[This appeal and the memoranda of objections first came on for hearing on the 21st and 22nd days of January 1918, before their Lordships Oldfield and Sadasiva Aiyar, JJ.]

Old Field, J.

The decision under appeal is one adjudicating 7, 9, 12, 13 respondents insolvents and avoiding transfers evidenced by Exhibit B series. A. A. O. No. 337 of 1916 is by the transferee under these documents. The memoranda of objections are by 7 and 9 to 14 respondents, the persons adjudicated and their sons, for the cancellation of the order of adjudication. If the memoranda succeed, the order under appeal must be set aside in toto; and we have therefore dealt with them first. We consider at present two preliminary objections taken by 6th respondent, a creditor who in consequence of an attempt by the original petitioners to withdraw the petition was given the carriage of the proceedings by the lower Court and who now opposes the appeal and memoranda. His first objection is that memoranda of objections are not authorized by insolvency law and cannot he heard; his second, arising from the fact that this appeal is admittedly out of time with reference to the decision in Kopparthi Lingayya v. Araveti Chinnarayana (33 M.L.J., 566), is that a memorandum cannot be heard on an appeal, which itself cannot be heard, because it is out of time.

That memoranda cannot be entertained in insolvency appeals is argued on the ground that the Provincial Insolvency Act contains no reference to them. A memorandum is the means, by which a respondent can take any cross-objection to the decree or order, which he could have taken by way of appeal, and in view of Munisami Mudaly v. Abbu Reddy (I.L.R., 38 Mad., 705) [LQ/MadHC/1913/21] nothing turns on the fact that the objection raises, as it does in the present case, an issue between him and his co-respondent. A memorandum, although it can be presented only in special circumstances (a qualification material in the sequel), is in substance indistinguishable from an appeal. It follows that the right to present a memorandum, like the right to present an appeal cannot be assumed and that both alike must be given by statute or some authority equivalent to it. Meenakshi Naidoo v. Subramania Sastri (14 Ind. App., 160; s.c., I.L.R., 11 Mad., 26). And certainly no right to present a memorandum is given explicitly by statute in the case before us.

The first answer attempted is that such a right is given by necessary implication, since the recognition of a right of appeal involves recognition of a right of objection under the general law applicable to appellate proceedings. But, although a memorandum may be indistinguishable from an appeal in substance, the right of appeal is distinguishable from the right of objection, since they are exercisable by different persons in different circumstances, objection being open only to a respondent when an appeal has been filed by an appellant; and it does not follow from the recognition of the right of one person in one Set of circumstances, that a similar right must be recognized in favor of another person in others. In fact the right of objection represents an extension of the right of appeal, for which distinct warrant must be required; and such warrant is not forthcoming in any general law applicable to appellate proceedings. For the existence of such general law is impliedly negatived by the decisions in Sesha Ayyar v. Nagarathna Lala (I.L.R., 27 Mad., 121) [LQ/MadHC/1903/43] and Kausalia v. Gulab Kuar (I.L.R., 21 All., 297) in which it was not invoked or applied, the latter relating directly to the right of objection; and it may be observed that we have not been shown in the present case any such course of practice as that referred to in it as a possible ground of decision. The attempt in those cases was to apply, not any general law, but that enunciated in the Civil Procedure Code, consistently, it would appear, with the application to the appeals in question of the provision then corresponding with the present Sect. 96; and, when the general law was relied on in Meenakshi Naidu v. Subramania Sastri (14 Ind. App., 160; s.c., I.L.R., 11 Mad., 26), the judgment dealt with it as represented by that and the connected provisions. I accordingly turn to the argument that Sect. 96 is applicable to appeals under the Provincial Insolvency Act, and that, the right of objection follows from its application.

