1. This is an appeal by the plaintiffs and defendants Nos. 2 to 7 and arises out of a suit for declaration. The parties to this litigation are co-sharers in village Belamau Saraiyan. The plaintiffs claimed a declaration that they and defendants Nos. 2 to 7 are the owners of groves Nos. 1035 and 971 in proprietary right, and therefore, of the cattle market which is held on those plots, and that defendant No. 1 had no right to any part of the profits accruing from that market. The suit was contested by defendant No. 1 only. Defendants Nos. 2 to 7, who are described in the plaint as pro forma defendants, did not file a written statement in the trial Court nor did they in any way affirm or deny the plaintiffs' claim or the right of defendant No. 1. The defence of defendant No. 1 was that the cattle market is held on the joint land belonging to all the cosharers, including himself, and that the income accruing from it belongs jointly to all the co sharers. The trial Court found in favour of the plaintiffs, and decreed the suit. Defendant No. 1 preferred an appeal in the Court of the Subordinate Judge, pleading only the plaintiffs. At the hearing, the lower Appellate Court considered that defendants Nos. 2 to 7 were necessary parties, and impleaded them at a time, when the period of limitation for appeal had run out. Defendants Nos. 2 to 7 took exception to being joined; but their objection was overruled. The lower Appellate Court found on the merits that the cattle market was originally held on plot No. 1035, but was extended to No. 971 in or after 1930. It also found that defendant No. 1 had obtained several decrees for profits, including the income accruing from the cattle market, and that as the land of groves Nos. 1035 and 971 belonged to all the co-shares of the 'mahal' he was entitled, in common with other co-sharers, to his share of the profits derived from the cattle. The result was that the plaintiffs suit was dismissed. The present second appeal was filed by the plaintiffs and defendants Nos. 2 to 7, impugning the decision of the lower Appellate Court on two main grounds: (1) That it was not justified in impleading defendants Nos. 2 to 7 as respondents after the expiry of the period of limitation for appeal; and (2) that the plaintiffs and defendants Nos. 2 to 7, being the transferees of the rights of grove-holders in respect of plots Nos. 1035 and 971, are entitled to the profits accruing from the cattle market, to the exclusion of defendant No. 1, who had no interest in the groves other than proprietary rights in the sites thereof.

2. It seems to me that the lower Appellate Court had a discretion to implead defendants Nos. 2 to 7 as respondents even after the expiry of the period of limitation for appeal. To my mind more than one provision of the Civil Procedure Code confers such a power on a Court of appeal. Order I, Rule 10, Civil Procedure Code, empowers the Court of first instance to implead any person whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Under Section 107, Civil Procedure Code, a Court of appeal has all the powers which may be exercised by the Court of first instance. Order XLI, Rule 20, Civil Procedure Code, expressly provides for joinder of parties in appeal. It provides:

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.

3. Order XLI, Rule 33, is so widely worded as to include a power in the Appellate Court to add parties and to adjudicate upon the rights of persons not expressly impleaded. The learned Advocate for the appellants seems to contend, in the first instance, that in view of Chockalingam Chetty v. Seethai Ache 6 R. 29 : 107 Ind. Cas. 237 : 26 A.L.J. 371 : A.I.R. 1927 P.C. 256 : 4 O.W.N. 1231 : 27 L.W. 1 : 54 M.L.J. 88 : (1928) M.W.N. 20 : 47 C.L.J. 136 : 32 C.W.N. 281 : I.L.T. 40 Rang. 18 : 30 Bom. L.R. 220 (P.C) a Court of appeal has no power to implead a party as respondent against whom the appeal has become time barred and that, in any case, the discretion of the Court is limited to cases in which such respondent has an interest in the appeal. According to the construction put upon that case by the appellants learned Advocate, no person can be said to have an interest in the appeal, if an adjudication was given in his favour by the first Court, and he has not been impleaded in appeal within limitation. Stress is laid on the dictum of their Lordships of the Privy Council, which runs as follows:

As regards the rest of the case, owing to the plaintiff's 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 be lightly deprived.

4. I do not think that their Lordships ever intended to hold that in no conceivable case can the Court implead a party as respondent, if he was not impleaded by the appellant within limitation. Their Lordships refer to Order I, Rule 10, Civil Procedure Code, and point out that Section 22, Limitation Act, safeguards the interest of a defendant who is sought to be impleaded in the trial Court. They do not say that Order I, Rule 10, is inapplicable to appeals; nor do they say that Section 22, Limitation Act, which in terms applies to suits also applies to appeals. They, however, point out that Order XLI, Rule 20, expressly deals with appeals, and it may be that in their Lordships opinion Order I, Rule 10, should be read subject to Rule XLI, Rule 20. For the purposes of the present appeal, I do not consider it necessary to express a definite opinion on this comparatively unimportant point. Their Lordships held in conclusion as follows:

That rule (Order XLI, Rule 20) 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 rights of appeal are barred, are interested in the result of the appeals filed by the plaintiff against the other defendants. It was for the plaintiff appellant, who applied to the Court to exercise its powers under this rule, to show what was the nature of their interest, and this he has failed to do.

5. It is perfectly clear to me that their Lordships did not lay down the absolute rule that a person necessarily ceases to be interested in the result of the appeal, if he was not impleaded as respondent within the period of limitation. Their Lordships' view has reference to the facts of the particular case before them, in which the defendant respondents in appeal were transferees from a defendant who was no party to the appeal and who was not a mere pro forma defendant only, but one in whose absence the appeal could not be heard. The High Court refused to implead them in appeal. The fact that their Lordships pointed out that the plaintiff-appellant in that case had failed to show the interest of the defendant not impleaded in appeal is a clear indication of the existence in their (?) Court of a discretion to implead as respondent a party against whom no appeal has been preferred within limitation. It depends on the circumstances of each case whether he is interested in the appeal or not. In other words, the failure of the appellant to implead a respondent within limitation is not conclusive and the Court may in spite of it implead a party as respondent, though the period of limitation for appeal has expired, provided it considers, on the examination of the facts of the case, that such party is interested in the result of the appeal. It is difficult to state exhaustively as to when a person is interested in the result of an appeal. It may, however, be laid down generally that, if the rights of a party are likely to be considered, and the decision in appeal may affect, directly or indirectly, his interest other than that which he has secured by the decree appealed from the Court is justified in assuming that he is interested in the appeal. Numerous cases were referred to by the learned Advocate for the appellants in which the Privy Council case, already mentioned, was followed, and it was held that the Court of first appeal was not justified in pleading a party whom the appellant had not thought tit to implead within limitation. I do not consider it necessary to distinguish each case, as the facts of no two cases are alike, and the Court must be deemed to have held in those cases that the respondent, who was said to have been left out in appeal, had ceased to be interested in the result of the appeal after the first Court passed a decree in his favour. On the facts of the present case, I think that the lower Appellate Court was justified in pleading defendants Nos. 2 to 7, who had, in my opinion, secured no benefit under the decree appealed from. The relief (a), which the plaintiffs claimed in their plaint, is as follows:

A decree may be passed in favour of the plaintiffs declaring that plots Nos. 1035 and 971 situate in Mauza Belamau saraiyan, Pargana Tirwa, are owned and possessed by plaintiffs and defendants Nos. 2 to 7 as grove proprietors, that plaintiffs and defendants Nos. 2 to 7 are the owners of the cattle market held in the plots aforesaid and that defendant No. 1 has no right to get profits from the cattle market held in the plots aforesaid.

6. The plaintiffs had claimed another relief, which is marked (b) in the plaint. The trial Court decreed the plaintiffs' suit "in terms of relief (a)" only. It is contended that, under the decree of the trial Court, defendants Nos. 2 to 7 secured a valuable right implied in the adjudication in their favour in common with the plaintiffs. I have examined the pleadings and the Judgment of the trial Court, and am of opinion that this assertion cannot hold good, it is alleged in the plaint that there is an old market in the village belonging to all the co-sharers, in which numerous commodities are sold, that there was no cattle market till the plaintiffs and defendants Nos. 2 to 7 established one on No. 1036, that defendant No. 1 obtained a decree against the lambardar, defendant No. 2, for his share of the profits accruing from the cattle market, that No. 1036 being joint land no objection was taken by defendant No. 2, that in 1925 the plaintiffs and defendants Nos. 2 to 7 shifted the cattle market to plot No. 1035, in which they have rights as grove-holders, and later on purchased similar rights in No. 971, to which sometimes the cattle market is extended; that the plaintiffs and defendants Nos. 2 to 7 who are grove-holders of Nos. 1035 and 971, are entitled to establish the market, and that defendant No. 1 has no right to participate in the profits as he asserts. As to defendants Nos. 2 to 7, it is said that they did not join the plaintiffs in the suit, and are therefore made pro forma defendants. It is stated that they be exempted from costs if they do not resist the plaintiffs claim. It is important to note that defendants Nos. 2 to 7 do not appear to have ever denied the right of defendant No. 1, nor had they any cause of action. The plaintiffs themselves were not certain as regards their attitude in the matter. They call them pro forma defendants, and even apprehend that they may oppose the plaintiffs claim. It is quite intelligible that they (defendants Nos. 2 to 7) may not concede, on principle, to grove-holders the right of establishing market on the grove land, though they may have the right of a grove-holder in Nos. 1035 and 971. They did not enter appearance, nor did they affirm the plaintiffs' allegation and deny the right of defendant No. 1 to participate in the profits of the cattle market. It is perfectly clear that there was no conflict between the defendants inter se. It was by the action of the plaintiffs that they (defendants Nos. 2 to 7) were dragged in the case and figured in the prayer for relief which they have claimed.

7. The contesting defendant denied most of the plaintiffs' allegations, and claimed the right to his share of the profits of the cattle market on the ground that he is a co-sharer in the village like the plaintiffs. I have examined the judgment of the trial Court with care, and do not find any adjudication on the question which assumed importance only in the lower Appellate Court. A reference to the issues set down for decision by the trial Court will show that Issue No. 1 was the only issue which contemplates anything like the merits of the case. It is: Whether the plaintiffs are competent to sue. Under this issue the trial Court found: (1) that the cattle market has been shifted from plot No. 1036, which is barren land and belongs to all the co-sharers, including defendant No. 1, to Nos. 1085 and 971, which, as regards proprietary rights, belong to all the co-sharers; but the groves on them belong to the plaintiffs and defendants Nos. 2 to 7, who, in addition to being co-sharers in the proprietary rights in the land, are also grove-holders, having purchased them from certain grove-holders: (2) that the plaintiffs and defendants Nos. 2 to 7 were entitled to establish the cattle market in the groves, and their act is not inconsistent with the object for which the grove land was granted; that no merger of the two rights has occurred; (4) that No. 1035 has not ceased to be a grove.

8. As a result of these findings the trial Court held that "the plaintiffs are competent to bring the suit." There is no adjudication as to whether defendant No. 1 in common with other proprietors of the land Nos. 1035 and 971 is entitled to the profits. The trial Court assumed that, if, the market is held in the grove, the grove holder is entitled to the income accruing there from. It did not decide the really important question as to who is entitled to such income as between the grove-holder and the owner of the site. The relief (a) granted to the plaintiffs, construed in the light of the judgment, is a declaration that they and defendants Nos. 2 to 7 are grove-holders in respect of Nos. 1035 and 971, and that defendant No. 1 has no interest as a grove-holder, and therefore not entitled to profits. To this extent only, if at all, the decree passed by the trial Court can be said to adjudicate in favour of defendants Nos. 2 to 7. It does not imply that as one of the proprietors, he (defendant No. 1) is not entitled to his share of the profits. I hold that the real question arising in the case and decided by the lower Appellate Court, namely, that the profits accruing from the cattle market belong to the proprietors of the soil and not to the grove-holder, as claimed by the plaintiffs, was not adjudicated upon by the trial Court, and therefore that question was open as much between defendant No. 1 and defendants Nos. 2 to 7 as between defendant No. 1 and the plaintiffs; In this view, defendants Nos. 2 to 7 were interested in the appeal, as contemplated by Order XLI, Rule 20, Civil Procedure Code and were rightly impleaded.

