The persons concerned in S.R No. 12795 of 1954 seek to file an appeal against the Judgment and Decree in O.S No. 29 of 1953 on the file of the Court of the Subordinate Judge, Vijayawada, after obtaining the permission of this Court therefor. They also filed C.M.P No. 1393 of 1955 to excuse the delay of 44 days in filing the appeal. Both these petitions are before us.

2. A certain extent of land was carved out of the village of Telaprolu and granted in inam by the zamindar of Nuzvid in Fasli 1157. The area so carved out is known as Venkatapuram Khandriga. A title deed was granted to the predecessors-in-interest of the plaintiffs by the Inam Commission after fixing the quit rent at Rs. 2-8-0 per year. The grantees viz., the predecessors-in-title of the plaintiffs claimed Venkatapuram Khandriga as an inam while the tenants of that village contested that position. The Settlement Officer held that Venkatepuram is not an estate while the Special Officer reversed that finding. Consequently, the rent payable by the tenants in Venkatapuram were reduced by order No. 2034, dated 20th July 1949. Thereupon the landholder filed a writ application under Article 226 of the Constitution, but the same was dismissed as it was found that the appropriate remedy lay by way of a suit. Thus O.S No. 29 of 1953 came to be filed by the landholders. The Government alone had been made the defendant to this suit. When the Government took an objection to the non-joinder of theryots of the village of Venkatapuram, defendants 2 to 5 were impleaded after obtaining necessary permission under Order 1, rule 8, Civil Procedure Code. Later on, defendants 6 to 9 got impleaded as it was felt the defendants 2 to 5 were the supporters of the plaintiffs. At the trial no oral evidence was let in a no documents for the defendants have been marked. The learned Subordinal Judge held in favour of the plaintiffs and found that Verkatapuram is not a estate. No appeal was preferred by any of the defendants who sought to represent the tenants. On behalf of the persons who seek to file the appeal with the permission of this Court after getting the delay excused, it is averred that defendants 1 to 9 did not take any interest in the matter and therefore neglected to produce even documentary evidence which, according to them is numerous and voluminous. They alleged collusion between the plaintiffs and defendants 6 to 19 also. They state they learnt about the apathetic attitude of those defendants and when the tenants questioned these defendants it was late for filing the appeal. In these circumstances, the petitioners came forward to file the appeal after obtaining leave of the Court, if necessary, and after getting the delay excused.

3. Mr. K. Narasimham for the appellants contended that having regard to the conduct of defendants 2 to 9 and fact that they sought to represent the tenants but forsake their interest, this is especially a case for grant of leave by the Court to prefer an appeal after excusing the delay and that this Court can exercise such a power. The Government Pleader laid stress that the judgment and decree of the lower Court would bind the tenants and operate as res judicate and that therefore the appellants could be considered as parties to the suit thous represented by other named defendants and that therefore the application to excuse the delay is the only thing that comes up for consideration before this Court. On the other band, Mr. Ramanuj appears for the landholders urges that the appellants could not be considered as actual parties to the suit as they did not apply to the Court to be made parties as requited under sub-rule (2) of rule 8 of Order 1, Civil Procedure Code, and that no leave could be granted to the appellants to file the appeal as they were not parties to the suit. He further contended that no valid grounds are disclosed for excusing the delay in filing the appeal.

4. As a result of the aforesaid contentions, two questions arise for determination. The first is, whether the class of persons represented by the parties on record, when permission is suoght and got under Order 1, rule 8, Civil Procedure Code, are to be considered as actual parties to the suit irrespective of the fact that the names of the persons who are so represented are not found mentioned and also not found in the cause-title since each of them did not choose to apply to be made a party to the suit; and secondly when such appellants are not eo nomine parties to the suit, the appellate Court has got the power or by virtue of any practice is empowered to grant leave to appeal to those persons.

5. In order to deal with the first point it may not be out of place to recall that Order 1, rule 8, Civil Procedure Code, had for its basis its counterpart in Order 16, rule 9, relating to the procedure obtaining in the Supreme Court of England. That English rule is also one adopted from the practice obtaining in England; and the true ambit of it could be taken to be a little more than what the language in that rule itself conveys, as could be seen from the decision of Fry, J. in Fraser v. Cooper Hall & Co. . L.R 1882 21 Ch. D. 718.. Adverting to the fact that one Mr. Turner applied to make him a defendant even though another Mr. Barker had already been named as a defendant, the fact that it was not stated by the plaintiff that Barker was sued as representing a class of all the dissentient bond-holders including Mr. Turner, was held not to stand in the way of Turner representing the other dissentient defendants who were numbers and for that purpose bringing himself on record. Accordingly an order under rule 9 of Order 16 was made by that Court. Thus it emerges that the dissentient defendants cannot always be forced to conform to the conduct of a defendant who represents the ‘class’, but can have their case effectively heard by making themselves actual parties to the cause. In India, section 30 of the Civil Procedure Code (Act XIV of 1882) incorporated this principle and it cannot also be said that the decision in Wolff v. Van Boolen, which recognised the principle of representation of a ‘class’ forming a party to a suit by one or few had little or no influence in the framing of that section. Subsequently, Order 1, rule 8 Civil Procedure Code, has replaced section 30 by Act V of 1908 and Explanation VI to section 11, Civil Procedure Code, has also found a place in the Civil Procedure Code, in order that the represented ‘class’ may be bound by the decree.

