JUDGMENT D.M. Dharmadhikari, J.--1. This appeal has been preferred by the Insurance Company, named and described in the cause-title, against the award of the Claims Tribunal dated 23.3.1993 passed under the provisions of Motor Vehicles Act, 1988. The appeal has been filed assailing the finding of negligence against the driver of the vehicle and on quantum of compensation. 2. On being asked the learned counsel for the Insurance Company could not point out that in the course of proceedings before the Tribunal any permission to defend, the claimant's action was sought from the Tribunal as required by the provisions of section 170 of the Motor Vehicles Act, 1988, for short 'the Act of 1988', corresponding to section 110CC of the Motor Vehicles Act, 1939, for short, 'the Act of 1939'. It is also not disputed that except in contingencies covered by section 170 (supra), the defences open to the Insurance Company are limited to those mentioned in section 149 (2) of the Act of 1988, corresponding to section 96 (2) of the Act of 1939. The limited defences open to the Insurance Company are only based on the terms and conditions of the policy of Insurance. A Division Bench of this Court in the case - United India Insurance Co. Ltd. v. Smt. Pratibha Rathi & others ( 1995 JLJ 167 ) has held that in the absence of permission to defend on all grounds under section 170 of the Act of 1988, the Insurance Company cannot appeal on the issues of negligence and quantum. The appeal at the instance of the Insurance Company is, therefore, on the grounds raised on negligence and quantum cannot be heard and the same will have to be dismissed on the above short ground. 3. Learned counsel for the respondents, who are claimants, then stood up to press their cross-objections in which they have claimed enhancement of the amount of compensation. 3-A. Learned counsel for the appellant, Insurance Company, there upon submitted that since the appeal is being dismissed as not maintainable on the ground of quantum and negligence, the cross-objection also could not be heard. The argument is that where the appeal itself is held as not maintainable, the cross-objection cannot survive and has to fall alongwith the appeal. 3-A. Learned counsel for the appellant, Insurance Company, there upon submitted that since the appeal is being dismissed as not maintainable on the ground of quantum and negligence, the cross-objection also could not be heard. The argument is that where the appeal itself is held as not maintainable, the cross-objection cannot survive and has to fall alongwith the appeal. Reliance is placed on AIR 1982 Allahabad 296 (FB) U.P. State Road Transport Corporation v. Smt. Janki Devi and others, AIR 1952 Allahabad 942 Fateh Kunwar v. Durbijai Singh (FB) and AIR (38) 1951 Simla 170 KaroraSingh v. Kartar Singh. Reliance is also placed on two single bench decisions of this Court - one by Hon. Shri S.K. Dubey, J, reported in Hansukhlal & another v. Bhagwantibai & others I (1989) ACC 191. The other, is by Hon'ble Shri Shacheendra Dwivedi, J., in Misc. Appeal No. 95/95, Ashok Kohli v. Prakash Chand & others, decided on 10.7.1995. In all the above cases cited on behalf of the appellant, it has been held that if for some reason the appeal is dismissed as barred or not maintainable, the cross-objection does not survive and has to be dismissed alongwith the appeal. 4. Learned counsel appearing for the claimants, who filed cross-objection, in reply rely on the Division Bench decision of Calcutta High Court reported in AIR 1979 Calcutta 152 M/s. Kantilal & Bros. v. Ramarani Debi & others. Reliance is also placed on two old decisions of Allahabad and Madras High Courts reported in (1912) 34 ILR Allaha. 140 Shankar Lal & another v. Sarup Lal& another and (1909) 4 Indian Cases 625 NanakBakhsh v. Wazir Singh and (1898) 12 Madras 35. v. Ramarani Debi & others. Reliance is also placed on two old decisions of Allahabad and Madras High Courts reported in (1912) 34 ILR Allaha. 140 Shankar Lal & another v. Sarup Lal& another and (1909) 4 Indian Cases 625 NanakBakhsh v. Wazir Singh and (1898) 12 Madras 35. On the basis of the above decisions the submission made on behalf of the claimants is that in the instant case after hearing the appellant the appeal was held untenable on the grounds of negligence and quantum and it is not a case where the appeal is either withdrawn or dismissed in default as contemplated by Sub-rule (4) to Order 41 Rule 22 of the Code of Civil Procedure, which reads as under: "(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." As the appeal was heard after notice to the respondents and they had preferred a cross-objection within time, the said cross-objection should be decided on merits, irrespective of the appeal being dismissed as not maintainable. 4-A. We had listed the case for final hearing on all grounds but since the objecti9n about tenability of appeal and cross-objection were taken for address by the counsel for the parties as the first question we reserved our orders after hearing the arguments on the above preliminary objection. 5. We have already held above that the appeal at the instance of the Insurance Company assailing the award of the claims tribunal on the ground of negligence and quantum is untenable since the pleas and defences available to the Insurance Company are restricted by the provisions 'of the Motor Vehicles Act. 6. Before we consider the objection in regard to the tenability of cross-objection, it is to be noticed that neither the provisions of the Motor Vehicles Act nor the procedural rules framed under the repealed Act of 1939 provide for filing of any cross-objection. 6. Before we consider the objection in regard to the tenability of cross-objection, it is to be noticed that neither the provisions of the Motor Vehicles Act nor the procedural rules framed under the repealed Act of 1939 provide for filing of any cross-objection. A Division Bench of this Court in 1968 JLJ 189 Manjula v. Manjushri took a view that cross-objection in an appeal arising under the Motor Vehicles Act is maintainable because the power of appeal has been conferred on an established Court and, therefore, the practice and procedure of that Court would be applicable to the disposal of the appeal. It is on the above view and reasoning that cross-objection in a claim-appeal has been held maintainable by recourse to the provisions of Order 41 Rule 22 C.P.C. The view of Division Bench of this Court gets confirmation from the decisions of other High Courts such as Rajasthan in AIR 1977 Raj. 121 Automobiles Transport v. Dewalal Himachal Pradesh in AIR 1980 Him. Pra. 16 Himachal Pradesh Road Transport Corpn. v. Jairam and AIR 1983 AP 297 Srisailam Devastanam v. Bhavani Pramilamma and others. 7. In view of the above decisions with which we find ourselves in full agreement a cross-objection in a claim appeal is maintainable and the provisions of Order 41 Rule 22 C.P.C. can, therefore, be made applicable to such a cross-objection. 8. The main question that arises for our decision is whether our decision that the appeal by the Insurance Company on the grounds raised is untenable, would result in dismissal of the cross-objection as well and whether in all eventualities the tenability of cross-objection is dependent upon the maintainability of the appeal. It has been argued on behalf of the Insurance Company that where the appeal is held as not maintainable it should be deemed as if there was no appeal in law and, therefore, the cross-objection would fall automatically with the dismissal of the appeal. 9. The above submission is sought to be supported by two decisions of the Single Bench of this Court (supra). In the case before learned Single Judge, Hon. Shri Shacheendra Dwivedi, J., the facts were that the appeal was filed without making the requisite deposit of 50% of the amount awarded or Rs. 25,000/-, which ever is less, as required by section 173 of the Act of 1988. In the case before learned Single Judge, Hon. Shri Shacheendra Dwivedi, J., the facts were that the appeal was filed without making the requisite deposit of 50% of the amount awarded or Rs. 25,000/-, which ever is less, as required by section 173 of the Act of 1988. It is on those facts that the learned Single Judge held that since the appeal itself could not be entertained or admitted for hearing for want of requisite deposit, the cross-objection, even though preferred after service of notice, cannot give any right to the cross-objectors of being heard on merits of the cross-objection. The learned Single Judge relied on a Bombay High Court decision in which the cross-objection was also dismissed as the appeal was dismissed as time barred. The case decided by learned Single Judge Hon'ble Shri Shacheendra Dwivedi, J., is distinguishable on facts. So far as another decision of Hon. Shri S.K. Dubey, J., (supra) is concerned, the facts there were somewhat similar to the facts of the present case. This is what the learned Single Judge held in holding that the appeal having been dismissed as untenable the cross objection also will have to be rejected. Para 6 of the decision is as under: "6........ But the question arises that as this Court is holding that the appeal is not maintainable, whether the cross-objections win survive or not or whether the cross-objections can be treated as an appeal or powers under Order 41 Rule 33 C.P.C. can be exercised if the cross-objections do not survive. It is settled that when the appeal is not found to be maintainable, it would be deemed that the appeal was incompetent. The provisions of Order 41 Rule 22 C.P.C. does not give power in such a situation to decide the cross-objections independently. Sub-rule (4) of Rule 22 of Order 41 C.P.C. gives power to hear and decide the cross-objections only in cases if the appeal is withdrawn or dismissed. The preponderance of the authorities is in favour of this view. Hence, I hold that the appeal is not maintainable and the cross-objections also fail and cannot be decided. Now