Sulaiman and Daniels, JJ.:— This is an appeal arising out of a suit for accounts against the defendants on the ground that the amount claimed is due to the plaintiff on account of certain business transactions carried on with the defendants through the plaintiff's servant. The defence was that the plaintiff had nothing to do with these transactions at all, but that the business was carried on between Chhitar Mal and the defendants, and that accounts were settled between them. The defendants said that they subsequently discovered that the plaintiff claimed to be a partner. The defendants, however, pleaded that Chhitar Mal should be impleaded as a pro formâ defendant in the suit.
The court of first instance framed an issue (No. 4) as to whether Chhitar Mal was or was not a necessary party. After examining the evidence and the statement of Chhitar Mal, who was examined as a witness, the court came to the conclusion that the story about Chhitar Mal's interest in the business had been concocted to defraud the plaintiff. It also remarked that the evidence showed that Chhitar Mal and the defendants had collusively divided the sale proceeds of the goods in dispute-half and half between them in order to deprive the plaintiff of his money. Having come to this conclusion, it was of opinion that Chhitar Mal was not a partner of the plaintiff in the goods in dispute and was not a necessary party.
The claim was accordingly decreed against the defendants.
The defendants, in their appeal to the District Judge, inter alia, took the ground that Chhitar Mal ought to have been impleaded. The learned District Judge first passed am order without giving any reasons in detail directing that Chhitar Mal should be impleaded as a respondent in the case. After this was done, notice was issued to him. When he appeared on the date fixed for hearing of the appeal, he naturally applied to the court for permission to file a written statement in order to contest the claim. The learned Judge thought that, as he had no opportunity to file a written’ statement and to produce his evidence, he ought to be given an opportunity to do so. He accordingly set aside the decree of the court of first instance and remanded the case for re-trial.
We are of opinion that the trouble has arisen owing to the irregular way in which Chhitar Mal was impleaded. Under order XLI, rule 20, of the Code of Civil Procedure the appellate court has power to implead in the appeal a person who was a party to the suit but who has not been made a party to the appeal, but under that rule a court has no power to implead a person who was no party to the original suit at all. Vide Pachkauri Raut v. Ram Khilawan . The learned Judge seems to have invoked the aid of the general section 107 of the Code of Civil Procedure, but that gives an appellate court the same powers, generally speaking, as a trial court. In our opinion, if the learned District Judge was of opinion that Chhitar Mal was a necessary party and ought to have been impleaded, the proper procedure for him was to remand the case to the court of first instance with a direction that court should implead Chhitar Mal and then proceed to dispose of the case. It is obvious that by impleading Chhitar Mal in the appeal, the inevitable result was that the case had to be tried de novo as Chhitar Mal had never had an opportunity to contest the claim.
On the merits we are of opinion that the order, as it stands, cannot be upheld. The plaintiff never admitted that Chhitar Mal had any concern in this business. The court of first instance has distinctly found that he was not a partner at all and that the defendants had divided the sale proceeds between themselves and Chhitar Mal in order to defraud the plaintiff. If the defendants acted collusively, it is obvious that they cannot complain if a decree is passed against them on a finding that Chhitar Mal had no concern in the business at all. On the other hand, it is conceded by Mr. Panna Lal that if the finding were that the defendants in the honest belief that the only person with whom they had to deal was Chhitar Mal had settled accounts with him and paid over the amount due to him, then the plaintiff would have no case against the defendants. It seems to us, therefore, that this appeal ought to have been disposed of on the merits.
We may mention that the order impleading Chhitar Mal in the appeal was not an appealable order, but we think that it is open to the present appellant to challenge that order in the appeal which has been preferred from the order finally passed by the lower appellate court. As we have already indicated, that order was wrong and should not have been passed.
We accordingly allow this appeal, and, setting aside the order of the lower appellate court, send the case back for restoration to its original number and disposal according to law.
We direct that the costs of this appeal should abide the event.
Appeal allowed.