Ranjit Singh vs Jafer Husain on 17 April, 1895

Allahabad High Court
Ranjit Singh vs Jafer Husain on 17 April, 1895
Equivalent citations: (1895) ILR 17 All 518
Bench: J Edge, Kt., Banerji


John Edge, Kt., C.J. and Banerji, J.

1. Pandit Sundar Lal, for the appellant, has withdrawn this appeal. It had been, as a matter of fact, called on, but it had not been argued or opened when Pandit Sundar Lal elected to withdraw. The appeal is accordingly withdrawn. The respondent to the appeal had tiled objections under Section 561 of the Code of Civil Procedure. Mr. D.B. Banerji asked to be heard in support of those objections. Pandit Sundar Lal objected that, the appeal having been withdrawn, there was no hearing of the appeal upon which the respondent was entitled to take any objection to the decree of the Court below. So far as this appeal is concerned, there is no essential difference between Section 348 of Act No. VIII of 1859 and Section 561 of the present Code of Civil Procedure. Section 16 of the Court Fees Act, 1870, also points to the objections being argued at the hearing of the appeal. There is a long list of authorities in favour of the contention raised by Pandit Sundar Lal: those which may be mentioned are: Bahadoor Singh v. Bhuquan Dass N.W.P.H.C. Rep. 1866 p. 23; Ram Pershad Ojha v. Bharosa Kunwar 9 W.E. 328; Shama Cham Ghose v. Radha Kristo Chaklanuvis 14 W.R. 210; Coomar Puresh Narain Roy v. Messrs. R. Watson & Co. 23 W.R. 229; Dubhai Dayalji v. Rogunathji Vasanji 10 Bom. H.C. Rep. 397; Dhondi Jagannath v. The Collector of Salt Revenue and the Secretary of State for India I.L.R. 9 Bom. 28 and Maktab Beg v. Hasan Ali I.L.R. 8 All. 551. Although a hardship arises in the case of a respondent who has taken advantage of the provisions of the Code of Civil Procedure, and filed objections to the decree under appeal, instead of filing a separate appeal, when the appeal is withdrawn, so as to deprive the respondent of his opportunity of supporting his objections, still we are bound to follow the long series of authorities, and hold that the respondent in this case cannot be heard in support of his objections. Many of the decisions, to which we have referred, were long anterior to the passing of Act No. XIV of 1882, and ever since that Act was passed, amendments to the Act have been made by the Legislature; and the Legislature must be presumed to have known the course of decisions to which we have referred, and to have decided-that the respondent who takes advantage of the Code of Civil Procedure to object !o the decree under appeal by way of objection, and not by way of appeal,-shall run the risk of having his objections defeated and his right of-appeal barred by the effect of the Limitation Act, 1877, and be left without any remedy against a decree which might be open to question. For the above reasons we are unable to hear the objections filed by the respondent, and hold that they have fallen with the withdrawal of the appeal.

2. Under Section 220 of the Code of Civil Procedure, we make an order directing the appellant, Syed Jafar Husain, to pay the taxed costs of this appeal to the respondent, Chnudhri Ranjit Singh.

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