ORDER OF REFERENCE TO A FULL BENCH.

Old field, J. — The decision under appeal is one adjudicating 7, 9, 12, 13 respondents insolvents and avoiding transfers evidenced by Exhibit B series. A. A. O. No. 337 of 1916 is by the transferee under these documents. The memoranda of objections are by 7 and 9 to 14 respondents, the persons adjudicated and their sons, for the cancellation of the order of adjudication. If the memoranda succeed, the order under appeal must be set aside in toto; and we have therefore dealt with them first. We consider at present two preliminary objections taken by 6th respondent, a creditor who in consequence of an attempt by the original petitioners to withdraw the petition was given the carriage of the proceedings by the lower Court and who now opposes the appeal and memoranda. His first objection is that memoranda of objections are not authorized by insolvency law and cannot he heard; his second, arising from the fact that this appeal is admittedly out of time with reference to the decision in Kopparthi Lingayya v. Araveti Chinna Narayana(1), is that a memorandum cannot be heard on an appeal, which itself cannot be heard, because it is out of time.

That memoranda cannot be entertained in insolvency appeals is argued on the ground that the Provincial Insolvency Act contains no reference to them. A memorandum is the means, by which a respondent can take any cross-objection to the decree or order, which he could have taken by way of appeal, and in view of Munisami Mudaly v. Abbu Reddy(2) nothing turns on the fact that the objection raises, as it does in the present case, an issue between him and his co-respondent. A memorandum, although it can be presented only in special circumstances (a qualification material in the sequel), is in substance indistinguishable from an appeal. It follows that the right to present a memorandum, like the right to present an appeal “cannot be assumed” and that “both alike must be given by statute or some authority equivalent to it.” Meenakshi Naidoo v. Subramania Sastri(3). And certainly no right to present a memorandum is given explicitly by statute in the case before us.

The first answer attempted is that such a right is given by necessary implication, since the recognition of a right of appeal involves recognition of a right of objection under the general law applicable to appellate proceedings. But, although a memorandum may be indistinguishable from an appeal in substance, the right of appeal is distinguishable from the right of objection, since they are exercisable by different persons in different circumstances, objection being open only to a respondent when an appeal has been filed by an appellant; and it does not follow from the recognition of the right of one person in one Set of circumstances, that a similar right must be recognized in favor of another person in others. In fact the right of objection represents an extension of the right of appeal, for which distinct warrant must be required; and such warrant is not forthcoming in any general law applicable to appellate proceedings. For the existence of such general law is impliedly negatived by the decisions in Sesha Ayyar v. Nagarathna Lala and Kausalia v. Gulab Kuar in which it was not invoked or applied, the latter relating directly to the right of objection; and it may be observed that we have not been shown in the present case any such course of practice as that referred to in it as a possible ground of decision. The attempt in those cases was to apply, not any general law, but that enunciated in the Civil Procedure Code, consistently, it would appear, with the application to the appeals in question of the provision then corresponding with the present Sect. 96; and, when the general law was relied on in Meenakshi Naidu v. Subramania Sastri, the judgment dealt with it as represented by that and the connected provisions. I accordingly turn to the argument that Sect. 96 is applicable to appeals under the Provincial Insolvency Act, and that, the right of objection follows from its application.

