1. The suit out of which this appeal arises was one by the Municipal Council of Chicacole against the principal debtor, the first defendant, and the surety, the second defendant. After the appeal had been filed and a memorandum of cross-objections had been preferred, the principal debtor died ; and so the appeal has admittedly abated against him. The question is whether the second respondent is entitled to argue his memorandum of cross-objections.
2. It is argued on behalf of the second respondent, the surety, that the appeal as regards him is still technically maintainable, although the appellant could not succeed, because the surety could not be made liable for a larger amount than the principal debtor, whose liability was determined finally by the trial Court. If the appeal against the second respondent is maintainable, he is entitled to argue his memorandum of cross-objections.
3. In Murugappa Chettiar v. Ponnuswami Pillai : AIR1921Mad405 , the question arose whether, upon an appeal abating, the respondent was entitled to argue his memorandum of cross-objections. It was held that since the appeal had not been withdrawn and had not been dismissed for default, order XLI, Rule 22(4) of the Civil Procedure Code had no application. The learned Judges said:
Rule 22(1) entitles a respondent, though he may not have appealed from any part of the decree, not only to support the decree on any of the grounds decided against him in the Court below, but, also, to take any cross-objection to the decree which he could have taken by way of appeal. The intention of the rule is not to give a respondent who has allowed his own right of appeal to become barred a fresh substantive right of appeal, but only to allow him to take cross-objections on the appeal filed by the other side, and, if that appeal goes, the right to take cross-objections goes with it. As however it would be a hardship to allow an appellant to prevent the memorandum of objections from being heard by withdrawing the appeal or allowing it to be dismissed for default, the Legislature has thought fit to provide that in such cases the memorandum of objections may 'nevertheless' be heard and determined.... This language shows that the Legislature did not intend to alter the law by which the entertainment of objection was made contingent and dependent upon the hearing of the appeal.
This judgment was based to some extent upon a decision of the Full Bench of this High Court reported in Alagappa Chettiar v. Chockalingam Chettiar : (1918)35MLJ236 , in which it was held that when it was found that an appeal was time-barred, the memorandum of cross-objections had to be dismissed. These decisions are binding on us ; and the only way in which the second respondent could avoid the application of this rule would be by showing that the appeal against the second respondent was still maintainable. It has been argued, as already pointed out, that the appeal could still be heard, though without any prospect of success. We however feel that the case against the two defendants cannot be separated, the liability of the one bring co-extensive with the liability of the other, and that when the appeal filed against the first defendant by reason of the abatement has to be dismissed, the appeal is no longer maintainable against the second defendant. If that be so, then by applying the principle laid down in Murugappa Chettiar v. Ponnuswami Pilla : AIR1921Mad405 , and Alagappa Chettiar v. Chockalingam Chettiar : (1918)35MLJ236 , the memorandum of cross-objections has also to be dismissed. Both the appeal and the memorandum of cross-objections are therefore dismissed with costs.