1. In this case a notice in the form. No. 6-A appended to Order 4.1, Schedule 1, Civil Procedure Code, made by the High Court was received by the 1st respondent (1st petitioner) on 21st December, 1923 and the 2nd respondent (2nd petitioner) on 5th January, 1924. A memo of cross-objections was filed on nth February, 1924. The respondent's Vakil claims that he is in time as he has not yet received a notice fixing the date of hearing and it is only within 30 days from the receipt of such a notice that he was to file his memorandum of objections. In framing Order 41-A and Form 6-A fixing time for appearance, Order 41, Rule 22 seems to have been overlooked. Order 41, Rule 12 requires that a day for hearing should be fixed and even if we can construe Order 41-A as making this unnecessary, there must be some rule guiding the litigants as to how Order 41, Rule 22 should be complied with. There is no rule saying that the day fixed for appearance shall be regarded as the day fixed for hearing within the meaning of Order 41, Rule 22.
2. The actual notice now in use cannot be construed as fixing a day for hearing by implication. The appellant's (respondent's) Vakil contends that the 25th day from receipt of notice should be regarded as the day fixed for hearing. This cannot be as the case cannot be heard on the 25th day. It cannot be earlier than the 26th. But the Rule 39 of the Rules of the High Court Appellate Side shows that it cannot be within three months after the admission of the appeal. This last consideration shows the undesirability of implying the date fixed for hearing. Either Order 41, Rule 22 must itself be modified by the High Court or some other rule must be made to provide for its working.
3. We are constrained to hold that the memorandum of objections is not out of time.
4. The attention of the Secretary to the Rule Committee will be drawn to this order.