Sect. 96 authorizes appeals from all decisions of Civil Courts, “save when otherwise expressly provided in the body of the Code or by any other law” and no doubt Sect. 46, Provincial Insolvency Act, which purports to deal with appeals under it, contains nothing similar to the provisions in Sect. 48 of the Guardians and Wards Act (VIII of 1890) and Sect. 19(3), Succession Certificate Act (VII of 1899), by which all orders not Specified as appealable are declared final. On the other hand the provision in Sect. 46 for a right of appeal and, a point to which I return, the absence o£ other provisions regarding appeals or the procedure in them indicate that the right of appeal under the Provincial Insolvency Act, is conferred by it alone, is subject to the restrictions it imposes and cannot be enlarged by the application of Sect. 96 and other provisions of the Civil Procedure, Code. This indication is strengthened by reference to those restrictions, the requirements of leave to appeal in certain cases and the mention of periods of limitation, and the absence of similar provisions regarding objections. It has not been shown how any argument in favour of the right of objection can be limited in its application to the cases of appeals for which no leave is required. It was no doubt held in Raghunath Das v. Secretary of State that a provision permitting an appeal to the High Court attracted the implication of Sect. 561, Civil Precedure Code, which at that time authorized the filing of objections; and not the less so, because an appeal could not be field without the certificate of the Original tribunal. But the judgment notices the distinction between a certificate that the case in a fit one for appeal and leave to appeal, such as is now in question, granted to a particular individual in respect of a particular part of the case, that in which he is interested. And the requirement of leave to appeal is material; for when it is required, it is difficult to assume either that the objector is at liberty to proceed without obtaining it and has thus been placed in a better position than the appeallant or that the former's obligation to obtain leave is to be based on mere implication from the provision regarding the latter. Again, although the periods specified for appeals are indentical with those provided for ordinary appeals in Arts. 152, 156, Schedule I, Limitation Act, it was thought necessary to specify them distinctly in the section; and, when limitation was thus dealt with, it is hard to belive that the necessity for a, provision similar to O. 41, R. 22 (1), was overlooked or that such a provision was to be imported from the Civil Procedure Code. As regards both leave and limitation the easy and natural explanation for the omission of provision for memoranda of objection is that memoranda are not contemplated. The specification in Sect. 46 of the appeals which can be entertained and of the conditions imposed on their entertainment indicate, in my opinion, an intention to deal with the law relating to appeals exhaustively in that section and to exclude the application of Sect. 96 Civil Procedure Code, with all its implications.

Lastly it is argued that the law relating to appeals is to be found also in Section 47, Provincial Insolvency Act, and that its references to powers and procedure impose on this Court the duty to deal with the objectios in accordence with the Civil Procedure Code and confer on respondents the right to make them. The first objection to this is that, if the section is intended to deal generally with appellate work, the respondent's right to make and the Court's duty to deal with objections although they are provided for under the heading “Procedure on hearing” in O. 41, involve an extension of the right of appeal, which, as the decision in Colonial Sugar Refining Coy. v. Irving shows cannot be described as matter of procedure; and if the question is of the Court's powers, it is an unusual and stained construction to treat the reference to them as conferring a right on the party, But in fact the argument, against the application of Sect. 47 rests on the broker foundation, that no part of it applies to appellate business proper. Subsection (1) applies only “to the Court” and allows it the powers and procedure appropriate to the exercise of original civil jurisdiction; and it therefore is irrelevant in this connection. Sub-section (2) applies to High Courts and District Courts which no doubt exercise appellate powers, but deals with their position only “in regard to proceedings in Courts subordinate to them,” not in appeals before them, and allows them the powers and procedure appropriate, not to appeals, but to civil suits; and the effect of the sub-section must therefore he taken as being, not the application to their appellate work of any of the provisions of Part VII, Civil Procedure Code, but only of the powers of transfer and withdrawal and the procedure relating thereto referred to in Sects, 22, 23, 24.

As in my opinion the right to present memoranda of objections involves an extension of the right of appeal which the Provincial Insolvency Act does not sanction expressly and is not shown, to sanction by implication or with reference to any general principle applicable to appellate proceedings, I would hold the memoranda before us cannot be heared. As however ray learned brother entertains doubts on the point and it is one of general importance, I concur in referring to a Full Bench the question:—

“Whether a memorandum of objection can be presented in an appeal against a decision under the Provincial Insolvency Act?

