AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 54

Order 41, rule 22

41.70. Order 41, rule 22 gives two distinct rights to the respondent in the appeal. The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him, and, in that case, no notice or memorandum required by the later provisions of the rule is necessary. The second right is that of taking any objection, called "cross-objection"-to the decree which the respondent might have taken by way of appeal.

41.71. The distinction between the two, though fine, is appreciable. In the first case, the respondent supports the decree. In the second case, he attacks1 it. The first requires no formal document. The second does, and court-fees may have to be paid.

1. Para. 41.73, infra.

41.72. There is a third remedy-cross-appeal. But this is outside the rule.

41.73. The rationale behind the two remedies has been thus explained1.-

"When an appeal is preferred, the appellant is, generally speaking, seeking to get rid of an adverse decision, adverse to him wholly or in part, which means that the opposite party had succeeded wholly or in part. That success might be the result of a decision in his favour on one or some only of several grounds urged by him; the Court negativing the other or others. As regards these latter grounds, he cannot and need not appeal, however erroneous the decision, because there is no right of appeal to a party, who has succeeded. But when the opposite party prefers on appeal, he may find himself in a difficult situation, he is obliged to remain content with supporting the decision on the only point or points on which he had succeeded without resorting to the others on which he had failed.

For instance, it may turn out on examination that some or all of these other grounds are good, while those accepted by the lower Court are unsubstantial. It is to provide for such a contingency, and to avoid injustice to the respondent in such a case, that the rule has been enacted giving him liberty to support the decree if necessary by relying on any of the grounds decided against him in the Court below.2 The use of the word 'support' makes it plain that the right given is limited to the sustaining of the decree in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration, giving him a further advantage.

This he can secure only by an appeal or cross objection. Where a suit is wholly dismissed or wholly decreed, it is open to the respondent to support the decision, by re-agitating ground negatived by the lower Court. This is simple enough and the language of the rule is easily understood and applied. Where, however, the suit is decreed in part and dismissed as to the rest, we have in reality what may be described as a double or composite decree. There is a decree for the plaintiff in respect of the part decreed, and a decree for the defendant in respect of the part dismissed.

If the plaintiff appeals, he does so for the purpose of displacing the decree in so far as it is in favour of defendant. If the defendant appeals, he again does so for the purpose of getting rid of the decree in so far as it has gone in plaintiff's favour. In either case the party who features as the respondent has a decree in his favour which he is allowed to support on any of the grounds decided against him by the Court which passed the decree. When he does this and no more, he is only supporting and not attacking his decree. The principle can be appreciated by taking a simple illustration.

Let us take a case where a plaintiff sues for a debt of, say Rs. 1,000, and the suit is contested by the defendant on two grounds, (i) discharge, and (ii) limitation. Let us assume that the trial Court dismisses the suit on the ground of limitation, while negativing the plea of discharge. The plaintiff in an appeal from that decree may be able to satisfy the appellate Court that the decision on the point of limitation is incorrect. To such an eventuality. Order 41, rule 22 enables the defendant to sustain the decree by making good the plea of discharge found against him by the Court below."

1. Venkata Roo v. Murthi, AIR 1943 Mad 698 (700).

2. Emphasis supplied.

41.74. and 41.75. In a Punjab case1 Dua C.J. has held-

"Rule 22 of Order 41, Civil Procedure Code is apparently a special provision permitting a respondent, who has not appealed from a decree, to object to the said decree in the opposite party's appeal as if he had himself preferred a separate appeal where, a decree is partly against one suitor and partly against another, one of such parties, being satisfied with his partial success, may not prefer an appeal within limitation, but on the other party appealing may like to re-open the adverse part of the decree. In the larger interest of the cause of justice, it is in such circumstances that the party satisfied with partial success is granted another opportunity of challenging the part of the decree against him upon his opponent preferring an appeal, of which notice is served on him. In order to avail of this right, he has to take cross-objections within one month from, the date of service on him of notice of the hearing of his opponent's appeal."

41.76. In this case, there was a decree against some defendants. One defendant's appeal was dismissed. There was an appeal by the others. The court left open the question whether the defendant whose appeal was dismissed can assail the decree and re-open the controversy in the garb of cross-objections.

41.77. Further, it was held that cross-objections are to be heard when the appeal is heard; and as a general rule, the court is expected to dispose of both the appeals and the cross-objections together by one judgment, and the decision should be incorporated in one decree. By means of a deeming fiction, the cross-objections are, for certain purposes, treated as a memorandum of appeal, but they are neither registered as an appeal nor are they clothed with an independent status as such. They do not constitute a separate independent cause or writ, but largely draw their source of survival from the competence of the appeal in which they are taken; and the exceptions to this dependence are provided in sub-rule (4) of rule 22.

41.78. In the present case, it was held that in the absence of any binding precedent or any clear provision of law it would not be advisable to remit the case to the lower appellate court for adjudicating on the cross-objections on the merits after the final disposal of the appeal, even if otherwise such a course were legally permissible and called for.

41.79. In a Calcutta case,1 there was an appeal by the plaintiff whose suit for recovery of damages against the defendant municipality to the extent of Rs. 1,000 or more succeeded in part (for Rs. 842.62) in the trial court, but failed wholly in the first court of appeal. On one of the points taken by plaintiff in the Calcutta High Court (negligence of the municipality), the defendant had filed a cross-objection.

1. Nrisingha Prasad v. Bhadreswar Municipality, (1969) 73 Cal WN 88 (90).

41.80. The High Court held, that where the particular issue of negligence is found against the defendant municipality, and at the same time the decree dismissing the whole suit is completely in its favour, a cross-objection is hardly called for. The defendant municipality, now the respondent, can support the decree on the ground that the issue of negligence should have been decided in its favour. That is what Order 41, rule 22 sub-rule (1) of the Civil Procedure Code provides for.1 So the cross-objection, wholly unnecessary one, may be left alone.

1. Following Lata Gauri Shankar Lal v. Janki Prasad, 1890 ILR 17 Cal 809 (PC), a case under section 561 of the 1882 Code, Corresponding to Order 41, rule 22.

41.81. So much as regards the working of rule 22. We have referred above to the two limbs of the rule which give two remedies.1 Now, there is a small verbal point regarding the first remedy. The relevant portion of the rule says that the respondent may "support the decree on any of the grounds decided against him in the court below". These words, at first sight, appear to be strange, because a person cannot support a decree on a ground decided against him. What is meant is that he may support it by asserting that the ground decided against him should have been decided in his favour. It is desirable to make this clear.

1. Para. 41.70, supra.



The Code of Civil Procedure, 1908 Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys