KASHIRAM CHAUDHURI Vs. RANGLAL MOTILALSHET MARWADI

JUDGEMENT

(1.) IN this appeal a preliminary objection was taken that the memorandum of appeal was insufficiently stamped, and the Court upheld that objection, and, acting under the power conferred by Section 149 of the Civil Procedure Code, 1908, gave the appellant three weeks' time in which to pay the proper amount of court-fee. He has not done so, and the appeal comes before us today for disposal.

(2.) THE correct court-fee not having been paid, it is quite clear that under Section 4 of the Court-fees Act, and also under Order VII, Rule 11 read with Section 107 of the Civil Procedure Code, we are bound to order that the memorandum of appeal be rejected.

(3.) THE next question which arises is with regard to cross-objections. In my opinion, it is quite clear that if an appeal is rejected for non-payment of court-fee, cross-objections must fail with the appeal. Cross-objections, under Order XLI, Rule 22, are a method by which the respondent may himself complain against the decree appealed from, but the right to lodge cross-objections is only given to a respondent on an appeal, and if the appeal is rejected, there can be no respondent and no cross-objections. Sub-rule (4) of Rule 22 provides that when an appeal is withdrawn or dismissed for default, cross-objections may be proceeded with; but where an appeal is rejected, it cannot, in my opinion, be said to be withdrawn or dismissed for default. THE cases on the subject were discussed by the Rangoon High Court in U Shin v. Maung Tha Gywe (1930) I.L.R. 8 Ran. 538, and the learned Judges there came to the conclusion that where the memorandum of appeal is rejected for non-payment of court-fees, the cross-objections must fail with the appeal. I think that decision is correct.