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Judgment
P. Chandra Reddy, Offg. C.J.
The main question to be answered by Full Bench is whether a party to a suit, who (sic) absolved from liability by the trial Court, can impleaded as a respondent to an appeal prefer by an aggrieved party to which he was not (sic)ginally made a party and a decree passed aga(sic) him by virtue of the combined operation of Rr. (sic) and 33 of O. 41 of the Code of Civil Procedure.
The facts material for this enquiry (sic) be briefly set out:
Respondents 7 and 8 originally laid action as reversioners to the estate of Ammanna, impeaching a gift made by the wi(sic) (1st defendant) in favour of her nephew the defendant on 26-6-1946. The last male-ho(sic) died in or about the year 1890 him surviving widow. The properties settled on the 2nd defendant were purchased by the widow,(sic) the year 1894 under Exs. B-5 and B-6 fo(sic) sum of Rs. 600/-, having sold on 9-11-1894 20-12-1894 some of the properties belonging to husband''s estate which are items 7 to 12 of schedule for Rs. 350/- under Exs. B-40 and (sic).
The vendees in their turn conveyed then the predecessors-in-interest of the present appellants. The plaintiffs proceeded on the for that the transactions were valid exchanges with consequence that properties obtained in exch(sic) formed part of the reversion. During the pend(sic) of the appeal, the widow died. Thereupon, plaintiff got the plaint amended as one for p(sic) sion in respect of ''A'' scheduled properties as items 1 to 6 and 13 of ''B'' schedule not alie(sic) by her with an alternative prayer that in ca(sic) should turn out that items 7 to 12 of ''B'' sch(sic) were not properly exchanged for ''A'' scheduled properties the plaintiff should have the right t(sic) cover possession of the said properties. Defendants 11 to 13, 17 and 18 were added as su(sic) mental defendants. The 20th defendant br(sic) another suit claiming to be a reversioner, bu(sic) are not concerned with that as it ended i(sic) missal which had become final, no appeal h(sic) been preferred against it.
The defence of the 2nd defendant, so far relevant for the purpose of this appeal was that mamma had not exchanged any or the properties the last male-holder with the plaint ''A'' schedule properties and that ''A'' scheduled properties (sic)re her self-acquisitions and were throughout (sic)ted as her stridhana properties. The present (sic)ellants by their written statement supported plaintiffs case regarding the exchange of (sic)s 7 to 12 of the ''B'' schedule and also raised plea that the plaintiffs were not entitled to (sic) the alternative relief in regard to items 7 to (sic) of ''B'' schedule. The trial Court accepted the (sic) of exchange and consequently gave a decree (sic) the ''A'' and ''B'' scheduled properties other than (sic)s 7 to 12 of ''B'' schedule.
Defendants 2 to 7 preferred an appeal (sic) that judgment and decree making the plaintiff and the 20th defendant the rival claimant, as respondents to that appeal. Some months later, (sic)re the appeal came on for hearing the plaintiff applied for the addition of defendants 11 to (sic)n the suit as supplemental respondents to the (sic)al. In spite of the opposition of these defendants who are now the appellants before us, the (sic)llate Judge granted the request of the plaintiff.
When the appeal was finally heard and dccid(sic) the Subordinate Judge came to the contrary (sic)usion regarding the exchange and dismissed suit as against the donees from the widow, i.e. (sic)dants 2 to 7 and gave a decree for possession (sic)st defendants 11 to 18 for possession of items (sic) 12. These defendants aggrieved by that (sic)ion have brought this second appeal. When (sic)me on for hearing before Justice Umamahe (sic)m he thought that it would be heard by a (sic) having regard to the points raised in the (sic)l and it is ultimately posted before the Full (sic) having regard to the importance of the (sic)ons involved in it.
It is urged in support of this appeal that (sic)s beyond the competence of the appellate (sic) to add the appellants as respondents when, decree sought to be obtained by the appealing (sic) would not prejudice them in any way, and (sic) being so, the provisions of O. 41, R. 33, (sic) C. would not authorise the Court to vary decree to their detriment. On the other hand, (sic)aintained by respondents 7 and 8 i.e., plaintiff that it is well within the power of an appel(sic) Court to order the addition of the parties at (sic)me to enable it to do justice between the (sic) under O. 41, Rr. 20 and 33, C. P. C.
In order to appreciate the relative conten(sic) is necessary to extract the terms of these (sic)les:
(sic) Rule 20 of O. 41 recites : Where it appears to the Court at the hearing (sic)y person who was a party to the suit in court from whose decree the appeal is pre(sic) but who has not been made a party to the is interested in the result of the appeal, the may adjourn the hearing to a future day to (sic)d by the Court and direct that such person (sic)de a respondent.
