The Municipal Council vs Sripada Satyanarayana Sarma (died T.E.) and Another

Horwill, J.—The suit out of which this appeal arises was one by the Municipal Council of Chicacole against the principal debtor, the first

defendant, and the surety, the second defendant. After the appeal had been filed and a memorandum of cross-objections had been preferred, the

principal debtor died ; and so the appeal has admittedly abated against him. The question is whether the second respondent is entitled to argue his

memorandum of cross-objections.

It is argued on behalf of the second respondent, the surety, that the appeal as regards him is still technically maintainable, although the appellant

could not succeed, because the surety could not be made liable for a larger amount than the principal debtor, whose liability was determined finally

by the trial Court. If the appeal against the second respondent is maintainable, he is entitled to argue his memorandum of cross-objections.

In S.T.M.R. Murugappa Chettiar and Another Vs. Ponnuswami Pillai, , the question arose whether, upon an appeal abating, the respondent

was entitled to argue his memorandum of cross-objections. It was held that since the appeal had not been withdrawn and had not been dismissed

for default, order XLI, Rule 22(4) of the CPC had no application. The learned Judges said:

Rule 22(1) entitles a respondent, though he may not have appealed from any part of the decree, not only to support the decree on any of the

grounds decided against him in the Court below, but, also, to take any cross-objection to the decree which he could have taken by way of appeal.

The intention of the rule is not to give a respondent who has allowed his own right of appeal to become barred a fresh substantive right of appeal,

but only to allow him to take cross-objections on the appeal filed by the other side, and, if that appeal goes, the right to take cross-objections goes

with it. As however it would be a hardship to allow an appellant to prevent the memorandum of objections from being heard by withdrawing the

appeal or allowing it to be dismissed for default, the Legislature has thought fit to provide that in such cases the memorandum of objections may

''nevertheless'' be heard and determined.... This language shows that the Legislature did not intend to alter the law by which the entertainment of

objection was made contingent and dependent upon the hearing of the appeal.

This judgment was based to some extent upon a decision of the Full Bench of this High Court reported in A.L.A. Alagappa Chettiar Vs.

Chockalingam Chetty and Others, , in which it was held that when it was found that an appeal was time-barred, the memorandum of cross-

objections had to be dismissed. These decisions are binding on us ; and the only way in which the second respondent could avoid the application

of this rule would be by showing that the appeal against the second respondent was still maintainable. It has been argued, as already pointed out,

that the appeal could still be heard, though without any prospect of success. We however feel that the case against the two defendants cannot be

separated, the liability of the one bring co-extensive with the liability of the other, and that when the appeal filed against the first defendant by

reason of the abatement has to be dismissed, the appeal is no longer maintainable against the second defendant. If that be so, then by applying the

principle laid down in S.T.M.R. Murugappa Chettiar and Another Vs. Ponnuswami Pillai, , and A.L.A. Alagappa Chettiar Vs. Chockalingam

Chetty and Others, , the memorandum of cross-objections has also to be dismissed. Both the appeal and the memorandum of cross-objections are

therefore dismissed with costs.