9. Defendant No. 1 took the decree to be in favour of the plaintiffs, who had instituted the suit there for and impleaded them alone, expecting that if he successfully assailed the decree passed by the trial Court, the plaintiffs' suit would be dismissed, which was all that he required. He ignored defendants Nos. 2 to 7, who had never set up any rights inconsistent with those of defendant No. 1, had never filed a written statement and were styled as pro forma defendants in the plaint itself. The plaintiffs stated expressly in p.11 of the plaint that defendants Nos. 2 to 7 did not join in the suit, and have, therefore, been made pro forma defendants and should be exempted from costs. At the hearing, the lower Appellate Court considered that in hearing the appeal of defendant No. 1 against the plaintiffs, it cannot but consider the rights attributed by the plaintiffs to defendants Nos. 2 to 7 and that their presence before the Court was necessary, as the rights which they possessed according to the plaintiffs would be in controversy between the plaintiffs and defendant No. 1 I do not think that defendants Nos. 2 to 7 had obtained any such valuable right under the decree of the trial Court as was contemplated by their Lordships of the Privy Council in Chockalingam Chetty v. Seethai Ache 6 R. 29 : 107 Ind. Cas. 237 : 26 A.L.J. 371 : A.I.R. 1927 P.C. 256 : 4 O.W.N. 1231 : 27 L.W. 1 : 54 M.L.J. 88 : (1928) M.W.N. 20 : 47 C.L.J. 136 : 32 C.W.N. 281 : I.L.T. 40 Rang. 18 : 30 Bom. L.R. 220 (P.C) In that case, the plaintiff's suit against the defendants not impleaded in appeal had been dismissed, and no appeal had been preferred by the plaintiff against them, with the result that, if they were impleaded in appeal, their rights, which had been secured by the decree of the trial Court, would be jeopardised. They had definitely asserted certain rights and had obtained recognition of them. In the present case, as already stated, defendants Nos. 2 to 7 were only pro forma defendants and did not take any interest in the litigation till they were sought to be impleaded in appeal, when for the first time they protested against being joined as respondents.

10. If the decision of the trial Court be considered to be res judicata not only on the question of fact that the plaintiffs and defendants Nos. 2 to 7 are grove-holders while defendant No. 1 is not, but also on the further point that as between grove-holders and the proprietors of the soil the former, and not the latter, are entitled to the market dues, the appeal in the lower Court could not be heard in the absence of defendants Nos. 2 to 7, and was liable to be dismissed on that ground against the plaintiffs. On the merits I am clearly of opinion that defendant No. 1 is entitled to a share of the profits, even though the cattle market is held, wholly or partly, on the grove land, it is common ground that there is an old market in the village for sale of all sorts of commodities. The cattle market is only a part of it, and was for a number of years held on No. 1036, which was 'usar', and part of the joint mahal. If the plaintiffs shifted it to another plot, the trees of which belong to them and defendants Nos. 2 to 7 but not to defendant No. 1, the rights of the co-sharers are not affected. The site of the grove belongs undoubtedly to the proprietors, who cannot, however, make such use of it as will interfere with the rights of the grove-holder previously granted by themselves. The grove-holder, on the other hand, cannot claim any higher right than that of enjoying the grove as such. If anything done by the proprietors interferes with his enjoyment of the land for the purpose of maintaining and enjoying the grove, he can prevent the proprietors; but if he tolerates a cattle market thereon, he cannot claim its income, which is part of the 'sewai' income of the mahal, any more than an ordinary tenant can, if a market is held on part of his holding in the fallow season. In the result, I dismiss the appeal with costs.