6. As for the case law, a Division Bench of the Madras High Court in Sahib Thambi v. Hamid . 1913-22 M.L.J 109, had occasion to consider how a decree against named defendants who also represented others could be proceeded with in execution. There, is pursuance of a decree granting induction obtained in the Singapore Supreme Court, execution proceedings were taken cut in the Court of the Subordinate Judge, Negapatam. Adverting to the liability of the ‘class’ represented by the defendants therein, Sundara Ayyar, J., speaking for the Bench stated as follows at page 417.

“The general rule of law, undoutedly, is that in suits where one person is allowed to represent others as defendants in a representative capacity, any decree passed can bind those others only with respect to the property of those others which he can in law represent and no personal decree can be passed against them, although the parties on record eo nomine may be made personally liable.”

7. The nature of liability therefore, of that class of defendants who are only represented by another defendant under Order 1, rule 8, Civil Procedure Code, would be according as he is only represented by another or is eo nomine party to the action. In a decision reported in Swaminatha Mudaliar v. Kumaraswami Chettiar . 1922-44 M.L.J 282, Spencer and Venkatasubba Rao, JJ. observed that Order 1, rule 8, expressly permits any person on whose behalf a representative suit is instituted to apply to the Court to be brought on the record, and the words of this rule are not limited, as they are by Order 1, rule 10, by the purpose being expressed as that of adjudication on the question arising in the suit, and that, therefore, they held that persons who belonged to the class already represented by any of the parties to the suit could be added by names, and execution proceedings effectively taken out against such parties thereafter. These two decisions, in our view, should be considered as laying down the rule that though the named party to a suit can represent a class, no particular party belonging to the class can enforce or be proceeded against unless that particular person is brought on record as eo nomine party by resort to the procedure prescribed in sub-rule (2) of rule 8 of Order 1, Civil Procedure Code. The question whether the bringing of the persons by name on record in pursuance of sub-rule (2) of rule 8 of Order 1, Civil Procedure Code, would tantamount to addition of fresh parties and whether even persons belonging to that ‘class’, but not brought on record in that manner, could be considered as actual parties to the suit, had been at length dealt with by a Division Bench of the Madras High Court consisting of Krishaswamy Ayyangar and Horwill, JJ. in Nandaramdas v. Zulaika Bibi . 1943-2 M.L.J 1. There, the learned Judges were concerned with the question whether the amendment of the plain by which a suit is converted into one of representative action under Order of rule 8, Civil Procedure Code, does not involve the addition of fresh parties so as to attract the provisions of section 22 of the Limitation Act. They held on that question that the conversion of a suit as one under Order 1, rule 8, Civil Procedure Code, does not result in the addition of fresh parties. They also were definitely of the opinion that although only the capacity of the plaintiff has changed so as to represent a body of persons, the unnamed persons are not actual parties to the suit. In doing so they relied upon the decision in Watson v. Cave. In the English case, an order appointing a receiver had been made against a ‘class’ of persons. One Mr. Levering considering that order was injurious to him, applied to the Court for leave to appeal. The case was considered as one of some importance as it involved a novel point. Both the Judges were unanimous in holding that the proper course for Mr. Levering was to apply to the lower Court to be made a party. This has been pointed out by Krishna swami Ayyangar, J., as indicative of the position that the dissentient though re presented was not actually a party to the suit. Dealing with the binding nature of a decision on the ‘class’ in such a representative suit which is provided for by Explanation VI to section 11, Civil Procedure Code, the learned Judge pointed out that even for the purpose of res judicata, the persons represented are only deemed to be parties and that therefore are not actual parties. While pointing out that the distinction, therefore, drawn in Sahib Thambi v. Hamid, between the in of execution against actual parties and the class represented by named parties in a suit is justified, yet another valuable reason for not considering the unnamed persons as actual parties to the suit has been stated to be that it is impracticable or impossible to bring in the legal representatives of these unnamed persons on record, where a need arises, but it could be otherwise only when the persons represented are made actual eo nomine parties. For this, reliance has been placed by the learned Judge on the decisions in Udmi v. Hira, Mohamed Sher Khan v. Ghulam Mohamed, and Afzalunmssa v. Fayazuddin . 1931-I.L.R 13 Lah. 195.. Recently a Full Bench of the Madras High Court in Kodia Gounder v. Velandi Gounder . 1955-1 M.L.J 247, posited that a party to a suit is one who is impleaded as a party or one impleaded by name or one who, on an application under Order 1, rule 8, sub-rule (2), Civil Procedure Code, is brought on record, i.e, one who is eo nomine made a party. There again the effect of deeming one as party for certain purpose has been pointed out as not having the same consequences of being an actual party to the suit. The question for determination in that Full Bench decision was whether when a ‘class’ is represented and a person from the ‘class’ could be deemed to be a party for purposes of Explanation VI to section 11, Civil Procedure Code, the bar under section 47, Civil Procedure Code, would operate even though the principle of res judicata by virtue of Explanation VI to section 11 is made applicable to the ‘class’ represented. It was held that the decree was unenforceable as and by way of execution personally as against a particular person deemed to have been represented.