(sic)3 of O. 41 states :
The Appellate Court shall have power to (sic)y decree and make any order which ought (sic) been passed or made and to pass or make further or other decree or order as case may require, and this power (sic) exercised by the Court notwithstanding (sic)e appeal is as to part only of the decree (sic)y be exercised in favour of all or any of respondents or ''parties, although such respondents or parties may not have filed any appeal or objection :
Provided that the Appellate Court shall not make any order under S. 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
These provisions have been the subject of judicial review by Courts of law, but there has been no unanimity of opinion, among the various High Courts. O. 41, R. 20 is reproduced verbatim from S. 559 of the CPC 1882 which in its turn was adopted from S. 73 of the Code of 1859 as modified by that of 1861 and followed the language of that section with some modifications, and this provision fell to be considered by various High Courts.
The first of the reported cases to which our attention is drawn as throwing light on this enquiry is Atmaram v. Bal Kishen, ILR 5 All 266 (A). There; the plaintiff brought a suit for recovery of a sum of money against three defendants and the suit was decreed against one and the others were exempted. That defendant appealed impleading the plaintiff only as respondent. The latter did not appeal from that decree in regard to the other two. The appellate Court made one of such defendants as respondent in the appeal under S. 559 of the Code of Civil Procedure, 1882, and gave a decree against him. This was set aside by the High Court. In considering whether the Court is invested with power to make the defendant a party respondent in the circumstances indicated above, this is how Straight and Tyrell, JJ. summed up the position:
We do not think that S. 559 of the Code empowers an appellate Court virtually to make an appeal for an appellant, who has refrained from availing himself of his privileges under the law, by introducing for him other respondents than those he has included in his petition of appeal. Moreover, we do not think that it can be said that Atma Ram was interested in the result of the appeal, as having the un-appealed decree of the Assistant Commissioner behind him, his position was secure.
The doctrine of ILR 5 All 266 (A), did not find acceptance in the later rulings of the same Court. Justice Mahmood struck a different note in Sohna v. Khalak Singh, ILR 13 All 78 (B), where the learned Judge ruled that the power to introduce new parties into the appeal was not affected by S. 22 of the Limitation Act and it was competent to a Court to add a party as a respondent.
In the opinion of the learned Judge, there was no qualification in S. 559 of the Code of 1882 rendering it illegal for an appellate Court to make a party to the suit as a respondent to the appeal. The same question felt to be considered in Bindeshri v. Ganga Saran, ILR 14 All 154 (C), a Full Bench of four Judges of the same Court of which Justice Mahmood was a party and it expressed the opinion that the appellate Court had power under S. 559 of the Code of 1882 to add a person as a respondent in an appeal notwithstanding that the time for filing an appeal as against him had expired. We will notice the subsequent rulings of the same Court in another context.
Turning to the rulings of the Calcutta High Court, the first important case is Upendra Lal Mukerjee v. Girindranath Mukerjee, ILR 25 Cal 565 (D). In that case a suit was instituted against certain persons described as principal defendants and certain others described as pro forma defendants. The trial Court gave a decree against one defendant and absolved others of liability. On an appeal by the defendant against whom a decree was given the appellate Court directed the defendants against whom there was no decree to be impleaded as respondents and reversed the decree against the appealing defendants and passed a decree against the defendants subsequently introduced. The High Court confirmed the judgment under appeal.
There was no discussion in the judgment except stating that there was nothing wrong in the lower appellate Court making them respondents and passing a decree against them and that the exercise of the power was not limited by the provisions of the Limitation Act, and referring to Manickya Moyee v. Boroda Prasad, ILR 9 Cal 355 (E). No attention was paid to the relevant clause "is interested in the result of the appeal". This was followed by another Bench of the same Court in Hudson v. Basdeo Bajpye, ILR 26 Cal 109 (F).
As a doubt was entertained as to the correctness of the law as embodied in ILR 25 Cal 565 (D), another Bench of the same Court referred the question to a Full Bench in Rup Jaun Bibee v. Abdul Khadir, ILR 31 Cal 643 (G). The facts of that case were similar to those in ILR 25 Cal 565 (D). The Full Bench held that the latter case was rightly decided. To a like effect is another decision of the same Court in Girish Chunder Lahiri v. Sasi Sekhareswar Roy, ILR 33 Cal 329 (H).
Some of the earlier rulings of the Patna High Court fell in line with ILR 25 Cal 565 (D), as illustrated by Padarath Mahton Vs. Hitan Singh and Others, It was laid down there that the rules of limitation relating to appeals do not apply to the provisions of O. 41, R. 20 and that in a second appeal it was within the competence of an appellate Court to invoke O. 41, R. 20 and to exercise jurisdiction conferred by O. 41, R. 33, C. P. C.
This was not followed by the subsequent rulings as it was regarded being contrary to law. That apart, the view that the provisions aforementioned could come into operation even in second appeal is opposed to the principle laid down by the Privy Council in AIR 1926 34 (Privy Council) which ruled that there was a limitation to the exercise of the powers under O. 41, R. 33 and that as one of the parties was not before the lower appellate Court, that provision of law could not be invoked against him.
