P.B. Suresh Kumar, J.

1. The fifth defendant in a suit for damages is the appellant in this second appeal. The first defendant is a company publishing a newspaper and defendants 2 to 4 are the chief editor, printer and reporter respectively of the newspaper published by the first defendant. The case of the plaintiff is that at the instance of the fifth defendant, defendants 1 to 4 published a defamatory news item in their newspaper on 22.11.2007 concerning the plaintiff and the same affected the reputation of the plaintiff. The fifth defendant remained ex parte. Defendants 1 to 4 contested the suit. The contention raised by the defendants 1 to 4 was that what is reported by them in the news item is true and therefore, the plaintiff has no cause of action against them. The trial court accepted the case of the plaintiff and passed a decree permitting him to recover a sum of Rs. 1,00,000/- with interest from defendants 1 to 5. The fifth defendant did not challenge the decision of the trial court in appeal. Defendants 1 to 4 though challenged the decision of the trial court in appeal, the appellate court did not interfere with the decision of the trial court. Defendants 1 to 4 did not challenge the decision of the appellate court. However, the fifth defendant, who was the second respondent in the appeal preferred by defendants 1 to 4, has preferred this second appeal challenging the decision of the trial court as confirmed in appeal.

2. When the second appeal came up for admission, this Court entertained a doubt as to the maintainability of the second appeal challenging the decision of the trial court as confirmed in appeal by the fifth defendant who did not challenge the decision of the trial court in appeal. Consequently, the learned counsel on either side were directed to address on the question of maintainability of the second appeal. Adv. M. Gopikrishnan Nambiar was also appointed as amicus curiae in the matter.

3. Heard the learned Senior counsel for the appellant, the learned counsel for the first respondent as also the learned amicus curiae. As noticed above, the short question falls consideration is whether a second appeal challenging the decision of the trial court as confirmed in appeal is maintainable at the instance of a defendant who did not challenge the decision of the trial court in appeal. It is now settled by a long catena of decisions that only a person who is aggrieved by the appellate decree is entitled to file a second appeal (See Banarsi v. Ram Phal ((2003) 9 SCC 606)). As such, I must first consider the question as to whether the fifth defendant can be regarded as a person aggrieved by the decision of the appellate court. As noticed above, the decision impugned in this second appeal is a decision by which the appellate court dismissed the appeal preferred by defendants 1 to 4 challenging the decree passed against them by the trial court. The fifth defendant has not challenged the decree passed against him by the trial court in appeal and consequently the said decision has become final as against him. As such, it cannot be said that the sustainability or otherwise of the decree passed by the trial court against fifth defendant was the subject matter of the appeal. True, Rules 4 and 33 of Order 41 of the Code of Civil Procedure ('the Code' for short) confers power on the appellate court to reverse or vary the decision of the trial court in favour of a non appealing party. Rules 4 and 33 of Order 41 of the Code read thus:

"4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.-Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceed son any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendan