A respondent can file a cross-objection to a decree on any ground on which he could have filed an appeal, even if he has not filed an appeal.

( 1 ) THIS is an appeal from a decree of the District Judge of Darjeeling, dated 9th September 1942.

( 2 ) THE matter arises out of an application made under Section 38, Bengal Money-lenders Act by the respondent who was the borrower against the appellant. The appellant contested the application and two points arose before the learned Subordinate Judge. The first issue was : "is the loan a commercial loan ousting the scope of the Bengal Money-lenders Act, 1940?" The second point was if it was not a commercial loan what should be the amount of the liability of the applicant calculated in accordance with the Bengal Money-lenders Act. The learned Subordinate Judge came to the conclusion that the loan was not a commercial loan and therefore the provisions of the Bengal Money-lenders Act applied. He further held that the applicant-respondent was liable for the sum of Rs. 2029. Eventually by an order dated 25th April 1912 he declared that the debtor was liable to the creditor for the sum of Rs. 2029 and that was the maximum amount that was recoverable by the creditor. An appeal by the applicant-respondent was filed against that declaration before the Court of the District Judge. His contention was that he was liable to pay a much lesser sum of money. The appellant Ramasray did not file an appeal before the District Judge, but he filed a cross-objection in time. In so far as the appeal of the respondent Bibhisan Singh before him was concerned, the District Judge found that he was in fact liable to pay the sum of Rs. 1966 and not the sum of Rs. 2029 as found by the learned Subordinate Judge. In so far as the cross-objection filed by the appellant Ramasray Singh was concerned, the District Judge held that the cross-objection was misconceived and that the appellant Ramasray Singh ought to have filed an appeal before him and in the circumstances he refused to entertain the cross-objection and he dismissed it with costs. It is from that order of the District Judge that this appeal has been filed.

( 3 ) THE only point which has been argued before us is as to whether the learned District Judge was wrong in refusing to entertain the cross-objection and deciding the objection of the appellant on its merits.

( 4 ) SECTION 38 (3), Bengal Money-lenders Act reads as follows:"a proceeding under this section shall be deemed to be a suit for the purposes of Section 11, Civil P. C. , 1908, and a declaration under this section shall be subject to appeal, if any, as if it were a decree of the Court, and every decision in appeal shall be subject to appeal to the High Court in the same manner as a decree passed in appeal. "

( 5 ) IT is contended by learned advocate appearing on behalf of the respondent that a statutory right of appeal is given under this sub-section and no right of cross-objection is conferred by Section 38 and his contention is that if any litigant is aggrieved by, a decision of any Court under Section 38 his remedy is to file an appeal and not to agitate the matter by way of cross-objection.

( 6 ) IN this connection, I would like to draw attention to the observations of Viscount Haldane L. C. , in National Telephone Co. Ltd. v. Post-Master General (No. 2), (1913) A. C. 646 at p. 552: (82 L. J. K. B. 1197) where he observes as follows:"when a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches. "

( 7 ) IT is to be observed that by Section 38, Bengal Money-lenders Act, a right of appeal is given in express terms. By Sub-section (3) of Section 38, a declaration under that section is to be subject to an appeal, if any, as if it were a decree of the Court. The right of appeal, under that section is given to an established Court, namely, the Court of the District Judge. Nothing is stated expressly in the sub-section as to the pr