Smith, J.

11. I have read, and carefully considered, the judgment of my learned brother, and regret that I do not agree with the view he takes of the law applicable to this matter. My view, briefly stated, in this. Having regard to the phraseology of relief (a) of the plaint, (it is not necessary for me to quote it again) and having regard to the fact that the plaintiffs' suit was decreed in terms of that relief by the trial Court, defendants Nos. 2 to 7 acquired a valuable right, along with the plaintiffs, against the contesting defendant. The latter failed to implead defendants Nos. 2 to 7 when he appealed in the learned court below, and that Court was, in my opinion, not justified in impleading those defendants when limitation for an appeal as against them had expired. It was contended by learned Counsel for the appellants that in all cases where an appeal is time barred against a party, that party is not interested in the result of the appeal. That contention is doubtless too sweeping but in the present case defendants Nos. 2 to 7 were in my opinion not interested in the result of the appeal, within the meaning of 0rder XLI, Rule 20, since there was a decree in their favour, an appeal against which had become time-barred as against them, and it is not shown that despite that fact they could be said to be interested in the result of the appeal. In those circumstances, I think that the principle applies that was laid down in Chokalingam Ghetty v. Seethai Ache 6 R. 29 : 107 Ind. Cas. 237 : 26 A.L.J. 371 : A.I.R. 1927 P.C. 256 : 4 O.W.N. 1231 : 27 L.W. 1 : 54 M.L.J. 88 : (1928) M.W.N. 20 : 47 C.L.J. 136 : 32 C.W.N. 281 : I.L.T. 40 Rang. 18 : 30 Bom. L.R. 220 (P.C) I give the names as they are given in 6 Rang. 29 6 R. 29 : 107 Ind. Cas. 237 : 26 A.L.J. 371 : A.I.R. 1927 P.C. 256 : 4 O.W.N. 1231 : 27 L.W. 1 : 54 M.L.J. 88 : (1928) M.W.N. 20 : 47 C.L.J. 136 : 32 C.W.N. 281 : I.L.T. 40 Rang. 18 : 30 Bom. L.R. 220 (P.C), They are given slightly differently in the same decision as reported in 6 R. 29 : 107 Ind. Cas. 237 : 26 A.L.J. 371 : A.I.R. 1927 P.C. 256 : 4 O.W.N. 1231 : 27 L.W. 1 : 54 M.L.J. 88 : (1928) M.W.N. 20 : 47 C.L.J. 136 : 32 C.W.N. 281 : I.L.T. 40 Rang. 18 : 30 Bom. L.R. 220 (P.C) As regards 0rder XLI, Rule 33, I must point out that the defendants Nos. 2 to 7 were impleaded under Order XLI. 20. Order XLI, Rule 33, empowers a Court 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.

12. The rule does not expressly relate to the addition of parties. In the decision above referred to, their Lordships of the Privy Council said with reference to this rule:

Assuming that under this rule the Court in a proper case might add a defendant as, respondent for the purpose of passing a decree against him, their Lordships see no sufficient reason for interfering with the refusal of the Appellate Court to do so in this instance.

13. I do not read this part of their Lordships' judgment as laying down that a defendant can, in fact, be added under this rule as a respondent for the purpose of passing a decree against him, and the balance of authority seems to be that an Appellate Court has no power under it to interfere to the prejudice of a person who was a party to a suit, but who was not impleaded in the appeal: vide "Code of Civil Procedure, "Chitaleyand Annaji Rao, Vol. III, pp. 3003-3004 (1st Edn.). I am, therefore, of opinion that defendants Nos. 2-7 ought not to have been impleaded, after limitation for an appeal had expired as against them, and I am further of opinion that in their absence the appeal was bound to fail, as to have allowed it, either in whole or in part, would have resulted in two inconsistent decrees. That was the argument advanced by learned Counsel for the appellants before us, and the argument is, in my opinion, correct. On the merits, to conclude the matter, I agree with my learned brother's views, but taking the view I do of the law applicable, I would allow the appeal, and restore the decision of the learned Munsif.

