L. NARASIMHA REDDY, J.

( 1 ) THE plaintiff in O. S. No. 198/80 on the file of the I Additional Junior Civil Judge, madanapalle, is the petitioner in this Civil revision Petition. The suit was filed for partition of suit schedule properties and a preliminary decree was passed in the suit. I. A. No. 145/83 was filed for final decree proceedings. It appears that a Commissioner was appointed in the LA. to ascertain the mesne profits as well as the share of the parties to the suit. However, aggrieved by the order passed in IA No. 145/83, defendants 1 to 5 and 14 have filed AS no. 11/84 in the Court of the Additional district Judge, Madanapalle. The said appeal was filed only against the petitioner herein, leaving aside all other parties viz. , defendants 6 to 13 and 15.

( 2 ) ALLEGING that there was non-compliance with the provisions of Order 41 rule 14 CPC in preferring the appeal, in that, the parties to the order under appeal were not arrayed in the Memorandum of Appeal, now the petitioner i. e. , the sole respondent in the appeal filed, IA No. 410/99 praying that the appeal be dismissed for non-joinder of necessary parties. This IA was dismissed by the trial (sic. appellate) Court through its order dated 14-9-1999. It is against this order that the present Civil Revision Petition is filed.

( 3 ) SRI S. Ramesh, appearing for sri S. V. Bhatt, the learned counsel for the petitioner submits that undisputedly, there is non-compliance of Order 41 Rule 14 of cpc and that on the face of the record the lower appellate Court ought not to have entertained the appeal at all and at any rate there is no justification in dismissing the IA when the material defect is noticed.

( 4 ) SRI C. Ram Prasad, the learned counsel for the respondents submits that the defect pointed out by the petitioner is a curable one and the lower appellate Court, having noticed the defect have directed the parties to take necessary steps under the provisions of the CPC and no interference is called for in this revision.

( 5 ) THE facts on record reveal that the respondents herein preferred the appeal only against the petitioner herein. The proceedings arose out of a suit for partition. It is well settled principle that in a suit for partition, no distinction can be made as to the rights and obligations of plaintiffs and defendants. It was not the case of the respondents that the suit either had abated against defendants 6 to 13 and 15 or that it is abated against them. Therefore, it was obligatory on their part to implead them also and the appeal was defective for non-joinder of the necessary parties.

( 6 ) HOWEVER, it has to be seen whether the said defect goes to the root of the matter and annuls the very appeal itself or it is a curable defect. The provisions of law, as do the precedents on the subject, only indicate that such a defect is curable one and not fatal to the proceedings. In the order under revision, having noticed the defect and the default committed by the respondents, the appellate court had directed the respondents herein to take steps to implead defendants 6 to 13 and 15 to the appeal. In my view, the said order cannot be said to be either defective or suffering from any lack of jurisdiction. On the other hand, it would advance the cause of the parties and would not only avoid multiplicity of proceedings, but also shorten the delay in conclusion of the proceedings. Therefore, I see no reason to interfere with the same. However, the respondents are hereby directed to file an application to implead defendants 6 to 13 and 15 in OS no. 198/80 as respondents in AS No. 11/84 on the file of the Additional District Judge, madanapalle, within four weeks from the date of this order. If they fail to do so, the appeal shall stand dismissed. With this observation, the Civil Revision Petition is disposed of. No costs.

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