On the question, which would arise in case a memorandum of objections can be presented, there is a clear conflict of authority in the decisions of this Court, which we cannot resolve. See Narayana Mayasad v. Vasudevan Masad, Dwibashyam Venkanna v. Peddenti Venkatramania, Venkadu v. Receiver of Nidadavole, and S. A. No. 1864 of 1916. It is therefore necessary to refer to the Full Bench this question also:—

“Whether a memorandum of objections, presented in an appeal which is dismissed as out of time, can be heard?’

Sadasiva Aiyar, J.—The preliminary questions for consideration are:—

(1) Whether a respondent is entitled to file a memorandum of objections in an appeal filed under Sect. 46 of the Provincial Insolvency Act.

(2) Whether, if such a memorandum of objections is admissible, it can be heard after the appeal is dismissed as presented out of time.

As regards the first question, the Provincial Insolvency Act is dearly not a self-contained or complete Act in itself. (See second paragraph, page 570 of 33 M.L.J, 562, and also page 574). As regards procedure, Sect. 47 of the Civil Procedure Code directs the Court exercising insolvency jurisdiction to follow the same procedure as it has and follows in the exercise of original jurisdiction. Cl. 2 of the same section directs High Courts and’ District Courts to follow the same procedure in regard to proceedings under the Act in Courts subordinate to them as the High Court and the District Courts follow in regard to civil suits. The High Court and the District Courts have got appellate jurisdiction in respect of decisions passed in certain matters in insolvency proceedings in the Lower Courts. As regards appeals under the Civil Procedure Code, O. 41, Rr. 1 to 21 prescribe rules of procedure relating to several necessary matters such as the form of the appeal; stay of proceedings in the Lower Court on appeal, endorsements to be made upon the memoranda of appeal, demands for security, sending of notices on appeal, calling for records from the Lower Courts, fixing days for the hearing of appeal, service of notices on opposite party, right to begin and so on. There is no provision in the Insolvency Act as regards any of these matters of procedure in respect of appeals filed under Sect. 46 of that Act, (at least until rules are framed under Sect. 51 by the High Court) and unless we hold that they are incorporated in the Act by the provision in Sect. 47, cl. 2 which directs the High Court and District Courts in regards to proceedings of Subordinate Courts to follow the procedure in regard to civil suits, there is an unexplained omission to make such a provision in the Act. I therefore am inclined to think that Sect. 47, cl. 2 does apply to appellate business proper of the High Court and District Courts and not only to the powers of transfer and withdrawal referred to in Sects. 22, 23 and 24 of the Civil Procedure Code. Having regard to the position, of Sect. 47 as immediately following Sect. 46 which latter section gives the power of appeal, I think Sect. 47, cl. 2, though not as clearly and happily worded as it might have been, was intended by the Legislature to apply the provisions of all the rules under O. 41 of the Civil Procedure Code in respect of the regulation of the procedure in appeal, appeals being only continuations of the original proceedings in suits. I think that the expression “in regard to civil suits” means “in regard to all proceedings in civil suits “and includes proceedings in appeals in civil suits.

Then comes the question whether O. 41, R. 22, which empowers the respondent to file a memorandum of objections is a rule of procedure. No doubt several provisions relating to substantive law are incorporated in the Civil Procedure Code but the rules in O. 41., from Rr. 9 to 15 are entitled as “procedure on admission of appeal,” R. 16 to 37 are headed as “procedure in hearing” and R. 22 occurs among these latter rules described as falling under the head of “procedure on hearing.” This is no doubt not conclusive on the point and there is much to be said (as shown by my learned brother in his opinion) for the opposite view that whatever may be the nature of the Rules 9 to 37 other than R. 22, R. 22 gives a substantial right of appeal just as Sects. 96, 97 and 100 in the body of the Civil Procedure Code and Sect. 46 of the Insolvency Act give a substantial right of appeal. In Raghunath Das v. Secretary of State, Jenkins, C. J. and Aston, J. had to construe a section which stated that subject to the provisions of Sect. 48, Sub-Sect. 11 of the City of the Bombay Improvement Act IV of 1898, the provisions of the Civil Procedure Code with respect to appeals and original decrees “shall, so far as they can be made applicable, apply to appeals under that sub-section.” The learned Judges held that the procedure as to memorandum of objections in Sect. 561 of the old Civil Procedure Code became thereby applicable, that is, that the respondent became entitled to file a memorandum of objections on an appeal having been filed with the necessary permission.

I think that without much straining of language, it could be argued that every party to the insolvency proceedings is given the substantial right of appeal under Sect. 46 (just as every party aggrieved is given a right of appeal under Sects. 96, 97 and 100 of the Civil Procedure Code) and that the respondent (who as a party has such a right of appeal) is merely allowed to avail himself of an additional rule of procedure by way of memorandum of objections as provided for in O. 41, R. 22, in exercising his said right of appeal. On the whole I am inclined to the view that the Legislature intended that O. 41, R. 22, about the right to file a memorandum of cross-objections (the objections being confined under that rule to those which the respondent could have taken by way of appeal) could be availed of by a respondent where an appeal had been filed under Sect. 46 of the Provincial Insolvency Act. It was objected that one of the classes of appeals provided for under Sect. 46, that is, the class coming under cl. 3 of the section, requires leave of the District Court or of the High Court, and if a memorandum of objections is allowed after an appeal has been filed Under that clause, it will contravenue the intention of the Act, as O. 41, R. 22 of the Civil Procedure Code makes no mention of the leave of the Court being required for filing a memorandum of objections in any case. I am not, however, impressed with this argument as O. 41, R. 22, restricts the right to take cross-objections to those grounds which the respondent could have taken by way of appeal, and, as he could not advance grounds by way of appeal without the leave of the District Court or of the High Court in a case falling under Sect. 46, cl. 3, he could not file a memorandum of objections also in such an appeal without the leave of the Court (see also the observations in Raghunath Das v. Secretary of State, where the learned Judges seem to hold that once permission is given to appeal and an appeal is filed, a separate permission for a memorandum of objections is not necessary). However, I should like, if possible, to express no final opinion on these points and to have the questions argued before a Full Bench and decided finally by such a Bench.

Coming to the second question as to whether a memorandum of objections can be heard after the appeal is dismissed as barred by limitation, there has been a conflict of authority in the several High Courts, and, in this Court itself, there has been such a conflict. See Narayana Mayosad v. Vasudevan Mosad, Dwibashyam Venkanna v. Peddenti Venkatramaniah, and S. A. No. 1864 of 1916. I would therefore refer the second question also for the decision of the Full Bench if the first question is answered in the affirmative by the Full Bench.

[This appeal came on for hearing in pursuance of the above order of reference before the Full Bench as constituted above.]

Messrs. K. Srinivasa Aiyangar K. Bhashyam Aiyangar for the Appellant.

The Hon'ble Mr. T. Rangachariar and Messrs. A. Krishnaswami Aiyar, A. Venkatrayaliah, B. Sitarama Row, S. R. Muthuswami Aiyar and A. Srirangachariar for the Respondents.

OPINION.

The Chief Justice.—Sect. 47 (1) of the Provincial Insolvency Act provides that subject to the provisions of the Act, the Provincial Insolvency Court in regard to proceedings under the Act shall have the same powers and follow the same procedure as it has and follows in the exercise of Original Civil jurisdiction, thus making the provisions of the Civil Procedure Code clearly applicable as far as may be to original proceedings under the Act. This sub-section applies to District Courts in the exercise of original jurisdiction in insolvency. Subject. (3) then applies exactly the same provisions in the same language to the High Courts and District Courts “in regard to proceedings under this Act in Courts subordinate to them” and the first question is, what is the effect of these words. Though not very happily expressed they are in my opinion wide enough to cover cases in the Subordinate Courts which come before the High Court or District Court on appeal or revision as well as on applications, for transfer, etc., and there are sufficient indications that they were used by the legislature in this sense. The procedure prescribed in the Civil Procedure Code is the standard procedure, and no reason has been suggested why it should have been made applicable in insolvency cases only in Original Court and not also to cases of appeal and revision provided for in the Act. There must be some procedure or other governing such proceedings, and if it had been intended that it should be prescribed by rules made under Sect. 51, it would have been specifically mentioned in Sub-sect. 2 among the other important matters as to which rules were to be made under that section. So far as appeals to the High Court are concerned the sub-section so construed may in my opinion be regarded as superfluous because, under Sect. 590 of the Code of 1882, now Sect. 108, the procedure prescribed in Chapter XLI, which deals with appeals from original decrees was made applicable as far as might be to appeals from orders under any special or local law in which a different procedure is not provided. No different procedure is provided in the Provincial Insolvency Act as it was in the Insolvent Act of 11 and 12 Vict. C. 21 to which for that reason the provisions of Sect. 590 were held inapplicable in In the Matter of R. Brown.

Clearly, therefore, in either view the procedure prescribed by the Code is applicable to appeals to the High Court under the Provincial Insolvency Act, and it is unnecessary to refer to Sect. 117 and Sects. 34 of the Code which were also relied on.