14. Owing to the difference of opinion between us, we direct that this matter be laid before the Hon'ble Chief Justice with a view to the following point of law being heard by a third Judge or a larger Bench: In the circumstances of this case, was the lower Appellate Court justified, by the provisions either of Order XLI, Rule 20 or Order XLI, Rule 33, Civil Procedure Code, in adding as respondents defend ants Nos. 2 to 7 ?

Owing to the difference of opinion between the two learned Judges the case was placed before a third learned Judge who delivered the following judgment.

Sulaiman, C. J.

15. As the learned Judges who heard this appeal differed on a point of law, the following question has been referred to me for opinion:

In the circumstances of this case, was the lower Appellate Court justified, by the provisions either of Order XLI, Rule 20, or Order XLI, Rule 33, Civil Procedure Code, in adding as respondents defendants Nos. 2 to 7.

16. A suit was brought by nine plaintiffs against defendant No 1, as the principal defendant, impleading defendants Nos. 2 to 7 as pro forma defendants, the latter being co-sharers of the plaintiffs. The dispute related to certain plots and a cattle market on another plot. The plaintiffs' case was that the plaintiffs and defendants Nos. 2 to 7 were the owners in possession of the properties in dispute, but defendant No. 1 was unnecessarily interfering with the plaintiffs in connection with the market aforesaid. The cause of action was alleged as the date, on which defendant No. 1 interfered and asserted his own rights and denied the rights of the plaintiffs within the limits of the jurisdiction of the Court. It was stated that as defendants Nos. 2 to 7 could not join in the suit they were made pro forma defendants and they should be exempted from the costs if they do not set up a defence against the plaintiffs. In the body of the plaint there was no allegation that, defendant No. 1 had denied the title of defendants Nos. 2 to 7 or that defendant No. 1 had in any way interfered with the possession of defendants Nos. 2-7. The allegations as regards the denial of title and interference with possession was with regard to plaintiffs only. The first relief claimed was:

(a) A decree may be passed in favour of the plaintiffs declaring that plots Nos. 1035 and 971 situate in Mama Belamau Saraiyan, Pargana Tirwa, are owned and possessed by plaintiffs and defendants Nos. 2 to 7 as grove; proprietors, that plaintiffs and defendants Nos. 2 to 7 are the owners of the cattle market held in the plots aforesaid, and that defendant No. 1 has no right to get profits from the cattle market held in the plots aforesaid valued at Rs. 2,000.

17. So far as relief (b) was concerned, it was not granted by the trial Court and may now be ignored. The claim was contested by defendant No. 1, the pro forma defendants Nos. 2 to 7 being absent throughout. The trial Court passed a decree in the following terms : "The plaintiffs' suit is decreed in terms of relief (a) with costs from defendant No. 1." Defendant No. 1 filed an appeal against the plaintiffs only, without impleading defendants Nos. 2 to 7. At the time of the hearing of the appeal an objection was taken on behalf of the plaintiffs that defendants Nos. 2 to 7 were necessary parties and had been wrongly left out and that accordingly the appeal was incompetent and should be dismissed. Upon this the Court, purporting to act under Order XLI, Rule 20, impleaded defendants Nos. 2 to 7 as defendants. The appeal was then heard on its merits, the decree of the trial Court was set aside and the plaintiffs' suit dismissed with costs. In second appeal the question arose whether the order impleading defendants Nos. 2 to 7 passed by the lower Appellate Court was justified.