Another instance of the same rule is contained in Karviraya v. Laxmi Bai, 3 Bom LR 172 (K), and is called in aid by the respondent. There, the plaintiff instituted a suit to recover a sum of Rs. 1,000/- with the recitals : (1) that he entrusted the 1st defendant with Rs. 600/- for investment and the latter handed over a promissory note alleged to have been executed by 2nd and 3rd defendants for the money said to have been advanced to them; and (2) the 2nd and 3rd defendants denied the execution and consequently the suit was so framed as to recover the money alternatively either from the 2nd and 3rd defendants if they had executed a promissory note or from the 1st defendant if they did not.
The Court of first instance believing the story of the 1st defendant passed a decree against the 2nd and 3rd defendants. The latter carried the matter in appeal making only the plaintiff as respondent. The appellate Court added the 1st defendant as a party and eventually passed a decree against him. In a further appeal, the High Court held that the lower appellate Court had power to do it under S. 559 of the Code of 1882 following the principle of ILR 25 Cal 565 (D).
This decision which was rendered under O. 41, R. 20 furnishes some analogy to the present case.
But it runs counter to the prior decision of t(sic) Court noticed in the judgment, namely Deva(sic) Hegde v. Buli Venkatappa, 1892 Bom PJ 17 and Sida Savant v. Bal Savant, 1893 Bom PJ (M). The first of them was disregarded as (sic) being a decision upon a proper construction to put on S. 559 of the Code of 1882.
The other ruling in which it was h(sic) that "by claiming either the land described para 1 or the land described in paragraph 2 (sic) by accepting and not appearing against the e(sic)neous award of the Subordinate Judge giving that the former, the plaintiffs debarred themselves f(sic) recovering the latter" was not relied on the ground that the real (sic) on which the case was to be decided was as to frame of the suit in an alternative form. Thi(sic) to overlook the general proposition stated there Further the judgment under citation merely; (sic)ceeded on the assumption that the person that subsequently introduced was interested in the suit of the appeal within the language of O. R. 20, C. P. C. and does not disclose any rea(sic) for this conclusion.
Coming nearer home, Justice Muttusw Iyer and Justice Wilkinson in Kanagappa v. So(sic) linga, ILR 15 Mad 362 (N), stated that the defendants who were exempted by the trial Court who were not originally made parties to the a(sic) were rightly added as respondents for the r(sic) that
they were interested in the result of the a(sic) presented by the 1st defendant and they were to be affected by the result of the suit.
Here also, we do not find any reasons for opinion apart from there being no mention S. 559, Another judgment of the same Co(sic) Paya Matathil Appu v. Kovamel Amina, ILR Mad 151 (O). The learned Judges therein to the extent of laying down that it was (sic) tent to the Court to add parties who were (sic) dants in the Court of first instance though joined as respondents in the lower appellate and that the relevant provisions or the Co(sic) Civil Procedure were not intended to preclude Court from adding in second appeal persons have been originally joined in the suit. We d(sic) think that this ruling gives effect to the re(sic) provisions of the CPC the Limitation Act etc.; and cannot be (sic)dered to be good law in view of the mentioned Priyy Council decision in ILR 49 435 AIR 1926 34 (Privy Council)
We now come to Subrahmanian Ch(sic) Veerabhadran Chetty, ILR 31 Mad 442 (sic) which the words "interested in the result (sic) appeal" received full attention and their (sic) meaning. In that case, the plaintiff sued f(sic) session of some property mortgaged by t(sic) defendant to the 6th defendant''s grand-father the alternative he sought to recover the amo(sic) the mortgage by the 1st defendant. The (sic) in the mortgage was subsequently acquired plaintiff. Prior to it, the 1st defendant exec(sic) collusive mortgage of the same property in of 2nd defendant''s father with a view to (sic) the plaintiff and the second mortgagee sued (sic) mortgage and brought the properties to sale they were purchased by defendants 3 to 5. not clear from the report as to what happe(sic) the trial Court.
The aggrieved party seems to have carr(sic) matter in appeal and in the lower appellate it was decided that the second mortgage collusive and defendants 3 to 5 were bo(sic) purchasers for value and gave the plaintiff nal decree against the 2nd defendant. The aggrieved defendant presented the second appeal (sic)t the time of the hearing of that appeal it was (sic)lt that the decree against the 2nd defendant was (sic)sustainable.
This gave rise to the question whether defendants 1 and 3 to 9 should be made parties to (sic)e 2nd appeal in order to fix them with liability (sic)d ultimately the objection that S. 559 of the (sic)de of Civil Procedure of 1882 was inapplicable (sic) that case prevailed with the learned Judges. The (sic)w taken there was that the party who was (sic)ght to be added should be shown to be inter(sic)ed in the result of the appeal, that is to say, must be established that he was interested in (sic) result of the appeal before he was added as (sic)party, for once he was brought on record he (sic) be said to have acquired an interest. The learned Judges followed ILR 5 All 266 (A); in deference to ILR 25 Cal 565 (D).
