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HIGH COURT OF ANDHRA PRADESH
P.CHANDRA REDDY,Offg.,SATYANARAYANA RAJU,SRINIVASACHARI, JJ.
Palacherla Anandu
Versus
Mallipudi Acharyulu
Second Appeals Nos. 1233 and 1243 of 1954 against decree of Addl. Sub. J., Kakinada, in Appeal Suit No. 70 of 1952.
Decided On : 28-02-1958
CIVIL PROCEDURE CODE - O. 41, R. 20 AND 33 - SCOPE - INTERESTED IN THE RESULT OF THE APPEAL - MEANING - POWER OF APPELLATE COURT TO ADD PARTIES - LIMITATION - EFFECT.
Fact of the Case:
The main question to be answered by the Full Bench is whether a party to a suit, who was absolved from liability by the trial Court, can be impleaded as a respondent to an appeal preferred by an aggrieved party to which he was not originally made a party and a decree passed against him by virtue of the combined operation of Rr. 20 and 33 of O. 41 of the Code of Civil Procedure.
Finding of the Court:
1. O. 41, R. 20 empowers an appellate Court to implead party to the suit as a supplemental respondent only if he is interested in the result of the appeal i.e., if he is to be affected by any decree or order to be passed in the appeal and not otherwise, and that the interest must be determined with reference to a time when he is not brought on record. 2. It cannot be posited that such a respondent continues to have any interest in the appeal if the decree in his favour had become final by reason of an appeal not having been presented against it. 3. The power of a Court in this behalf must be sought within the ambit of O. 41, R. 20. 4. We do not think there is any inherent jurisdiction de hors this provision of law. 5. Section 151, C. P. C. cannot come into operation in regard to a matter for which a specific provision is made which alone could govern such a matter. 6. If a party to the suit is aggrieved by a judgment of a trial Court which exempts one of the defendant from liability and if the appealing party had not chosen to introduce him as one of the respondents it is open to him to invoke S. 5 of the Limitation Act as pointed out by Sulaiman, C.J., in AIR 1937 All 82 (X).
Issues: 1. Whether a party to a suit, who was absolved from liability by the trial Court, can be impleaded as a respondent to an appeal preferred by an aggrieved party to which he was not originally made a party? 2. Whether a decree can be passed against him by virtue of the combined operation of Rr. 20 and 33 of O. 41 of the Code of Civil Procedure?
Ratio Decidendi: 1. The expression "interested in the result of the appeal" connotes the subject matter of the appeal and cannot be equated to the subject-matter of the suit. 2. So, it cannot include properties which have been excluded from the relief granted to the plaintiff and which are not brought into question in the appeal as brought by the aggrieved defendant. 3. It follows that the supplemental respondent cannot be regarded as a party interested in the result of the appeal even after he is brought on record. 4. For all these reasons, the order impleading the appellants at a later stage is illegal and has to be ignored. 5. If so, could O. 41, R. 33 come to the rescue of the plaintiffs and respondents 7 and 8? 6. It is urged by the counsel for the respondents that O. 41, R. 33 confers large powers on an appellate Court to pass an appropriate order in order to do complete justice between the parties and as such, it is competent to a lower appellate Court to bring on record as a respondent a party to a suit and give a decree against him. 7. We do not think it is permissible for the Court to do so. 8. It is no doubt true that the range and sweep of that provision of law is wide, but that does not follow that all the provisions of law should be abrogated to give effect to the opinion of an appellate Court that a decree should be passed in a particular way. 9. These powers can be exercised only consistently with the other statutory provisions and they cannot be used to the detriment or prejudice of a person against whom the suit was dismissed in the trial Court in respect of which no appeal was preferred in the lower appellate Court.
Final Decision: 1. S. A. No. 1243 of 1954 is allowed and the decree of the lower appellate Court in regard to Items 7, 8, 9, 11 and 12 is set aside. 2. The decree of the trial Court in regard to the A scheduled property is restored in supersession of that of the lower appellate Court. 3. The appeal against the 1st respondent is dismissed without costs. 4. The plaintiffs (respondents 7 and 8) will pay the costs of the appellant herein in all the Courts. 5. The other parties will bear their own costs throughout. 6. S. A. 1233 of 1954 is dismissed with costs.
P. CHANDRA REDDY, Offg. C.J. : -
The main question to be answered by the Full Bench is whether a party to a suit, who was absolved from liability by the trial Court, can be impleaded as a respondent to an appeal preferred by an aggrieved party to which he was not originally made a party and a decree passed against him by virtue of the combined operation of Rr. 20 and 33 of O. 41 of the Code of Civil Procedure.
2. The facts material for this enquiry may be briefly set out :
3. Respondents 7 and 8 originally laid an action as reversioners to the estate of one Ammanna, impeaching a gift made by the widow (1st defendant) in favour of her nephew the 2nd defendant on 26-6-1946. The last male-holder died in or about the year 1890 him surviving his widow. The properties settled on the 2nd defendant were purchased by the widow. In the year 1894 under Exs. B-5 and B-6 for a sum of Rs. 600/-, having sold on 9-11-1894 and 20-12-1894 some of the properties belonging to her husbands estate which are items 7 to 12 of B schedule for Rs. 350/- under Exs. B-40 and B-4.
The vendees in their turn conveyed them to the predecessors-in-interest of the present appellants. The plaintiffs proceeded on the footing that the transactions were valid exchanges with the consequence that properties obtained in exchange formed part of the reversion. During the pendency of the appeal, the widow died. Thereupon, the plaintiff got the plaint amended as one for possession in respect of A scheduled properties as also items 1 to 6 and 13 of B schedule not alienated by her with an alternative prayer that in case it should turn out that items 7 to 12 of B schedule were not properly exchanged for A scheduled properties the plaintiff should have the right to recover possession of the said properties. Defendants 11 to 13, 17 and 18 were added as supplemental defendants. The 20th defendant brought another suit claiming to be a reversioner, but we are not concerned with that as it ended in dismissal which had become final, no appeal having been preferred against it. 4. The defence of the 2nd defendant, so far as relevant for the purpose of this appeal was that Kamamma had not exchanged any of the properties of the last male-holder with the plaint A schedule properties and that A scheduled properties were her self-acquisitions and were throughout treated as her stridhana properties. The present appellants by their written statement supported the plaintiffs case regarding the exchange of items 7 to 12 of the B schedule and also raised the plea that the plaintiffs were not entitled to seek the alternative relief in regard to items 7 to 12 of B schedule. The trial Court accepted the case of exchange and consequently gave a decree for the A and B scheduled properties other than items 7 to 12 of B schedule.
5. Defendants 2 to 7 preferred an appeal from that judgment and decree making the plaintiffs and the 20th defendant the rival claimant, as respondents to that appeal. Some months later, before the appeal came on for hearing the plaintiffs applied for the addition of defendants 11 to 13 in the suit as supplemental respondents to the appeal. In spite of the opposition of these defendants who are now the appellants before us, the appellate Judge granted the request of the plaintiffs.
When the appeal was finally heard and decided the Subordinate Judge came to the contrary conclusion regarding the exchange and dismissed the suit as against the donees from the widow, i.e., defendants 2 to 7 and gave a decree for possession against defendants 11 to 18-for possession of items 7 to 12. These defendants aggrieved by that decision have brought this second appeal. When it came on for hearing before Justice Umamaheswaram he thought that it would be heard by a Bench having regard to the points raised in the appeal and it is ultimately posted before the Full Bench having regard to the importance of the questions involved in it.
6. It is urged in support of this appeal that it was beyon
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