coming to the question whether the prayer of the learned counsel for the claimants can be accepted for treating the cross-objections as an independent appeal. The preponderance of the authorities is in favour of this view. Hence, I hold that the appeal is not maintainable and the cross-objections also fail and cannot be decided. Now coming to the question whether the prayer of the learned counsel for the claimants can be accepted for treating the cross-objections as an independent appeal. the prayer can also not be allowed in view of the fact that the appeal has become barred by time and cross-objections, after a period of 8 years, cannot be adjudicated as an appeal as the precious right vested in the party cannot be defeated by allowing the cross-objections being treated as an appeal, after such a long delay (See 1985 ACJ 864 (supra) and 1986 AIR Gujraj 55 (supra). Any cross-objections for enhancement of compensation in that facts of the case, cannot be considered." 10. In the instant case, it is to be noticed that over looking the provisions of section 149 (2) of the Motor Vehicles Act, 1988 corresponding to section 95 (2) of the repealed Act, the appeal was admitted for hearing and a notice of appeal was issued to the respondents, who therefore preferred cross objection within the prescribed period, after service of notice on them. It is only at the final hearing of this appeal that this Court held the appeal as untenable. Can it, therefore, be held that the appeal in law never existed and, therefore, the cross objection was also not maintainable. The view of the Calcutta High Court is that the appeal is heard and is ultimately dismissed for some reason as not maintainable, it cannot be held that the appeal never existed and, therefore, the cross objection to the appeal cannot be decided on merits. We find ourselves in respectful agreement with the Division Bench decision of the Calcutta High Court and respectfully differ with the view of the learned Single Judge, Hon. Shri S.K. Dubey, J., The above aspect of the case was not noticed by the learned Single Judge. The provisions of Order 41 Rule 22 C.P.C. have been applied to the appeals under the Motor Vehicles Act only by way of the established practice and procedure of the civil Court. The provisions of Order 41 Rule 22 C.P.C. have been applied to the appeals under the Motor Vehicles Act only by way of the established practice and procedure of the civil Court. Provisions of Order 41 Rule 22 C.P.C. cannot be strictly made applicable to appeals preferred under the Motor Vehicles Act We have also carefully looked into the provisions contained in sub-rule (4) of Order 41 Rule 22 C.P.C. Prima facie, we find that sub rule (4) in Order 41 Rule 22 was incorporated only by way of abundant caution, so that in the eventualities of withdrawal or dismissal of the appeal in default, cross objection may be allowed to be urged. Sub rule (4) of Order 41 Rule 22 C.P.C. does not cover, therefore, all other eventualities where appeal is dismissed. Here, the appeal is dismissed after hearing on the ground that the defences open to the appellant are limited. The cross objection will have, therefore, to be heard and does not fall alongwith the appeal. When the appeal is filed and notice of the appeal is issued after admission, it cannot be held that the appeal itself is non-est from the beginning. At the stage of final hearing, if the appeal is held untenable the cross-objection which was validly filed within limitation after service of notice of appeal, cannot be held similarity untenable and be dismissed. It cannot be lost sight of that any contrary construction on Order 41 Rule 22 (4) Cr.P.C. would cause injustice to the respondents. As the appeal was admitted and they preferred the cross objection, they could not prefer a regular cross appeal within limitation. The appeal having been declared as untenable only at the final stage, takes away their right to prefer even a cross appeal. 11. We also find no difficulty in treating the cross-objection as a memorandum of cross-appeal, because the memorandum of cross objection has to be similar in nature as memo of appeal. Fixed Court fees payable is also the same on the appeal as also the cross-objection. As the cross objection was already on record arid was filed within time, no plea of limitation can be set up against converting the cross objection into cross appeal. 12. For the above reasons, in our opinion, although the appeal is dismissed as untenable of the Insurance Company on the grounds urged, the cross-objection can be decided on merits. As the cross objection was already on record arid was filed within time, no plea of limitation can be set up against converting the cross objection into cross appeal. 12. For the above reasons, in our opinion, although the appeal is dismissed as untenable of the Insurance Company on the grounds urged, the cross-objection can be decided on merits. The case may now, therefore, be placed for hearing on cross objection.