085-NLR-NLR-V-07-SUBERAT-MENIKA-v.-BARON.pdf
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1903.
August 14.
SUBERAT MENIKA v. BARON.
D. C., Batnapura, 1,004.
Appeal—Right of respondent, at hearing of the appeal, to object to part of thedecree—Noticeof objection to appellant—CivilProcedure Code,
ss. 758, 772.
Neither the provisions of section 772 nor clause (e) of section 778 ofthe Civil Procedure Code requires the respondent, who objects at thehearing of the appeal to a part of the decree of the Court below, tofurnish to the Supreme Court a statement of the grounds of objectionin duly numbered paragraphs.^
Neyna v. Neyna, 2 C. L. R. 181, overruled.
W
HEN the appeal filecf bjs the plaintiff in this case came on.for hearing before Layard, C.J., and Wendt, J., the
defendant’s counsel objected to that part of the decree whichrelated to costs. No appeal had been, taken by the respondenton the question of chsts, but in terms of section 772 of the CivilProcedure Code he gave to th^ appellant seven days’ notice inwriting of his objection. The appellant’s counsel, relying pnNeyna v. Neyna, 2 C. L. B. 181, contended that, in addition to
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the notice required by section 772, it was the duty of therespondent to furnish to the Supreme Court a statement of the;grounds of objection in duly numbered paragraphs.
Their lordships directed the case to be set down for a FullBench, and it came before Layard, C.J., Wendt, J., and Middleton,J., on 14th August, 1903.
Baiua, for first defendant, respondent.—The question raised herefor the decision of the Full Court is whether in a case in whichthe respondent has not appealed hetis entitled to object to the-decree without furnishing the Supreme Court with a statement ofthe grounds of objections in duly numbered paragraphs. We havegiven notice to the appellant as required by sections 772»and 758.It was argued on the last occasion that we should have furnishedthe Supreme Court with a full statement of our objections as heldin Neyna v. Neyna, 2 C. L. B. 181. We have complied strictly‘with those sections of the Code. The decision in 2 G. L. B. 181does not go as far as the headnote of the reporter. Besides, thejudgment, so far as it goes, is clearly wrong.
H. A. Jayawardene, for plaintiff, appellant.—That decision isin force now. The case stands on the same footing as a petitionof appeal under the Indian Code, and it must be stamped.
14th August, 1903. Layard, C.J.—
The only question reserved for us to decide, sitting collectively,is whether in a case in which the respondent has not appealedagainst any part of the decree, he is entitled, on the hearingof the appeal, not only to support the decree on any of thegrounds decided against him in the Court below, but to takeany objection to the decree which he could have taken by way of.appeal, provided he has given to the appellant or to his proctorseven days’ notice in writing of his objection, such objection beingin the form prescribed under clause (e) of section 758 of the CivilProcedure Code, and containing, a plain and concise statement ofthe grounds of objection to the judgment and decree whichhas been appealed against. The respondent in this case has dulyfulfilled all the requirements of sections 772 and 758, but theappellant’s counsel contends that, besides those requirements therespondent must, before the hearing of the appeal in this- Court,furnish to us a plain and concise statement of the grounds ofobjection to the judgment or decree appealed .against, and appel-lant’s counsel supports* this cpnt^ntion by a judgment of JusticeJjawrie, when acting as Chief Justice of this Court, and JusticeWithers reported in 2 C. L. B.t 181.
1005.
August 14.
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1903. That judgment being a judgment of two Judge's was bindingAugust 14. on xnyself and my brother Wendt when this appeal came before usLa yard C. J. on the last occasion. We therefore reserved this question tobe decided by the Full Court. It is clear that neither the provisionsof section 772 nor clause (e) of section 758 of the Civil ProcedureCode requires the respondent to furnish this Court with any suchstatement, as the judgment above referred to held the respondentwas bound .to do.There being no provision in the Civil
Procedure Code requiring such a statement to be furnished tothis Court, we consider that the notice given to the appellant’sproctor was sufficient, and thf.t this Court has no power toimpose the additional condition for a petition to be furnishedto* this Court in the manner laid down in the judgment above-referred to.
In the result we see no reason to interfere with the judgmentof the District Judge in favour of the respondent, but we considerthe objection raised by the respondent as to costs should prevail,and the respondent is declared entitled to his costs in bothCourts.
Wendt, J.—
I am of the same opinion. I was counsel in the case reportedin 2 G. L. R. 181, and I must say that I always considered thatthis Court had gone beyond the law in deciding as it did.It is possible that the judgment proceeded on the assumedanalogy of section 772 with section 561 of the Indian Code, butin the latter enactment there are express words requiring theobjection to be “ filed in the Appellate Court.” I think that the-respondent in the present appeal has fully complied with therequirements of section 772, and is entitled to be heard on his-objection.
On the merits I agree with the Chief Justice that the plaintiff’sappeal should be dismissed, and that the respondent should have-his costs in the Court below as well as in this Court.
Middleton, J.—
I agree with that part of the judgment of the Court which'involves the overruling of the decision in the case reported in2 G. L. R. 181, for the reason^, given by my lord the Chief Justiceagd my. brother Wendt. So far as the decision, on the merits ofthe appeal is concerned, I take no part in it.