P. Somasundaram and P. Suryanarayana, for Appellants in No. 1233 and Respondent 1 in No. 1243; M. S. Ramachandra Rao and M. Krishna Rao, for Appellant in No. 1243; G. Chandrasekhara Sastri and M. Survanarayana Murti, for Respondents in No. 1233 and Respondents 7 and 8 in No. 1243.
Judgement
P. CHANDRA REDDY, Offg. C.J. : -
The main question to be answered by the Full Bench is whether a party to a suit, who was absolved from liability by the trial Court, can be impleaded as a respondent to an appeal preferred by an aggrieved party to which he was not originally made a party and a decree passed against him by virtue of the combined operation of Rr. 20 and 33 of O. 41 of the Code of Civil Procedure.
2. The facts material for this enquiry may be briefly set out :
3. Respondents 7 and 8 originally laid an action as reversioners to the estate of one Ammanna, impeaching a gift made by the widow (1st defendant) in favour of her nephew the 2nd defendant on 26-6-1946. The last male-holder died in or about the year 1890 him surviving his widow. The properties settled on the 2nd defendant were purchased by the widow. In the year 1894 under Exs. B-5 and B-6 for a sum of Rs. 600/-, having sold on 9-11-1894 and 20-12-1894 some of the properties belonging to her husbands estate which are items 7 to 12 of B schedule for Rs. 350/- under Exs. B-40 and B-4.
The vendees in their turn conveyed them to the predecessors-in-interest of the present appellants. The plaintiffs proceeded on the footing that the transactions were valid exchanges with the consequence that properties obtained in exchange formed part of the reversion. During the pendency of the appeal, the widow died. Thereupon, the plaintiff got the plaint amended as one for possession in respect of A scheduled properties as also items 1 to 6 and 13 of B schedule not alienated by her with an alternative prayer that in case it should turn out that items 7 to 12 of B schedule were not properly exchanged for A scheduled properties the plaintiff should have the right to recover possession of the said properties. Defendants 11 to 13, 17 and 18 were added as supplemental defendants. The 20th defendant brought another suit claiming to be a reversioner, but we are not concerned with that as it ended in dismissal which had become final, no appeal having been preferred against it.
4. The defence of the 2nd defendant, so far as relevant for the purpose of this appeal was that Kamamma had not exchanged any of the properties of the last male-holder with the plaint A schedule properties and that A scheduled properties were her self-acquisitions and were throughout treated as her stridhana properties. The present appellants by their written statement supported the plaintiffs case regarding the exchange of items 7 to 12 of the B schedule and also raised the plea that the plaintiffs were not entitled to seek the alternative relief in regard to items 7 to 12 of B schedule. The trial Court accepted the case of exchange and consequently gave a decree for the A and B scheduled properties other than items 7 to 12 of B schedule.
5. Defendants 2 to 7 preferred an appeal from that judgment and decree making the plaintiffs and the 20th defendant the rival claimant, as respondents to that appeal. Some months later, before the appeal came on for hearing the plaintiffs applied for the addition of defendants 11 to 13 in the suit as supplemental respondents to the appeal. In spite of the opposition of these defendants who are now the appellants before us, the appellate Judge granted the request of the plaintiffs.
When the appeal was finally heard and decided the Subordinate Judge came to the contrary conclusion regarding the exchange and dismissed the suit as against the donees from the widow, i.e., defendants 2 to 7 and gave a decree for possession against defendants 11 to 18-for possession of items 7 to 12. These defendants aggrieved by that decision have brought this second appeal. When it came on for hearing before Justice Umamaheswaram he thought that it would be heard by a Bench having regard to the points raised in the appeal and it is ultimately posted before the Full Bench having regard to the importance of the questions involved in it.
6. It is urged in support of this appeal that it was beyond the competence of the appellate Court to add the appellants as respondents when, the decree sought to he obtained by the appealing party would not prejudice them in any way, an 1 that being so, the provisions of O. 41, R. 33, C. P. C. would not authorise the Court to vary the decree to their detriment. On the other hand, it is maintained by respondents 7 and 8 i.e., plaintiffs, that it is well within the power of an appellate Court to order the addition of the parties at any time to enable it to do justice between the parties under O. 41, Rr. 20 and 33, C. P. C.
7. In order to appreciate the relative contentions, it is necessary to extract the terms of these two rules :
8. Rule 20 of O. 41 recites :
"Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent."
Rule 33 of O. 41 states :
"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the 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 Code of Civil Procedure 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.
9. 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 Alma 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."
10. 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.
11. 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).
12. 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).
