Rajamannar, C.J.
1. This application raises a question of some importance as regards the light of the respondent in an appeal to prefer objections to the decree of the lower Court without preferring a separate appeal. The application has been made in A. S. No. 153 of 1947 on the file of this Court which was an appeal preferred by defendants 1 to 3 in O. S. No. 54 of 1945 in the Court of the Subordinate Judge of Guntur against a preliminary decree for partition passed in favour of the plaintiffs who are respondents 1 and 2 in the appeal. Besides the plaintiffs, only defendant 4 has been made a respondent in the appeal. In the Court below, there were 6 defendants and the plaintiffs are the sons of one Venkatasubbayya and defendant 1 is his brother. Defendants 2 and 3 are the minor sons of defendant 1. Defendants 4 and 5 are the sisters of defendant 1. Defendant 6 is his father-in-law. Defendants 5 and 6 were made parties to the suit, because it was alleged by the plaintiffs that they were in possession of properties belonging to the joint family consisting of them and defendants 1 to 3. This application is concerned with defendant 5, in whose name land shown as item No. 24 of Schedule. A of the plaint stands. 'The plaintiffs claimed this item as joint family property, but their claim was negatived by the lower Court.
2. The plaintiffs-respondents 1 and 2 have filed the present application to implead defendants 5 and 6 as respondents 5 and 6 to a memorandum of cross-objections filed by them against the decree of the lower Court. Defendant 6 died sometime after the application and this application was pressed only in respect of defendant 5. It is opposed by defendant 5. It is common ground that on the date of this application a separate appeal against defendant 6 would be out of time.
3. Though the application was ostensibly made for impleading defendant 5, as a party in the memorandum of objections and the provisions of Order 41, Rule 20 and Order 1. Rule 10, read with Section 107, Civil P. C. were relied on in the application, the learned counsel for the petitioners contended in the main that he was en-titled to file the memorandum of objections against defendant 5 under the provisions of Order 41, Rule 22 of the Code, because that rule conferred on a respondent a right to file an objection to the decree against any party to the suit, whether such party was or was not a party to the appeal. If, however, it was necessary to make defendant 5, a party, because she had not been made a party to the appeal, he relied upon the provisions of Order 1, Rule 10 read with Section 107 of the Code.
4. Learned counsel for defendant 5 took up the position that the provisions of Order 41, Rule 22, did not enable one respondent to prefer objections against another respondent, at any rate, when the objection sought to be taken was one in which the appellants were in no way interested. It was not disputed that the objection sought to be preferred by the petitioners against defendant 5, has nothing to do with the appellants, defendants 1 to 3. It would be an a fortiori case if the party against whom the objection was sought to be preferred was not even a party to the appeal. As this contention was opposed to the decision of the Full Bench of this Court in Munisami Mundaly v. Abbu Reddi, 88 Mad, 705 : A. I. R. 1915 Mad. 648 a fuller Bench of five Judges has been constituted.
5. As there has been considerable divergence of judicial opinion on the question and as the view which prevailed in Munisami Mudaly v. Abbu Reddi, 38 Mad. 705: A. I. R. 1915 Mad. 648 is different from the view now uniformly held by several other High Courts, it is desirable that I should trace the history of the right of a respondent in an appeal to prefer objections to the decree appealed against without filing a separate appeal, with reference both to successive enactments and the judicial decisions construing such enactments. 6. Section 348 of the Code of 1869, is the earliest of such enactments to which I need refer. It ran as follows:
'Upon the hearing of the appeal, the respondent may take any objection to the decision of the lower Court which he might have taken if he had preferred a separate appeal from such decision.'
Notwithstanding the wide language of the section, it was held in a series of decisions to some of which I shall refer that an objection could not be taken against a co-respondent and this provision could be taken advantage of by a respondent only to prefer his objections against the appellant without filing a separate appeal. The object of the enactment was understood to be to enable the appellate Court to do complete justice to both parties. In one of the early cases Ishwar Ghosh v. Hills, 1 Hay 350 at p. 351, the object is thus explained :
'But for the liberty given to a respondent by the section above referred to (348) injustice might frequently be done. A party may be satisfied with the decree of the lower Court, and may be willing to allow it to stand unimpeached, if his opponent does not think it necessary to appeal; but he may not be willing to have the decree modified or altered upon appeal in favour of his opponent without having the whole decree set right,'
There are more than a dozen reported cases to be found in Sutherland's Weekly Reporter ranging from 1864 to 1868 construing the section in this restricted way. I shall refer only to a few of them.
