JUDGMENT - AGARWAL ASHOK, J.: - This petition has been filed by the original defendant No. 2 seeking to challenge the judgment and order dated the 2nd May, 1981 of the Court of the Joint Civil Judges, S.D. Nasik, passed below Exh. 57 rejecting the claim of the defendant No. 2 to add the respondent No. 6 the third party as a party to the suit under the provisions of Order 8, Rules 23 of the Code of Civil Procedure.

2. Respondents Nos. 1 to 3, the original plaintiffs filed against the respondent No. 4 being defendant No. 1, the petitioner being defendant No. 2 and respondent No. 5 being defendant No. 3, the aforesaid suit for recovery of a sum of Rs. 16,30,925.41 paise. It was their case that they were carrying on their business inter alia of buying and selling tobacco. The third party respondent No. 6 Bhikusa Yamasa Kshatriya Private Limited had from time to time bought tobacco and tobacco leaves from the plaintiffs. On an account being taken it was found that an amount of Rs. 17,44,619/- was due and payable by the said third party company to the plaintiffs. The defendants Nos. 1 to 3 were at all material times the Directors of the said third party company and the defendant No. 3 continued to be its Director. The defendants Nos. 1 to 3 had stood as guarantors for the payment found due from the third party company. The suit was thus filed against the defendants Nos. 1 to 3 for recovery of the amounts due from the said third party company.

3. On the 10th of March, 1980 the defendant No. 2 filed the present application Exh. 57 for impleading the aforesaid third party company as a party defendant to the said suit claiming pro rata indemnity from the said third party company in the event of decree being passed against him and he paying over the decretal amount to the plaintiffs. The said application was filed under Order 8, Rule 23 of the Code of Civil Procedure.

4. The aforesaid application was resisted by the plaintiffs challenging the maintainability of the application under Order 8, Rule 23 as also on the ground that the third party procedure contemplated under Rule 30 of Order 8 had stood deleted by virtue of the amended provisions of the Code of Civil Procedure.

5. The learned Judge of the trial Court held that the Code of Civil Procedure, 1976 had repealed the provisions of third party procedure provided under Rule 23 to Rule 30 of Order 8 of the Code of Civil Procedure. He also held the written statement of the defendant No. 2 as it stood had not made out any claim as against the third party company and the defendant No. 2 was not entitled as of right without the leave of the Court to amend his written statement so as to raise his claim as against the third party company. The defendant No. 2 not having made out a case in his written statement that he is entitled to the contribution of indemnity from the third party, his application for adding the third party company was premature and his application would be maintainable only after written statement making out the said case was got ascended. Pursuant to the aforesaid findings, the said application was rejected with costs.

6. Being aggrieved by the aforesaid judgment and order, the defendant has preferred the present petition. During the pendency of this petition, the plaintiffs who had initially resisted the application for impleading the third party company by his Civil Application No. 5611 of 1986 consented to the third party company being impleaded as a co-defendant to the suit. However, in the present proceedings the prayer of impleading the third party was resisted by the said third party company before me.

7. Shri Abhyankar the learned Advocate appearing on behalf of the petitioner, defendant No. 2, submitted that this High Court in exercise of powers under section 122 of the Code of Civil Procedure had framed Rules which included the Rules 23 to 30 of Order 8 dealing with party procedure. The said provisions were in existence all along and in any event on the date of the

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