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NATIONAL LAW INSTITUTE UNIVERSITY

CODE OF CIVIL PROCEDURE - II

A Project on:

CROSS OBJECTIONS

[ORDER- XLI, RULE-22]

SUBMITTED TO: SUBMITTED BY:

MR. RANJAN RAI AKSHEY JOSE

ASST. PROFESSOR 2013 B.A.LLB 39

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CONTENTS

Review of Literature .................................................................................................................3

Introduction ...............................................................................................................................3

Research Methodology..............................................................................................................5

Aims and Objectives .................................................................................................................5

Scope and Limitations ...............................................................................................................5

Method of Writing .....................................................................................................................5

Sources of Data..........................................................................................................................6

Research Questions ...................................................................................................................6

Nature of the Right to File CrossObjections..............................................................................6

Circumstances Where CrossObjections Need Not Be Filed......................................................9

Circumstances Where CrossObjections Need to Be Filed.......................................................10

Who May File CrossObjections...............................................................................................11

Against Whom Can CrossObjections Be Filed........................................................................12

Effect on Cross-Objections Where the Appeal Is Withdrawn or Has Abated or Is Dismissed For Default 13

Court Fee..................................................................................................................................14

Limitation.................................................................................................................................15

Conclusion...............................................................................................................................15

Bibliography............................................................................................................................16

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Review of Literature

The following is my understanding from an article by Justice V. Ramkumar, Former Judge, High Court of
Kerala -

Strictly speaking, a cross-objection filed under Order XLI Rule 22 C.P.C cannot be treated as an appeal since a
cross-objection is invariably filed assailing an adverse finding recorded by the lower court against the cross-
objector. Those are all cases where the decree passed by the lower court may be wholly in favour of the cross-
objector and he only seeks to challenge an adverse finding made against him. Since such an adverse finding
cannot constitute a decree, an appeal against such finding will not lie under Sec. 96 read with Order XLI Rule 1
C.P.C. But, there may be very rare cases where a cross-objection is filed not only challenging an adverse finding
but also a portion of the decree which is the direct result of such adverse finding. It is only in such rare cases that
such cross-objections could be treated as a separate appeal. Barring such rare cases, cross-objections cannot be
treated as appeals so as to warrant a hearing for admission under Order XLI Rule 11 CPC. Hence, all those cross-
objections will have to be filed after paying the full court fee. However, there seems to be in vogue a practice
(which is strictly not in accordance with law) of posting cross-objections for admission. If such a practice is in
existence, it may not be discontinued and the cross-objectors can be permitted to pay 1/3 of the court fee at the
time of filing and balance court fee shall be allowed be paid thereafter.

Introduction

Before entering the realm of crossobjections, it is necessary to first look into certain matters as regarding appeals
in general. It is important to note that the code of civil procedure provides for an appeal from a decree and not a
judgment. Section 96 of the code enacts that an appeal shall lie from every decree passed by any court exercising
original jurisdiction. So also, Section 100 allows a second appeal to the High Court from every decree passed in
appeal. Likewise, an appeal lies against an order under Section 104 read with Order 43 Rule 1 of the Code of
Civil Procedure. Hence an appeal lies only against a decree or an order which is expressly made appealable
under the code.

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A finding recorded by a court of law may or may not amount to a decree or an order. Where such a finding
does not amount to a decree or an order, no appeal lies against such an adverse finding. Thus where, a suit is
dismissed, the defendant against whom some adverse finding has been recorded on some issue has no right of
appeal and he cannot question the finding by instituting an appeal. This is where crossobjections are of
significance.
Order 41 Rule 22 of the Code of Civil Procedure reads as follows:

RULE 22. Upon hearing, respondent may object to decree as if he had preferred separate appeal
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the
decree but may also state that the finding against him in the Court below in respect of any issue ought to
have been in his favour and may also take crossobjection to the decree which he could have taken by way
of appeal, provided he has filed such objection in the Appellate Court within one month from the date of
service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time
as the Appellate Court may see fit to allow.
[Explanation A Respondent aggrieved by a finding of the Court in the judgment on which the decree
appealed against is based may, under this rule, file crossobjection in respect of the decree, in so far as it is
based on that finding, notwithstanding that by reason of the decision of the Court on any other finding
which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that
respondent.]
(2) Form of objection and provisions applicable thereto Such crossobjection shall be in the form of a
memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the
memorandum of appeal shall apply thereto.
(3) [Deleted]
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the
original appeal is withdrawn or is 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.
(5) The Provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an
objection under this rule.
It is clear from this provision that the respondent to an appeal may file crossobjections against any
finding recorded against him even though the ultimate decree may be in his favour.

Research Methodology

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The research methodology used in this project is Doctrinal research methodology.