8. The dicta of these decisions are clearly in favour of holding that when no application has been made for making a person belonging to a ‘class’ represented in a suit a party as required by sub-rule (2) of rule 8 of Order I, Civil Procedure Code, that person is not made individually party to the suit, and that he cannot be considered as an actual party to the suit though bound in a manner by the decree passed therein. The mere fact therefore that in the instant case an order under rule 8, Order I, Civil Procedure Code, had been obtained does not entitle the appellants to consider themselves as actual parties to the suit. They cannot also seek to file an appeal by merely getting the delay in filing the appeal excused. For this reason the consideration of the application for leave to appeal filed by the appellants who are not parties, becomes all the more necessary and has to, be examined especially with reference to the jurisdiction and practice of the Court to grant such a prayer.

9. At this distance of time, it is rather trite to have to recall that both in England and in India, the right to appeal against a decree does not exist as a right merely under the common law. They have to be provided for by statutory provisions or other regulations. Nevertheless, the question who could appeal against a judgment and decree has remained a matter for disputation. When the right to appeal from such a decree has been provided for, the grant of leave to a person who is not a party or has actually impleaded himself as a party but who makes out a prima facie case that he is a person interested, aggrieved or pre-judicially affected by the judgment or order, has been considered in accordance with the old Chancery Practice in England. It has been ruled that though a person who is not a party cannot have the right of appeal and cannot appeal without obtaining leave of the Court, it has been pointed out that not much is required to obtain such leave as it would be given on an ex parte application to any person interested, aggrieved, or pre-judicially affected by the judgment or order. Authority for this could be found in the decisions reported in Markhan, In Re, Securities Insurance Co. In Re, Attorney General v. Allesbury and Ex-Tsar of Bulgaria. All these are also relied upon in the commentary in the Annual Practice (1958 Edn. Vol. 1 at page 1662), Watson v. Cave, has been further considered as an illustration of the extension of the same principle in the case of a representative action, but then it was held the proper procedure was for represented persons to apply to be made as actual parties.

10. The question of adopting the practice obtaining in England in regard to the grant of sanction to appeal came up for consideration by a Division Bench of the Madras High Court in Indian Bank Ltd. v. Bansiram. The Indian Bank, Limited, Madras, was not a party to the suit filed under Order 21, rule 103, Civil Procedure Code, but filed the appeal. It was argued that the Official Receiver, who was a defendant, represented the general body of the creditors and that though the appellant, a creditor, was not an actual-party, the being aggrieved by the decision is competent to prefer an appeal when the Official Receiver does not file any appeal. The Division Bench, after referring to the cases reported in Chowdappa Gounder v. Katha Perumal Pillai . 50 M.L.J 602 and Anantanarayana Ayyar v. Sankaranarayana Ayyar . A.I.R 1924 Mad. 345, and distinguishing them as upholding the right of a creditor to file appeals in matters arising under the Provincial insolvency Act where a specific provision such as section 75 for an appeal by an aggrieved person is provided for, held the view that the right of the Indian Bank, Limited, Madras, to file an appeal must be answered only with reference to the provisions of the Civil Procedure Code and the general principles of law, After observing that section 96 or Order 41, Rule I, Civil Procedure Code, does not specify the persons who could prefer an appeal, held that neither section 146, Civil Procedure Code, nor Order 22, rule 10, Civil Procedure Code, which concerned with the rights of persons ‘claiming under’ the parties will be of little or no help is revolving the question. Placing reliance in Jan Mohamed v. Syed Nuruddin, where an appeal was dismissed on the ground that it does not lie at the instanced ‘realtors’ who were not parties when the Advocate-General had not thought fit to appeal against the dismissal of the suit, it was held that the appeal filed by the Bank was incompetent. As to the grant of leave by the Appellate Court, the decisions in Markhan, In re and Securities Insurance Co. In re, were noticed, but were distinguished on the ground that they have significance only in relation to the powers of an appellate Court to grant leave to appeal which is rested on the practice prevailing in English Courts. The decision in that case ultimately turned upon the point that when the Official Receiver who was a party to the suit and whose statutory duty is to institute, defend or continue any suitor any other legal proceedings relating to the property of insolvent has not preferred the appeal, the creditor-Bank cannot, on general grounds, ask the appellate Court to grant that creditor leave to appeal. Also that Court being satisfied that in that case the Bank obtained a decree before the judgment-debtor was adjudicated an insolvent and the Bank did not intervene in insolvency proceedings subsequently, held it is not a proper case for granting leave. In a later case Kasi Chettiar v. Secretary of State, Abdur Rahman, J., observed that:

“A right of appeal is not a mere matter of procedure. It is a substantive right and is primarily a creature of statute. As such it can be exercised only by those in whom the power vests either expressly or by necessary implication.”

and also holding that in the absence of a provision which is similar to what is contained in section 72 of the Provincial insolvency Act, it is not possible to confer a right of appeal by analogy, the decision in Indian Bank, Ltd. v. Banstram, was followed. The Madras view so adumbrated was definitely against the adoption of the practice to grant leave to appeal to one who is not actually a party to the suit.

11. But however, the Bombay High Court struck a different note. In Bombay Province v. W.I Automobile Association, the view that even if there is no right of appeal to one who is not a party, that party can nevertheless ask for relief to appeal, from the appellate Court, before he can be allowed to file an appeal, is expressed. In that case, the Province of Bombay who was not a party questioned the decision of Coyajee, J., in a regular appeal, but no application was made by the Province of Bombay for leave to appeal. Adverting to the preliminary objections to the maintainability of the appeal by a person who is not a party, Chagla, C.J, contented himself by observing that the Province of Bombay is affected by the result of the decision and should be heard provided it pays the costs of the appeal up-to date, as technicality should never be permitted to override substantial justice. Bhagwati, J., discussed this point at length and observed at page 149 as follows:—

“It was further pointed out that in the commentary of Sir Dinshah Mulla on the Civil Procedure Code and also in a judgment of Madhavan Nair, J. in Indian Bank, Ltd. v. Seth Bansiram Jeshamal Firm (1934-66 M.L.J 532 : A.I.R 1934 Mad. 360 : I.L.R 57 Mad. 670) it was stated that no person who is not a party to the suit or proceeding has a right of appeal. This is no doubt the position so far as the right of appeal is concerned. A person who is not a party to the suit or proceedings has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate Court before he can be allowed to file an appeal. There is no right of appeal vested in him by any of provisions of the Civil Produce Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases.”

12. Further on, the following is stated by Bhagwati, J.:

“This is the position in England as one finds it laid down in Securities Insurance Co. In Re (L.R (1894) 2 Ch. D. 410 C.A) where Lindley, L.J observed (page 413). ‘Now, what was the practice of the Court of Chancery before 1862, and what has it been since? I understand the practice to be perfectly well-settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is pre-judicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave, he will get it; but without leave he is not entitled to appeal.’”

13. Bhagwati, J., then concluded:

“The Province of Bombay had not obtained any such leave to appeal and had filed the appeal as if in exercise of a right to do so. This position was certainly not tenable and under the circumstances of the case we thought it proper to give the Province of Bombay leave to appeal but on terms that the Province of Bombay do pay all the costs upto the time when the leave to appeal was granted by us.”

14. The reasoning of this decision of the Bombay High Court, it is necessary to observe, has proceeded on contrary lines to those adopted by the Madras High Court in Indian Bank, Ltd. v. Bansiram, where the English decision in Securities Insurance Co. In Re, was distinguished as only portraying the practice in England before the passing of the judicature Acts. While matters stood thus, the question whether a leave of the appellate Court could be obtained for filing an appeal by a person, who is not a party in the lower Court has again come up before the Madras High Court in Ponnalagu Ammani v. State of Madras. The Bench consisting of Rajamannar, C.J, and Venkatarama Aiyar, J., were considering the preliminary objection that the appeal is not competent and that the appellate Court has no power to grant leave to appeal against the judgment of Subba Rao, J., (as he then was) Subba Rao, J., directed on 15th April, 1952 the handing over of the estate of Marurgapuri to one Laksmi Ammari by the Court of Wards as the former was thought their ward, is no longer so. Neither the State of Madras nor the Court of Wards who were parties has filed an appeal against this order. But Ponnalagu Ammani, another widow of the zamindar of Marungapuri, filed an application on 22nd April, 1952 for leave to prefer an appeal under the letters Patent. This appellant alleged that she was not impleaded by Lakshmi Ammani to the writ petition, but her rights were affected. The Division Bench granted leave to appeal. As a preliminary objection was taken that Court cannot enlarge its appellate jurisdiction by its own Rules of practice, the matter has been fully gone into. Distinguishing the line of cases to which the decisions in Pasupati Bharti v. Secretary of State, Lakhpatram v. Beharilal and Ramanayya v. Kotayya, pertain, as those in which the right of appeal to the aggrieved party is subject to the leave to be granted or a certificate to be issued from the Court from which the appeal is sought and also that in such cases leave of the appellate Court will not be available to one who is not a party to the suit, held that the decision in Bombay Province v. W.I Automobiles Association, concerned with another set of circumstances in which persons, who are not parties in the lower Court asked for leave of the appellate Court to file an appeal. Approving that the practice in England mention of which is found in the Annual Practice (1958 Edn., Vol. I at page 1662) is salutary, the learned Judges stated:

“In our opinion the practice consistently followed by the English Courts is a just and equitable practice and is in no way inconsistent with the doctrine that a right of appeal can only be created by a statute. With respect to the learned Judges of the Bombay High Court we agree with them that there is no reason why the practice should not be followed by Courts in India.”

15. They adverted to the earlier decision in Indian Bank, Ltd. v. Bansiram, but were for agreeing with what Bhagwati, J., said about this decision in Bombay Province v. W.I Automobile Association.

16. The position therefore as it stands, since the rendering of the decision in Bombay Province v. W.I Automobile Association and Ponnalagu Ammam v. State of Madras, is that practice of giving leave to appeal to a person who is not a party but who is either interested, aggrieved or pre-judicially affected by the decree of the lower Court and of obtaining the permission on molten ex parte from the Court of Appeal is also available to litigants in the Indian Courts. But the learned counsel for the respondents had to before us to draw a distinction between the decision in Indian Bank, Ltd. v. Bansiram and the later case reported in Bombay Province v. W.I Automobile Association and Ponnalagu Ammam v. State of Madras, is argued that in the Bombay case the appeal was sought to be filed against the order on the Original Side of a High Court and the appeal in the latter Madras Case was under the Letters patent and that in both these cases the power to grant leave to appeal by the appellate Court could be said to have been provided for only by the Letters Patent. What is therefore urged is that while in these two cases it could not be said that the power to grant leave in the appellate Court is held to be not wanting; and it need not rest only on the practice obtaining in England, an appeal under section 96 and Order 41 of the Civil Procedure Code would be governed only by the decision in Indian Bank, Ltd. v. Bansiram. As against this, in answer, the following observation of the Division Bench in Ponnalagu Ammani v. State of Madras, is relied upon on behalf of the appellant. It is as follows:—

“The provisions as regards appeal in England are not materially different from those contained in the Civil Procedure Code or Letters Patent. In neither of them is there any express mention of persons who could appeal.”

17. From this it is argued that since the Bench is of the opinion that the provisions of the Civil Procedure Code and Letters Patent are almost the same and they do not differ from those provisions relating to the appeal in England, no further distinction or difference could be made between an appeal preferred under the Letters Patent or that under the Civil Procedure Code. But it is not possible to say that any of the provisions of the Civil Procedure Code has empowered a Civil Court to grant leave to appeal even to a party when and if such a contingency arises; much less can it be said that there is in Civil Procedure Code anything parallel to the provision for the grant of leave contained in the Letters Patent. This point of difference could be said to be real; and inasmuch as the practice of granting leave to appeal should have to be traced, if at all, to the old practice of granting leave to appeal by an English Court, the difficulty of having to assume that an appellate Court has got power to grant leave to appeal in every appeal becomes obvious.

18. In this view, having regard to this conflict and because the matter is one of practice, the question

“whether an appellate Court can grant leave to appeal to a person who is not a party in the lower Court even in cases where the appeal is not filed under the Letters Patent.”

19. Needs to be referred to a Full Bench. The papers will therefore be placed before he learned Chief Justice for orders.

20. [In pursuance of the above order this petition came on forbearing before the Full Bench.]

JUDGMENT

21. The Judgment of the Court was delivered by (Chandra Reddy, C.J)

22. The question to be answered by us is whether leave to appeal could be granted to a person who is not eo nomine a party to a proceeding but who will be affected by the decision in the proceeding brought in a representative capacity under Order I, rule 8, Civil Procedure Code.

23. The reference was made by a Division Bench of this Court as it was thought that there was a conflict of judicial opinion on this problem.

24. The facts material for a consideration of the question arising in this petition of briefly stated. A block of land was carved out of the village of Telaprolu and granted in inam by the zamindar of Nuzvid in Fasli 1157. The area so carved out was called Venkatapuram khandriga. The predecessor-in-interest of the grantees was given the title deed by the Inam Commissioner who fixed the quit rent at Rs. 2-8-0 per year. The grantees claimed Venkatapuram Khandriga as a minor inam while the tenants of the village contested that position and asserted that it was an estate within the purview of section 2(d) of the Madras Estates Land Act. The Settlement Officer held that Venkatapuram is not an estate under section 2(d) while the Special Officer reversed that finding. To quash this order the landholder invoked the jurisdiction of this Court under Article 226 of the Constitution but it was dismissed by this Court in the view that the appropriate remedy lay by way of suit.

25. Thus, O.S No. 29 of 1953 on the file of the Subordinate Judge's Court, Vijyawada came to be filed by respondents 1 to 4. To this, the State of Andhra alone was impleaded as a party. When the Government took an objection to the non-joinder of the ryots of the village of Venkatapuram khandriga, defendants 2 to 5 were impleaded as parties after obtaining the necessary permission under Order I, rule 8, Civil Procedure Code. Some other villagers also got the Twelves impleaded as defendants 6 to 9 alleging that, defendants 2 to 5 were the supporters of the plaintiffs. At the trial, no oral evidence was let in and no documents for the defendants were marked.

26. The trial Court, on the material before it, gave a decision in favour of the plaintiffs holding that Venkatapuram khandriga was not an estate. No appeal was preferred by any of the defendants who sought to represent the tenants. It is in these circumstances that the other ryots of the village represented by petitioners seek to file an appeal with the leave of this Court after getting a delay of 44 days excused.

27. The allegation in the affidavit filed in support of the petition are that defendants 1 to 9 had not taken any interest in the matter, that they neglected to produce even documentary evidence and that in collusion with the plaintiffs they have not preferred any appeal.

28. This petition is resisted on behalf of the plaintiffs-respondents. It is maintained by Sri Ramanujachari, learned counsel for the respondents, that the petitioners have no locus standi to present the appeal as they were not parties to the suit and that this Court has no jurisdiction to grant leave to file an appeal to person who was not actually a party to the proceeding. The problem to the solved, therefore, is whether in a situation like this the appellate Court has jurisdiction to permit a person who is not eo nomine a party to a proceeding started under Order I, rule 8 Civil Procedure Code, but at the same time who well be injuriously affected by the decision given in the proceeding, to file a appeal.

