A memorandum of cross-objections cannot be heard and determined on its merits after the abatement of the appeal.

CHANDRA REDDY, C. J.

( 1 ) THIS Letters Patent appeal raises a question relating to the impact of the abatement of an appeal on the memorandum of cross-objections.

( 2 ) THE short facts, which are not in dispute, are these. The respondents brought a suit on the foot of two promissory notes executed by the father of the appellant and obtained a decree for Rs. 18,409. 00. The defendant i. e. , the father of the present appellant brought an appeal questioning the validity of the decree only with regard to one item, i. e. , Rs. 4. 000. 00.

( 3 ) ON service of notice of this appeal, the respondents, filed a memo of cross-objections contending that they were entitled to the full amount claimed by them, i. e. , Rs. 23. 061-8-0 and there was no justification for the trial Court to reduce it to Rs. 18,409. 00. Pending the appeal, the defendant died but his legal representatives were not brought on record in time with the result that the appeal abated. However, the present respondents impleaded the legal representatives of the deceased defendant as a party to their memorandum of cross-objections.

( 4 ) WHEN the memorandum of cross-objections came on for hearing, it was contended on behalf of the appellant that the memorandum of cross-objections could not be prosecuted for the reason that the appeal had abated. In support of this contention, reliance was placed on a number of decisions.

( 5 ) SANJEEVA Row Nayudu, J. disallowed this objection observing that the memorandum of cross-objections could be equated to a cross-appeal haying an independent existence and that its fate did not depend upon the result of the appeal. The learned Judge distinguished the decision of the Madras High Court in Marugappa Chettjar v. Ponnusami Pillai, ILR 44 Mad 828: (AIR 1921 Mad 405) on the ground that in the cited case the legal representative of the deceased party in the memorandum of cross-objections was not brought on record unlike in the case on hand where the legal representative of the deceased defendant was brought on record in the memorandum of cross-objections. In the result, he accepted the memorandum of cross-objections and modified the decree of the trial Court by allowing the respondents an additional sum of Rs. 2,150. 00. It is this decree of the learned Judge that is assailed before us in this letters patent appeal under clause (15) of the Letters Patent.

( 6 ) THE view pressed upon us by Sri Ramanu-julu Nayudu, learned counsel for the appellant, is that with the abatement of the appeal the memorandum of cross-objections ceased to have any existence and that it could not be disposed of on merits. There is force in this argument. Order 41, Rule 22, Sub-rule (4), C. P. C. contemplates that the memorandum of cross-objections could be heard and determined where the original appeal is withdrawn or dismissed for default. It is worthy of note that this does not include abatement of appeal. It appears to us that but for the provision contained in Sub-rule (4) the memorandum of cross-objections would have to share the same fate as the appeal that has abated. It is to save the memorandum of cross-objections in certain contingencies that this rule was enacted. If really the memorandum of cross-objections stands on the same footing as a cross-appeal and it could be heard and determined on merits ungoverned by the fate of the appeal itself, Order 41, Rule 22, Sub-rule (4), C. P. C. was unnecessary. It follows that memoranda of cross-objections not falling within the purview of this sub-rule, such as when the appeal has abated, cannot be heard and determined. If that were so, the memoranda of cross-objections should be dismissed in limine without further consideration.

( 7 ) THIS view of ours gains confirmation from the rulings of various High Courts. This is the principle underlying ILR 44 Mad 828: (AIR 1921 Mad 405 ). It is true in this case it docs not appear whether the legal representative of the deceased appellant in the main appeal was brought on r

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