Sect. 96 authorizes appeals from all decisions of Civil Courts, save when otherwise expressly provided in the body of the Code or by any other law and no doubt Sect. 46, Provincial Insolvency Act, which purports to deal with appeals under it, contains nothing similar to the provisions in Sect. 48 of the Guardians and Wards Act (VIII of 1890) and Sect. 19(3), Succession Certificate Act (VII of 1899), by which all orders not Specified as appealable are declared final. On the other hand the provision in Sect. 46 for a right of appeal and, a point to which I return, the absence o other provisions regarding appeals or the procedure in them indicate that the right of appeal under the Provincial Insolvency Act, is conferred by it alone, is subject to the restrictions it imposes and cannot be enlarged by the application of Sect. 96 and other provisions of the Civil Procedure, Code. This indication is strengthened by reference to those restrictions, the requirements of leave to appeal in certain cases and t he mention of periods of limitation, and the absence of similar provisions regarding objections. It has not been shown how any argument in favour of the right of objection can be limited in its application to the cases of appeals for which no leave is required. It was no doubt held in Raghunath Das v. Secretary of State (I.L.R., 29 Bom., 214) that a provision permitting an appeal to the High Court attracted the implication of Sect. 561, Civil Procedure Code, which at that time authorized the filing of objections; and not the less so, because an appeal could not be field without the certificate of the Original tribunal. But the judgment notices the distinction between a certificate that the case in a fit one for appeal and leave to appeal, such as is now in question, granted to a particular individual in respect of a particular part of the case, that in which he is interested. And the requirement of leave to appeal is material; for when it is required, it is difficult to assume either that the objector is at liberty to proceed without obtaining it and has thus been placed in a better position than the appellant or that the formers obligation to obtain leave is to be based on mere implication from the provision regarding the latter. Again, although the periods specified for appeals are identical with those provided for ordinary appeals in Arts. 152, 156, Schedule I, Limitation Act, it was thought necessary to specify them distinctly in the section; and, when limitation was thus dealt with, it is hard to believe that the necessity for a, provision similar to O. 41, R. 22 (1), was overlooked or that such a provision was to be imported from the Civil Procedure Code. As regards both leave and limitation the easy and natural explanation for the omission of provision for memoranda of objection is that memoranda are not contemplated. The specification in Sect. 46 of the appeals which can be entertained and of the conditions imposed on their entertainment indicate, in my opinion, an intention to deal with the law relating to appeals exhaustively in that section and to exclude the application of Sect. 96 Civil Procedure Code, with all its implications.

Lastly it is argued that the law relating to appeals is to be found also in Section 47, Provincial Insolvency Act, and that its references to powers and procedure impose on this Court the duty to deal with the objections in accordance with the Civil Procedure Code and confer on respondents the right to make them. The first objection to this is that, if the section is intended to deal generally with appellate work, the respondents right to make and the Courts duty to deal with objections although they a re provided for under the heading Procedure on hearing in O. 41, involve an extension of the right of appeal, which, as the decision in Colonial Sugar Refining Coy. v. Irving (L.R., [1905] App. Cas., 369) shows cannot be described as matter of procedure; and if the question is of the Courts powers, it is an unusual and stained construction to treat the reference to them as conferring a right on the party, But in fact the argument, against the application of Sect. 47 rests on the broker foundation, that no part of it applies to appellate business proper. Subsection (1) applies only to the Court and allows it the powers and procedure appropriate to the exercise of original civil jurisdiction; and it therefore is irrelevant in this connection. Sub-section (2) applies to High Courts and District Courts which no doubt exercise appellate powers, but deals with their position only in regard to proceedings in Courts subordinate to them, not in appeals before them, and allows them the powers and procedure appropriate, not to appeals, but to civil suits; and the effect of the sub-section must therefore he taken as being, not the application to their appellate work of any of the provisions of Part VII, Civil Procedure Code, but only of the powers of transfer and withdrawal and th e procedure relating thereto referred to in Sects, 22, 23, 24.

As in my opinion the right to present memoranda of objections involves an extension of the right of appeal which the Provincial Insolvency Act does not sanction expressly and is not shown, to sanction by implication or with reference to any general principle applicable to appellate proceedings, I would hold the memoranda before us cannot be heard. As however ray learned brother entertains doubts on the point and it is one of general importance, I concur in referring to a Full Bench the question:

Whether a memorandum of objection can be presented in an appeal against a decision under the Provincial Insolvency Act

On the question, which would arise in case a memorandum of objections can be presented, there is a clear conflict of authority in the decisions of this Court, which we cannot resolve. See Narayana Mayasad v. Vasudevan Masad (8 M.L.T., 447), Dwibashyam Venkanna v. Peddenti Venkatramania (19 M.L.T., 86), Venkadu v. Receiver of Nidadavole ((1915) M.W.N., 792), and S. A. No. 1864 of 191

6. It is therefore necessary to refer to the Full Bench this question also:

Whether a memorandum of objections, presented in an appeal which is dismissed as out of time, can be heard

Sadasiva Aiyar, J. The preliminary questions for consideration are:

(1) Whether a respondent is entitled to file a memorandum of objections in an appeal filed under Sect. 46 of the Provincial Insolvency Act.

(2) Whether, if such a memorandum of objections is admissible, it can be heard after the appeal is dismissed as presented out of time.

As regards the first question, the Provincial Insolvency Act is dearly not a self-contained or complete Act in itself. (See second paragraph, page 570 of 33 M.L.J., 562, and also page 574). As regards procedure, Sect. 47 of the Civil Procedure Code directs the Court exercising insolvency jurisdiction to follow the same procedure as it has and follows in the exercise of original jurisdiction. Cl. 2 of the same section directs High Courts and District Courts to follow the same procedure in regard to proceedings under the Act in Courts subordinate to them as the High Court and the District Courts follow in regard to civil suits. The High Court and the District Courts have got appellate jurisdiction in respect of decisions passed in certain matters in insolvency proceedings in the Lower Courts. As regards appeals under the Civil Procedure Code, O. 41, Rr. 1 to 21 prescribe rules of procedure relating to several necessary matters such as the form of the appeal; stay of proceedings in the Lower Court on appeal, endorsements to be made upon the memoranda of appeal, demands for security, sending of notices on appeal, calling for records from the Lower Courts, fixing days for the hearing of appeal, service of notices on opposite party, right to begin and so on. There is no provision in the Insolvency Act as regards any of these matters of procedure in respect of appeals filed under Sect. 46 of that Act, (at least until rules are framed under Sect. 51 by the High Court) and unless we hold that they are incorporated in the Act by the provision in Sect. 47, cl. 2 which directs the High Court and District Courts in regards to proceedings of Subordinate Courts to follow the procedure in regard to civil suits, there is an unexplained omission to make such a provision in the Act. I therefore am inclined to think that Sect. 47, cl. 2 does apply to appellate business proper of the High Court and District Courts and not only to the powers of transfer and withdrawal referred to in Sects. 22, 23 and 24 of the Civil Procedure Code. Having regard to the position, of Se ct. 47 as immediately following Sect. 46 which latter section gives the power of appeal, I think Sect. 47, cl. 2, though not as clearly and happily worded as it might have been, was intended by the Legislature to apply the provisions of all the rules under O. 41 of the Civil Procedure Code in respect of the regulation of the procedure in appeal, appeals being only continuations of the original proceedings in suits. I think that the expression in regard to civil suits means in regard to all proceedings in civil suits and includes proceedings in appeals in civil suits.

Then comes the question whether O. 41, R. 22, which empowers the respondent to file a memorandum of objections is a rule of procedure. No doubt several provisions relating to substantive law are incorporated in the Civil Procedure Code but the rules in O. 41., from Rr. 9 to 15 are entitled as procedure on admission of appeal, R. 16 to 37 are headed as procedure in hearing and R. 22 occurs among these latter rules described as falling under the head of procedure on hearing. This is no doubt not con clusive on the point and there is much to be said (as shown by my learned brother in his opinion) for the opposite view that whatever may be the nature of the Rules 9 to 37 other than R. 22, R. 22 gives a substantial right of appeal just as Sects. 96, 97 and 100 in the body of the Civil Procedure Code and Sect. 46 of the Insolvency Act give a substantial right of appeal. In Raghunath Das v. Secretary of State (I.L.R., 29 Bom., 514), Jenkins, C. J. and Aston, J. had to construe a section which stated that subject to the provisions of Sect. 48, Sub-Sect. 11 of the City of the Bombay Improvement Act IV of 1898, the provisions of the Civil Procedure Code with respect to appeals and original decrees shall, so far as they can be made applicable, apply to appeals under that sub-section. The learned Judges held that the procedure as to memorandum of objections in Sect. 561 of the old Civil Procedure Code became thereby applicable, that is, that the respondent became entitled to file a memorandum of objections on an appeal having been filed with the necessary permission.

