The main legal point established in the judgment is the interpretation of Order XLI Rule 22 of the Code of Civil Procedure and the start of the limitation period upon the service of notice of admission and fixed hearing date.

AJAY MOHAN GOEL, J.

CMP(M) No. 622 of 2018.

1. This is an application filed under Section 5 of the Limitation Act for condonation of delay in filing the cross-objections, which are stated to be barred by 94 days. However, strangely, when this application was taken up for consideration, learned counsel for the cross-objector/Insurance Company, rather than making his submissions praying for condonation of delay in filing the cross objections has argued that there is no need for any condonation of delay in filing the cross objections, as the same are within limitation. On more than one occasion, this Court called upon the learned counsel for the cross objector to make up his mind as to whether he wants to make his submissions for condonation of delay in filing the cross objections or not. Learned counsel for the cross objector has insisted that he shall not be making any submissions for condonation of delay, as the cross objections are within limitation.

2. It is pertinent to mention at this stage that as per averments made in the application for condonation of delay in filing the cross objections, they are barred by 94 days. Learned counsel for the cross objector has argued that summons stood served upon the cross objector-Insurance Company on 19.1.2018, but as it was not mentioned in the said summons so served on the cross objector-Insurance Company on 19.1.2018 that the matter was to be finally heard on a date already fixed by the Court, therefore, there was no question of there being any delay in filing the cross objections, because the limitation for filing cross objections starts running from the date when a notice is served upon the respondent from the Court, wherein it is expressly mentioned that a date has been fixed for the matter to be finally heard and such date is reflected in the notice itself. In support of his contention, learned counsel has relied upon the judgment of Hon’ble Supreme Court of India in Mahadev Govind Gharge and others Vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 SCC 321.

3. No other point was urged.

4. I have heard learned counsel for the cross objector- Insurance Company. It is not in dispute that summons stood served upon the cross objector-Insurance Company on 19.1.2018 and the cross objections have been filed on 2.5.2018, i.e., beyond the statutory period of 30 days’, after service of notice upon the party.

5. Order XLI Rule 22 of the Code of Civil Procedure, 1908 provides that any respondent, though he may not have appealed from any part of the decree, may, inter alia, file such objections 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.

6. Hon’ble Supreme Court of India in Mahadev Govind Gharge’s (supra) has held in para 45 as under:-

“There appears to be a dual purpose emerging from the language of Order 41 Rule 22 of the Code. Firstly, to grant time of one month or even such further time as the appellate court may see fit to allow; and secondly, to put the party or his pleader at notice that the appeal has been admitted and is fixed for hearing and the court is going to pronounce upon the rights and contention of the parties on the merits of the appeal. Once such notice is served, the period of limitation under Order 41 Rule 22 of the Code will obviously start running from the date. If both these purposes are achieved any time prior to the service of a fresh notice then it would be an exercise in futility to issue a separate notice which is bound to result in inordinate delay in disposal of appeals which, in turn, would be prejudicial to the appellants. A law of procedure should always be construed to eliminate both these possibilities.”

7. As per the said judgment of Hon’ble Supreme Court language of Order 41 Rule 22 of the CPC has dual purpose, i.e., firstly to grant time of one m