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Andhra Pradesh High Court
Judges : K.MADHAVA REDDY, N.KUMARAYYA
Conugunta Subbarayudi - Appellant
Versus
Eluri Brahmanadan - Respondent
Decided On : 08-06-68
CIVIL PROCEDURE CODE - SECTION 146 - TRANSFER OF PROPERTY ACT - SECTION 52 - ADDITION OF PARTIES - SETTLEMENT PENDENTE LITE - INTERESTED IN THE RESULT OF APPEAL - JURISDICTION OF APPELLATE COURT - COMPROMISE MEMO - ORDER 23, RULE 3 - DISCRETION OF COURT - JUDICIAL EXERCISE.
Fact of the Case:
Plaintiff filed a suit for partition of joint family properties against his brother, mother, and two alienees of items 5 of the suit property. The brother died leaving his mother as his only heir. The mother claimed items 1 to 6 as her separate properties. The claim was accepted for item 1 and item 6, which she had settled on her daughter's son, Eluri Brahmanandam, on 17/05/1960. The settlee did not come on record as a party to the suit. The decision in the suit went favorable to his interest. The plaintiff preferred an appeal in 1961. The settlee applied to be brought on record as a person interested in the appeal by reason of the settlement deed in his favor. The appellant and the settlor filed a compromise memo giving up the claim to item 6 as her separate property. The Principal Subordinate Judge allowed the application following the dictum in Venkata Narasimha Raju v. Katteboyina Yellamanda, (1958) 2 Andh WR 291 = (AIR 1960 Andh Pra 32) in preference to that in Doraikannu Asari v. Nataraja Chetty, (1951) 2 Mad LJ 26.
Finding of the Court:
The Principal Subordinate Judge had jurisdiction to add Eluri Brahmananda, as a party to the appeal. The settlement deed, on the strength of which he had made his application was registered on 17/05/1960 when the suit for partitions still pending. The subject-matter of settlement is item 6 of the plaint schedule property, which was claimed in the suit to be the separate property of the settler and was eventually found so. It is plain the transfer was pendente lite and the right of the settlee pendente lite and the right of the settlee was therefore governed by the provisions of Section 52 of the Transfer of Property Act. The settlee was interested in the result of the appeal for the right that he got in the settled property was subject to the result of that appeal as well. The scope of Or. 22, Rule 10, C. P. C. is not wide enough so as to permit him to apply to be impleaded as a party in the appeal, because the transfer was not effected pending that proceedings but prior thereof. Nor does Order 22, Rule 11, C. P. C. which provides that in the application of O. 22, to appeals, so far as may be, the word suit shall be held to include an appeal, can confer that right on him. But that does not mean that bound as he is by the result of the appeal, he is left without any remedy of safeguarding his interests. Section 146, C. P. C. , reads thus:- "save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him". The transferee can, therefore, take benefit of Section 146 and apply to be brought on record, for such a course id not prohibited by any other provision of the Code. The application of the settlee to be brought on record is maintainable under Section 146, C. P. C. and the Court below has committed no error of law in entertaining this petition and granting the same.
Issues: Whether a settlee pendente lite of one of the items of suit property can be added as a party to an appeal brought by the plaintiff, as a person interested in the result thereof.
Ratio Decidendi: The right of the settlee pendente lite was governed by the provisions of Section 52 of the Transfer of Property Act, which states that during the pendency of any suit or proceeding, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein. The settlee was interested in the result of the appeal for the right that he got in the settled property was subject to the result of that appeal as well. Section 146, C. P. C. allows any person claiming under a party to a proceeding to take or make any proceeding or application that the party could have taken or made. The transferee can, therefore, take benefit of Section 146 and apply to be brought on record, for such a course id not prohibited by any other provision of the Code.
Final Decision: The revision petition is dismissed with costs.
( 1 ) THIS petition which, on reference, is before us raises a short point, whether a settlee pendente lite of one of the items of suit property can be added as a party to an appeal brought by the plaintiff, as a person interested in the result thereof.
( 2 ) IT may be expedient to make a brief statement of facts which are in a narrow compass. Gonugunta Subbarayudu (petitioner-plaintiff) laid an action in the year 1959 for partition of joint family properties against his brother Srisailam, his mother Viramma, and two other persons, alienees of items 5 of the suit property. The brother did not survive long. He died leaving his mother as his only heir, who had already claimed in the suit that items 1 to 6 of the suit schedule property constituted her separate properties and hence could not be made available for partition. Her claim eventually was accepted but only in relation to item 1 and also item 6, which she had already settled on 17/05/1960, on her daughters son. Eluri Brahmanandam. The settlee did not choose to come on record as party to the suit. The decision in the suit went favourable to his interest. The plaintiff preferred his appeal in 1961. Some time thereafter the settlee thought it necessary in his interest to come on record. On 6/04/1962, he accordingly made an application to be brought on record as a person interested in the appeal by reason of the settlement deed in his favour. On the following day i. e. on 7/04/1962, the appellant (plaintiff) and the settlor (2nd defendant) filed a compromise memo wherein the latter gave up her claim to item 6 as her separate property. Then both of them opposed the petition of the settlee on the ground that the settlement reeled on was vitiated by fraud and undue influence and was highly grief-stricken on account of the demise of her son and was not in a position to understand the nature of the transaction. The Principal Subordinate Judge nevertheless allowed the application following the dictum Venkata Narasimha Raju v. Katteboyina Yellamanda, (1958) 2 Andh WR 291 = (AIR 1960 Andh Pra 32) in preference to that in Doraikannu Asari v. Nataraja Chetty, (1951) 2 Mad LJ 26 and directed that he be added as a party to the appeal. Aggrieved by that order the appellant has filed this revision petition.
( 3 ) IT is the conflict in the above decisions that has given occasion to reference of the matter to this Bench Perhaps the conflict would not have arisen if the Divisional Bench case in Seethai Achi v. Meyappa Chettiar 66 MLJ 517, which was followed in (1958) 2 Andh WR 291 = (AIR 1960 Andh Pra 32) (supra), were cited before the learned Judge who decided 1951-2 Mad LJ 26 (supra ). Curiously enough, of the two decisions in question, the earlier was not brought to the notice of the learned Judge who decided the later case. Be that what it may, the question now for consideration is whether the Principal Subordinate Judge had jurisdiction to add Eluri Brahmananda, as a party to the appeal.
( 4 ) IT must always be borne in mind that addition of parties to a pending proceedings is not a matter of substantive right but only one of procedure. Procedure being handmaid of justice, rules of procedure are always designed to advance the cause and subserve the ends of justice. The right application thereof must necessarily rest on the discretion of the Court which has to be exercised on principles of equity, justice and good conscience of the Court having regard to the facts and circumstances of each case. There are several provisions made in the Civil Procedure Code for the addition of parties in various contingenecies and at various stages. We may refer in this behalf to some of the provisions of the Civil Procedure Code contained in Or. 1 R. 10, O. 22, Rules 10 to 12, O. 41, R. 20 and Section 146 C. P. C. The policy underlying these provisions is that the parties necessary to the very constitution of the suit i. e. , persons in whose absence the suit cannot be determined or persons
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