I think that without much straining of language, it could be argued that every party to the insolvency proceedings is given the substantial right of appeal under Sect. 46 (just as every party aggrieved is given a right of appeal under Sects. 96, 97 and 100 of the Civil Procedure Code) and that the respondent (who as a party has such a right of appeal) is merely allowed to avail himself of an additional rule of procedure by way of memorandum of objections as provided for in O. 41, R. 22, in exercising his said right of appeal. On the whole I am inclined to the view that the Legislature intended that O. 41, R. 22, about the right to file a memorandum of cross-objections (the objections being confined under that rule to those which the respondent could have taken by way of appeal) could be availed of by a respondent where an appeal had been filed under Sect. 46 of the Provincial Insolvency Act. It was objected that one of the classes of appeals provided for under Sect. 46, that is, the class coming under cl. 3 of the section, requires leave of the District Court or of the High Court, and if a memorandum of objections is allowed after an appeal has been filed Under that clause, it will contravenue the intention of the Act, as O. 41, R. 22 of the Civil Procedure Code makes no mention of the leave of the Court being required for filing a memorandum of objections in any case. I am not, however, impressed with this argument as O. 41, R. 22, restricts the right to take cross-objections to those grounds which the respondent could have taken by way of appeal, and, as he could not advance grounds by way of appeal without the leave of the District Court or of the High Court in a case falling under Sect. 46, cl. 3, he could not file a memorandum of objections also in such an appeal without the leave of the Court (see also the observations in Raghunath Das v. Secretary of State (I.L.R. 29 Bom. 514), where the learned Judges seem to hold that once permission is given to appeal and an appeal is filed, a separate permission for a memorandum of objections is not necessary). However, I should like, if possible, to express no final opinion on these points and to have the questions argued before a Full Bench and decided finally by such a Bench.

Coming to the second question as to whether a memorandum of objections can be heard after the appeal is dismissed as barred by limitation, there has been a conflict of authority in the several High Courts, and, in this Court itself, there has been such a conflict. See Narayana Mayosad v. Vasudevan Mosad (8 M.L.T., 447), Dwibashyam Venkanna v. Peddenti Venkatramaniah (19 M.L.T., 86), and S. A. No. 1864 of 191

6. I would therefore refer the second question also for the decision of the Full Bench if the first question is answered in the affirmative by the Full Bench.

[1] Section 47(1) of the Provincial Insolvency Act provides that, subject to the provisions of the Act, the Provincial Insolvency Court in regard to proceedings under the Act shall have the same powers and follow the same procedure as it has and follows in the exercise of Original Civil jurisdiction, thus making the provisions of the Civil Procedure Code clearly applicable as far as may be to original proceedings under the Act. This Sub-section applies to District Courts in the exercise of original jurisdiction in insolvency. Sub-section (2) then applies exactly the same provisions in the same language to the High Courts and District Courts " in regard to proceedings under this Act in Courts subordinate to them " and the first question is, what is the effect of these words. Though not very happily expressed they are in my opinion wide enough to cover cases in the Subordinate Courts which come before the High Court or District Court on appeal or revision as well as on applications for transfer, etc., and there are sufficient indications that they were used by the legislature in this sense. The procedure prescribed in the Civil Procedure Code is the standard procedure, and no reason has been suggested why it should have been made applicable in insolvency cases only in original court and not also to cases of appeal and revision provided for in the Act. There must be some procedure or other governing such proceedings, and if it had been intended that it should be prescribed by rules made under Section 51, it would have been specifically mentioned in Sub-section 2 among the other important matters as to which rules were to be made under that section. So far as appeals to the High Court are concerned, the sub-section so construed may in my opinion be regarded as superfluous, because, under Section 590 of the Code of 1882, now Section 108, the procedure prescribed in Chapter XLI, which deals with appeals from original decrees Was made applicable as far as might be to appeals from orders under any special or local law in which a different procedure is not provided. No different procedure is provided in the Provincial Insolvency Act as it was in the Insolvent Act II and 12 Viet. Ch. 21 to which for that reason the provisions of Section 590 were held inapplicable in In the matter of R. Brown (1886) I.L.R. 12 Cal. 629.

