Kanagappa vs Sokkalinga and Others

Wilkinson, J.—Two questions have been raised for determination in this appeal. The first question is whether the Subordinate Judge rightly

exercised the discretion vested in him by Section 559 of the CPC by adding the defendants Nos. 2 to 4 and making them respondents in the

appeal presented by the first defendant. The other question is whether the Subordinate Judge was right in holding that plaintiff must look to

Venkata-sami alone for relief. With reference to the first question, I think that defendants Nos. 2 to 4 were rightly added as respondents, for there

can be no doubt that defendants Nos. 2 to 4 were interested in the result of the appeal presented by the first defendant and that they were likely to

be affected by the result of the suit. The suit was instituted to obtain a declaration that the transfer of a certain mortgage executed by the fourth

defendant to one Venkatasami Pillai and the decree obtained thereon by first defendant against defendants Nos. 2 to 4 in Original Suit No. 56 of

1886 were not binding on the plaintiff, and to recover from defendants Nos. 2 to 4 and on the security of the property sold to them the sum of Rs.

1,000. The District Munsif, though he found that the prayer to set aside the decree in Original Suit No. 56 of 1886 was just and proper, gave the

plaintiff a decree of Rs. 671-2-0 against defendants Nos. 2 to 4. and directed that, in default of payment within six months, the property conveyed

to them by plaintiff should be sold. This very property had been mortgaged to Venkatasami Pillai; and first defendant, his assignee, had, in Original

Suit No. 56 of 1886, obtained a decree against defendants Nos. 2 to 4 for Rs. 671-2-0, the property mortgaged being rendered liable for his

claim. It is evident that defendants Nos. 2 to 4, although they had not appealed against the decree, were deeply interested in the questions which

had to be determined and that the decision would affect their interests very materially. The fact that an appeal by them was time-barred does not

affect the question, because the discretionary power conferred on the Appellate Court is not limited by any provision of the Limitation Act,

Manickya Moyee v. Boroda Prosad Mookerjee ILR 9 Cal. 355.

With reference to the second question also,I think that the decision of the Subordinate Judge was right and that, after having been a party to

Exhibit A, and having accepted from ""Venkatasami the discharge (Exhibit B) of his debt to Ramasami Dikshitar, plaintiff cannot now be allowed to

repudiate these transactions and to recover from defendants Nos. 2 to 4 the amount of the debt due to Ramasami Dikshitar which they originally

undertook to pay. It may be that Ramasami Dikshitar has, in execution of the decree, obtained, in Original Suit No. 295 of 1885, recovered from

plaintiff the sum originally lent to him with interest, but plaintiff allowed that suit to be heard ex parte instead of applying to have Venkatasami Pillai

and first defendant added as parties and pleading discharge and non-liability. Plaintiff cannot rely on the allegation that Exhibit A was got up

fraudulently, for he was a party to the fraud, if any, and accepted from Venkatasami Pillai, the partner of Ramasami Dikshitar, a full discharge of

the bond executed by him to Ramasami Dikshitar. Venkatasami Pillai being his father-in-law, plaintiff must have been aware of the value of the

discharge granted by Venkatasami Pillai, and no reason is assigned why he omitted to plead this discharge in defence in Original Suit No. 295 I

concur with the Subordinate! Judge in thinking that plaintiff cannot recover against the present defendants and would dismiss the second appeal

with costs.

Muttusami Ayyar, J.

I agree.