29. The statutory provisions that govern the presentation of appeals are section 96, 146 and Order 41, rule 1, Civil Procedure Code Section 96 is in these words:

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

30. Order 41, rule I, says:

“Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded.

Section 146 is in these words:

“Save as otherwise provided by this Code or by any law foe the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.”

31. Section 146, Civil Procedure Code empowers a legal representative of a person entitled to prefer an appeal to exercise the same right and the proceeding contemplated by section 96 includes an appeal.

32. It is manifest that none of these provisions expressly bars the filing of an appeal by an aggrieved person who was not actually a party to the proceeding. However, Mulla in his commentary on the Civil Procedure Code, under the heading ‘who may appeal’, remarks thus:

“An appeal under this section way be preferred by any of the following persons—

1. Any person to the suit adversely affected by the decree, or, if such party-is dead, by his legal representative.

2. Any transferee of the interest of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit.

3. An auction-purchaser may appeal from an order in execution setting aside the sale on the ground of fraud.

(No person unless he is a party to the suit, is entitled to appeal under this section).”

33. The last statement seems to be supported by some of the decided cases and also the practice prevailing in several High Courts. This position also emerges from the decision of the Madras High Court in Indian Bank, Ltd. v. Seth Bansiram Jeshamal firm, which was accepted as correct by a Bench of the Bombay High Court in Bombay Province v. W.I Automobile Association, to that extent.

34. The position is stated in the Annual Practice (1961 Edition, Vol, I at page 658) thus:

“Any party to the action may appeal (for example, one alone of several plaintiffs and also any person served with notice of the judgment or order under Order 16, rule 40. But in addition, in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion to the Court of appeal) if he could by possibility have been made a party to the action by service.”

35. To a similar effect is the passage contained in Halsbury's Laws of England (3rd Edition), Vol. 30, page 461, which is as under:

“A person who is not a party and who has not been served with notice, cannot appeal without leave, but a person who might properly have been a party, may obtain leave to appeal.

36. In similar terms is the rule stated in Section on Judgments and Orders (7th Edition) Vol. I at page 824. It runs thus:

“Where the appellant is not a party to the record he can only appeal by leave to be obtained on motion ex parte from the Court of Appeal…….. Leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party,”

37. Therefore, it may now be taken as settled that a person not a party to proceeding, cannot, as a matter of right, present an appeal against the decree.

38. But, does it preclude the appellate Court from according leave to file an appeal to a person against the decree or order of the trial Court, if he is affected by the decision though he was not actually impleaded as a party? The respondents seek to answer the question in the affirmative. The foundation for the argument pressed upon us by the learned counsel for the respondents-plaintiffs is based on Indian Bank, Ltd. v. Seth Bansiram Jeshamal firm, Nandaramdas v. Zulaika Bibi, and some rulings of Allahabad and Lahore High Courts.

39. We will now consider the cases called in aid by Sri Ramanujachari, learned counsel for the respondents. Nandaramdas v. Zulaika Bibi, does not throw any light on the problem to be solved by us. There, the learned Judges were concerned with the question whether the amendment of the plaint by which a suit was converted into one of representative action under Order I, rule 8, Civil Procedure, would involve the addition of fresh parties so as to attract the provisions of section 22 of the Limitation Act. They held that the conversion of a suit into one under Order 1, rule 8, Civil Procedure Code, did not result in the addition of fresh parties so as to attract section 22 of the Limitation Act. The opinion expressed by them was that although the capacity of the plaintiff had changed so as to represent a body of persons, the persons were not actual patties to the suit. It is thus seen that the learned Judges were not called upon to decide whether leave to appeal could be granted to persons like the petitioners not did they purport to deal with such a question.

40. In Indian Bank, Ltd. v. Seth Bansiram Jeshamal Firm, the Official Receiver representing the general body of creditors defended a suit brought by two plaintiff for a declaration of their title to two items of property. The decision by the trial Court went against the Official Receiver, but he did not choose to take the matter in appeal. In that situation, the Indian Bank, one of the creditors, filed an appeal against the decree of the trial Court with an application for permission to file the appeal. The learned Judges expressed the opinion that under the Civil Procedure Code no person who was not a party to a suit could prefer an appeal under section 96, Cavil Procedure Code, since the right of appeal is an special creature of statute, and it could be exercised only by those in whom the power was vested expressly or impliedly by the statute. A perusal of the decision would indicate that the learned Judges there were mainly considering the question whether a person who was not on record as an actual party could present an appeal against the judgment and decree of the trial Court. After refer ring to the English decisions bearing on the controversy, the learned Judge observed:

“These decisions do not help the appellant as they do not directly bear on the question and relate only to powers of the trial Court to grant leave to appeal. Further, the powers of the trial Court in those cases are rested on the practice prevailing in the English Courts.”

41. They next considered whether the case before them was one in which leave could be granted acid came to the conclusion that a creditor on general grounds could not ask the appellate Court to grant him leave to appeal and that even if such permission was asked they were not satisfied that there was a proper case in which permission should be given.