The matter has been put beyond doubt the authoritative pronouncement of the Judicial committee in Chokalingam Chetty v. Seethai Acha (sic)R 6 Rang 29 AIR 1927 252 (Privy Council) which (sic)s in appeal from Chokalingam Chetty v. Seethai (sic)a ILR 2 Rang 541 : (AIR 1925 Rang 108) (R) (sic)ch has accepted the principle of ILR 31 Mad (sic)2
(P). Their Lordships stated the proposition in (sic)ost the same terms as in ILR 31 Mad 442 (P). (sic)re the plaintiff had instituted two suits im(sic)ning certain transfers made by a trustee in (sic)our of the 1st defendant.
The transferees from the 1st defendant were (sic) made parties to the action. The trial court (sic)ided that the original transfers in favour of the defendant were good and valid and according dismissed the whole suit. The plaintiffs ap(sic)led to the High Court as against all the defendants excepting some defendants including the 1st (sic)endant who was exonerated and the decree in (sic)se favour became final. In such a set up, (sic) Judicial Committee had to consider whether court in appeal could add defendant 1 as respondent and give a decree against him in spite of (sic) fact that the plaintiff had not filed any ap(sic) against him and the period of limitation had (sic)red.
Their Lordships remarked that owing to the (sic)tiff''s failure to make these defendants respondents within the time limited for filing an appeal (sic) appeals so far as they concerned them were a facie barred by limitation and they were (sic)led to hold the decree in their favour which, (sic)ointed out by their Lordships in "a very re(sic) case" was a substantive right of a very valu(sic) kind, of which they should not be lightly (sic)ved. Perhaps their Lordships had in mind 49 Mad 435 AIR 1926 34 (Privy Council) , when they (sic) ''recent case'' which related to the scope of (sic) 41 Rule 33.
The Privy Council laid stress on the (sic)e "when it appears to the court that he is (sic)ested in the result of the appear" and observed (sic)at the defendant against whom the suits were (sic)ssed and against whom the right of appeal become barred could not be said to be interest(sic) the result of the appeal filed by the plaintiff against other defendants.
Mr. Chandrasekhara Sastry, for the respondents sought to distinguish this ruling on the (sic)d that in the Privy Council case it was open (sic)e trustee to have filed an appeal against the (sic)e exempting the 1st defendant whereas in the (sic) of alternative reliefs where the plaintiff had (sic)ed a relief he wanted, he could not be pena(sic) for not pursuing his remedies as against the defendants who were exonerated. In support of this theory, he cited to us a judgment of Sundaram Chetty, J., in Kannusami Chetti Vs. M. Rahimat Ammal and Another,
That was a case in which the plaintiff''s father was entitled to a mortgage, the debt having been allotted to that branch at a family partition. During his minority, his mother for herself and as the guardian of the minor assigned the mortgage to another person who realised it by bringing the property to sale and himself buying it. On his attaining majority, the quondam minor sued to recover her share or the mortgage debt from the (sic)hypotheca in the hands of the mortgagee auction-purchaser and in the alternative from the mortgagor personally.
A decree was passed as against the hypothoca but the suit was dismissed as against the mortgagor. The plaintiff did not appeal against the dismissal of the suit against the mortgagor. The auction purchaser, however, appealed and in that appeal the High Court joined the mortgagor as a party in order to see whether a decree could be made against him in case the decree against the hypotheca should be set aside. Eventually, the decree against the hypotheca was set aside and the mortgagor was fixed with liability.
In doing so, the learned Judge distinguishedV AIR 1927 252 (Privy Council) on the ground that the case cited was concerned with a necessary party and also on the ground that in the Privy Council case the first transferee had acquired a valuable right by reason of the appeal being time barred and so could not be added as a respondent while in the case before him if the plaintiff had not appealed against the dismissal of the suit concerning the mortgagor he could not be blamed because the decree in his favour was not set aside.
We do not think the ground of distinction is tenable. For one thing, nothing prevents the party who has failed to obtain a relief against the alternative set of defendants from carrying an appeal against it by way of caution. Further, question of hardship cannot enter the construction of a statutory provision. It should also be noticed that the learned Judge thought that the relief that could be obtained against the party subsequently sought to be introduced by way of cross-appeal might be obtained under Rule 33 even without filing the memo of objections, the basis for this opinion being Munuswamy Mudaly v. Abbu Reddy, ILR 38 Mad 705 : (AIR 1915 Mad 648) (FB) (T) which ruled that it was open to a respondent under Rule 22 to file a memo of cross-objections against any other respondent whether the appellant was interested in it or not and also Ponnuswami Asari v. Palaniandi Mudali, 11 Mad LW 602 : (AIR 1920 Mad 120) (U).
We may mention that ILR 38 Mad 705 : (AIR 1915 Mad 648) (FB) (T) is no longer good law in view of Vadlamudi Venkateswarlu and Another Vs. Ravipati Ramamma and Another, to which one of us was a party which overruled ILR 38 Mad 705 : (AIR 1915 Mad 648) (FB) (T) and laid down that under Order 41 Rule 22 it was not open to a respondent to file a memo of objections against a co-respondent and that an objection taken by one respondent in which the appellant had no interest could not be regarded as a cross-objection within the meaning of Order 41 Rule 22 C. P. C.
