JUDGMENT

Brown, J - The appellant, U Shin, originally filed a memorandum of appeal, on a Rs. 2 stamp only on 10th February 1930. Two days later he filed a further court-fee stamp of Rs. 7-8-0. He claimed that the mesne profits which were1 dealt with in the decree under appeal had not been ascertained, and asked for leave to pay in the balance later. The appeal was then admitted by a single Judge of this Court, and notice was issued to the respondents. On 24th March the respondents filed a cross-objection. The question whether this cross-objection had been properly stamped then arose. On 21st May the advocates for both parties were heard as to whether both the memorandum of appeal and the cross-objection 'had been properly stamped, and the appellant and respondents were directed to value the appeal and the cross-objection respectively, and pay additional court-fees accordingly by 11th June. On 11th June the advocate for the appellant stated that his client would not pay necessary court-fees, and an order was passed by a single Judge to the effect that the appeal abated. At the same time the respondents were given, one more day for filing the extra court-fees on their memorandum of objection, and on 12th June the extra court-fee stamps were filed.

2. The question now arises whether we can consider the cross-objection. It is contended that we cannot do so for two reasons:

(1) that it has been filed out of time; and

(2) that the appeal no longer being before the Court the cross-objection must be rejected.

3. We do not think that there is any force in the first of these objections. The effect of Section 28, Court-fees Act, is that if the necessary court-fees on a document are paid within a time allowed by the Court, the document may be treated as valid from the date on which it was first filed. The Bench order of 21st May impliedly gave the respondents time till 11th June for filing the necessary stamps, and on 11th June a further day was allowed.

4. The second contention raises a point which is not so easy to decide. In the case of Alagappa Chettyar v. Chockalingam Chettiar [1918] 41 Mad. 904 a Full Bench of the High Court of Madras held that when an appeal was rejected or dismissed as out of time, a memorandum of objection filed by a respondent under Order 41, Rule 22, could not be heard. It was pointed out that the right to attack a decree of a lower Court by cross-objection was a creation of statutory law and should be restricted within the limits allowed by statute. Under the provisions of Section 561 of the old Civil P.C., it was held that a cress-objection could not be heard when the original appeal was withdrawn or dismissed for default. Under Rule 22(4), Order 41 of the present Code it is specifically provided that a cross-objection can be heard when the original appeal is withdrawn or dismissed for default after the memorandum of objection had been filed. The Full Bench of the Madras High Court held that the special right thus given to the respondent to an appeal could not be extended beyond the meaning of the clear words of the amendment, and that the right of a respondent to proceed by way of a memorandum of objection was still strictly incident to the filing of the original appeal in time. The same view of the law was taken by a Bench of the High Court at Lahore in the case of Jai Gopal Singh y. Muna Lal A.I.R. 1924 Lah. 43. It was further held by a Bench of the High Court at Madras that a memorandum of cross-objection could not be heard after the original appeal had abated: Murugappa Ghettiar v Ponnusami Pillai A.I.R. 1921 Mad. 405. In the case of Duni Chand v. Aziz Khan [1912] 118 P.R. it was held by a Single Judge of the Chief Court of the Punjab that the ordinary rule still is that a cross-objection cannot be entertained unless the appeal is decided on its merits, and that the exception to that rule is limited to the two cases in which an appeal is withdrawn or dismissed for default. Where an appeal was dismissed without