NELLIYODAN BALAN NAIR Vs. PANTHEEVATI KESAVAN NAMBISSAN

JUDGEMENT

(1.) This matter has come up before us on the basis of an office note reading as follows:

(2.) The question is not free from difficulty. It is, however, clear that Rule 10 of Order XXXIII, in view of Rule 1 of Order XLIV of the Code of Civil Procedure, will apply to appeals and it is not disputed before us to memorandum of cross-objections as well. It is also clear that the plaintiff has succeeded in the memorandum of cross-objections, for the finding of the trial Court that he is not entitled to mesne profits from the third defendant has been set aside and the matter has been remanded to the Court below for a de novo consideration and decision.

(3.) It is contended by counsel for the plaintiff that for Rule 10 of Order XXXIII to apply there should be a decree directing the party to pay the court-fees and since there is no decree disposing of the cross-objections, the rule cannot apply. Rule 10 of Order XXXTII runs thus: