Kally Prosunno Biswas And Anr. vs Mungala Dassee And Anr. on 1 February, 1883

Calcutta High Court
Kally Prosunno Biswas And Anr. vs Mungala Dassee And Anr. on 1 February, 1883
Equivalent citations: (1883) ILR 9 Cal 631
Author: Prinsep
Bench: Prinsep, O’Kinealy


Prinsep, J.

1. It seems clear from the record that the lower Appellate; Court has wrongly admitted what has been termed a cross appeal, but what, strictly speaking, is an objection taken by the respondent under Section 561 of the Code. The day fixed for the hearing of the appeal in the lower Appellate Court was, according to the notice served on the respondent, the 11th of June 1881. Therefore, according to the terms of Section 561, as interpreted by a Division Bench of this Court, the notice of the objection, that is, the written petition of objection itself, should have been filed in the lower Appellate Court not less than seven days before the day fixed for the hearing of the appeal, namely, the 11th June. It was not filed till the 14th June. The only provision made by the Legislature for extending the period of limitation is to be found in the second Clause of Section 5 of the Limitation Act (XV of 1877); and as has already been pointed out in the case of Degamber Mozumdar v. Kallynath Roy I.L.R. 7 Cal. 654 that provision does not apply to anything, except an appeal or application for review of judgment, and therefore does not apply to an objection under Section 561.

2. The decree of the lower Appellate Court must accordingly be amended so far only as it relates to the cross appeal.

3. The appellant will receive his costs in this Court.

O’Kinealy, J.

4. I understand that the interpretation just put by Mr. Justice Prinsep on Section 561 of the Code of Civil Procedure, has been adopted by several Benches of this Court. I am not prepared to dissent, but were, I unfettered by any previous decision 1 should have considerable difficulty in coming to the conclusion that the seven days referred to in Section 561 mean seven days before the date fixed in the notice of appeal.

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