[2] Clearly, therefore, in either view the procedure prescribed by the Code is appliacable to appeals to the High Court under the Provincial Insolvency Act, and it is unnecessary to refer to Section 117 and Sections 3 and 4 of the Code which were also relied on.

[3] The next question depends on the construction of Order XLI, Rule 22 (formerly Section 561) C.P.C. which has given rise to much difference of opinion. In Calcutta it was held that Section 531 did not generally entitle one respondent in an appeal to present a memorandum of objection against another respondent, and this was followed in Banke Lal v. Jagat Narain (1900) 7

1. L R 23 All

93. On the other hand it was held by this Court to be permissible in Timmayya v. Lakshmana (1883) I.L.R. 7 Mad. 215 approved in Kulaikada Pillai v. Visvanatha Pillai (1904) I.L.R. 28 Mad. 22

9. In these circumstances the section was amended in 1908 by substituting in Sub-section (1) " cross objection" for " objection " and in Sub-section (3) " the party who may be affected by such objection " for " appellant ", while the new Sub-section (4) speaks of " such notice to the other parties as the Court thinks fit." The interpretation put upon these amendments has not been uniform. A Full Bench of this Court in Munisami Mudaly v. Abbu Reddy (1913) I.L.R. 38 Mad. 705 has relied mainly on the previous practice of this Court, but that consideration has less weight in a case like this where the legislature in making the amendments must be presumed to have intended to introduce uniformity of practice in place of the diversity prevailing in the different High Courts. While the Bombay High Court adheres to the view that cross-objections must be aimed at the appellant in Nursey Virji v. Alfred H. Harrison (1913) I.L.R, 37 Bom 511 [LQ/BomHC/1913/12] it has been held in Jadunandan Prosad Singh v. Koer Kallyan Singh (1911) 15 Cal. L.J. 61 : 16 C.W.N. 612 that Rule 22(3) introduces a modification of the old rule in Section 561; that the effect of the alteration is to leave no doubt that a respondent may prefer a cross-objection against a correspondent, but to at the limits of the rule are not attempted to be defined. The Allahabad Court takes a similar view, Balgobinda v. Ram, Sarup (1914) I.L.R. 36 All. 505.

