C P MEHRA Vs. SM K K MEHRA

JUDGEMENT

(1.) In this case the office pointed out on 14-7-1958 that there was deficiency in court fee paid on the memorandum of appeal to the extent of Rs. 512/8/-. The deficiency report was made earlier because on 1-4-1958 the appellant was allowed two months time to make good the deficiency. The appellant failed to deposit the necessary deficiency and proposed at one time to pursue the appeal in forma pauperis. But on the last hearing that is, on the 1st September, 1958, his learned Counsel informed that his client had decided not to deposit the court fee nor was he prepared to pursue his suggestion to have the appeal admitted in forma pauperis. Hence since the necessary deficiency in the court fee has not been deposited, the memorandum of appeal has to be rejected and I direct accordingly. The appellant will nevertheless pay the expenses incurred by the respondent in the appeal.

(2.) After the above appeal had been filed, the respondent filed a cross objection to the decree appealed against under Order 41 Rule 22. The question has accordingly arisen as to whether the cross-objection also has to be dismissed, or can the same be continued despite the rejection of the appeal. Order 41, Rule 22 has in Sub-rule (4) made provision that where any memorandum of objection has been filed under that rule and the original appeal is withdrawn or dismissed for default the objection may nevertheless be heard and determined after such notice to the other party as the Court thinks fit.

(3.) Relying on the above provision the respondent has urged that the cross-objection will still need to be heard and determined because according to him the rejection of the appeal for non-payment of court-fee is in effect its dismissal for default. Sub-rule (4) has doubtless provided that notwithstanding the dismissal for default of an appeal the cross-objection can be heard and determined by the Court after notice to the other party. There is no controversy also that the ordinary rule is that a cross-objection which owes its existence to the appeal urged by the appellant, falls with the termination of the appeal except as provided in the above sub-rule. The question which will, therefore arise is whether rejection of an appeal for non-payment of the necessary court-fee is dismissal for default of the appeal.