18. So far as the pure question of law is concerned, the position is that Order XLI, Rule 20 is couched in a somewhat wide language and empowers an Appellate Court, where it appears to it, 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, to direct that such person be made a respondent But the rule itself contains one limitation, namely that the person to be added as a respondent must be one who "is interested in the result of the appeal." When such a person has been impleaded, that the Court under Order XLI, Rule 11 (33) has ample powers 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. Under Section 569 of the old Civil Procedure Code, the language of which was substantially the same as that of the present rule, a Full Bench of this Court in Bindeshri Naik v. Ganga Saran Sahu 14 A. 154 : A.W.N. 1892 : 13 distinctly laid down that it is competent to a Court acting under that section to add a person as respondent in an appeal, though the time within which an appeal might have been preferred as against such person has expired. Indeed, in most cases in which a party is added as a respondent at the time of the bearing of the appeal, the ordinary limitation for filing an appeal from the decree of the first Court against him would have expired. The Full Bench ruling was followed by this Court and other High Courts in India for a considerable length of time.

19. But recently there has been a pronouncement by their Lordships of the Privy Council in Chockalingam Chatty v. Seethai Ache. 6 R. 29 : 107 Ind. Cas. 237 : 26 A.L.J. 371 : A.I.R. 1927 P.C. 256 : 4 O.W.N. 1231 : 27 L.W. 1 : 54 M.L.J. 88 : (1928) M.W.N. 20 : 47 C.L.J. 136 : 32 C.W.N. 281 : I.L.T. 40 Rang. 18 : 30 Bom. L.R. 220 (P.C) and the question is whether the earlier Full Bench riling of this Court is to be deemed to have been overruled, or at any rate superseded so far as the: new Code is concerned. In that case the plaintiff had instituted two suits impugning certain transfers made by a trustee in favour of defendant No. 1. Other persons who claimed on the transfers made by defendant No. 1 were impleaded as defendants. The trial Court held that the transfers made in favour of defendant No. 1 were good and valid and accordingly dismissed the whole suit. The plaintiff appleled to the High Court as against all the defendants excepting some defendants including defendant No. 1 in whose favour the decree of the trial Court became final. Their Lordships had to consider the question whether the Court could in appeal implead defendant No. 1 as respondent and pass a decree against him in spite o£ the fact that the plaintiff had not filed any appeal against him and the period of limitation had expired. Their Lordships at p. 376 pointed out 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 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 be lightly deprived.

20. Their Lordships then proceeded to remark that Order XLI, Rule 20, 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." Their Lordships then observed:

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 rights of appeal are barred, are interested in the result of the appeals filed by the plaintiff against the other defendants.

21. No doubt their Lordships then proceeded to consider the provisions of Order XLI, Rule 33, but did not express any definite opinion regarding it. This ruling, therefore, is a clear authority for the proposition that where a plaintiff's suit has been dismissed against some of the defendants and no appeal is preferred against them and the period of limitation expires, then it is not open to the Appellate Court to implead them under Order XLI, Rule 20, because after the lapse of the period of limitation, they have acquired a valuable right under the decree and are no longer persons interested in the result of the appeal within the meaning of that rule It seems to me that the rule laid down by their Lordships would apply equally to the case where a suit having been decreed in favour of several plaintiffs, the defendants prefer an appeal against some of the plaintiffs leaving put others. In such a case also the Appellate Court would not have power to implead the plaintiffs whose suit was decreed and against whom no appeal has been preferred within the time allowed by law as they would no longer be interested in the result of the appeal. In this view the ruling in Bindeshri Naik v. Ganga Saran Sahu 14 A. 154 : A.W.N. 1892 : 13 which was given under the corresponding section of the old Code, must now be taken to have been superseded by the ruling of their Lordships of the Privy Council in the recent case. Even if it be not considered to have been definitely overruled and it may be held that the Appellate Court has still some jurisdiction in the matter, the ruling of their Lordships of the Privy Council would prevent such Court from exercising its discretion in a case of that kind

