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Report No. 54

Recommendation

41.82. We recommend, therefore, that Order 41, rule 22, sub-rule (1), should be revised, so as to read as follows:-

"(1) Any respondent, though he may not have appealed from any part of the decree, may,-

(a) not only support of the decree by stating that the decision in respect of any ground decided against, him in the court below ought to have been in his favour; but also

(b) take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time, as the Appellate Court may see fit to allow."

41.83. There is also another point relevant to Order 41, rule 22. We are separately recommending1 that a Court must decide all issues, even if the case can be disposed of on a preliminary point, except where a question of jurisdiction or bar to suit is involved. This renders desirable a change in the provisions as to cross objection. Where a decision of the trial court on a preliminary issue is favourable to the respondent, and the other issues are decided against him, the respondent should, in view of the recommendation referred to be empowered to file cross-objection. Strictly speaking, this follows from the change proposed in the section relating to appeal2 read with the words "any cross-objection which he could have taken by way of appeal" which appear in Order 41, rule 22. But an express provision would be desirable.

1. See discussion relating to section 96, and Order 14, rule 2.

2. Section 96.

Recommendation

41.84. We recommend, therefore, that the following Explanation should be inserted below Order 41, rule 22(1):-

"Explanation-A respondent aggrieved by a finding of a court which is incorporated in a decree may, under this rule, file cross-objection in respect of the decree in so far as it relates to that finding, notwithstanding that, by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, wholly or in part, is in favour of that respondent."

Order 41, rule 22-Cross-objections between respondents

41.85. With reference to Order 41, rule 22, the following point was considered in the earlier Report:1

"A suggestion has been made to the effect that a respondent should not be allowed to file a cross-objection in which the appellant is not interested. While that would be the ordinary rule,2 a rigid provision may not be desirable, because there may be cases where a different rule might have to be applied. The suggestion has not, therefore, been carried out."

1. 27th Report, note on Order 41, rule 22.

2. Foot notes in the 27th Report citing case law have been omitted here.

41.86. We examined the matter again, but have come to the same conclusion as was recorded in the earlier Report. Cross-objections as between respondent and respondent are not unknown, and we do not think it proper to change the existing position.

Order 41, rule 23

41.87. Order 41, rule 23, provides for remand where the lower court has decided the suit on a preliminary issue. We are recommending separately1 that a Court may decide all issues except those of jurisdiction or bar of suit. The amendment proposed by us leaves the matter to the court's discretion. Hence no consequential changes will be required in Order 41, rule 23.

1. See discussion as to Order 14, rule 2.

Order 41, rule 23A (New)

41.88.and 41.89. In the earlier Report1 on the Code insertion of the following new rule was recommended:

"23A. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."

1. 27th Report.

Recommendation

41.90. We agree, accordingly, we recommend that rule 23A should be inserted as follows:

"23A. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."



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