7. In Burroda Soonduree Dossee v. Nobo Gopal Mullick, 1864 W. R. 291, it was held that the section applied solely as between an appellant and a respondent and a passage from Sudder Dewany Decisions dated 13-4-1863, was relied on. In Maharajah Tarucknath Roy v. Tuboornnissa Chowdhrain, 7 W. R. 39, it was held that a respondent could not be heard by way of cross-appeal under Section 348, as against a co-respondent and the learned Judges in that case alluded to numerous precedents of that Court. In Baboo Choti Lall v. Krishna Suhey, Sudder Dewanny Adawlat Decisions N. W. P. 1863. p. 360, a Full Bench of five Judges construed that section in the same manner. The following passage tersely sums up the position:
'We are of opinion that the indulgence which Section 348, Civil P. C., grants to a respondent of raising objections to a decision without the expense of a separate appeal was only designed to put him, when forced into an appellate Court by the action of another, on a footing of equality with the party who had forced him there, and was not intended to confer upon him any privilege whatever in respect of a third party.'
In Ganesh Pandrang Agte v. Gangadhar Ramakrishna, 6 Bom. H. C. R. 244, the learned Judges said:
'Where a respondent takes advantage of the provisions of Section 348, he can only take such objections as have reference to the party appealing; but he cannot, except by bringing an independent appeal, raise objections against parties who do not appeal.'
It was recognised, however, that there may be exceptional cases when an objection could be taken also against a co-respondent, but such were cases in which the appellant was also interested. The following observations in Anwar Jan Bibi v. Azmut Ali, 16 W. R. 26, refer to such possibility:
'In special appeal it is contended that a co-respondent in an appeal cannot reopen, by a cross-appeal, a decision which has been passed between him and another co-respondent. At first sight the terms of the law. Section 348, Act VIII (8) of 1859, are wide enough to permit a respondent in an appeal to take any objection to the decision of the first Court, as if he had preferred a separate appeal from that decision. But there are numerous precedents of this Court which have restricted those terms. It has been held in a long series of decisions that the cross-appeal cannot reopen any questions which have been decided between co-respondents, but must have reference to the appellant and the points which are in dispute between the respondent who takes the cross appeal and the appellant. It is quite possible that there may be cases in which, when an appellant succeeds in his appeal, questions will be opened up as between the co-respondents which would otherwise have been decided; and it Is also possible when interests are identical that a respondent succeeding in his cross-appeal may open up questions as between himself and his co-respondent.'
It was pointed out in Modhoni Dossee, 2, wym. Rep. 262, that though the rules of the High Court at Fort William provided for a notice of cross objection to be filed with the Registrar, specifying the objection intended to be taken on the hearing of the appeal, it was only a rule for convenience and the law did not compel a party to give it. A learned Judge of that Court rejected a cross-appeal on the ground that no written memorandum had been filed.
7. In 1877 the Code of 1859 was replaced by another, Act X [10] of 1877. The section corresponding to Section 348 of the Code of 1859 was Section 561, which ran thus:
'Any respondent though he may not have appealed against any part of the decree may upon the hearing not only support the decree on any of the grounds decided against him in the Court below, but take any objection to the decree which he could have taken by way of appeal, provided ha has given to the appellant, or his pleader seven days notice of such objection. Such objection shall be in the form of a memorandum and the provisions of Section 541, so far as they relate to the form and the contents of the memorandum of appeal shall apply thereto.'
This section provided specifically for notice of objection and prescribed that the objection shall be in the form of a memorandum. Incidentally it may be remarked that the notice contemplated was a notice given to the appellant or his pleader. Two years later, an amending Act (Act XII [12] of 1872, substituted for the words 'given to the appellant or his pleader seven days notice of such objection' the words ''filed a notice of such objection not less than seven days before the date fixed for the hearing of the appeal.'
