Laguduva S. Krishnaswami Iyer Petitioner. v. Sankarappa Naidu .

The petitioner here was a joint decree-holder in a certain suit. The respondent here was the judgment-debtor in that suit. Against an order passed in execution on 21st October 1932 the judgment-debtor filed an appeal (A. S. No. 191) of 1932 within time. In that appeal he omitted the name of Laguduva S. Krishnaswami Ayyar, the present petitioner, and on 1st November 1933 in the course of the appeal he put in two Interlocutory Applications (I.A Nos. 425 and 426 of 1933). The first application asked for a relief to add the petitioner as a respondent. The second asked for permission under S. 5 of the Limitation Act to excuse the delay in preferring the appeal against him, which was out of time. The lower Court granted both the petitions. There is no revision petition against the order on I.A No. 426 extending the period of limitation and that order has become final. The present petition is against the order on I. A. No. 425 of 1933 giving permission to add the petitioner as a respondent.

The basis of the objection to the order is that under O. 41 R. 20, since the appeal had abated against this petitioner, he was not a party ‘interested in the result of the appeal’ and therefore the lower appellate Court had no jurisdiction to have him impleaded as respondent. It is important in this case to keep clearly in mind the logical sequence of the orders passed, although one common order covers both. It is clear that I.A No. 425 of 1933 asking to add the petitioner as a party had to be first ordered before the second application (I.A No. 426 of 1933) extending the period of limitation against him could be entertained. Consequently, it is quite cut of place to argue that the period of limitation having been extended, he must be held under S. 22 of the Limitation Act to have been impleaded at the time when the appeal was originally filed. Strictly speaking also it is quite open to this Court to go behind the findings of fact on which the limitation period was extended, because I am here dealing with an order which must be taken to have been passed before the application to extend the period of limitation was entertained. I do not, however, wish to deal at any length with the reasons on which the lower Court extended limitation, as I think the whole matter can be argued more clearly without much reference to them. But I must mention what happened, which was this. The petitioner was entered in the cause title of E.P 735/1927 as dead. Admittedly, no application was put in to add his legal representative. But when it came to considering the extension of limitation, the lower Court held this mistake in the cause title sufficient reason, to grant extension, in spite of the fact that this petitioner in the course of the execution of the decree had been appearing in execution proceedings. As I said above, there is nothing to prevent my coming to a different finding from that reached by the learned District Judge in the petition to extend the period of limitation, as to whether the decree-holder (respondent) could be excused for the delay in filing the appeal and I must certainly remark that the fault was not entirely that of the Court in describing the Petitioner as dead, because, if petitioner believed this incorrect description, he should have applied to have his legal representative brought on record which he did not do. Turning to the main question before me there can be no doubt that the appeal which had been filed was incompetent for the decree was a joint one. The argument addressed before me is that the lower Court had no power to render an incompetent appeal competent. The first case quoted for the petitioner is Badri Narayan v. East Indian Railway Company* (1). This is in many respects like the present case. In that case, as in this, the appeal petition presented omitted to include some of the plaintiffs who were joint decree-holders. It was held that “O. 41, R. 20, applies only when there is an appeal pending in the Court on which a decision may be given by the Court. In that case, as in this, when the petition seeking to add the omitted parties was put in, the appeal was time-barred as against those who had been omitted. The learned Judges after quoting Manindra Chandra Nandi v. Bhagabati Debi Chudhurani (2) with approval say that “O. 41, R. 20, is not intended to override the provisions of O. 22 of the Civil Procedure Code. The right obtained by a respondent when the appeal abates as against them is a valuable right and should not be lightly treated.” It was held that “the lower Court was wholly wrong in having recourse to O. 41, R. 20 of the Code.” A further argument was raised before them that the lower Court in substance condoned the delay and gave leave under S. 5 of the Limitation Act. On this they remarked that the learned District Judge has not dealt with the matter on that footing. Though in one aspect the present case is the converse, for the lower Court has specifically dealt with and granted the petition for extension of time under S. 5 of the Limitation Act while it has not specifically dealt with the question as to whether O. 41, R. 20 can be availed of, to add the petitioner to the record, yet as I said above, the logical sequence of the order must be looked at, and the sole question before me is whether the Court had power to pass the order which it did pass on I. A. No. 425 of 1933. In V. P. R. V. Chokalingam Chetty v. Seethai Acha and others (3) (Privy Council case) the meaning of the words “interested in the result of the appeal” occurring in O. 41 R. 20 is explained. It was held that “as the 1st defendant held a decree against which an appeal was barred so far as he was concerned, he was not ‘interested in the result of the appeal’ within the meaning of O. 41, R. 20.” It was also held that “assuming that under O. 41, R. 33, the appellate Court could add a defendant as respondent for the purpose of making a decree against him, no sufficient ground had been shown for interfering with the refusal to do so.” Ma Than May v. Mohamed Eusoof follows the two cases quoted above and the necessity for this view is very clearly explained in that judgment. It has been pointed out there that the test to be applied is this: assuming the appeal against the respondent proved to be successful, the effect would be that there would be in existence two inconsistent decrees, one of the High Court and the other of the District Court, with respect to the subject-matter of the suit. The judgment proceeds: “If the appeal were to succeed in respect of all or any of the items set out in the memorandum of appeal the decree of this Court as against the respondent would both in form and in substance vary from the decree passed by the District Court which, as between the parties to the appeal and the 2nd defendant, has become conclusive.” Muniruddin v. Raisulnisa follows these cases. In Srinivasulu Chetti v. Guraviah it was held “Where pending an appeal by the defendant against a decree for joint possession passed in favour of several plaintiffs, one of the plaintiffs dies, and the appeal abates and is dismissed as against that plaintiff, the appeal must be dismissed as against the other plaintiffs also. When the whole decree could be executed by the legal representatives of the deceased plaintiff it would be idle to ask the Court to pass a contrary decree as against the other plaintiffs.” That is exactly the position in this case. Maharaja of Faridkot v. Anant Ram (4) goes very far in this direction. In that case in execution proceedings by K and J objections filed by R to the attachment of certain property were dismissed, whereupon R brought the present suit against K and J. The trial Court dismissed the suit in toto, but both in its judgment and in framing the decree omitted all reference to A. K., one of J's sons, who, on the death of J had been impleaded in the suit. R appealed from this decree, and on the day fixed for the hearing of the appeal, applied to have A. N added as a respondent. It was held that it is for the Court which makes such omission and that Court alone to put it right under S. 151 of the Code. To hold that an appellate Court could at this stage implead a person who has acquired an absolute right by lapse of time or by the omission of his name from the decree, would be tantamount to denying all finality to litigation. It was further held “that it was for R, being the party aggrieved, to have moved the trial Court, and this not having been done, the appellate Court had no power to act under either R. 20 or R. 33 of O. 41, nor does S. 152 apply to the case.” On this authority it was the trial Court that should have been moved in the present case to add the petitioner to the record. For the respondent only three of the cases quoted are in my opinion at all relevant. The first is Srinivasa Rao v. Venkatanarasamma a decision of this Court. It was there held “Where the next friend of a minor plaintiff withdraws the suit against one of the defendants without previously obtaining the sanction of the Court, the minor has got a right to have the matter re-opened. The absence of any special provision in the Code of Civil Procedure does not take away the inherent power of the Court to rectify its own errors.” There is a case where minors who have a right to be represented are concerned and entirely different rules apply and so this case is therefore not a guide to the present. The next case cited is Kunhanna Rai v. Manakke . There owing to an oversight of either the clerk or the person who instructed the Vakil who filed the Letters Patent Appeal, the name of the 2nd plaintiff who was the 14th respondent in the second appeal was left out and there was a reason for his name being left out, namely, his name resembled closely the name of the 3rd defendant. It was held “it was a bona fide mistake and the High Court has got power to correct it and to have the appeal memorandum amended by inserting the proper name and bringing on record the proper party. But it should be noticed in this case that there seems to have been no question of the application not having been made before the appeal time had elapsed against the party sought to be added, because there is no mention of extending the period of limitation which would have had to be done if such had been the case; and there was no decision of the question of O. 41 R. 22, not being applicable, nor could it be argued that when the appeal time has not elapsed the respondent sought to be added was not interested in the result of the appeal. The next case quoted is Basanti Bai v. Nanhe Mal . In that case a transfer of the property of an insolvent was challenged as being in fraud of the creditors and in an appeal from the order the Official Receiver was not impleaded as a party. An application was put in to add him as a party. Their Lordships observed:

