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Sonibai W/O Pratapji Rajput and anr. Vs. Bhavarsingh S/O Gangaram Rajput - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case Nos. 8 and 70 of 1961
Judge
Reported inAIR1963MP161
ActsCode of Civil Procedure (CPC) , 1908 - Order 41 - Rule 22(4)
AppellantSonibai W/O Pratapji Rajput and anr.
RespondentBhavarsingh S/O Gangaram Rajput
Appellant AdvocatePhadke and Avadhoot, Advs.
Respondent AdvocatePandey, Adv.
DispositionApplications allowed
Cases ReferredMowar Sheobaksh Singh v. Mowar Thakur Dayal Singh
Excerpt:
- - they not only, did not then seek to press the appeal but also failed to press the same for over two years. they should clearly be held to have abandoned their cross-objections by reason of this conduct on their part. this is clear from the decision in air 1919 pat 219(1), which was a case in which the appeal was dismissed as the appellant had failed to furnish security for the respondent's costs......the civil procedure code provides that where, in any case in which any respondent has under that rule filed a memorandum of objections the original appeal is withdrawn or dismissed for default, the cross-objection so filed may nevertheless be heard and determined by the appellate court after such notice to the other parties as the court thinks fit thus there is a duty cast upon the appellate court to hear and determine cross-objections even when the appeal is withdrawn or dismissed for default this duty does not depend upon any action on the part of the respondent to press the cross-objection at the time of either its withdrawal or its dismissal for default. the duty continues until cross-objections are heard and determined. the proceedings of cross-objection are deemed to be pending.....
Judgment:

Newaskar, J.

1. These are two petitions submitted severally by the two respondents each of whom had filed cross-objection to the decree appealed against by the appellant. They contend that the appeal of the appellant had been dismissed for the appellant's default in paying paper-book charges; that prior to this order of dismissal either of the two respondents had submitted her cross-objection to the decree appealed against; that at the time when the order dismissing the appeal was passed no reference to these pending cross-objections was passed and that consequently they were still pending. The respondents seek a hearing in respect of these cross-objections.

2. On behalf of the appellant two contentions are raised. Firstly it is said that the case is not covered by Order 41 Rule 22(4), Code of Civil Procedure since the dismissal In this case cannot be said to be dismissal for default. Secondly, it is urged that it was incumbent upon the respondents to seek a hearing in respect of their cross-objections when the appeal was dismissed. They not only, did not then seek to press the appeal but also failed to press the same for over two years. They should clearly be held to have abandoned their cross-objections by reason of this conduct on their part. Reliance was sought to be placed by the appellant upon the decision reported in Qara Mohammad v. Bazam Ara, AIR 1923 Oudh 108.

3. In our opinion the respondents' cross-objections cannot be taken to have been abandoned and ought to be heard.

4. Clause (4) of Order 41 Rule 22 of the Civil Procedure Code provides that where, in any case In which any respondent has under that Rule filed a memorandum of objections the original appeal is withdrawn or dismissed for default, the cross-objection so filed may nevertheless be heard and determined by the appellate Court after such notice to the other parties as the Court thinks fit Thus there is a duty cast upon the appellate Court to hear and determine cross-objections even when the appeal is withdrawn or dismissed for default This duty does not depend upon any action on the part of the respondent to press the cross-objection at the time of either Its withdrawal or its dismissal for default. The duty continues until cross-objections are heard and determined. The proceedings of cross-objection are deemed to be pending till then and mere passage of any length of time, without any overt act on the part of the respondent suggesting positive Inclination on his part of abandoning his right with reference to his cross-objection will not have the effect of putting an end to that right. This is clear from the wordings of the provisions referred to above and is also supported by the decision in Mowar Sheobaksh Singh v. Mowar Thakur Dayal Singh, AIR 1919 Pat 219(1). Contrary view taken in AIR 1923 Oudh 108 does not appear to be sound.

5. There is no doubt that the term 'default' in Rule 22(4) Includes default either of appearance or in doing something which would be necessary for enabling the Court to hear the appeal. This is clear from the decision in AIR 1919 Pat 219(1), which was a case in which the appeal was dismissed as the appellant had failed to furnish security for the respondent's costs.

6. For these reasons the applications submitted on behalf of the respondents Nos. 8 of 1961 and 70 of 1961 are allowed and it is directed that the cross-objections filed in Civil First Appeal No. 1 of 195S may be heardafter calling for the record and after due notice to the appellant.


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