8. The Code of 1882 repealed the Code of 1877. The corresponding section in that Code was Section 561 which reproduced the section in the prior Code as amended in 1879. As there were important amendments to the section later, it is useful to quote the section as it originally stood in the Code of 1882:
'561. Any respondent, though he may not have appealed against any part of the decree, may upon the hearing not only support the decree on any of the grounds decided against him in the Court below, but take any objection to the decree which he could have taken by way of appeal, provided he has filed a notice of such objection not less than seven days before the date fixed for the hearing of the appeal. Such objection shall be in the form of a memorandum, and the provisions of Section 541, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.'
It is necessary to refer now to two decisions, which construed this section before it was amended. One is of the Allahabad High Court in Bisheser Rai v. Tapershuri Lal, 1886 A. W. N. 88. The plaintiffs in that case sued for partition of certain land, one of the defendants being a person called Sarup Rai. The Court of first instance dismissed the suit. On appeal by the plaintiffs, the lower appellate Court gave them a decree for the land claimed, with the exception of a portion in the possession of Sarup Rai, as to which portion it dismissed the suit. The defendants affected by the decree appealed to the High Court. The plaintiffs (respondents) preferred objections nominally under Section 561, Civil P. C., to the decree of the lower appellate Court in so far as it dismissed their suit in respect of the land claimed by Sarup Rai. It was held that the objections were not maintainable, because Sarup Rai was not an appellant nor had he been made in any way a party to the appeal,
9. The learned Judges observed,
'As we read Section 561, Civil P. C., it allows respondents to object to a decree upon the 'hearing of the appeal', but no appeal by or on behalf of Sarup Rai is before us, or has been heard; and the objection must be such as 'could have been taken by way of appeal', but objection taken by way of appeal presupposes notice, to a respondent of such objection.'
10. The other is a decision of our Court in Timmayya v. Lakshmanan, 7 Mad. 215, decided in December 1883. A obtained a decree for possession of land against B and for costs against B, C, D, and others, defendants in the suit. C and other defendants appealed against this decree so far as it awarded costs against them and made A and D respondents to the appeal. D filed an objection to that part of the decree which awarded possession of the land to A relying upon Section 561 of the Code. It was held that it was open to D, although improperly made a party to the appeal by C against A, to take objection to the rest of the decree. The reasoning of the learned Judges, Muthuswami Aiyar and Hutchins JJ. for arriving at that conclusion deserves detailed notice. It was based on the wide language of the section and the learned Judges especially relied upon the difference in the language between Section 348 of the Code of 1859, and Section 561 of the Code of 1882. It was urged before them that the words of the corresponding section (348), in the Code of 1859, had been very much narrowed by a long series of judicial interpretations and that the clause as to notice originally added in the Code of 1877, distinctly showed an intention to limit objections to the matter in contention between the appellant on the one side and the several respondents on the other. The latter part of the contention the learned Judges repelled in the following way:
'The clause regarding notice in the Code of 1877 required seven days notice to be given to the appellant or his pleader, and, if it had been allowed to stand, might possibly have formed a good ground for adopting the narrower construction of the section. But it was not allowed to stand. It was repelled by Act XII (12) of 1879, which substituted the following clause 'provided he has filed a notice of such objection not less than seven days before the date fixed for the hearing of the appeal.' It may be that the reasons for this change were that the original clause might have favoured a narrower view of the section than the legislature intended, and, that, because other parties besides the appellant might be interested in the objections, they ought to be filed in Court where all could see them.'
As regards the long series of decisions construing the old Section 348, the learned Judges said,
'The very number of cases in which the difficulty had arisen would have led the Legislature to make the point clearer if they intended to adopt the construction placed on the old section (348), by the Courts. Unfortunately they have not done so. As already stated, the words of the new section are wide enough to cover all objections to any part of the decree.' In their opinion the old section was by no means so general.