“It is impossible to finally dispose of the case in the absence of the receiver. We cannot set aside the order of the District judge and uphold the transfers behind the back of the receiver. The appeal without impleading him is incompetent. We have, however, mentioned the reason why his name has been omitted from the memorandum of appeal. Having considered the case, we have come to the conclusion that the best thing to do is to set aside the order of the District Judge and remand the case to his Court with a direction that the receiver should be formally impleaded and that he should be allowed to produce any oral or documentary evidence he may like to produce.

Here again, there is nothing to show that the application was not made within the time allowed for the appeal. Secondly, the High Court set aside the order of the District Judge, thus avoiding two contradictory decrees existing at the same time as a possible result of the appeal. That the Court cannot use its inherent powers to extend the scope of a provision which places limitations on it is clear from the Full Bench decision reported in Gadi Neelaveni v. Marappareddigari Narayana Reddi . From the decisions quoted above it must be held clear that the petitioner was not, at the time when I. A. No. 425 of 1933 was presented to the lower Court, “interested in the result of the appeal” and hence the Court had no jurisdiction to order the petition.

A suggestion was made that it could have passed the order under the powers conferred by O. 41, R. 33. To begin with, that was not the order under which the Court acted, and it is a very special power to be used in special circumstances which do not exist at all in this case.

In the result therefore this petition must be allowed with costs and the order of the lower Court adding the 3rd petitioner as a party respondent set aside. The result of this of course will be automatically to render inoperative the order on the second I. A. (I. A. No. 426 of 1933) extending the period of limitation and also to make the appeal against the other respondents incompetent; otherwise there must be two contradictory decrees in existence as a result of that appeal.

N. R. R.Petition allowed.