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Kanhaiya Lal Vs. Musammat Azmatunnisa - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All840; 78Ind.Cas.877
AppellantKanhaiya Lal
RespondentMusammat Azmatunnisa
Cases ReferredHoolas Koeree v. Bibee Sufeehun
Excerpt:
civil procedure code (act v of 1908), order xli, rule 22 - cross-appeals--cross-objection, whether can be filed in connection with cross-appeal. - - that was clearly a case in which the decision of the appeal operated as a bar to the entertainment of the oross-objeotion. the latter clearly lays down that the omission to file an appeal from any part of the decree shall be no bar to the filing of a cross-objection about that part, much less mere filing of an appeal about one part bar the filing of a cross-objection about another and a separate part of the decree, though the subsequent decision of the former in some cases directly or indirectly affect the decision of the latter......this appeal is, whether a party who -iias filed an appeal from one part of the decree can file a cross-objection in regard to another part of the decree in connection with the cross-appeal filed by the other party. the lower appellate court has found that he cannot do so. it has relied in support of that view on the decision in ramji das v. ajudhia prasad 26 a. 628; a.w.n. (1908) 160. in that case the cross-objection was filed after the appeal was dismissed and the subject-matter of the appeal and the cross-objection was the same. that was clearly a case in which the decision of the appeal operated as a bar to the entertainment of the oross-objeotion. the same matter oan not obviously be agitated both in an appeal and in a oross-objeotion. order xli, rule 22 of the code of civil.....
Judgment:

Kanhaiya Lal, J.

1. The question for consideration in this appeal is, whether a party who -iias filed an appeal from one part of the decree can file a cross-objection in regard to another part of the decree in connection with the cross-appeal filed by the other party. The lower Appellate Court has found that he cannot do so. It has relied in support of that view on the decision in Ramji Das v. Ajudhia Prasad 26 A. 628; A.W.N. (1908) 160. In that case the cross-objection was filed after the appeal was dismissed and the subject-matter of the appeal and the cross-objection was the same. That was clearly a case in which the decision of the appeal operated as a bar to the entertainment of the oross-objeotion. The same matter oan not obviously be agitated both in an appeal and in a oross-objeotion. Order XLI, Rule 22 of the Code of Civil Procedure provides that any respondent oan not only support the decree on any of the grounds deoided against him in the Court below but oan take any cross-objection to the deoree, which he could have taken by way of appeal, provided he has filed such objection within a certain period therein mentioned, although he may not have appealed from that part of the decree, which the cross-objection is intended to cover. There is nothing in that provision to prevent a party from filing an appeal from one part of the decree and contenting himself with filing a cross-objection about another part of the decree in a cross-appeal tiled by the other side before the former appeal has been decided. The appeal and the cross-appeal in the present case came up for hearing along with the cross-objection on the same date. In fact, they were heard together and disposed of by the same judgment. The lower Appellate Court was not justified in refusing to entertain the cross-objection because the appeal had not till then been heard and the appeal and the cross-objection related to different matters.

2. The learned Counsel for the defendant-respondent has referred to a decision in Hoolas Koeree v. Bibee Sufeehun y but that decision proceeded on several grounds, any one of which would have been fatal to the entertainment of the cross-objection. The cross-objection sought to be filed in that case was an oral objection, unaccompanied by a written memorandum of the grounds of such objection or by the Court-fee required by Law to be paid thereon. The language of Section 348 of the Code of Civil Procedure (Act VIII of 1859) then in force was moreover not the same as that of Order XLI, Rule 22 of the present Code. The latter clearly lays down that the omission to file an appeal from any part of the decree shall be no bar to the filing of a cross-objection about that part, much less mere filing of an appeal about one part bar the filing of a cross-objection about another and a separate part of the decree, though the subsequent decision of the former in some cases directly or indirectly affect the decision of the latter.

3. This appeal must, therefore, be allowed and the case remanded to the lower Appellate Court with a direction to re-admit the cross-objection under its original number and dispose of it in the manner provided by law. The oosts here and hitherto will abide the result.


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