11 Mad LW 602 : (AIR 1920 Mad 120) (U), does not, in our opinion, furnish much guidance on this aspect of the matter. There, in a suit against a father, the 1st defendant, and his two sons the 3rd and 4th defendants and his undivided nephew the 2nd defendant, judgment was entered for the plaintiff against defendants 1, 3 and 4. The last two defendants filed an appeal against the decree without adding the 2nd defendant who was exonerated. The plaintiff sought to proceed against him by filing a memo of objections and on account of that memo, had made him a party to the appeal.
The lower appellate Court gave a decree against him. This was confirmed by the High Court in the view that it was rightly done because the word "appeal" included memo of objections. We think that this case does not have much bearing on the point here. The learned Judges were not concerned with the problem similar to the one before us. Moreover, it is the doctrine of ILR 38 Mad 705 : (AIR 1915 Mad 648) (FB) (T) that had influenced the learned Judges in reaching that conclusion. But, if this ruling is susceptible of the construction that Order 4,1 Rule 20 enabled a court to implead a party at any time irrespective of whether he was interested in the result of the appeal or not it is not good law.
Thus 11 Mad LW 602 : (AIR 1920 Mad 120) (U) on which much reliance was placed by the counsel for the other side does not avail the respondent. The observations of Justice Krishnan in the Order of Reference in Baluswami Aiyar Vs. Lakshmana Aiyar and Others, that the words of Order 41 Rule 20 are wide enough to a similar effect and called in aid by the respondent cannot be given any effect for the reasons already stated. For one thing, it is not indicated as to why the learned Judge thought that the case before him fell within the scope of Order 41 Rule 20 C.P.C. Even otherwise we cannot accept this as embodying correct law.
We are also not inclined to accede to the proposition put forward on behalf of the respondent that the powers of a court under Order 41 Rule 20 are not fettered by considerations of limitation and that unlike Order 1 Rule 10 which is subject to S. 22 of the Limitation Act there is no such restriction in the former rule. The authorities relied on for this purpose are ILR 15 Mad 362 (N); ILR 33 Cal 329 (H) and ILR 14 All 154 (FB) (C). It was observed in ILR 15 Mad 362 (N) that the discretionary power conferred on the appellate court is not limited by any provisions of the Limitation Act, ILR 33 Cal 329 (H) also spoke in similar terms, namely,
there is nothing in the Limitation Act so far as we can discover which controls our powers in the matter of allowing parties to be added as respondents who were not made respondents at the time when the appeal was presented." The Full Bench of the Allahabad High Court in ILR 14 All 154 (C) said that an appellate court had power under S. 559 C. P. C. to introduce a person as respondent in appeal notwithstanding that the time for presenting an appeal as against such person had expired. But, we do not think we should be guided by these rulings having regard t AIR 1927 252 (Privy Council) It is true that Order 41 Rule 20 is not in specific terms made subject to S. 22 of the Limitation Act as in the case of Order 1 Rule 10 C. P. C.
But, we cannot overlook the clause "interested in the result of the appeal" which in our opinion introduces a restriction on the power of the appellate court, namely that the person sought to be added should be affected by the result of the appeal, The plain meaning of this clause - and that cannot be lost sight of - cannot leave any room for doubt that before a party to a suit could be introduced as a supplemental respondent his interest in the appeal must be made out i.e. should be shown as to how he would be affected by the decision in the appeal if he does not appear and contest the matter.
The Privy Council has pointed out in AIR 1927 252 (Privy Council) that this m(sic) be adjudged with reference to the point of tin(sic) before he is impleaded as a party. Prima facie, the time ''for filing the appeal had expired again a person who was exempted by the trial court, valuable right, namely, holding a decree in (sic) favour is acquired by such a person, and the is no reason why this right should be destroyed. We may extract here a passage from the judgment of their Lordships which, in our opinion, answer the point raised for the respondent and is consequently quite pertinent:
As regards the rest of the case, owing the plaintiff''s failure to make these defendant respondents within the time limited for filing appeal, these appeals, so far as they are concede, are prima facie barred by limitation, and the are entitled to hold the decrees in their favor which, as pointed out by their Lordships in very recent case, is a substantive right of a v(sic) valuable kind of which they should not lightly deprived.
When parties are added by the Court after institution of a suit under Order 1 Rule 10 S. 22 of the Limitation Act provides that the (sic) when they are added is to be deemed to be (sic) date of the institution of the suit so far as t(sic) are concerned for purposes of limitation, and rights which they may have acquired under Limitation'' Act are therefore sufficiently safeguard. The addition of a respondent whom the appellant has not made a party to the appeal is pressly dealt with in Order XLI, Rule 20 on w(sic) the plaintiff relied both in the Appellate Court and before their Lordships.
That rule empowers the Court to make (sic) party a respondent when it appears to the C(sic) that "he is interested in the result of the appe(sic) Giving these words their natural meaning - they cannot be disregarded - it seems imposed to say that in this case the defendants aged whom these suits have been dismissed, and against whom the right of appeal has be(sic) barred, are interested in the result of the ap(sic) filed by the plaintiff against the other defendant.
In our opinion this passage implies considerations of limitation are not irrelevan(sic) the determination of the question arising u(sic) Order 41 Rule 20 C. P. C. This interpretation curs accords with the opinion expressed by S(sic) man C. J., on a difference between Niamatullah Smith, JJ., in Abrar" Hussain v. Ahmad Raza (sic) 1937 All 82) (X). The learned Chief Ju(sic) construed AIR 1927 252 (Privy Council) ) as laying down the proposition that where plaintiff''s suit had been dismissed against some the defendants and no appeal was preferred ag(sic) them it was not open to the appellate court implead them under Order 41 Rule 20 after expiry of limitation.
After the lapse of the prescribed period, parties have acquired a valuable right under decree and therefore cannot fall within the pur(sic) of persons interested in the appeal within the (sic)ing of that rule. The learned Chief Justice said that the ruling in ILR 14 All 154 (FB) must be deemed to have been superseded by 6 Rang 29 : AIR 1927 252 (Privy Council) It was pointed out there that there was really no (sic) ship if Order 41 Rule 20 C. P. C. was not br(sic) into play after the expiry of the period of li(sic) on. It was not as if the party concerned was (sic)t without any remedy as it was open to him to (sic)sort to S. 5 of the Limitation Act.
Reliance was next placed by the counsel (sic)r the respondents on some observations of a (sic)nch of the Bombay High Court in H.H. Darbar Alabhai Vajsurbhai Vs. Bhura Bhaya, that R. 6 Rang 29 : AIR 1927 252 (Privy Council) tdid not (sic) down any rigid rule of interpretation of the (sic)pression "interested in the result of the appeal",
(sic)ese observations do not carry the respondent far. (sic)at was an action for partition in which it was recovered in the course of service of notice in (sic)appeal that certain parties were dead and (sic)refore, they applied for substitution of the (sic)nes of the legal representatives but unsuccessful-
The High Court thought that as to the residents who were dead the records should be (sic)nded in the light of the orders passed by the (sic)inal court bringing on record the heirs and (sic)l representatives of the deceased respondent.
The prayer of the appellant to set aside the (sic)tement was granted having regard to the pe(sic)ar facts of that case and in order to prevent (sic)stice being done to the other side and also (sic)ng regard to the length of the time spent in (sic)ation. It was remarked there that the interest (sic)he persons sought to be introduced into the (sic)cal was the same as it was before, the dismissal (sic)he suit in their favour not improving their (sic)s before the suit. Therefore these remarks (sic)ot be viewed as giving rise to any theory that powers under Order 41 Rule 20 could be (sic)sed irrespective of the question of limitation, (sic) otherwise, they are ineffective in view of (sic) 6 Rang) 29 AIR 1927 252 (Privy Council)
Our attention was also drawn to Swaminatha Odayar Vs. T.S. Gopalaswami Odayar and Others, (Z) where Justice (sic)ata Subba Rao and Justice Cornish directed addition of parties in the appeal which arose of a suit for partition when an objection was (sic) at the closing stage of the arguments that appeal was incompetent on account of some (sic)s not having been added as respondents. That (sic)on is not or much guidance to us. The learned judges felt that the parties sought to be added already represented by their father and they (sic) be deemed to be interested in the result of appeal by reason of the fact that any variation.
(sic)e decree against their father would surely (sic) them. In considering that matter, this is (sic) the learned Judge, Justice Venkata Subba who spoke for the court said:
Supposing the appellate Court''s decree modi(sic) trial Court''s decree by imposing a larger (sic) upon the 3rd defendant, what happens? (sic)ons are not directly affected by the appellate decree, they not being parties to the suit. (sic)s undoubtedly so, but yet the result of any (sic)tion of their father''s assets will ipso facto(sic) diminish the extent of their own assets; in words in the language of ILR 31 Mad 442 (P) will be "prejudiced by modifications made (sic) their backs in the decree under appeal.
(sic) being so, we do not think that the learned intended to give a contrary interpretation (sic) 6 Rang 29 AIR 1927 252 (Privy Council) No (sic) there are some observations which might (sic)lour to the theory propounded by the res(sic) but that cannot be given much weight.
Another decision cited to us by the for the respondent is AIR 1943 252 (Lahore) where it was laid that the language of Order 41 Rule 20 did not show that it was exclusive exhaustive so as to deprive the court of any inherent power to add parties. It may be mentioned that that is a case where the defendants who were sought to be impleaded were pro forma parties. Be that as it may, this is rendered ineffectual bv AIR 1944 76 (Lahore) , in which an opinion was expressed that when once time for appeal had run out an appellant could not successfully implead those defendants who were not originally added as respondents to the appeal and that a Court cannot exercise any power conferred on it under O. 41, R. 20 to cover such an omission.
