A cross-objection is not maintainable where the memorandum of appeal has been rejected and not dismissed.

1. Here the objection raised by the Stamp Reporter is that the cross-objection, as filed, is not maintainable in view of the fact that the memorandum of appeal in the main appeal itself now stands finally rejected. The facts necessary for determination of this point are as follows :

2. The decree which was sought to be appealed from was passed on the 12th August, 1957. Thereafter a memorandum of appeal against that decree was filed in this Court on the 14th November, 1957 on a court-fee of Rs. 22/8/-. In the opinion of the Stamp Reporter, the court-fee paid was insufficient. Accordingly, the matter, after a number of adjournments, came before the Court on the 16th October, 1958. On that date the order passed as to the payment of deficit court-fee was to the following effect:

"Three months time is allowed to file the deficit court-fee failing which the memorandum of appeal will stand rejected without further reference to a Bench."

Unfortunately, this peremptory order was not complied with, with the result that on the 16th January, 1959, a fresh application was filed for extending the time for payment of deficit court-fee already granted by this Court on the 16th October, 1958, The Court, on a consideration of that prayer, passed the following order :

"This Court by the order dated 16-10-1958 gave peremptory time to deposit the deficit court-fee within three months from that date. This application has been filed to extend the time already allowed on the ground that the petitioner is a purdanashin lady and is these days lying ill for some time. On these facts stated on behalf of the petitioner, we are satisfied that the petitioner due to illness has not been able to collect the deficit amount of about Rs. 700/-. The application, therefore, is allowed and the time given in the order dated 16-10-1958 is extended by two months. To that extent the order dated 16-10-1958 stands modified."

But in spite of the consideration shown by the Court, the appellants finally failed to pay the deficit court-fee with the result that the memorandum of appeal stood rejected after the expiry of the period allowed in the order passed on the 16th January, 1959. In the meantime, i.e., before the appeal had been admitted, the respondents filed a cross-objection on the 25th January, 1959, and the controversy now raised is in relation to this cross-objection.

3. The relevant provision of law on the question of cross-objection is provided in Order 41 Rule 22 Clause (4) of the Code of Civil Procedure, which reads thus :

"Where, in any case in which any respondent 5as 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."

4. The contention raised by Mr. S. N. Mustafi, appearing for the respondents-petitioners is that in this case the appeal has been dismissed for default and, therefore, for that reason, the cross-objection cannot be dismissed. In support of this contention reliance has been placed by the learned Advocate on the decisions, Ayilu Reddi V/s. Venkata Reddi AIR 1931 Mad 133 and Baijnath Prasad V/s. Umeshwar Singh, AIR 1937 Pat 550 (SB). It is true that in the former decision, there is a general observation made which reads :

"that a reasonable construction of the word default occurring in that rule would include any default made by the appellant which would amount to non-prosecution of the appeal."

But that observation has to be read in the light of the facts as stated therein. Those facts clearly show that the appeal in that case had been dismissed for default, but it was dismissed after it had already been, admitted; otherwise, there was no relevancy for the reference to the provisions of law as provided under Order 17 Rule 3 of the Code.

5. And so far as the latter decision is concerned, that clearly deals with the question relating to the plaint and not