42. It is seen that the whole discussion turned on the right of a person not a party to a suit to file an appeal against the decree or order. In that case, the creditor could not have come on record to agitate the matter either on his own behalf or on behalf of the creditors since the Official Receiver represents the estate. It was pointed out by the learned Judges that the appellant there could not invoke section 75 of the Provincial insolvency Act, as it was not one under the Insolvency Act. So, the observations of the learned Judges should be understood in the context of the controversy before them. Unlike that case, here the parties concerned are deemed to be parties, as the suit was instituted in a representative capacity. If however the dictum laid down in that case is susceptible of the construction that it was not competent for an appellate Court to give leave to a person to be adversely affected by the decision of the Court by reason of the applicability of section 11, Explanation VI, Civil Procedure Code, we must express our respectful dissent from such a doctrine.

43. Jan Mahomed v. Syed Nuruddin, does not assist the respondents. That was a case of a realtor filing an appeal against the judgment dismissing a suit brought by the Advocate-General at the instance of realtors, under the previsions of section 539, Civil Procedure Code (XIV of 1882) corresponding to section 92 of the presence Code. The relators sought to file an appeal and a preliminary objection was raised that the appeal could not be entertained. The objection was upheld as the relators were not parties to the suit and as relators they had no right to step in when the Advocate-General who was the plaintiff had not thought fit to file an appeal against the dismissal of the suit. The principle enunciated there can have no analogy here. For one thing, the relators by themselves could not have brought a suit nor could they have come on record as the plaintiff in the action laid by the Advocate-General they were not concerned with the question of leave to file an appeal.

44. We shall now consider the rulings of the other High Courts Mihin Lal v. Imtiz Ali, relied on by Sri Ramanujachari, does not give him any aid. There, the plaintiffs brought a suit for possession and damages impleading certain persons as defendants and obtained a decree. The defendants carried the matter in appeal and the appellate Court considering that one Mihin Lal should be a party to the appeal made him a party to the appeal as defendant-appellant, though the was not a party to the suit. The appellate Court, thereafter, gave judgment finding all the issues against the defendants appellants including Mihin Lal. However, the appellate Court did not pass a decree against Mihin Lal Yet, Mihin Lal sought to file an appeal against the judgment. Sir John Edge, C.J, and Blennerhessett, J., dismissed the appeal holding that there was nothing for him to appeal, since there was no decree against him in spite of his having been made a party by the appellate Court as an appellant. In such a situation, the learned Judges observed that a stranger to the suit in the Court of first instance ought not to be added as a party in the appeal unless he was brought on record a party to the suit or there was the devolution of title and that if the appellate Court thought it necessary to have as a party before it a person not appearing in a representative capacity and who was not a party to the suit in the Court of the instance, the appellate Court should remand the case to the Court of first in directing that Court to bring on record that particular person as a defendant to as plaintiff if he consented, give him time to file his statement and an opportunity to produce his evidence and try the issues raised there between him and the opposite side. The principle adumbrated there was that a stranger to a suit should not be impleaded as a party with a view to give a decision against him without his having an opportunity to state his case in the trial Court. It will surely cause him prejudice if without giving him an opportunity to defend in the trial Court he should be brought on record as a party in the appellate Court. But that is not the situation obtaining in a case like this where a person affected wants to have the decree or order vacated.

45. Nor does M.T Afzalunisa v. Fayazuddin hold any analogy here. All that was decided there was that the power to take proceedings under Order I, rule 8 Civil Procedure Code, could be exercised by the appellate Court in appeal and is not confined to original proceedings and that if one of the parties appointed under Order I, rule 8, dies, the appeal does not abate if the legal representatives of such person are not brought on record. To alike effect is the principle adumbrated in Fazal Rahim v. Hussaina.

46. The situation in Abdulla v. Parshotam, called in aid by the learned counsel for the respondents is quite dissimilar to that prevailing in the present case. In that case, a suit brought by certain persons in a representative capacity against a debtor was ultimately compromised by the defendant paying a certain amount to the plaintiffs representing the proprietary body and the District Judge passed a decree accepting the terms of the compromise. Against that decree, two other persons sought to file an appeal to the High Court. The opposition of the respondents to the appeal prevailed with Abdul Rashid, J. The learned Judge remarked that the three persons who were appointed to represent the entire proprietary body by the Court were the only parties in the suit and that, if any other person was to be added as a plaintiff, he was entitled to request the Court to add him as a plaintiff and if his prayer was granted he also became a party to the suit. It should be remembered that in that case the decree was passed by consent of the parties and section 96(3), Civil Procedure Code prohibits an appeal being preferred against a decree passed by a Court with the consent of parties. It is in those circumstances that the learned Judge indicated the procedure to be followed in such a case.