The next question depends on the construction of O. 41, R. 22 (formerly Sect. 561), Civil Procedure Code which has given rise to much difference of opinion. In Calcutta it was held that Sect. 561 did not generally entitle one respondent in an appeal to present a Memorandum of objection against another respondent, and this was followed in Battle Lal v. Jagat Narain. On the other hand it was held by this Court to be permissible in Timmayya v. Lakshmana approved in Kulikada Pillai v. Viswanatha Pillai(4). In these circumstances the section was amended in 1908 by substituting in Sub-sect. (1) “Cross Objection” for “objection” and in Sub-sect.(3) “the party who may be affected by such objection” for “appellant”, while the new Sub-sect. (4) speaks of “such notice to the other parties as the Court thinks fit.” The interpretation put upon these amendments has not been uniform. A full Bench of this Court in Munisami Mudaly v. Abbu Reddy has relied mainly on the previous practice of this Court, but that consideration has less weight in a case like this where the legislature in making the amendments must be presumed to have intended to introduce uniformity of practice in place of the diversity prevailing in the different’ High Courts. While the Bombay High Court adheres to the view that cross-objections must be aimed at the appellant in Nursey Virji v. Alfred H. Harrison, it has been held in Jadunandan Prosad Singh v. Keor Kallyan Singh, that R. 22 (3) introduces a modification of the old rule in Sect. 561; that the effect of the alteration is to leave on doubt that a respondent may, prefer a cross-objection against a co-respondent, but that the limits of the rule are not attempted to be defined. The Allahabad Court takes a similar view, Balgobind v. Ham Sarup. In none of these cases has the effect of the Substitution of “cross-objection” for “objection” in R. 22 (1) been dealt with. Prima facie the intention would appear to have been only to allow objections which arose in some way out of the appeal whether aimed at the appellant or at another respondent. This discussion is not irrelevant to the present question, as the more widely R. 22 is interpreted the more serious would be the consequences of answering the second question referred to us in the affirmative. At the time when the present Code was enacted in 1908 that question had been expressly decided in Ramjiwan Mal v. Chand Mal(5), with reference to the terms of the Sec. 561 of the old Code, where the Court held that, when the appeal was dismissed as out of time, the objection could not be heard, as the entertainment of the objections was contingent and dependent upon the hearing of the appeal. In the course of the judgment, Mahmood, J., observed that to decide otherwise would “be practically holding that an appellant who prefers an appeal long; after the prescribed period of limitation may confer upon the respondent the right of having the appeal of his own heard in the shape of objections under Sect. 561, Civil Procedure Code, although, if the original appeal was barred by limitation, a fortiori Such. objections ought to be barred also,” The legislature of 1908 must be taken to have known of this decision, and it is exceedingly unlikely that they intended to overrule it by implication. The decision no doubt proceeded on the ground that the case fell within the ratio decidendi of the earlier cases in which it had been held that the objection could not to be heard when the appeal had been withdrawn or dismissed for default. Those decisions were based on the language of Sect. 348 of the Code of 1859 and Sect. 561 of the Code of 1882 by which a respondent, although he had not appealed against any part of the decree, was entitled ‘upon the hearing’ to objection to the decree which he could have taken by way of appeal. The view taken by the Courts when the section was so worded was as explained by Sir Charles Sargent. C.J, in Dhondi Jagannath v. Collector of Salt Revenue, that when once the hearing of the appeal had commenced, the respondent's right to take his objections, which up to the time of hearing was an inchoate right, became perfected. The ligislature has now removed from this section the words “upon the hearing” upon which these decisions rested, and has expressly overruled the decisions themselves in the case of withdrawal or dismissal of the appeal by enacting in Sub-sect. (4): “Where in any case in which any respondent has under this rule filed a Memorandum of objection, the original appeal is withdrawn or dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.” It does not however follow that I.L.R, 10 All., 587 was also intended to be overruled. If that had been the intention of the legislature, it would probably have added some such words as “or is dismissed as having been filed out of time.” There are moreover strong reasons for not attributing any such intention to the legislature. The right of parties to a suit to treat the decree as final when no appeal has been filed within the prescribed period of limitation is a substantive right of great value as pointed out by the Privy Council In 1905 A.C, 369 and in Saudagar Singh v. Pardip Singh, and there is a strong presumption against any intention on the part of the legislature to interfere with it unnecessarily. It is no doubt impaired to some extent by R. 22 which may have the effect of extending the respondent's time for appealing or even giving a fresh starting point. Provided however the original appeal is required to be filed in time, the interference is a very limited one, and may be defended as necessary to enable the Court to do full justice in disposing of the case on appeal and as governed by the same considerations as have led to the enactment of the new R. 33 which gives the Court a discretionary power to interfere in appeal even as regards parties who have not been made respondents, and respondents who have not filed any memorandum of objection. It would however largely and unnecessarily impair this valuable right to hold that the filing of an appeal by one party even though out of time has the effect of enabling the respondents to file appeals not only against the appellant but as against one another. The objections urged by Mahmood, J., in I.L.R, 10 All., 587 against such a course have lost none of their force, and there is no reason to suppose that the legislature intended to disregard them. Even greater difficulties arise if the present rule is treated as giving respondent an unrestricted right of filing memoranda of objection, because the decision on a question raised by a respondent in the same interest as the appellant may give occasion under E. 33 for the modification of the decree in favour of the appellant himself whose appeal is ex hypothesi barred the true rule would appear to be that the right of respondents to proceed by way of memorandum of objection is strictly incident to the filing of the original appeal in time, and that it is open to a party against whom a memorandum of objection has been filed to set up the bar that the original appeal was filed out of time. It is no doubt true that a respondent who is served with a notice of appeal cannot always be sure whether the appeal was filed in time or not and if so whether or not the delay will be excused and that he may therefore feel bound to file a memorandum of objection and incur the cost of Court-fees and briefing counsel in support of the memorandum. That in my opinion is not a sufficient reason for taking the other view. Moreover in a proper case the hardships may be met by ordering the appellant to pay the costs of the memorandum. I answer the second question in the negative.

Sadasiva Aiyar, J.—In the order of reference, I indicated my inclination to answer the first question referred in the affirmative. In other words, while expressing no final opinion, I gave some reasons for holding that a respondent was entitled to file a momorandum of objections in an appeal against a decision under the provisions of the Insolvency Act. My Lord, in the opinion just now pronounced by him, has come to the conclusion that that question should be answered in the affirmative and I agree entirely therewith and have nothing to add to what I have said already.