It has to be noted that the Full Bench AIR 1941 402 (Lahore) , one of the decisions relied on by Justice AIR 1943 252 (Lahore) We may also mention that in this judgment the remarks of Justice Venkata Subba Rao in 1937 2 Mad LJ 100: Swaminatha Odayar Vs. T.S. Gopalaswami Odayar and Others, were dissented from as being opposite to the principle underlying AIR 1927 252 (Privy Council)
The subsequent rulings of the same Court, namely, Ratanlal v. Janda Rubber Works Ltd., AIR 1950 EP 355 (Z4); Jagan Singh v. Mst. Panni, AIR 1954 Punj 20 (Z5) and AIR 1944 9 (Oudh) are in accordance with the doctrine that when the holder of a decree had not been joined as a respondent in an appeal and the time for filing an appeal as against him had expired, it could not be postulated that the latter was interested in the result of the appeal within the meaning of O. 41, R. 20. The later rulings of the Patna High Court are of the same pattern.
Several decisions rendered, by single Judges of the Madras High Court are also consistent with this view. See (Nandigiri) Venkata Narasimharao and Another Vs. (Nandigiri) Krishnabayamma and Others, Malireddi Venkatapathi and Others Vs. Malireddi Veerayya and Others, .
An important decision bearing on this enquiry is Saktiprasanna Bhattacharya Vs. Naliniranjan Bhattacharya, . The fact of that case are these. A suit was instituted on a mortgage claiming relief against the mortgagor, the 1st defendant, who failed to pay the mortgage money. She also claimed a relief in the alternative against the 2nd defendant on the allegation that he had realised certain moneys from the 1st defendant and it was prayed that if it should turn out that he had collected money from the 1st defendant a decree for money might be made against him.
The trial Court found that the 2nd defendant had collected Rs. 100/- from the 1st defendant and thereby released the latter from the obligation based on the instrument and in that view dismissed the suit against the 1st defendant but decreed it for Rs. 200/- including damages against the 2nd defendant. The 2nd defendant preferred an appeal against the decree impleading only the plaintiff but not the 1st defendant. The plaintiff preferred a memo of cross-objections against the 1st defendant, against whom the suit was dismissed and was not made a party to the appeal.
The lower appellate Court disallowed this having come to the conclusion that inasmuch as the plaintiff had not preferred any appeal against the 1st defendant, cross-objections could not be entertained as they were out of time and also because cross-objections could not be entertained against an absent respondent. We are not concerned with the decision on the merits regarding the decree against the 2nd defendant This was affirmed by the High Court on the ground that the 1st defendant was not a party interested in the result of the appeal within the scope of O. 41, R. 20, C. P. C.
The learned Judges negatived the contention that the provisions of O. 41, R. 20 and R. 33 authorised a Court to introduce a party to a suit as a respondent in the circumstances such as have happened in this case and to pass a decree against him in the opinion that the case was covered by the authority of their Lordships in AIR 1927 252 (Privy Council) and ILR 49 Mad 435 AIR 1926 34 (Privy Council) It is not necessary to multiply authorities which are consistent with the principle of Saktiprasanna Bhattacharya Vs. Naliniranjan Bhattacharya, , or those which are in conflict with that view.
In our opinion, O. 41, R. 20 empowers an appellate Court to implead party to the suit as a supplemental respondent only if he is interested in the result of the appeal i.e., if he is to be affected by any decree or order to be passed in the appeal and not otherwise, and that the interest must be determined with reference to a time when he is not brought on record. It cannot be posited that such a respondent continues to have any interest in the appeal if the decree" in his favour had become final by reason of an appeal not having been presented against it. The power of a Court in this behalf must be sought within the ambit, of O. 41, R. 20.
We do not think there is any inherent jurisdiction de hors this provision of law. Section 151, C. P. C. cannot come into operation in regard to a matter for which a specific provision is made which alone could govern such a matter. If a party to the suit is aggrieved by a judgment of a trial Court which exempts one of the defendant from liability and if the appealing party had not chosen to introduce him as one of the respondents it is open to him to invoke S. 5 of the Limitation Act as pointed out by Sulaiman, C.J., in Abrar Husain and Others Vs. Ahmad Raza and Others
There is another reason why O. 41, R. 20 is not attracted to the instant case. The appeal as originally brought in the lower appellate Court related to ''A'' scheduled properties in which the appellants had no manner of interest. They were concerned only with items 7 to 12 of ''B'' schedule.
In such a situation, could it be said that they were interested in the result of the appeal? We think that the expression "appeal" connotes the subject matter of the appeal and cannot be equated to the subject-matter of the suit.
So, it cannot include properties which have been excluded from the relief granted to the plaintiff and which are not brought into question in the appeal as brought by the aggrieved defendant. It follows that the supplemental respondent cannot be regarded as a party interested in the result of the appeal even after he is brought on record. For all these reasons, the order impleading the appellants at a later stage is illegal and has to be ignored. If so, could O. 41, R. 33 come to the rescue of the plaintiffs and respondents 7 and 8?