47. We shall now proceed to examine the cases which have laid down that the Court has ample power to grant leave to file an appeal to a person not a party to a proceeding against the decree or judgment if that decree or judgment had pre-judicially affected such a person. In Bombay Province v. W.I Automobile Association, a dispute existed between the Western India Automobile Association and its workers and the workers struck work. The Government of Bombay thereupon referred the matter to the Industrial Tribunal for arbitration. The Association challenging the jurisdiction of the Tribunal to enquire into the matter, filed a petition under Article 226 of the Constitution to prohibit the Tribunal from holding the enquiry. A single Judge of the Bombay High Court accepted the petition. The State of Bombay wanted to file an appeal against that order of the single Judge with the leave of the Court. A preliminary objection was taken as to the maintainability of the appeal at the instance of the Government, which was not a party to the writ petition. A Bench of that Court consisting of Chagla, C.J and Bhagwati, J., ruled that although the Government could not a file an appeal as a matter of right, it could ask for leave to file an appeal which the appellate Court could grant if it thought that it was a proper case for the grant of such relief. Bhagwati, J., who dealt with this matter elaborately, observed inter alia:

“A person who is not a party to the suitor proceeding has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate Court before he can be allowed to file an appeal.

The only remedy open to him if his interests are adversely affected or if he is aggrieved by a decision of the Court is to approach the appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases.

‘This is the position in England as one finds it laid down in Securities Insurance Co. In re (L.R (1894) 2 Ch. D. 410 C.A) where Lindley, L.J, observed inter alia: ‘A person who without being a party is either bound by the order or is aggrieved by it, or is pre-judicially affected by it, cannot appeal without leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave, he will get it: but without leave he is not entitled to appeal.”

48. To a like effect is the statement of law contained in Ponnalagu Ammani v. The State of Madras. In that case, a Division Bench of the Madras High Court was concerned with a preliminary objection that an appeal was not competent and the appellate Court had no power to grant leave to appeal against the judgment of one of the Judges of the High Court, who directed in an application under Article 226 of the Constitution the handing over of the estate of Marungapuri to the senior widow of the late zamindar, one Lakshmi Ammani, by the Court of Wards as she was no longer their ward. Neither the State of Madras nor the Court of Wards who were parties to the proceeding took the matter in appeal. But Ponnalagu Ammani, another widow of the zamindar of Marungapuri, filed an application for leave to prefer an appeal under the Letters Patent on the ground that, though she was not impleaded as a party, her rights were affected by the order of the learned Judge. While dealing with the objection that there was no power in the Court to comply with this request, the learned Judges observed that the provisions of the Civil Procedure Code did not prohibit the granting of leave and that it was also in accord with the procedure obtaining in England. However they refused leave having regard to the circumstances of the case.

49. With great respect to the learned Judges, we think that this sets out the legal position correctly and we express our assent to this proposition.

50. That a practice to grant leave in cases of this type prevails in England could be seen from the Annual Practice for 1961, a relevant passage from which has been extracted above. We have already referred to a passage in Halsbury's Laws of England which is to a like effect. The test to be applied for the grant of leave in such cases was propounded by the learned Judges thus:

“It would be improper to grant leave to appeal to every person who may in some remote or indirect way be pre-judicially-affected by a decree or judgment. Ordinarily, leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.”

51. We may now turn to the observations of Cotton, L.J, in Watson v. Cave, Cotton L.J, makes a distinction between cases of plaintiffs bringing representative cases and cases of representation wherein they are impleaded in similar capacity. With regard to defendants, the position is stated thus.

“Where a decree or order is made binding estates or interests in properties of various individuals who are represented by pome persons of the record, then the Court will under some circumstances, allow a person interested in the property to appeal if the party representing him on the record, and against whom the order has been made, does not wish to do so.”

52. He then pointed out that the position of such plaintiff was quite different from that of the plaintiff who was brought on record as one of the plaintiffs under Order 16, rule 9 of the Supreme Court Rules. The remarks of James, L.J, are also to a like effect.

53. The principles embodied both in Bombay Province v. W.I Automobile Association and Ponnalagu Ammani v. The State of Madras, are in consonance with the dicta in Watson v. Cave.

54. These two decisions were followed by the Rajasthan High Court in Heersingh v. Veerka and the Kerala High Court in Executive Officer v. Raghavan Pillai.

55. What emerges from the above discussion is that if a person is deemed to be a party under Order 1, rule 8, Civil Procedure Code, and for purposes of section 11, Explanation VI Civil-Procedure Code, leave to appeal could be granted to him by the appellate Court in an appropriate case, if the decision rendered in the proceedings would adversely affect him. It is not in every case where a person may be remotely or indirectly affected that leave should be granted but it should be granted to persons who though not eo nomine parties would be bound by the decree or judgment in the proceeding and who could not by reason of Explanation VI to section 11, Civil Procedure Code agitate the same question in separate proceedings. It is needless to say that it would be illogical to hold that while a person is deemed to be a party to a proceeding and would be bound by a judgment rendered against him in a representative capacity, he would not be permitted to file an appeal against the decree if the person who is actually a party to the proceedings does not choose to carry the matter in appeal against that decree or order. We hold that there is no obstacle created either by the provisions of the Civil Procedure Code or by any practice obtaining either in India or in England in the way of granting leave to file an appeal to persons who are not eo nomine parties to the proceeding but who at the same time would be bound by the judgment or decree of the Court granted in such proceeding.

56. In the circumstances, we answer the question referred to the Full Bench in the affirmative. The delay is excused on condition that the Petitioners pay a sum of Rs. 100 to Sri N.C.V Ramanujachari, counsel for the respondents, on or before 15th August, 1961 and they are granted leave to file an appeal.

57. M.S.K

Answered in the Affirmative leave granted.