Muttusami Ayyar and Hutchins, JJ.
1. The appellant was a respondent before the Lower Appellate Court and filed objections to the decree under Section 561 of the Code. The Subordinate Judge held that he could not be heard on a point which was not in dispute between the then appellant and himself, but only between himself and a corespondent. At the same time he decided that, if the objection could be entertained, it must prevail, and the plaintiffs (respondent's) suit ought then to be dismissed with all costs. The respondent does not dispute this part of the decision, and therefore the simple point for determination is whether the appellant's objections ought to have been entertained.
2. It is conceded that the only point raised in the appeal before the Subordinate Judge was one of costs between the plaintiff and the appealing defendant. It was one in which this appellant had no possible interest, and he ought not to have been made a party to the appeal. But he was in fact joined as a respondent, and he had all the rights which the law allows to respondents.
3. Now, unquestionably, the words of Section 561 are wide enough to entitle him to raise objections. Any respondent, though he may not have appealed against any part of the decree, may, upon the hearing, not only support the decree on any of the grounds decided against him, but take any objection to the decree which he could have taken by way of appeal, provided he has filed a notice. It is contended, however, on behalf of the respondent that the words of the corresponding section (348) in the Code of 1859 were very much narrowed by a long series of judicial interpretations; that they have been substantially re-enacted by the Legislature with a knowledge of this fact; and that the clause as to notice, originally added in the Code of 1877, distinctly shows an intention to limit objections to the matter in contention between the appellant on the one side and the several respondents on the other.
4. The clause regarding notice in the Code of 1877 required seven days' notice to be given to the appellant or his pleader, and, if it had been allowed to stand, might possibly have formed a good ground for adopting the narrower construction of the section. But it was not allowed to stand. It was repealed by Act XII of 1879, which substituted the following clause: 'Provided he has filed a notice of such objection not less than seven days before the date fixed for the hearing of the appeal. 'It may be that the reasons for this change were that the original clause might have favoured a narrower view of the section than the Legislature intended, and that, because other parties besides the appellant might be interested in the objections, they ought to be filed in Court where all could see them. The Court itself is not concerned with the nature of the objections until the actual hearing.
5. Then with regard to the authorities quoted. There is no doubt that the High Court of Calcutta consistently restricted the privilege of cross-appeal, as it was termed, to matters in contention between the objecting respondent and the appellant. As many as twelve reported cases have been quoted from the Weekly Reporter, ranging from 1864 to 1868, and one of the earlier decisions, Maharaja Tarucknath Roy v. Tuboorunnissa Choudhrain 7 W.R. 39 speaks of numerous previous precedents. The very number of cases in which the difficulty had arisen would have led the Legislature to make the point clearer if they intended to adopt the construction placed on the old section (348) by the Courts. Unfortunately they have not done so. As already stated, the words of the new section are wide enough to cover all objections to any part of the decree. The first words show that the Legislature had distinctly before them the facts that there might be many respondents with different interests, and that appeals might be made against many different parts of a decree; they thereupon deliberately enacted that any respondent might take any objection to the decree, and the only words qualifying 'any objection' are 'which he could have taken by way of appeal.'
6. The old section was by no means so general. It spoke of the respondent instead of any respondent, and objections to the decision, not objections to the decree. The decision, in the language of the old Code, meant the decisive findings on the material issues (Section 186), and, taking Sections 334 and 348 together, it might reasonably have been interpreted as that part of the decree which had been appealed against, the part of the case opened out by the appellant.
7. It seems to us that the change of language is against the contention of the respondent, and that this appellant's objections ought to have been entertained by the Subordinate Judge. The decrees of both Courts must, therefore, be set aside and the original suit dismissed, and plaintiff must pay the costs of this appellant throughout.
8. We have not lost sight of the difficulty pointed out in Goonomonee Dossia v. Parbutty Dossia 10 W.R. 326 that our construction will make it unsafe for any person who receives notice as a respondent to refrain from putting in an appearance merely because the matter raised by the appellant is one in which he is not interested. He must at least make enquiries whether any objections have been filed. But we go upon the plain language of the Legislature, which appears to us to give to any respondent a right, which this particular respondent, the present appellant, was denied.