It is urged by the counsel for the respondents that O. 41, R. 33 confers large powers on an appellate Court to pass an appropriate order in order to do complete justice between the parties and as such, it is competent to a lower appellate Court to bring on record as a respondent a party to a suit and give a decree against him. We do not think it is permissible for the Court to do so. It is no doubt true that the range and sweep of that provision of law is wide, but that does not follow that all the provisions of law should be abrogated to give effect to the opinion of an appellate Court that a decree should be passed in a particular way.
These powers can be exercised only consitently with the other statutory provisions and the cannot be used to the detriment or prejudice of person against whom the suit was dismissed in the trial Court in respect of which no appeal was preferred in the lower appellate Court. We cannot subscribe to the view that O. 41, R. 33 either controls or overrides O. 41, R. 20 and that the low appellate Court had ultimate powers to do anything in the name of rendering complete justice between the parlies. When the powers of a Court a derived under a statute, a Court cannot tra(sic) beyond the provisions thereof.
That being so, whatever might be the amp(sic) tude of the jurisdiction of a Court to render justice between the parties and to pass decrees in favc(sic) of an absent respondent, as illustrated by Bhutana(sic) v. Shashimukhi, 30 Cal WN 885 : (AIR 1926 (sic) 1042) (Z11), it is difficult to lay down that it co(sic) be exercised so as to prejudice an absent respondent. As a corollary, we should hold that O.(sic) R. 33 does not enable a Court to add a party (sic) the purpose of giving a decree against him if could not be done by virtue of O. 41, R.(sic) C. P. C. Even assuming such powers exist in Court by virtue of O. 41, R. 33, C. P. C, this is (sic) an appropriate case for exercising them. In suit as originally framed, the plaintiffs stood these transactions and thereby affirmed them. (sic) sales were nearly 68 years old and interfere with them by the invocation of O. 41, R. 33 is in the interests of substantial justice. For the reasons we allow S. A. No. 1243 of 1954 and aside decree of the lower appellate Court regard to Items 7, 8, 9, 11 and 12.
It remains to be determined whether decree of the trial Court in regard to the ''A'' scheduled property should be restored in superses(sic) of that of the lower appellate Court. The ans(sic) to this depends upon whether the transactions 1894 between the widow and Mallipudi pe(sic) could be regarded as exchanges. The definition an exchange is contained in S. 118 of the Tra(sic) of Property Act.
When two persons mutually transfer ownership of one thing for the ownership of another neither thing or both things being money only, transaction is called an ''exchange''.
A transfer of property in completion of (sic) exchange can be made only in manner prov(sic) for the transfer of such by sale." So, to constitute an exchange it should conform the provisions of this Act. It is true that nomenclature of a document may not be co(sic) sive if, in substance, the transactions amount t(sic) exchange. Suppose the two instruments by under which properties are conveyed to other are styled as sales. Notwithstanding they could be regarded as an exchange if, in e(sic) there was a real exchange. In the instant ca(sic) is difficult to treat the transactions as exchange the reason that the parties were not identical.
While the sales by the widow under Exs. and B-4 were in favour of Mullipudi Audinar(sic) and Chellayya respectively, the widow pur(sic) the ''A'' scheduled properties from the three (sic) pudi brothers i.e., Chellayya, Audinarayana Ramayya. So, there is no identity between parties. Next, while the widow sold items 7 of ''B'' schedule for Rs. 350/-, the consider paid by her under Exs. B-5 and B-6 was Rs. 6(sic) So, in this behalf, also, there is no identity (sic) price or of the property. It is no doubt tru(sic) all the transactions took place on the same While that might be a weighty consideration terms of S. 118 of the Transfer of Property could not be given the go by. In these (sic)nces we do not think that we could give weight the argument of the Respondents 7 and 8 that (sic)y should be deemed to be exchanges and reverse (sic) finding of the lower appellate Court It has (sic) to be mentioned that even if the consideration (sic)ained by the widow for Exs. B-40 and B-4 was (sic)tly utilised for the purchase of the properties, properties thus purchased could not be pursued the doctrine of tracing does not apply to a case this type. If at all, a charge could be created that sum on the properties thus purchased in (sic)ur of reversioner. But no such prayer was asked (sic) in any of the Courts below. There was also investigation into the question whether the sum (sic) obtained by the widow under Exs. B-4 and (sic) went in the acquisition of the other properties. subsequently, we cannot disturb the finding of the (sic)er appellate Court.
In the result the judgment of the lower (sic)llate Court as regards the ''A'' scheduled pro(sic) is confirmed and. the appeal against the 1st (sic)odent is dismissed without costs. The plaintiff (respondents 7 and 8) will pay the costs of the (sic)llant herein in all the Courts. The other (sic)es will bear their own costs throughout.
Coming to the other appeal S. A. 1233 of (sic) this is not seriously pressed by Mr. Soma(sic)ram in view of the abundant evidence to (sic)in the finding of fact of the lower appellate(sic).
The appeal is dismissed with costs.
The request for the refund of the excess (sic)fee is not opposed and having regard to the (sic)t G. O. touching this, the necessary certificate (sic)e issued.