ABDULLAMIYA HAMDUMIYA Vs. MAHOMEDMIYA GULAMHUSEIN

JUDGEMENT

(1.) THIS appeal has abated as the appellant died and the legal representatives have not been brought on record within the time prescribed by the law of limitation. Mr. Shah's clients have filed cross-objections to the appeal and Mr. Shah contends that although the appeal has abated, he has a right to have his cross-objections heard since he has brought the heirs of the appellant on the record for the purpose of his cross-objections.

(2.) NOW, the provision with regard to the hearing of cross-objections is to be found in Order XLI, Rule 22, and in order to understand and appreciate the present position in law one must look at the history of legislation as contained in this particular rule. Under the old Code of 1882, Section 561 contained the corresponding provisions and under that section the language used was that any respondent may upon the hearing of the appeal not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal. Therefore, the position under the old law was that it was only when an appeal was heard that the cross-objections could be also heard. The Code was amended in 1908 and the amendments made to Section 561 were two-fold. The expression "upon the hearing" was omitted and a new sub-clause was added which was Sub-rule (4), which is in the following terms : Where, in any case in which any respondent has under this rule filed a memorandum of objection the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.