn that will not preclude the Court from bearing and deciding upon the objections filed by respondent. This is what Clause 4 of Rule 22 provides. Cross objections can only be filed in a pending appeal; if there is no appeal pending there can be no. cross-objections in that appeal. The pendency of the appeal is a condition precedent to the filing of cross-objections. When an appeal has ceased to be a pending appeal having already been dismissed it is impossible to file cross-objections in the appeal because from the very nature of things there is to appeal which is pending in the Court. Of course if after the filing of objections the appellant withdraws the appeal that will not prevent cross-objections being heard according to the provisions of Clause 4 of Rule 22. But this clause cannot apply where there was no appeal pending at all at the time when the cross-objections were filed. I dismiss the appeal.


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