P K BHIMASENA RAO Vs. CVENUGOPAL MUDALI

JUDGEMENT

(1.) I shall only say a few words with regard to the preliminary objection that was taken to the hearing of the appeal by the learned vakil for the respondent. The third defendant originally filed an appeal and by an order of this Court he was directed to furnish security for the costs of the plaintiff-respondent. He failed to do so and in consequence the appeal went off for default. The objection taken by the learned vakil for the respondent is that in form the present appeal preferred by the first defendant was a memorandum of cross-objections such as is contemplated under Rule 22, Order 41 of the Civil Procedure Code. His argument was that, when the appeal went off for default and there was no hearing of the appeal the memorandum of cross-objections could not be heard; but assuming that Order 41 of the Civil Procedure Code applies to this case, the Legislature itself has provided for it in Clause 4 of Rule 22 of Order 41. Before this new Procedure Code there was an expression of judicial opinion to the effect that such cross-objections could not be heard if there was no hearing of the appeal itself. It is to provide against such contingencies that Clause 4 provides that where, in any case in which any respondent has under this rule filed a memorandum of objections, and the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. Notice of the memorandum of objections has been served : and therefore there is no valid objection to its being heard. But, in my opinion, Order 41 has no application whatever to appeals from the Original Side. The appeal is provided under Clause 15 of the Letters Patent and it is not an appeal from one Subordinate Court to another, the appellate Court, but from one Judge of the same Court to two or more Judges of the same Court. Now, in such a case, the provision is only for an appeal from a judgment of one Judge. There is no doubt in the rules framed by this Court for Original Side appeals in Rule 351, there is a reference to memorandum of objections, if any. The Law of Limitation provides 20 days for appeals from a judgment of one Judge on the Original Side and any provision for the filing of memorandum of objections by the rules of this Court will have no necessary effect of extending the period prescribed by the law of limitation for Original Side Appeals : but, in this case, apart from any question of limitation, there is absolutely no difficulty in treating what is called the memorandum of objections as a substantive appeal, because an appeal merely means a petition to the proper tribunal for the purpose of reversing or modifying a judgment of the Court or Judge from which or whom the appeal is preferred. This is that in form, and, apart from any nomenclature, there is absolutely no difficulty in dealing with the substance of this appeal and dealing with it as a substantive appeal. However, I think the appellant in this case should under the rules of this Court treating it as a substantive appeal be required to pay another sum of Rs. 75 as and for additional Court-fee. There is, however, the question of limitation, and, though this appeal was not filed within 20 days of the judgment appealed against, still there is no doubt whatever that the appellant in this case was misled by the rules of this Court and by the practice of this Court so long, and, therefore, if there is any case in which the provision of Section 5 of the Limitation Act can be invoked, this is such a case. The delay in the presentation of the appeal will therefore be excused, and the appeal is thus rendered competent. For the reasons set forth in his judgment by my Lord the Chief Justice I agree that the appeal should be allowed as stated by him.