Chagla, C.J:—
This appeal has abated as the appellant ??? and the legal representatives have not been brought on record within the time prescribed by the law of limitation. Mr. Shah clients have filed cross-objections to the appeal said Mr. Shah contends that although the appeal has abated he has a right to have his cross-objections heard since he has brought ??? heirs of the appellant on the record for the purpose of his cross objections.
Now, the provision with regard to the hearing of cross-objections is to be found in o. 41, r. 22, and in order to understand and appreciate the present position in law one must look at the history of legislation as contained in this particular rule. Under the old Code of 1882, section 561 contained the corresponding provisions and under that section the language used was the any respondent may upon the hearing of the appeal not on support the decree on any of the grounds decided against ??? in the Court below, but take any cross-objection to the ??? which he could have taken by way of appeal. Therefore, the position under the old law was that it was only when an appeal was heard that the cross-objections could be also heard. The Code was amended in 1908 and the amendments made to section 561 were two-fold. The expression “upon the hearing was omitted and a new sub-clause was added which was suit r. (4), which is in the following terms:—
“Where, in any case in which any respondent has under this rule ??? memorandum of objection the original appeal is withdrawn or dismissed for default, the objection so filed may nevertheless be ??? and determined after such notice to the other parties as the Court thinks fit.”
Therefore, under sub-r. (4) when an appeal is withdraw or is dismissed, the cross-objections may nevertheless ??? heard. Therefore, the original rigour of the law has been relaxed, but it has been relaxed only to this extent, viz., in the two cases laid down in sub-r. (4), (1) where the appeal is withdrawn, and (2) where the appeal is dismissed. It is significant to note that sub-r. (4) does not provide for a case of an abatement of an appeal. Therefore, it is clear that, the Legislature did not intend that cross-objections should be heard when the appeal had abated. Under the circumstances, as this case is not a case of a withdrawal of an appeal or a dismissal of an appeal, but is a case of an abatement of an appeal, Mr. Shah's clients have no right to have their cross-objections heard.
The result, therefore, will be that on the abatement of the appeal the cross-objections must stand dismissed. As regards the costs of the appeal, Mr. Shah's clients would be entitled to have the costs out of the estate of the appellant. With regard to the costs of the cross-objections, there will be no order as to costs.
Cross-objections dismissed.
J.G.R