Kanagappa Thevan vs Sokkalinga Thevan 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 Civil Procedure Code, by adding the defendants 2-4 and making them respondents in

the appeal presented by the 1st defendant. The other question is whether the Subordinate Judge was right in holding that plaintiff must look to

Venkataswami alone for relief. With reference to the 1st question I think that defendants 2-4 were rightly added as respondents, for there can be

no doubt that defendants 2-4 were interested in the result of the appeal presented by the 1st 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 4th defendant to one

Venkataswami Pillai and the decree obtained thereon by 1st defendant against defendants 2-4 in Original Suit No. 56 of 1886 were not binding on

the plaintiff, and to recover from defendants 2-4 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 2-4, and directed that in default of payment within 6 months the property conveyed to them by plaintiff should be sold. This

very property had been mortgaged to Venkataswami Pillai, and 1st defendant his assignee had in Original Suit No. 56 of 1886 obtained a decree

against defendants 2-4, for Rs. 671-2-0, the property mortgaged being rendered liable for his claim. It is evident that defendants 2-4, 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 Prasad Mookerjee. I. L. R 9 C.

355.

With reference to the 2nd question also, I think that the decision of the Subordinate Judge was right and that after having been a party to Exh. A

and having accepted from Venkataswami the discharge (Exh. B) of his debt to Ramaswami Dikshitar, plaintiff cannot now be allowed to repudiate

these transactions and to recover from defendants 2-4 the amount of the debt due to Ramaswami Dikshitar, which they originally undertook to

pay. It may be that Ramaswami Dikshitar has in execution of the decree, he 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 Venkataswami Pillai and 1st

defendant added as parties and pleading discharge and non-liability. Plaintiff cannot rely on the allegation that Exh. A was got up fraudulently for he

was a party to the fraud, if any, and accepted from Venkataswami Pillai, the partner of Ramaswami Dikshitar, a full discharge of the bond

executed by him to Ramaswami Dikshitar. Venkataswami Pillai being his father-in-law, plaintiff must have been aware of the value of the discharge

granted by Venkataswami 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.

Muthusami Aiyar, J.

I agree.