[4] In none of these cases has the effect of the substitution of "cross-objection" for " objection " in Rule 22(1) been dealt with. Prima facie the intention would appear to have been only to allow objections which arose in some way out of the appeal whether aimed at the appellant or at another respondent. This discussion is not irrelevant to the present question, as the more widely Rule 22 is interpreted, the more serious would be the consequences of answering the second question referred to us in the affirmative. At the time when the present Code was enacted in 1908 that question had been expressly decided in Ramjivan Mal v. Chand Mal (1888) I.L.R. 10 All. 587 with reference to the terms of Section 561 of the old Code, where the Court held that, when the appeal was dismissed as out of time, the objection could not be heard, as the entertainment of the objections was contingent and dependent upon the hearing of the appeal. In the course of the judgment Mahmood, J., observed that to decide otherwise would " be practically holding that an appellant who prefers an appeal long after the prescribed psriod of limitation may confer upon the respondent the right of having the appeal of his own heard in the shape of objections under Section 561, Civil Procedure Code, although, if the original appeal was barred by limitation, afortiuri such objections Ought to be barred also". The legislature of 1908 must be taken to have known of this decision, and it is exceedingly unlikely that they intended to over rule it by implication. The decision no doubt proceeded on the ground that the case fell within the ratio decidendi of the earlier cases in which it had been held that the objections could not be heard when the appeal had been withdrawn or dismissed for default. Those decisions were based on the language of Section 348 at the Code of 1859 and Section 561 of the Code of 1882 by which a respondent, although he had not appealed against any part of the decree, was entitled "upon the hearing" to take any objection to the decree which he could have taken by way of appeal. The view taken by the Courts when the section was so worded was, as explained by Sir Charles Sargent, C.J., in Dhondi Jagannath v. Collector of Salt Revenue (1884) I.L.R. 9 Bom. 28, 30 that when once the hearing of the appeal had commenced, the respondent s right to take his objections, which up to the time of hearing was an inchoate right, became perfected. The legislature has now remoyed from this section the words "upon the hearing" upon which these decisions rested, and has expressly overruled the decisions themselves in the case of withdrawal or dismissal of the appeal by enacting in Sub-section (4). " Where in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or dismissed for default, the objection is so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit." It does not however follow that Ramjivan Mal v. Chand Mal (1886) I.L.R. 10, All. 587 was also intended to be overruled. If that had been the intention of the legislature, it would probably have added some such words as " or is dismissed as hiving been filed out of time.

[5] There are moreover strong reasons for not attributing any such intention to the legislature. The right of parties to a suit to treat the decree as final when no appeal has been filed within the prescribed period of limitation is a substantive right of great value as pointed out by the Privy Council in Colonial Sugar Rejining Co. v. Irving L.R 1905 A,C. 369 and in Saudagdr Singh v. Pardip Singh (1917) L.R. 15 I.A. 21 and there is a strong presumption against any intention on the part of the legislature to interfere with it unnecessarily. It is no doubt impaired to some extent by Rule 22 which may have the effect of extending the respondent s time for appealing or even giving a fresh starting point. Provided however the original appeal is required to be filed in time, the interference is a very limited one, and may be defended as necessary to enable the Court to do full justice in disposing of the case on appeal and as goverend by the same considerations as have led to the enactment of the new Rule 33 which gives the Court a discretionary power to interfere in appeal even as regards parties who have not been made respondents, and respondents who have not filed any memorandum of objection. It would however largely and unnecessarily impair this valuable right to hold that the filing of an appeal by one party even though out of time has the effect of enabling the respondents to file appeals not only against the appellant but as against one another. The objections urged by Mahmood, J., in Ramjivan Mal v. Chand Mal (1888) I.L.R. 10 All. 587 against such a course have lost none of their force, and there is no reason to suppose that tike legislature intended to disregard them. Even greater difficulties arise if the present rule is treated as giving respondent an unrestricted right of filing memoranda of objection, because the decision on a question raised by a respondent in the same interest as the appellant may give occasion under Rule 33 for the modification of the decree in favour of the appellant himself whoss appeal is ex hypothesi barred.

[6] The true rule would appear to be that the right of respondents to proceed by way of memorandum of objection is strictly incident to the filing the original appeal in time, and that it is open to a party against whom a memorandum of objection has been filed to set up the bar that the original appeal was filed out of time. It is no doubt true that a respondent who is served with a notice of appeal cannot always be sure whether the appeal was filed in time or not and if so whether or not the delay will be excused and that he may therefore feel bound to file a memorandum of objection and incur the cost of Court-fees and briefing counsel in support of the memorandum. That in my opinion is not a sufficient reason for taking the other view. Moreover in a proper case the hardship may be met by ordering the appellant to pay the costs of the memorandum. I answer the second question in the negative.

Sadasiva Aiyar, J.

[7] In the order of reference, I indicated my inclination to answer the first question referred in the affirmative. In other words, while expressing no final opinion, I gave some reasons for holding that a respondent was entitled to file a memorandum of objections in an appeal against a decision under the provisions of the Insolvency Act. My Lord, in the opinion just now pronounced by him, has come to the conclusion that that question should be answered in the affirmative and I agree entirely therewith and have nothing to add to what I have said already.