13. Some of the earlier rulings of the Patna High Court fell in line with ILR 25 Cal 565 (D), as illustrated by Padarath Mahton v. Hitan Singh, AIR 1924 Pat 773 (I). 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 Mahomed Khaleel Shirazi and Sons v. Les Tanneries Lyonnaises, ILR 49 Mad 435 : (AIR 1926 PC 34) (J), 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 pro-vision of law could not be invoked against him.
14. 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 that Court noticed in the judgment, namely Devappa Hegde v. Buli Venkatappu, 1892 Bom PJ 17 (L) and Sida Savant v. Bal Savant, 1893 Bom PJ 64 (M). The first of them was disregarded as not being a decision upon a proper construction to be put on S. 559 of the Code of 1882.
15. The other ruling in which it was held that
"by claiming either the land described in para 1 or the land described in paragraph 2 and by accepting and not appealing against the erroneous award of the Subordinate Judge giving them the former, the plaintiffs debarred themselves from recovering the latter"
was not relied on the ground that the real point on which the case was to be decided was as to the frame of the suit in an alternative form. This is to overlook the general proposition stated therein. Further the judgment under citation merely proceeded on the assumption that the person that was subsequently introduced was interested in the result of the appeal within the language of O. 41, R. 20, C. P. C. and does not disclose any reasons for this conclusion.
16. Coming nearer home, Justice Muttuswamy Iyer and Justice Wilkinson in Kanagappa v. Sokkalinga, ILR 15 Mad 362 (N), stated that the defendants who were exempted by the trial Court and who were not originally made parties to the appeal were rightly added as respondents for the reason that
"they were interested in the result of the appeal presented by the 1st defendant and they were likely to be affected by the result of the suit."
Here also, we do not find any reasons for their opinion apart from there being no mention of S. 559. Another judgment of the same Court is
Paya Matathil Appu v. Kovamel Amina,
ILR 19 Mad 151 (O). The learned Judges therein went to the extent of laying down that it was competent to the Court to add parties who were defendants in the Court of first instance though not joined as respondents in the lower appellate Court and that the relevant provisions of the Code of Civil Procedure were not intended to preclude the Court from adding in second appeal persons who have been originally joined in the suit. We do not think that this ruling gives effect to the relevant
provisions of the Code of Civil Procedure and the Limitation Act etc.; and cannot be considered to be good law in view of the aforementioned Privy Council decision in
ILR 49 Mad 435 : (
AIR 1926 PC 34) (J).
17. We now come to Subrahmanian Chetty v. Veerabhadran Chetty, ILR 31 Mad 442 (P), in which the words "interested in the result of the appeal" received full attention and their proper meaning. In that case, the plaintiff sued for possession of some property mortgaged by the 1st defendant to the 6th defendants grand-father. In the alternative he sought to recover the amount on the mortgage by the 1st defendant. The interest in the mortgage was subsequently acquired by the plaintiff. Prior to it, the 1st defendant executed a collusive mortgage of the same property in favour of 2nd defendants father with a view to defraud the plaintiff and the second mortgagee sued on that mortgage and brought the properties to sale when they were purchased by defendants 3 to 5. It is not clear from the report as to what happened in the trial Court.
The aggrieved party seems to have carried the matter in appeal and in the lower appellate Court it was decided that the second mortgage was collusive and defendants 3 to 5 were bona fide purchasers for value and gave the plaintiff a personal decree against the 2nd defendant. The aggrieved defendant presented the second appeal. At the time of the hearing of that appeal, it was felt that the decree against the 2nd defendant was unsustainable.
This gave rise to the question whether defendants 1 and 3 to 9 should be made parties to the 2nd appeal in order to fix them with liability and ultimately the objection that S. 559 of the Code of Civil Procedure of 1882 was inapplicable to that case prevailed with the learned Judges. The view taken there was that the party who was sought to be added should be shown to be interested in the result of the appeal, that is to say, it must be established that he was interested in the result of the appeal before he was added as a. party, for once he was brought on record he can be said to have acquired an interest. The learned Judges followed ILR 5 All 266 (A); in preference to ILR 25 Cal 565 (D).
18. The matter has been put beyond doubt by the authoritative pronouncement of the Judicial Committee in Chokalingam Chetty v. Seethai Acha ILR 6 Rang 29 : (AIR 1927 PC 252) (Q) which was in appeal from Chokalingam Chetty v. Seethai Acha, ILR 2 Rang 541 : (AIR 1925 Rang 108) (R) which has accepted the principle of ILR 31 Mad 442 (P). Their Lordships stated the proposition in almost the same terms as in ILR 31 Mad 442 (P). There the plaintiff had instituted two suits impugning certain transfers made by a trustee in favour of the 1st defendant.