11. In 1888, after these two decisions had been given Section 561 was amended (Section 48 of Act VII [7] of 1888). In para. 1 of the section instead of the words 'provided be has filed a notice of such objection not less than seven days before the date fixed for the hearing of the appeal' the following words were substituted 'provided he has filed the objection in he appellate Court within one month from the date of service on him or his pleader under Section 553 of notice of the day fixed for hearing the appeal or within such further time as the appellate Court may see fit to allow.' Two further paragraphs were added namely:
'Unless the respondent files with the objection a written acknowledgement from the appellant or his pleader of having received a copy thereof, the appellate Court shall cause such a copy to be served, as soon as may be after the filing of the objection, on the appellant or his pleader, at the expense of the respondent. The provisions of Chap. XLIV shall so far as they can be made applicable apply to an objection under this section.'
The addition of the first of the above two paragraphs is very significant. It will be seen that it provides for an acknowledgement from or service on the appellant or his pleader. It does not refer to any other party to the appeal or to the suit. This amendment appears to indicate that the Legislature was inclined to accept the view that the provision was intended to be utilised by a respondent as against the appellant only and not that the respondent should have an unrestricted right to file any objection against any party other than the appellant.
12. There are decisions of the High Courts of Calcutta, Allahabad and Bombay which construed the section as amended and they are all substantially in agreement. The view expressed therein is that as a general rule the right of a respondent to urge an objection should be limited to his urging it only against the appellant, but there may be exceptions to the general rule when the appeal opens up questions which can not be disposed of completely without matters being allowed to be opened up as between co-respondents, vide Ambalal Balabhai v. Bapubhai Dalapatbhai, 1896 Bom. H. C. P. J. 742, Bishun Churn Roy Chowdry v. Jogendranath Roy, 26 Cal. 114, Shabiuddin v. Deomooret Koer, 30 Cal. 655, Kallu v. Manni, 23 ALL. 93 : 1900 A. W. N. 202, and Abdul Ghani v. Md. Fasih, 28 ALL 95 : 2 A. L. J. 667. In Bishun Churn Roy Chowdry v. Jogendranath Roy, 26 Cal. 114, there was a discussion of the question which according to the learned Judges was not altogether free from difficulty. There were ho doubt considerations both ways :
'On the one hand it may be said that the right of urging cross-objections on the part of the respondent ought to be limited to urging them as against those of his adversaries in the Court below, who are dissatisfied with the decree of that Court, and who have preferred an appeal against the same, and that other parties, who have not preferred any appeal against the same, and that other parties who have not preferred any appeal against the decree of the Court below, and against whom no appeal has been preferred, ought to be left unaffected by the appeal, except so far as it may benefit them under the provisions of Section 544. On the other hand, it may be urged that cases may arise in which the appeal of some only of the defendants or of the plaintiffs may open up matters which render it necessary (or the ends of justice that the whole case should be gone into, and some of the respondents should be allowed the opportunity of urging cross-objections against their co-respondents.'
Upon a consideration of the cases cited before them which included Timmayya v. Lakshmana, 7 Mad. 215 and of the arguments on both sides, the learned Judges held that as a general rule the right of a respondent to urge cross objections should be limited to his urging them against the appellant and that it was only by way of exception to the general rule that one respondent might urge cross-objections as against other respondents, the exception holding good among other cases in those in which the appeal of some of the parties opened out questions which could not be disposed of completely without matters being allowed to be opened up as between co-respondents. They expressly say that they do not attempt to lay down any definite exhaustive rule on the point.
13. There is one decision of this Court in Kulaikada Pillai v. Viswanatha Pillai, 28 Mad. 229 : 15 M. L. J. 212 to which reference must be made. In that case the respondent to the appeal never preferred a memorandum of cross-objections. The question was whether it was open to the appellate Court to grant any relief to that respondent in a case where the granting of such relief was not necessarily incidental to the relief granted to a party who had appealed. It was held that it was not open. Though Section 561 did not fall to be construed in that case, there is a passage in the judgment of Subramania Aiyar J. at page 235 in which it is assumed that a memorandum of objections 'may legally be filed even when the question arises as between co-respondents only.'
14. Order 41, Rule 22 of the Code of 1908 replaced Section 561 of the Code of 1882. It runs thus :
'22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but 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.
(2) Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandam of appeal, shall apply thereto.
