§ Order XLI Rule 22, CPC 1908 (in substance)

(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may take any cross-objection 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 cross-objection 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 his favour.

(2) The form of a cross-objection shall be that 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 to it.

(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Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

§ Which one he needs depends on what he wants

• Support the decree on a ground decided against him. He need file nothing at all. Rule 22(1) allows a respondent to support the decree on any of the grounds decided against him in the court below, without a cross-objection.

• Attack a part of the decree that went against him. He must file a cross-objection, or a cross-appeal. Supporting is not enough where he wants the decree varied in his favour.

• Attack a finding on which the decree rests, although the decree itself is in his favour. The Explanation to Rule 22(1) expressly permits this, so a respondent who won on one issue but lost on another may object to the finding he lost on.

What it is

An objection filed by the respondent IN the pending appeal

A separate and independent appeal by the other party

When it must be filed

Within ONE MONTH from service of notice of the day fixed for hearing, or such further time as the court allows

Within the ordinary period of limitation for an appeal: Articles 116 and 117

Form

A memorandum, to which the requirements of Order XLI Rule 1 apply

A memorandum of appeal in the ordinary form

Court fee

Payable as on a memorandum of appeal

Payable as on an appeal

If the appeal is withdrawn or dismissed for default

Rule 22(4): it SURVIVES and may still be heard and determined

Unaffected; it always stood on its own footing

If the appeal succeeds

Heard and decided together with the appeal

Heard and decided together with it, being a separate appeal

Scope

Any objection the respondent could have taken by way of appeal, and any finding on which the decree is based

The same, being an appeal in its own right

Where the respondent only wants to defend the decree

Not required: Rule 22(1) allows him to support it on grounds decided against him

Not required for the same reason

§ Why it matters

A cross-objection is filed inside another party's appeal, so the natural expectation is that it dies with it.

Rule 22(4) reverses that. Where the original appeal is withdrawn or dismissed for default, the cross-objection may nevertheless be heard and determined, after such notice to the other parties as the court thinks fit.

The practical consequence. An appellant who realises his appeal is weak cannot escape the respondent's grievance by withdrawing. The cross-objection proceeds.

The limit of the clause. It speaks of withdrawal and dismissal for default. Where the appeal is decided on the merits, the cross-objection is decided along with it in the ordinary way.