The transferees from the 1st defendant were also made parties to the action. The trial court decided that the original transfers in favour of the 1st defendant were good and valid and accordingly dismissed the whole suit. The plaintiffs appealed to the High Court as against all the defendants excepting some defendants including the 1st defendant who was exonerated and the decree in whose favour became final. In such a set up, the Judicial Committee had to consider whether the court in appeal could add defendant 1 as respondent and give a decree against him in spite of the fact that the plaintiff had not filed any appeal against him and the period of limitation had expired.
Their Lordships remarked that owing to the plaintiffs failure to make these defendants respondents within the time limited for filing an appeal these appeals so far as they concerned them were prima facie barred by limitation and they were entitled to hold the decree in their favour which, as pointed out by their Lordships in "a very recent case was a substantive right of a very valuable kind, of which they should not be lightly deprived. Perhaps their Lordships had in mind ILR 49 Mad 435 : (AIR 1926 PC 34) (J), when they said recent case which related to the scope of Order 41 Rule 33.
19. The Privy Council laid stress on the clause "when it appears to the court that he is interested in the result of the appeal" and observed that the defendant against whom the suits were dismissed and against whom the right of appeal had become barred could not be said to be interested in the result of the appeal filed by the plaintiff against other defendants.
20. Mr. Chandrasekhara Sastry, for the respondents sought to distinguish this ruling on the ground that in the Privy Council case it was open to the trustee to have filed an appeal against the decree exempting the 1st defendant whereas in the case of alternative reliefs where the plaintiff had obtained a relief he wanted, he could not be penalised 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 Chetty v. Rabiath Ammal, AIR 1933 Mad 806 (S).
That was a case in which the plaintiffs 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 of the mortgage debt from the hypotheca in the hands of the mortgagee auction-purchaser and in the alternative from the mortgagor personally.
A decree was passed as against the hypotheca 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 distinguished ILR 6 Rang 29 : (AIR 1927 PC 252) (Q) 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 Venkateswarlu v. Ramamma ILR 1950 Mad 874 : (AIR 1950 Mad 379) (FB) (V) 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.
21. 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 41 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 Baluswamy Aiyar v. Lakshmana Aiyar, ILR 44 Mad 605 : (AIR 1921 Mad 172) (FB) (W) 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.
22.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 AH 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 to ILR 6 "Rang 29 : (AIR 1927 PC 252) (Q). 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. it 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 ILR 6 Rang 29 : (AIR 1927 PC 252) (Q) that this must be adjudged with reference to the point of time before he is impleaded as a party. Prima facie, if the time for filing the appeal had expired against a person who was exempted by the trial court, a valuable right, namely, holding a decree in his favour is acquired by such a person, and there 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, answers the point raised for the respondent and is consequently quite pertinent :
"As regards the rest of the case, owing to the plaintiffs failure to make these defendants respondents within the time limited for filing an appeal, these appeals, so far as they are concerned, are prima facie barred by limitation, and they are entitled to hold the decrees in their favour, which, as pointed out by their Lordships in a very recent case, is a substantive right of a very valuable kind of which they should not lightly be deprived.
When parties are added by the Court after the institution of a suit under Order 1 Rule 10(2), S. 22 of the Limitation Act provides that the date when they are added is to be deemed to be the date of the institution of the suit so far as they are concerned for purposes of limitation, and the rights which they may have acquired under the Limitation Act are therefore sufficiently safeguarded. The addition of a respondent whom the appellant has not made a party to the appeal is expressly dealt with in Order XLI, Rule 20 on which the plaintiff relied both in the Appellate Court and before their Lordships.
That rule empowers the Court to make such party a respondent when it appears to the Court that "he is interested in the result of the appeal." Giving these words their natural meaning - and they cannot be disregarded - it seems impossible to say that in this case the defendants against whom these suits have been dismissed, and as against whom the right of appeal has become barred, are interested in the result of the appeal filed by the plaintiff against the other defendants."
23. In our opinion this passage implies that considerations of limitation are not irrelevant in the determination of the question arising under Order 41 Rule 20 C. P. C. This interpretation of curs accords with the opinion expressed by Sulaiman C.J., on a difference between Niamatullah and Smith, JJ., in Abrar Hussain v. Ahmad Raza (AIR 1937 All 82) (X). The learned Chief Justice construed ILR 6 Rang 29 : (AIR 1927 PC 252) (Q) as laying down the proposition that where the plaintiffs suit had been dismissed against some of the defendants and no appeal was preferred against them it was not open to the appellate court to implead them under Order 41 Rule 20 after the expiry of limitation.
After the lapse of the prescribed period, such parties have acquired a valuable right under the decree and therefore cannot fall within the purview of persons interested in the appeal within the meaning of that rule. The learned Chief Justice also said that the ruling in ILR 14 All 154 (FB) (C) must be deemed to have been superseded by ILR 6 Rang 29 : (AIR 1927 PC 252) (Q). It was also pointed out there that there was really no hardship if Order 41 Rule 20 C. P. C. was not brought into play after the expiry of the period of limitation.
It was not as if the party concerned was left without any remedy as it was open to him to resort to S. 5 of the Limitation Act.
24. Reliance was next placed by the counsel for the respondents on some observations of a Bench of the Bombay High Court in Alabhai Vajsurbhai v. Bhura Bhaya ILR 1937 Bombay 602 at p. 617 : (AIR 1937 Bom 401 at p. 407) (Y) that ILR 6 Rang 29 : (AIR 1927 PC 252) (Q) did not lay down any rigid rule of interpretation of the expression "interested in the result of the appeal". These observations do not carry the respondent far. That was an action for partition in which it was discovered in the course of service of notice in the appeal that certain parties were dead and therefore, they applied for substitution of the names of the legal representatives but unsuccessfully. The High Court thought that as to the respondents who were dead the records should be amended in the light of the orders passed by the original court bringing on record the heirs and legal representatives of the deceased respondent.
The prayer of the appellant to set aside the abatement was granted having regard to the peculiar facts of that case and in order to prevent injustice being done to the other side and also having regard to the length of the time spent in litigation. It was remarked there that the interest of the persons sought to be introduced into the appeal was the same as it was before, the dismissal of the suit in their favour not improving their status before the suit. Therefore these remarks cannot be viewed as giving rise to any theory that the powers under Order 41 Rule 20 could be exercised irrespective of the question of limitation. Even otherwise, they are ineffective in view of ILR 6 Rang 29 : (AIR 1927 PC 252) (Q).
25. Our attention was also drawn to Swamynatha Odayar v. Gopalaswamv Odayar, 1937-2 Mad LJ 100 : (AIR 1937 Mad 741) (Z) where Justice Venkata Subba Rao and Justice Cornish directed the addition of parties in the appeal which arose out of a suit for partition when an objection was raised at the closing stage of the arguments that the appeal was incompetent on account of some parties not having been added as respondents. That decision is not of much guidance to us. The learned Judges felt that the parties sought to be added were already represented by their father and they should be deemed to be interested in the result of the appeal by reason of the fact that any variation of the decree against their father would surely affect them. In considering that matter, this is what the learned Judge, Justice Venkata Subba Rao, who spoke for the court said :
"Supposing the appellate Courts decree modifies the trial Courts decree by imposing a larger burden upon the 3rd defendant, what happens? The sons are not directly affected by the appellate decree, they not being parties to the suit. That is undoubtedly so, but yet the result of any diminution of their fathers assets will ipso facto be to diminish the extent of their own assets; in other words in the language of
ILR 31 Mad 442 (P) they will be"
prejudiced by modifications made behind their backs in the decree under appeal. That being so, we do not think that the learned Judges intended to give a contrary interpretation to
ILR 6 Rang 29 : (
AIR 1927 PC 252) (Q). No doubt, there are some observations which might lend colour to the theory propounded by the respondent, but that cannot be given much weight.
26. Another decision cited to us by the counsel for the respondent is Munshi Ram v. Abdul Aziz, AIR 1943 Lah 252 (Z-1) where it was laid down that the language of Order 41 Rule 20 did not show that it was exclusive or 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 by Labhurarn v. Ram Partap, AIR 1944 Lah 76 (FB) (Z2), 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 overruled Shantilal v. Firm Hiralal Sheo Narain, AIR 1941 Lah 402 (Z3), one of the decisions relied on by Justice Teja Singh and referred to in AIR 1943 Lah 252 (Z1). We may also mention that in this judgment the remarks of Justice Venkata Subba Rao in 1937-2 Mad LJ 100 : (AIR 1937 Mad 741) (Z), were dissented from as being opposite to the principle underlying ILR 6 Rang 29 : (AIR 1927 PC 252) (Q).
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 Mohd. Tajammal v. Deputy Commissioner, Bara Banki, ILR 19 Luck 438 : (AIR 1944 Oudh 9) (Z6), 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 interesteel 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 Venkata Narasimharao v. Krishna Bayamma, AIR 1929 Mad 479 (Z7); Krishnaswamy v. Sankarappa, AIR 1935 Mad 175 (Z8) and Venkatapathi v. Veerayya, 1943-1 Mad LJ 429 : (AIR 1943 Mad 609) (29).
27. An important decision bearing on this enquiry is Saktiprasanna v. Naliniranjan, ILR 58 Cal 923 : (AIR 1931 Cal 738) (Z10). 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 list 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 ILR 6 Rang 29 : (AIR 1927 PC 252) (Q) and ILR 49 Mad 435 : (AIR 1926 PC 34) (J). It is not necessary to multiply authorities which are consistent with the principle of ILR 58 Cal 923 : (AIR 1931 Cal 738) (Z10), 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 AIR 1937 All 82 (X).
28.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?
29. 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 consistently with the other statutory provisions and they cannot be used to the detriment or prejudice of a 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 lower appellate Court had ultimate powers to do anything in the name of rendering complete justice between the parties. When the powers of a Court are derived under a statute, a Court cannot travel beyond the provisions thereof.
That being so, whatever might be the amplitude of the jurisdiction of a Court to render justice between the parties and to pass decrees in favour of an absent respondent, as illustrated by Bhutanath v. Shashimukhi, 30 Cal WN 885 : (AIR 1926 Cal 1042) (Z11), it is difficult to lay down that it could be exercised so as to prejudice an absent respondent. As a corollary, we should hold that O. 41, R. 33 does not enable a Court to add a party for the purpose of giving a decree against him if it could not be done by virtue of O. 41, R. 20, C. P. C. Even assuming such powers exist in a Court by virtue of O. 41, R. 33, C. P. C, this is not an appropriate case for exercising them. In the suit as originally framed, the plaintiffs stood by these transactions and thereby affirmed them. The sales were nearly 60 years old and interference with them by the invocation of O. 41, R. 33 is not in the interests of substantial justice. For these reasons we allow S. A. No. 1243 of 1954 and set aside decree of the lower appellate Court in regard to Items 7, 8, 9, 11 and 12.
30. It remains to be determined whether the decree of the trial Court in regard to the A scheduled property should be restored in supersession of that of the lower appellate Court. The answer to this depends upon whether the transactions of 1894 between the widow and Mallipudi people could be regarded as exchanges. The definition of an exchange is contained in S. 118 of the Transfer of Property Act.
"When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an exchange.
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such by sale." So, to constitute an exchange it should conform to the provisions of this Act. It is true that the nomenclature of a document may not be conclusive if, in substance, the transactions amount to an exchange. Suppose the two instruments by and under which properties are conveyed to each other are styled as sales. Notwithstanding this, they could be regarded as an exchange if, in effect, there was a real exchange. In the instant case, it is difficult to treat the transactions as exchanges for the reason that the parties were not identical.
While the sales by the widow under Exs. B-40 and B-4 were in favour of Mullipudi Audinarayana and Chellayya respectively, the widow purchased the A scheduled properties from the three Mallipudi brothers i.e., Chellayya, Audinarayana and Ramayya. So, there is no identity between the parties. Next, while the widow sold items 7 to 12 of B schedule for Rs. 350/-. the consideration paid by her under Exs. B-5 and B-6 was Rs. 6000/-. So, in this behalf, also, there is no identity of the price or of the property. It is no doubt true that all the transactions took place on the same day. While that might be a weighty consideration, the terms of S. 118 of the Transfer of Property Act could not be given the go-by. In these circumstances we do not think that we could give weight to the argument of the Respondents 7 and 8 that they should be deemed to be exchanges and reverse the finding of the lower appellate Court. It has also to be mentioned that even if the consideration obtained by the widow for Exs. B-40 and B-4 was partly utilised for the purchase of the properties, the properties thus purchased could not be pursued as the doctrine of tracing does not apply to a case of this type. If at all, a charge could be created for that sum on the properties thus purchased in favour of reversioner. But no such prayer was asked for in any of the Courts below. There was also no investigation into the question whether the sum thus obtained by the widow under Exs. B-4 and B-40 went in the acquisition of the other properties. Consequently, we cannot disturb the finding of the lower appellate Court.
31. In the result the judgment of the lower appellate Court as regards the A scheduled property is confirmed and the appeal against the 1st respondent is dismissed without costs. The plaintiffs (respondents 7 and 8) will pay the costs of the appellant herein in all the Courts. The other parties will bear their own costs throughout.
32. Coming to the other appeal S. A. 1233 of 1954, this is not seriously pressed by Mr. Somasundaram in view of the abundant evidence to sustain the finding of fact of the lower appellate Court.
33. The appeal is dismissed with costs.
34. The request for the refund of the excess court-fee is not opposed and having regard to the recent G. O. touching this, the necessary certificate will be issued.
Order accordingly.