(3) Unless the respondent files with the objection 8 written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, 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.
(5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule.'
It will be noticed that the important changes in the new provision are the substitution of the expression 'cross objection' for 'objection' and the substitution of the words 'from the party who may be affected by such objection or his pleader' for the words 'from the appellant or his pleader' and the consequent alterations in para. 3 ; and the addition of para. 4. There is a discussion as to the effect of these changes in the order of reference made by White C. J. and Bakewell J. in Munisami Mudali v. Abbureddi, 38 Mad. 705 : A. I. R. 1915 Mad. 648. The learned Chief Justice thought that the word 'cross-objection' seemed inappropriate as regards a question between two co-respondents. On the other hand, he thought the substitution of the words 'the party who may be affected by such objection' for the word 'appellant' would seem to indicate that the legislature intended to bring questions between co-respondents within the scope of the rule. Bakewell J. was of the opinion that the wording of Order 41, Rule 22 made it clear that a respondent could avail himself of any defence or attack in order to meet the appellant's case and could also deliver a counter attack against him. The party who had himself not thought fit to appeal but bad been forced into Court would avail himself of all his means of offence and defence. After referring to the authorities, namely, Bishun Churn Roy Chowdry v. Jogendra Nath Roy, 26 Cal. 114, Timmayya v. Lakshmana, 7 Mad. 215 and Kulaikada Pillai v. Vishwanatha Pillai, 28 Mad. 229 : 15 M. L. J. 215, the learned Judge observed as follows :
'Since the date of those decisions, and presumably in view thereof, the legislature has amended the rule by the introduction of the word 'cross' before 'objection' and I am of opinion that the intention was to adopt the construction of the Calcutta High Court. A respondent cannot now take objection generally to a decree, but only 'cross-objections' that is, objections to the appellant's case.'
The learned Judge relied upon the decision of Jessel M. R. in In re Cavander's Trusts, (1881) 16 Ch. D. 270 : 60 L. J. Ch. 292. The case came up before a Full Bench consisting of White C. J., Miller and Sadasiva Aiyar JJ. The opinion of the Full Bench was as follows :
'It seems to us that the answer to the question which has been referred to us should be in the affirmative.
This is in accordance with the practice which appears to have prevailed in this Court under Section 561 of the Code of 1882, and we do not read Order 41 Rule 22, as indicating that the framers of the rules intended to make it clear that the practice should be otherwise.
With all respect to the learned Judges who dealt with the question in Jadunandan Prosad Singh v. Kallyan Singh, (1912) 15 C. L. J. 61 : (13 I. C. 653), a case which was decided under Order 41, Rule 22, it seems to us more convenient to follow a fixed rule than to decide the question with reference to the particular facts of the case in which the question is raised.
We answer in the affirmative.'
15. There is no discussion of the question and the points raised by Bakewell J. in his Order of Reference ; nor is there any reference to the history of the provision and the case law on the point. With greatest respect to the learned Jugdes I am of the opinion that the reasoning of Bakewell J. was sound and consistent with the course of the authority of decided cases and in accordance with the construction placed on a similar provision in England. Section 561 had been construed by all the High Courts except, the High Court of Madras as conferring a right on the respondent to prefer an objection generally as against the appellant and only in exceptional cases incidentally against other respondents as well. Madras alone had decided that the section conferred a right on a respondent to file any objection against any other respondent even though the appellant was not in any manner interested in it. It must not be overlooked, however, that Timmayya v. Lakshamana, 7 Mad. 215, which is the only direct decision on the point was based on Section 561 as it stood originally before it was amended in 1888. The Legislature by describing the objection which could be taken by the respondent as a 'cross-objection' must have deliberately adopted the, view of the other High Courts, One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent. The cross-objection must be an objection by a respondent against the appellant.
16. The Legislature must have also adopted-the exception to the general rule recognised by the Courts (see for example Bishun Churn Roy Chowdhry v. Jogendranath Roy, 26 Cal. 114 and it is to provide for the exceptional cases in which not only the appellant but also other parties might be interested that for the word 'appellant' in the third paragraph the words 'the party who may be affected in such objections' were substituted. Some of the decisions had pointed out that though Section 561 of the Code of 1882 mentioned only the appellant in that paragraph, a restricted view should not be taken so as to exclude an exceptional case when as a result of the cross-objection by the respondent against the appellant, the case had to be reopened even as against other respondents.