Aims and Objectives

1. To understand the term crossobjection.

2. To examine when crossobjections can be filed.
3. To critically analyse Order 41 Rule 22 of the Code of Civil Procedure.

Scope and Limitations

This paper examines in detail the circumstances which warrant and the procedure for filing a crossobjection. The
scope of the project has been restricted to looking at crossobjections alone and hence does not explain in detail
anything with regards to appeals and crossappeals.

Method of Writing

A descriptive and analytical form of writing has been followed.

Sources of Data

An exhaustive research was done using primary sources like case law as well as secondary sources from books.
The Researcher has attempted to use primary sources where ever possible, but if primary sources are unavailable
then the Researcher has use authoritative secondary sources. A comprehensive bibliography is provided at the end
of this project.

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Research Questions

1. What is meant by the term crossobjection?

2. When can crossobjections be filed?

3. Who are the parties that can file crossobjections and against whom can they be filed?

Nature of the Right to File CrossObjections

The right to take a crossobjection in an appeal is nothing but the exercise of the same right of appeal which is
given to an aggrieved party and is not a new right conferred by Order 41 Rule 22 of the CPC.

Consider a case where there are two parties A and B and if As claim is decreed in part, A may appeal from the
decree , alleging that the decree ought to have been for the full amount claimed by him, and B also may appeal
from the decree, alleging that the suit ought to have been dismissed altogether. If A appeals from the decree, and
B also appeals, Bs appeal is called a crossappeal, but instead of filing a crossappeal, B may file crossobjections
under this rule. In crossobjections, B may take any objection to the decree which he could have taken by way of
appeal. The right to file a crossobjection is not dependent on acceptance of some part of the decree as good the
whole of the decree can be challenged. A crossobjection filed within time is not to be treated as a crossappeal,
nor should a separate decree be passed in respect thereof. Under O 41, r 22 of the Code of Civil Procedure cross-
objection in lieu of crossappeal is permissible as also crossobjection is permissible against an adverse finding.

The most important case in the area of crossobjections is that of Superintending Engineer v. B Subba Reddy1.

In this case the Supreme Court looked into the various decisions already given with regard to crossobjections
and with the intent of clarifying the position as regards cross objections once and for all laid down six principles
which govern cross objections. The principals laid down by the court are:

1 AIR 1999 SC 1747

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1. Appeal is a substantive right. It is a creation of the statute. Right to appeal does not exist unless it is specifically
conferred.

2. Cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and
the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the
memorandum of appeal apply to crossobjection as well.

3. Court fee is payable on crossobjection like that on the memorandum of appeal. Provisions relating to appeals by
indigent person alsoapply to crossobjection.

4. Even where the appeal is withdrawn or is dismissed for default, crossobjection may nevertheless be heard and
determined.

5. Respondent even though he has not appealed may support the decree on any other ground but if wants to modify
it, he has to file crossobjection to the decree which objections he could have taken earlier by filing an appeal.
Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him
of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal.

6. Crossobjection is nothing but an appeal, a crossappeal at that. It may be that the respondent wanted to give
quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his
interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a
second chance to file an appeal by way of crossobjection if he still felt aggrieved by the judgment and decree or
order.

Finally the Supreme Court held that crossobjections should not have been allowed in this case since only the
procedure of the Civil Procedure Code was applicable to the Arbitration Act and CrossObjections were a
substantive right.

Circumstances Where CrossObjections Need Not Be Filed

Order 41, Rule 22, while allowing for crossobjections also allows for a respondent to defend the decree without
filing crossobjections. The rule even allows for the respondent to defend the decree by arguing that an issue on
which the decree was based that was decided against him in the lower court should actually have been decided in
his favour. A crossobjection could be filed only with respect of a finding on which the decree appealed against is
based.

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If in a suit brought by A against B, B sets up two defences and the court of first instance decides both on Bs
favour, and A appeals, there is no scope for crossobjection, for crossobjections cannot be filed as criticisms of
judgement., but if the court decides in Bs favour as to one and against him as to other then, if A appeals, B may
support the decree at the hearing of the appeal not only on the ground decided in his favour, but also on the
ground decided against him without filing any crossobjections.

The filing of crossobjection in the manner provided in O 41, r22 of the Code of Civil Procedure is necessary, only
if the respondent wants to take any crossobjection to the decree which he could have taken by way of an appeal.
However, in order to support the decree or in order to argue that the finding in respect of an issue should have
been in his favour, the respondent is not required to file a cross-objection.