The second question referred has caused me more difficulty. I expressed no opinion whatever upon that question in the order., of reference. The right to prefer an appeal cannot be claimed by a litigant as a matter of course but should be given by statute law. The right to prefer an appeal by way of memorandum of objections is an extension of the right of appeal which must therefore also be given by statute. Statutory provisions relating to such rights should be strictly construed, O. 41, R. 22, corresponding to old Sect. 561, must, if possible, therefore not be extended in favour of the right of a respondent to file a memorandum of objections so as to prejudice parties who have obtained a decree in their favour in the Lower Court and who might reasonably entertain the belief that as the time of preferring an appeal has expired the rights which have been established in their favour under the decision of the Court of first instance had become finally secure. This Court has no doubt in Munisami Mudaly v. Abbu Reddy allowed one respondent to file cross objections against another and this is a further reason for strictly confining the right to file such objections. Supposing the plaintiff is the appellant and the defendants 1 and 2 are the respondents in an appeal and the plaintiff and the 2nd defendant are in collusion and the suit was dismissed by the District Munsif, upholding the 1st defendant's contentions. The plaintiff appeals out of time to the District Court. The Sheristadar's office does not discover that the appeal is out of time and sends notice to both the respondents. The colluding 2nd defendant files his memorandum of objections within one month of the receipt of the notice of appeal on the same grounds on which the plaintiff filed his appeal, the 2nd defendant's objections and the plaintiff's appeal being both thus directed against the 1st defendant. The result of answering the second question in the affirmative would be that while the plaintiff's appeal at the final hearing of the appeal is dismissed as barred by limitation, his friend the 2nd defendant, by having his memorandum of objections heard, compels the Court to hear the appeal also, and the 1st defendant who thought that the decision of the District Munsif was safe owing to no appeal having been filed in time finds that he was living in a tool's paradise.

I do not see that the omission in O. 41, R. 22 (1) of the words “upon the hearing” which found a place in the old Sect. 561 is of much importance though some of the decisions under the old Sect. 561 (which decisions denied the right of the respondent to have his memorandum of objection heard where the appeal itself was dismissed as out of time) attached importance to those words. I think that much weight attaches to the argument based on the new sub rule 4 Of O.41, R. 22, which makes an express provision for hearing the memorandum of objections only in cases where the original appeal is withdrawn or is dismissed for default and does not expressly allow the hearing of the objections where the appeal is dismissed as barred by limitation or dismissed on other preliminary grounds. Another consideration which has weighed with me is that the right of a respondent to file an objection depends, if the second question is answered in the affirmative, on what I may call the accident of the Court of the Sheristadar discoving at once whether the appeal is barred. If the bar is discovered at once and the appeal rejected, then no notice is issued to any respondent and hence no respondent is entitled to file a memorandum of objections but if it is not so discovered and notice is issued then he gets valuable rights.

I therefore agree with my Lord in the answer to the second question also.

Spencer, J.—I agree that the first question referred to us should be answered in the affirmative and the second question in the negative.

The fact that R. 22, which confers upon respondents the right of taking cross-objections falls under that portion of O. 41, which is headed “Procedure on hearing” supports the latter view and justifies if I may say so, the observation of Sir Charles Sargent, C. J., in I.L.R, 9 Bom., 28 where he speaks of the respondent's right to take, his objections, which up to the time of the hearing was an inchoate right, becoming, perfected at the commencement of the hearing of the appeal. ‘Hearing’ would then mean hearing on the merits. The words “upon the hearing” in Sect. 561 of the Old Code were probably omitted from the present Code as being reduntant, seeing that in both Codes the heading “procedure on hearing” preceded this provision and in order that Cl. 1 of R. 22 should be consistent with the newly introduced CL 4 of the same rule. The retention of the words ‘upon hearing’ in the side note to the section indicates that this change was not intended to have any legal significance. 19 M.L.T, 86 should be treated as now overruled.

C. K.