The main legal point established in the judgment is the interpretation and application of Order 41, Rule 22, Civil Procedure Code in allowing a respondent to challenge a finding of the lower court even without filing a cross-objection.

Alfred Henry Lionel Leach, C.J.

1. In my judgment the answer to the question referred should be in the affirmative, but before indicating my reasons I will set out the essential facts.

2. The respondents sued in the Court of the District Munsiff of Amalapuram to recover the sum of Rs. 1,450-1-3, which they claimed to be due on a promissory note executed by the first appellant on the 27th January, 1937. The plaintiffs case was that the first defendant (the first appellant) borrowed Rs. 3,000 on a promissory note dated the 12th December, 1934; on the 27th January, 1937, there was due on this instrument Rs. 4,359 , on that date the first defendant repaid in cash Rs. 3,059 and in respect of the balance of Rs. 1,300 he executed the promissory note in suit. The first defendants two sons were joined as defendants. The defence was that the note of the 12th December, 1934, really represented what was due in respect of a loan of Rs. 2,000 advanced in 1925; on the 23rd October, 1929, the first defendant repaid a sum of Rs. 1,900; by this payment and the payment of Rs. 3,059 on the 27th January, 1937, he had repaid altogether more than double the amount borrowed in 1925 and by virtue of the provisions of the Madras Agriculturists Relief Act nothing was due by him.

3. The main questions which the District Munsiff was called upon to decide were: (i) whether the promissory note dated the 12th December, 1934, was executed in respect of cash advanced on that date or represented the balance of what was due on an earlier transaction, and (ii) if the promissory note in suit did not represent a new cash transaction, in what manner was the sum of Rs. 3,059, admittedly paid on the 27th January, 1937, to be appropriated? The District Munsiff found that the promissory note of the 12th December, 1934, represented an entirely new cash transaction and he held that the Rs. 3,059 should be appropriated under Section 9 of the Agriculturists Relief Act. On this basis he calculated that the plaintiffs were entitled to Rs. 2 74-11-4 and he passed a decree for this amount with interest.

4. The plaintiffs appealed to the Subordinate Judge of Amalapuram. The Subordinate Judge reversed the decision of the District Munsiff with regard to the appropriation of Rs. 3,059 and held that the defendants were not entitled to challenge the District Munsiffs finding that the promissory note of the 12th December, 1934, represented a new cash transaction because they had neither appealed nor had they filed a memorandum of cross objections. The result was that he gave the plaintiffs a decree for the full amount claimed.

5. The defendants have appealed to this Court. Their case is that the Subordinate Judge was wrong in not allowing them to challenge the finding of the District Munsiff that the promissory note dated the 12th December, 1934, represented a new cash transaction. They maintain that they were entitled to do so by reason of the provisions of Order 41, Rule 22. The appeal came on for hearing before Wadsworth and Patanjali Sastri, JJ., who considered that in view of the decision of this Court in Sri Ranga Thathachariar v. Srinivasa Thathachariar AIR1927Mad801 a reference to a Full Bench was advisable. The question referred reads as follows

Whether under Order 41, Rule 22, Civil Procedure Code, it is open to a defendant-respondent who has not taken any cross-objections to the partial decree passed against him, to urge in opposition to the appeal of the plaintiffa contention which, if accepted by the trial Court, would have necessitated, the total dismissal of the suit.

6. In the order of reference the learned Judges have indicated that in their opinion the observations in Sri Ranga Thathachariar v. Srinivasa Thathachariar AIR1927Mad801 went too far and that on a proper construction of Order 41, Rule 22(1), the defendants should have been allowed to challenge in the Subordinate Court the finding of the District Munsiff that the promissory note of the 12th December, 1934,