[8] The second question referred has caused me more difficulty. I expressed no opinion whatever upon that question in the order of reference. The right to prefer an appeal cannot be claimed by a litigant as a matter of course but should be given by statute law. The right to prefer an appeal by way of memorandum of objections is an extension of the right of appeal which must therefore also be given by statute. Statutory provisions relating to such rights should be strictly construed. Order 41, Rule 22, corresponding to old Section 561, must if possible, therefore not be extended in favour of the right of a respondent to file a memorandum of objections so as to prejudice parties who have obtained a decree in their favour in the lower Court and who might reasonably entertain the belief that as the time for preferring an appeal has expired the rights which have been established in their favour under the decision of the Court of first instance had become finally secure. This Court has no doubt in Munisami Mudaly v. Ahbu Reddy (1913) I.L.R. 38 M. 705 allowed one respondent to file cross-objections against another and this is a further reason for strictly confining the right to file such objections. Supposing the plaintiff is the appellant and the defendants 1 and 2 are the respondents in an appeal and the plaintiff and the 2nd defendant are in collusion and the suit was dismissed by the District Munsif, upholding the 1st defendant s contentions. The plaintiff appeals out of time to the District Court. The Sheristadar s office does not discover that the appeal is out of time and sends notice to both the respondents. The colluding 2nd defendant files his memorandum of objections within one month of the receipt of the notice of appeal on the same grounds on which the plaintiff filed his appeal, the 2nd defendant s objections and the plaintiff s appeal being both thus directed against the 1st defendant. The result of answering the second question in the affirmative would be that while the plaintiff s appeal at the final hearing of the appeal is dismissed as barred by limitation, his friend the 2nd defendant, by having his memorandum of objections heard, compels the Court to hear the appeal also, and the 1st defendant who thought that the decision of the District Munsif was safe owing to no appeal having been filed in time finds that he was living in a fool s paradise.

[9] I do not see that the omission in Order 41, Rule 22(1) of the words "upon the hearing" which found a place in the old Section 561 is of much importance though some of the decisions under the old Section 561(which decisions denied the right of the respondent to have his memorandum of objection heard where the appeal itself was dismissed as out of time) attached importance to those words. I think that much weight attaches to the argument based on the new Sub-rule 4 of Order 41, Rule 22, which makes an express provision for hearing the memorandum of objections only in cases where the original appeal is withdrawn or is dismissed for default and does not expressly allow the hearing of the objections where the appeal is dismissed as barred by limitation or dismissed on other preliminary grounds. Another consideration which has weighed with me is that the right of a respondent to file an objection depends, if the second question is answered in the affirmative, on what I may call the accident of the Court or the Sheristadar discovering at once whether the appeal is barred. If the bar is discovered at once and the appeal rejected, then no notice is issued to any respondent and hence no respondent is entitled to file a memorandum of objections but if it is not so discovered and notice is issued then he gets valuable rights.

[10] I therefore agree with my Lord in the answer to the second question also.

Spencer, J.

[11] I agree that the first question referred to us should be answered in the affirmative and the second question in the negative.

[12] The fact that Rule 22, which confers upon respondents the right of taking cross objections falls under that portion of Order XLI which is headed "Procedure on hearing", supports the latter view and justifies, if I may say so, the observation of Sir Charles Sargent, C.J., in Dhondi Jagannath v. Collector of Salt Revenue (1884) I.L.R. 9 Bom., 28 where he speaks of "the respondent s right to take his objections, which up to the time of the hearing was an inchoate right" becoming perfected at the commencement of the hearing of the appeal. Hearing would then mean hearing on the merits. The words "upon the hearing" in Section 561 of the old Code were probably omitted from the present Code as being redundant, seeing that in both Codes the heading " Procedure on hearing" preceded this provision, and in order that Clause 1 of Rule 22 should be consistent with the newly introduced Clause 4 of the same Rule. The retention of the words upon hearing in the side note to the section indicates that this change was not intended to have any legal significance. Dwibashyam Venkanna v. Peddenti Venkatramiah (1915) 19 M.L.T. 86 should be treated as now overruled.