At this juncture, the case of Shriniwas v Keshri Chand2can be examined to shed some light on this issue.
The High Court, in giving its decision held that in an appeal against the dismissal of an election petition on the
merits, the respondent, the returned candidate, is not debarred from raising the plea that the petition was liable to
be dismissed for nonjoinder of the other contesting candidates as necessary parties on the ground that has not
filed cross objection. He can do so on a new ground which can be taken in appeal, as for example a pure question
of law. In a second appeal, however the respondent cannot support a decree on a ground which would not have
been available to him if he were an appellant.

Circumstances Where CrossObjections Need to Be Filed

CrossObjections can be filed by the Respondent as regards any issue that was decided against him which would
influence the decree.
CrossObjections can be filed by the Respondent as regards any issue that was decided against him which would
influence the decree. Such crossobjections can be filed where the suit is wholly in favour of the Respondent, or
when it is decided partly in his favour and partly against him. However, crossobjections are only important in
situations where the Respondent chooses to attack the decree as Order 41 Rule 22 of the CPC gives him the right
to defend the decree effectively without filing crossobjections.

2 AIR 1984 Raj 14

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It would be useful to look into the case of Jadunath Basak v. Mritunjoy3:

When a party having right to appeal does not prefer the same and waits for the adversary to file appeal and then
to take a cross-objection, runs the risk of availing the qualified alternative remedy on the adversary preferring a
maintainable appeal. Therefore, the mere filing of crossobjections does not ipso facto invest in the respondent an
independent right of being heard on crossobjections. Normally, a party in whose favour the judgement appealed
from is given will not be allowed to appeal from it. Considerations of justice therefore require that the appellate
court should in appropriate cases, permit a party placed in such a position to support the judgement in his favour
even upon grounds which were negatived in that judgement.

No doubts courts appeal have from time to time adjudicated on points not canvassed before the trial court, but
this power is never exercised unless the case is very clear and free from doubt. It is only after the appeal court
directs the issue of notice to the respondent that the stage of filing cross objections can arise and only then cross-
objections can be treated as having been filed under sub rule(1) of r22.

Who May File CrossObjections

Crossobjections under this rule can only be filed by a party who might have appealed from the decree of the court
below, but has not done so. It is not open to the party who has appealed, and whose appeal has been dismissed,
subsequently to prefer crossobjections under this rule.

A sues B for damages. As claim is decreed in part. A appeals from that part of the decree which is against him. B
also appeals from that part of decree which is against him. As appeal is heard and dismissed. Before Bs appeal is
heard, A files crossobjections in Bs appeal setting up the same ground upon which in his own appeal he had
asked for relief. As crossobjections should not be heard. Even if As appeal is still pending he cannot urge by way
of crossobjections in Bs appeal grounds which he has omitted to take in his own appeal and in respect of which
the period of limitation has expired.

However, a person whose first appeal is dismissed may file crossobjections in a second appeal preferred by his
opponent, although the former had filed no second appeal.

3 AIR 1986 Cal. 416.

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Again, A obtains a decree in a partnership suit which is against B, one of the defendants, as ex parte. B does not
apply under O 9, r 13, to set aside the ex parte decree. B cannot, therefore, file crossobjections in As appeal that
he should have been given a hearing. An appeal which has been presented beyond the period of limitation can be
treated as crossobjections under this rule.

This was laid down in the case of Nripjit Kaur v Satinder Singh4:
The facts of the case are as follows. The suit was decided by a decree dated 1081953 and an appeal was filed on
2211954 by Nirpat Kaur in person. There was an application to sue in forma pauperise which should have been
filed within thirty days but it was filed long after that period had elapsed, but the counsel for the respondent
submitted that their memorandum of appeal should have been treated as a crossobjection. The high Court of
Punjab held that if the respondent can appear on the day when an appeal is admitted and crossobject, it is possible
for him to ask after an appeal is admitted to treat his time barred appeal as a crossobjection.

The application for cross-objections as to costs in the courts below will not be entertained in the second appeal.

Against Whom Can CrossObjections Be Filed

As a general rule respondents right to urge crossobjections should be limited to urging them against the
appellant. In exceptional circumstances it may however be urged against corespondents. This usually happens
only in cases when there are questions which cannot be disposed of completely without matters being allowed to
be opened up as between corespondants.

This view was endorsed by the Supreme Court in the case of Panna Lal v. State of Bombay5 -
The Supreme Court in giving its judgment as regards the second ground though it appropriate to go into the
question as to whether crossobjections could be file against corespondants. In a detailed judgment the Court
examined all the cases on the point and came to a conclusion that In our opinion, the view that has now been
accepted by all the High Courts that Order 41, r. 22 permits as a general rule, a respondent to prefer an objection

4 AIR 1955 Punj 190.

5 AIR 1963 SC 1516.

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directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the
appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief
against the appellant cannot be granted without the question being reopened between the objecting respondent
and other respondents, that an objection under Or. 41, r. 22 can be directed against the other respondents, is
correct..