22. I am, therefore, of opinion that if a joint decree were passed in favour of a number of parties and an appeal were preferred against only some of the joint decree-holders leaving out the rest and the period of limitation were to expire, then it would be too late for the lower Appellate Court to implead such joint decree-holders as respondents in the appeal, in order to consider the appeal against them and pass a decree against them. The cases where a decree is to be passed in favour of persons who have not appealed or who are to be impleaded for some other purpose stand on a different footing, for there is an express power conferred on Appellate Courts by Order XLI, Rule 33, to pass a decree in their favour. It does not, however, appear that in the present case the learned Judges really differed on this abstract question of law. Even Smith, J., who took the opinion in favour of the plaintiffs appellants, remarked:

It was contended by the learned Counsel for the appellants that in all cases where an appeal is time barred against a party, that party is not interested in the result of the appeal That contention is doubtless too sweeping, but in the present case defendants Nos. 2 to 7 were in my opinion not interested in the result of the appeal within the meaning of Order XLI, Rule 20, since there was a decree in their favour an appeal against which had became time barred as against them, and it is not shown that despite that fact they could ,be said to be interested in the result of the appeal.

23. The learned Judge accordingly held that in this particular case defendants Nos. 2 to 7 were joint decree holders and they could, therefore, not; be impleaded in appeal. On the other hand, Niamatullah, J. appears to have considered that they were really pro forma defendants as to whom there is no adjudication as to whether defendant No,1 in common with other proprietors of the land Nos. 1035 and 971 is entitled to the profits.

24. The learned Judge held:

In the present case, as already stated, defendants Nos. 2 to 7 were only pro forma defendants, and did not take any interest in the litigation till they were sought to be impleaded in appeal when for the first time they protested against being joined as respondents.

25. It therefore seems to me that the point on which the learned Judges have differed is not the general question of law, but the question whether in the circumstances of this case the addition of defendants Nos. 2 to 7 as respondents in appeal was justified. As already pointed out, the decree asked for in relief (a) was to be passed in favour of the plaintiffs themselves and not in favour of the plaintiffs and defendants Nos. 2 to 7. It is well settled that a few co-sharers can bring a suit for a declaration of title against anyone who denies it, and they, can claim a right in common with the rest of the co-parcenary body. As the plaintiffs in such a case are not the exclusive owners of the property, but share it along with other co-sharers who have not joined in the suit, they are bound to allege that the property is owned and possessed by the plaintiffs as well as other co-sharers. But relief (a), as actually worded, was confined to a decree in favour of the plaintiffs. There can, therefore, be no doubt that the defendants must have been misled by the frame of the relief, and considered that the decree passed by the trial Court in terms of relief (a) was in favour of the plaintiffs only and really, not in favour of defendants Nos. 2 to 7 That obviously is the explanation of their not having impleaded defendants Nos. 2 to 7. If the lower Appellate Court were to allow the appeal and to dismiss the suit of the plaintiffs, it may well be argued that by virtue of Expl. 6, Section 11, Civil Procedure Code, I he decision would be binding on all persons in common with whom the right is claimed.

26. It is to avoid such a conflict between, the Appellate Court's decree and the trial Court's decree that the lower Appellate Court thought it just to implead defendants Nos. 2 to 7. In any case defendants who have not been impleaded in an appeal can be impleaded by filing an appeal against them, accompanied by an application under Section 5, Limitation Act, for extension of time. I consider that in view of the ambiguous language used in the relief and: the decree there was ample justification for the contesting defendant not to implead defendants Nos. 2 to 7, and regard them as not persons in whose favour any decree had been passed. This was accordingly a fit case under which time could have been extended under Section 5, Limitation Act.I would therefore hold that in the special circumstances of this particular case, there being in strictness no decree in favour of defendants Nos. 2 to 7, the Appellate Court had jurisdiction to implead them as respondents, so that they may be bound by the final order. Had the decree been passed in favour of the plaintiff as well as defendants Nos. 2 to 7, I would have come just to the contrary conclusion. This is my answer to the question referred to me.