LAXMIDHAR MAHASUAR Vs. SATYANARAYAN DEV

JUDGEMENT

(1.) The amount of Court-fee payable on the cross-objection filed by the respondents-Cross Objectors is in dispute. The Cross-Objectors have paid Rs. 45/- as Court-fee on the cross-objection whereas the Stamp Reporter has noted that since the cross-objection arises out of a suit for partition fixed Court-fee of Rs. 300/- is payable. Learned counsel for the Cross-Objectors submits that the cross-objection being against adverse finding to support the decree passed by the learned lower appellate Court and not against the decree impugned in the Second Appeal, the cross-objection is to be treated as an application and Court-fee has to be paid accordingly but not in accordance with the note made by the Stamp Reporter. In support of his contention he cited a decision in Ismail Khan v. Shankarlal Chourasia, 1984 AIR(MP) 139 wherein it has been held that cross-objection preferred under Explanation to Rule 22(1), O. 41 C.P.C. is to be treated as an application and Court-fee has to be paid accordingly.

(2.) Order 41, Rule 22, C.P.C. gives two distinct rights to the respondents. The first is the right of upholding the decree on any other grounds on which the lower Court decided against him; and the second is the right of taking any cross-objection to the decree which the respondents might have taken by way of appeal. In the first case the respondent supports the decree and in the second he attacks the decree. Thus, the first part of the Rule authorizes the respondent only to support the decree. It does not authorize him to challenge it. Keeping this settled position of law in mind, it is to be decided as to whether the cross-objection under consideration comes within the first part of Sub-rule (1) of Rule 22 and the explanation thereto.