Effect on Cross-Objections Where the Appeal Is Withdrawn or Has

Abated or Is Dismissed For Default

It is clear from the provision of O 41, r22 (4) that if an appeal is withdrawn or the same is dismissed in default, in
that circumstance the cross-objection will not automatically get rejected on the ground that the appeal has been
dismissed. The provision of the aforesaid rule will be attracted only in those cases where the appeal is
incompetent since its inception or is barred by time. The withdrawal of an appeal is no bar to the hearing of
cross-objection filed by a respondent, whether the appeal is withdrawn before or after the hearing. Similarly, the
dismissal of an appeal for default is no bar to the hearing of cross-objections.

This was correctly admitted in the case of Bhimasena v Venugopal6:

The dismissal of an appeal upon he appellants failure to give security for costs is a dismissal for default within
the meaning of sub-r (4) and so is a dismissal for failure to pay costs of the paper book. The dismissal of an
appeal after hearing does not bar the hearing of a cross-appeal especially when it remained undisposed of owing
to inadvertence. Order 41, r 22(4) which is an enabling provision for hearing cross-objections in case of dismissal
of appeal in default or withdrawal of appeal does not debar the court from hearing cross-objections even if the
appeal is disposed off on merit. The same will hold good even in a case where appeal is disposed of inadvertently
or for any other reason without considering cross-objections. However, if the appeal has abated, the respondent
and is not entitled to have his cross-objections heard even though the legal representatives of the deceased have
been brought on record in the cross-appeal, if the appeal is incompetent, the cross- objections have to be rejected
as not maintainable.

6 AIR 1925 Mad 725.

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The dismissal of an appeal as filed out of time was a bar to the hearing of cross-objections. If the appeal is not put
before the court, cross-objections cannot be heard so that there can be no cross-objections to an appeal which is
time-barred. Where an appeal filed is not maintainable in law, cross objections filed in such an appeal cannot be
adjudicated upon.

A defendant in a partition suit may file an appeal although he has not yet paid court-fee on his share, and such an
appeal is a valid appeal to which cross-objections may be heard. Cross-objections cannot be heard if the appeal is
dismissed for insufficiency of court-fee. This is on the ground that the rule must be strictly interpreted and admits
of only two exceptions: (i) when the appeal is withdrawn, and (ii) when the appeal is dismissed for default.
However, the dismissal of an appeal on the ground of non-joinder of a party in a mortgage suit has been held not
to be a bar to the hearing of cross-objections, the reason given being that in such a case the appeal is heard, the
question of non-joinder being one that arises in the appeal itself and is not extraneous to it, as would be a
question as to whether it was presented in proper time or not.

Court Fee

Court-fee has to be paid for filing a cross-objection. A cross-objection will be treated as an application for the
purposes of determining court-fee.

Sub-rule 5 of Order 41, Rule 22 of the CPC provides all provisions relating to paupers will be applicable to this
objection and hence it would be possible to file a cross-objection in forma pauperis.

Limitation

The limitation period for filing a cross-objection is one month from the date of service on him of the date fixed
for the hearing of the appeal.

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Conclusion

Cross-objections are a valuable tool in the hands of people who have the right to appeal. A cross-objection is a
substantive right identical to the right to appeal. It allows in effect an appeal to a respondent who has chose not to
for a certain period and is barred from time by doing so after the period when the opposing party files an appeal.
Cross-objections can be filed in two circumstances Firstly when a respondant has only partially won a case and
the decree is partly in his favour and partly in the favour of the other party and -Secondly when though the decree
is completely in his favour, certain issues were decided against him. Cross-objections can only be filed
concerning an issue on which the decree is based and can only be filed by the respondent.

The only real effect that the amendments have had is to clarify the position as regards cross-objections.

Order 41 Rule 22 of the Code of Civil Procedure which is the provision that allows for cross-objections, also
states that a respondent may defend a decree by arguing that an issue decided against him at a lower court should
have been decided in his favour without filing a cross-objection. Thus a cross-objection only needs to be filed if
the respondent wants a change in the decree or is attacking the decree. Otherwise logically a cross-objection
would not be warranted since court-fee has to be paid on a cross-objection and if a respondent only wishes to
defend the decree, he can do so without paying anything as the first part of Order 42 Rule 1 allows him to do so
effectively even without a filing a cross-objection.

Bibliography

Book Sources
C.K Takwani, Civil Procedure, (7th Edition, Lucknow Eastern Book Company, 2013),
Code of Civil Procedure- I, Course Material.
Bare Act, Code of Civil Procedure, 1908

Internet Sources
www.manupatra.com
www.indiankanoon.org

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www.books.google.com
www.legalblog.in

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