Bhavanasi Virupakshayya vs Vinayakam Chinna Subbarayudu and Another

Wadsworth, J.—This revision petition is preferred against the decree passed in appeal against the dismissal of a suit to recover a sum of Rs.

679-8-0 due on a promissory note executed by defendant 1 (who is the petitioner here) in favour of defendant 2 who is the brother of the plaintiff.

Plaintiff''s claim was based on an allegation that, in a partition of the family, this pro-missiory note had fallen to his share. The suit underwent

various vicissitudes and was finally dismissed by the trial Court. The plaintiff appealed, impleading only his bro-ther, defendant 2. In hearing the

appeal, the learned District Judge appears to have lost sight of the fact that the promisor had not been made a party to the appeal, and, coming to

the conclusion that the promissory note had not been discharged as alleged by the promisor in the trial Court, he exonerated defendant 2, that is to

say, the plaintiff''s brother, except as regards costs and gave a decree against defendant 1, the promisor, who was not a respondent in the appeal

and who has therefore brought the present revision petition.

It is not seriously contended that an Appellate Court has, in an ordinary case of co-defendants against whom an alternative claim is preferred,

jurisdiction to give a decree against one of those defendants who has not been made a party to the appeal. My attention has been drawn to an

observation in Bijoy Kumar Sen v. Kusum Kumari Devi A.I.R.(1929) Cal. 246 which seems to suggest that O. 41, E. 33, Civil P.C. might

authorize an Appellate Court to pass a decree even against a person who is not a party to the record. If that is the meaning of the passage quoted,

I must express respectful dissent. It seems to me to be an elementary principle that no Court has jurisdiction to pass a decree against any person

who is not a party to the proceeding before it. No doubt, the lower Appellate Court could have impleaded defendant 1 and after hearing him,

passed the decree which is now under consideration. But this was not done. I am asked to remand the appeal so that defendant 1 may be

impleaded and the appeal re-heard. The ground on which this request is made is that it is necessary in the interests of justice.

I have been referred to various cases, for instance, Padarath Mahton Vs. Hitan Singh and Others, in which such a procedure has been followed.

But all the cases quoted before me arose out of the appeals preferred by one of two or more co-defendants without impleading the others. When

the appellant was a defendant challenging the decree against himself, it has been thought fit to implead the co-defendant against whom the plaintiff

might claim in, the alternative before relieving the appellant of the burden of the decree against him. It seems to me that the position is quite different

when the appellant is the plaintiff. If a plaintiff whose suit has been dismissed chooses to implead in his appeal only one of two co-defendants

against whom an alternative claim was made, he had only himself to blame if the respondent in the appeal succeeds in shifting the liability on to the

defendant who has not been impleaded in the appeal. It is not in my opinion either necessary or desirable in the interest of justice in such a case as

this, merely because a wrong decree passed against one who was no longer a party has been challenged in revision, to direct the appeal to be re-

heard and to allow the plaintiff to do that which he should have done in the first instance, namely implead both the defendants. In this view, I allow

the petition with costs as against the plaintiff-respondent and set aside the decree of the lower Court so far as it relates to defendant 1 petitioner

here.