17. Dealing with a similar provision, namely, Order 58, Rule 6 of the rules of the Supreme Court, 1875, Jessel M. R. said in In re Cavander's Trusts, (1881) 16 Ch. D 270 : 50 L. J. Ch. 292, 'the terms of the latter part of this rule are very wide but looking at the former part it is evident that it was only intended to make the notice a substitute for a cross appeal and an appeal on a point which does not affect the original appellant cannot be a cross appeal. The notice may effect other parties also, and if so, it must be served upon them, but it cannot have been intended to enable a respondent to bring forward in this way a ease with which the appellant has nothing to do.'
Though the authority of Munisami Mudali v. Abbu Reddi, 38 Mad. 705: A. I. R. 1915 Mad. 648 was not assailed subsequently in this Court, the following remarks of Wallis C. J. in Alagappa Chettiar v. Chockalingam Chetty, 41 Mad. 904 : A. I. R. 1919 Mad, 784 are not without significance :
'A Full Bench of this Court in Munisami Mudali v. Abbu Reddi, 38 Mad. 705 : A. I. R. 1915 Mad. 648, 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 ...... 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.'
Sadasiva Aiyar J. in the same case without attacking the correctness of Munisami Mudali v. Abbu Reddi, 38 Mad. 705 : A. I. R. 1915 Mad. 648 made observations which to a large extent run counter to the rule laid down therein.
'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.'
In Ponnusami v. Palaniandi, 11 M. L. W. 602: A.I.R. 1920 Mad. 120 Old field and Kriahnan JJ. extended the scope of Order 41, Rule 22 further than the ruling in Munisami Mudali v. Abbu Reddi, 38 Mad. 705 : A. I. R. 1915 Mad. 648. They held that the appellate Court could add a party to the suit who had not been made originally a respondent to the appeal as a party to the appeal to enable another respondent to file a memorandum of cross-objections against such newly added respondent. This ruling was followed by Abdur Rahman J. in Devendra Aiyar v. Muthu Chettiar : AIR1938Mad329 and by a Division Bench in Krishnaswami Naidu v. Secretary of State 1912 2 M. L. J. 431 : A. I. R. 1943 Mad. 15. Two other learned Judges sitting alone, namely, Curgenven and Byers JJ. in Venkatanarasimha Rao v. Krishnabayamma : AIR1929Mad479 and Venkatapathi v. Veerayya : AIR1943Mad609 sounded a different note, but their decisions were based not so much on a construction of Order 41, Rule 22 as on considerations of the bar of limitation and the right acquired by a party to a suit when the decree in his favour had not been challenged in time by the filing of an appeal.
18. In my opinion, for the reasons already given, the decision in Munisami Mudali v. Abbu Beddi, 38 Mad. 705:A. I. R. 1915 Mad. 648 is not correct. The learned Judges who delivered the opinion of the Full Bench did not give adequate consideration to the change in the language made in Order 41, Rule 22. That change when read with the course of judicial decisions of the Courts in India leaves no doubt in my mind as to the correct construction of Order 41, Rule 22, Civil P. C.
19. At the present day, the view prevailing in every other High Court as to the proper construction of that provision accords with the view I have taken. It is sufficient to refer to some of the leading decisions of the various High Courts.
20. In Calcutta, Mookerjee J. in Jadunandan Prosad Singh v. Koer Kalyan Singh, 15 C. L. J. 61 : 13 I. C. 653 reiterated the general rule that a respondent's right to urge a cross-objection should be limited to his urging it against the appellant and discussed the limit of the exception to the general rule and the test to be applied to decide if any particular case fell within the scope of the exception. His view has been consistently followed in that Court (see the Co-operative Hindustan Bank Ltd. v. Surendranath, 59 Cal. 667 : A. I. R. 1932 Cal. 624, Sris Chandra v. Md. Ibrahim : AIR1944Cal383 .
