The limitation period for filing a cross-objection under Order 41 Rule 22(1) of the Code of Civil Procedure starts from the date of service of notice of hearing of the appeal on the respondent or his Advocate.

S.S. Ganguly, J.

The appeal being F.A. No. 184 of 1986 out of which the present C.O.T. arises was filed on 13.984. It appears that the respondent appeared through a learned Advocate sometime in March 1986 In or about July this year the appellant expressed his desire not to continue with the appeal and he wanted that the appeal be dismissed for non-prosecution. On 23.7.90 the respondent filed a cross-objection. The learned Stamp Reporter reported however on 7.890 that the cross-objection was filed beyond the period of limitation. Hence this point has been taken up for decision before taking up the disposal of the cross-objection on merits and the appellant's prayer for dismissal of the appeal.

2. Under Order 41 Rule 22(1) a cross-objection is to be filed within one month from the date of service of notice of the day fixed for hearing the appeal either on the respondent or his learned Advocate or within such further time as the Appellate Court may see fit to allow. In this cast as stated above the cross-objection was- filed a long time after the filing of the appeal. It is admitted position that the notice mentioned in Order 41 Rule 22(1) being the notice described in item 6 of Appendix 'G' to the Civil Procedure Code was not served upon the respondent. It is urged, therefore, from the side of the respondent that the limitation of one month from the date of the service of the notice of appeal does not apply to the case of cross-objection filed by the respondent in this case. It is urged from the side of the appellant on the other hand that since the appellant appeared through her learned Advocate long ago her date of such appearance should be treated as the date of service of notice on her and that since she did not file her cross-objection within a month from that date her cross-objection should be held to be barred by limitation under the provisions of Order 41 Rule 22(1) of the Code.

3. As per the provision, of Order 41 Rule 22(1) the limitation of 30 days starts running only from the day of the service of the notice either on the respondent or his learned Advocate. Since no notice was served in this case there was no starting point of limitation here. The learned Advocate for the respondent cites Kanti Lal v. Ram Narayan, A.I.R. 1979 Cal. 152 and Labhuram v. Ram Portap, AIR. 1944 Lahore 76 (FB.). In both of these cases the croos-objection was filed before the service of the notice. These decisions are, therefore, not to the point so far as the present case is concerned. The learned Advocate also cites G.C. Venkataraju vs. G. Rambhaddirrajoo, A.I.R. 1942 Mad 403 This was a case where instead of the Advocate the notice was served on his clerk. It was held that service of the notice on the clerk could not be equated to service of the notice on the learned Advocate himself and that hence no notice was served in this case at all. It was held that under such circumstances there could not be any limitation as contemplated under Order 41 Rule 22 of the Code. This is a decision on the point no doubt but the learned Advocate places his reliance more upon two decisions of this Court being Lakshmi Kanta vs. Beharilal, 67 C.W.N. 553 and Durga Dutta vs. Dalhousie Properties ILR. (1969) 1 Cal 595. These were decisions on s. 17)) of the West Bengal Premises Tenancy Act. Section 17(1) as it stood previously obliged the tenant to deposit all arrears of rent together with interest within a period of one month from the date of services of the notice on him. In both the cited cases the arrears were not deposited at all, and it was urged from the side of the defendant that they were not obliged to do that since no notice was served on them. It was urged from the side of the plaintiff that the date of appearance of the defendant might be treated as the date of service of the notice on them. This argument was repelled and it was held by this Court in Lakshmi Kant vs. Beharilal (supra) that the operation of s.17(1) was not attracted since the