21. In Nursey Virji v. Alfred H. Harrison, 37 Bom. 511:21 I. C. 7, Scott C. J. and Chandavarker J. without much discussion adopted the rule as laid down in Calcutta and Allahabad. So far as that Court is concerned the same view has prevailed subsequently : vide Lakshmanan v. Bhikchand, : AIR1930Bom1 .
22. Malik J. (as he then was) considered the matter at some length in Mohamed Hasan v. Mohmed Hamid Hasan : AIR1946All395 . He said,
'So far as this Court is concerned, the law is now well settled that as a general rule a respondent can file a cross-objection only against an appellant and it is only in exceptional cases where the decree proceeds on a common ground or the interest of the appellant is intermixed with that of the respondent that a respondent is allowed to urge a cross-objection against a co-respondent.'
23. Dealing with an argument based upon the requirement contained in Sub-rule (3) to Order 41, Rule 22 that notice of the cross-objection should be given to the party who may be affected by such objection and not merely to the appellant, the learned Judge said :
'But alteration was necessary as there was no provision in the Code of 1882 for giving notice of the cross-objection to a co-respondent in those exceptional cases where a cross-objection could be urged against him. We think the change in the language cannot be considered to imply that the Legislature intended that in every case a respondent should have an extended period of limitation for filing a cross-objection against a co-respondent which was in essence an appeal against him and had nothing to do with the appellant.' In an earlier case in that Court, Sabiri Begum v. Radhakrishna : AIR1935All134 , it was pointed out that the expression 'cross objection' was clearly indicative of the fact that it should be directed against the appellant though it may be taken against a co-respondent also if there was a community of interest between the latter and the appellant.
24. In Chanda Bibi v. Mohandram Sahu, : AIR1934Pat134 there is an instructive discussion of the question by Dhavle J. (with whom Saunders J. agreed). In the opinion of the learned Judge, the word 'cross-objection' appeared to have been deliberately substituted by the legislature for the word 'objection' that occurred in the older provision--Section 561 of the Code of 1882--to indicate that the objection should be primarily against the appellant. His observations as regards the provisions in Sub-rule (3) of notice to the party who may be affected by the objection run on the same lines as those of Malik J. in Mohamed Hasan v. Mohamed Hamid Hasan : AIR1946All395 . The learned Judge was, however, of the opinion that the provision was not sufficient to make that a cross, objection which was not a counter attack to the appeal. The Full Bench ruling in Munisami Mudali v. Abbu Reddi, 38 Mad. 705 : A.I.R. 1915 Mad. 618 was referred to but not followed.
25. In Lahore one learned Judge followed the Full Bench ruling of the Madras High Court in Chhajju v. Qutab Din, A. I. R. 1928 Lah. 39 : 69 I. C. 330 but his decision was overruled by Harries C. J. and Mahajan J. in Jan Mohamed v. P. N. Razdon, A. I. R. 1944 Lah. 433 : 218 I. C. 183 and the view held by the High Courts of Allahabad, Bombay, Calcutta and Patna was adopted.
26. Chandriprasad v. Jugul Kishore, , is the latest decision of the Nagpur High Court taking the same view and distinguishing the Full Bench view in Madras on the ground that it is based on the practice prevailing in that Court for a very long time.
27. Notwithstanding the fact that the decision in Munisami Mudali v. Abbu Beddi, 38 Mad. 705 : A. I. R. 1915 Mad. 648 has stood for a very long time, I see no reason why our Court should not fall into line along with every other Court in India when one finds that the opinion expressed by the Full Bench in Munisami Mudali v. Abbu Reddi, 38 Mad. 705 : A. I. R. 1915 Mad. 648 is not supported by any reasoning, and when the language of Order 41, Rule 22 on a proper construction confers only a restricted right on a respondent to prefer objections to the decree without filing a separate appeal. In my opinion, such an objection should, as a general rule, be primarily against the appellant. In exceptional cases, it may incidentally be also directed against other respondents.
28. In this case, it is admitted by the petitioner's counsel that the appellants are in no way interested in or concerned with their objections against defendant 5. On this admission, their application to implead defendant 5 as a party either to the appeal or to the memorandum of objections must fail. The application is dismissed with costs.