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High Court Of Rajasthan
Judgename : S.K.MAL LODHA,KANTA KUMARI BHATNAGAR
PARAS RAM - Appellant
Versus
MAHARAJ EKLING SINGHJI - Respondent
S. B. Civil 46 Of 1974
Decided On : 07/19/1984
CIVIL PROCEDURE CODE - APPEAL - PROPER CONSTITUTION - NECESSARY PARTY - NON-JOINDER - EFFECT - O. XLI, R. 20, C. P. C. - INTERESTED IN THE RESULT OF THE APPEAL - TEST - LIMITATION - O. I, R. 10, READ WITH S. 151, C. P. C. - APPLICATION FOR IMPLEADING RESPONDENT AFTER EXPIRY OF LIMITATION - DISMISSAL - JUSTIFIED.
Fact of the Case:
Plaintiff filed a suit for declaration under O. XXI, R. 63, C. P. C. averring that the amount attached in execution cases was not liable to attachment. Defendant No. 1 was the judgment-debtor. He died during the pendency of the appeal and his legal representatives were brought on record. Defendant No. 8 got attached a sum of Rs. 2704. 11 vide Execution Case No. 53/66 of the Court of Civil Judge, Udaipur. The suit was dismissed. Plaintiff filed an appeal under S. 96, C. P. C. Defendant No. 8, who was party in the suit, was not impleaded as respondent. The appeal was dismissed on the ground that it was not properly constituted. Plaintiff filed a special appeal under S. 18 (1) of the Rajasthan High Court Ordinance, 1949.
Finding of the Court:
The appeal was not properly constituted as defendant No. 8 Kesrimal was not impleaded as a party. His non-joinder affected the maintainability of the appeal. The learned single Judge was right in not allowing the application filed on behalf of the appellant under O. XLI, R. 20, C. P. C. for impleading Kesrimal defendant No. 8, as party-respondent to the appeal.
Issues: 1. Whether in the facts and circumstances of the case, defendant No. 8 Kesrimal was a necessary party to the appeal, which was filed by the plaintiff under S. 96, C. P. C. and if so, whether his non-joinder affects the maintainability of the appeal? 2. Whether the learned single Judge was not right in not allowing the application filed on behalf of the appellant under O. XLI, R. 20, C. P. C. for impleading Kesrimal defendant No. 8, as party-respondent to the appeal?
Ratio Decidendi: 1. The test for the purpose of impleading the respondent is that he must be interested in the result of the appeal. The expression interested in the result of the appeal, was examined in Chockalingam v. Seethai AIR 1927 PC 252, wherein, it was held that where a defendant has been exonerated in the lower Court and no appeal had been filed against him within the period of limitation, he cannot be said to be interested in the result of the appeal filed by the appellant against other respondents and that, in any event, it was for the appellant who sought to make respondent, to show what was the nature of the interest he had in the appeal. 2. Kesrimal (defendant No. 8) could not be impleaded as party-respondent to the appeal as prayed by the appellant in this application after a lapse of four years. In our opinion, the learned single Judge was right in dismissing the appellants application under O. XLI, R. 20, C. P. C. , for, he cannot be said to be interested in the result of the appeal after expiry of period of four years.
Final Decision: The appeal was dismissed without any order as to costs.
S. K. MAL LODHA, J.
( 1 ) THIS appeal has been filed by the plaintiff against the judgment dated August 20, 1973 of the learned single Judge by which the appeal filed by him under S. 96, C. P. C was dismissed on the ground that it was not properly constituted.
( 2 ) THE plaintiff-appellant instituted a suit for declaration under O. XXI, R. 63, C. P. C averring that the amount of Rs. 13,788. 14, which was attached in execution cases Nos, 56/66, 75/66 and 63/66 of the court of Civil Judge, Udaipur is not liable to attachment as it was also prayed that the attachment so made should be set aside. Defendant No. 1 Maharaj Ekling Singhji was the judgment-debtor. In this appeal he was impleaded as respondent No. 1. He died during the pendency of the appeal and his legal representatives have been brought on record who are also respondents. It was also alleged by the plaintiff that there was a decree against defendant No. 1 for Rs. 5,973. 95, which was obtained from the court of Civil Judge, Udaipur on September 14,1964 by defendants Nos. 2,5,6 and 7 and one Tarachand. Under O. XXI, R. 52, C. P. C. , a sum of Rs. 6503/-, which represented the amount of compensation, was attached. This amount was awarded by the Sub-Divisional Officer, Vallabh Nagar. Defendants Nos. 9 and 10 got attached before judgment, a sum of Rs. 4500/- out of the said sum. Ultimately, a decree was passed on November 24, 1966 against defendant No. 1. Defendant No. 8 Kesarimal, who has not been impleaded as a party in the appeal under S. 96, C. P. C. got attached a sum of Rs. 2704. 11 vide Execution Case No. 53/66 of the Court of Civil Judge, Udaipur. The plaintiff submitted objections under-O. XXI, R. 58, C. P. C. They were dismissed. Hence, the suit under O. XXI, R. 63, C. P. C. was filed. The case of the plaintiff is that the compensation amount of Rs. 14,712. 39 was assigned to him by registered sale-deed (assignment-deed) dated Feb. 18,1963. After assignment, defendant No. 1 ceased to have any right, title or interest in the said sum. The suit was instituted on February 24,1967. The three sets of the defendants (decree-holders) contested the suit, inter alia, on the ground that the assignment deed (sale-deed) dated February 18, 1963 is a sham transaction and without consideration and that it was executed with an intention to defeat the claim of the creditors. The assignment of the amount by way of sale was also assailed on the ground that no assignment could take place because it was not an actionable claim. It was submitted that as defendant No. 1 was the sole owner of the amount, the amount of compensation was liable to attachment in execution of the decrees. Certain other pleas were also raised, with which we are not concerned. Defendant No. 1 filed the written statement admitting the claim of the plaintiffs. The learned Additional District Judge No. 1, Udaipur framed the necessary issues. It is not necessary to reproduce all the issues except issue No. 3, which, according to us, is material. It is as follows :-"whether the sale in favour of the plaintiff is sham and without consideration and has been made to defeat the claim of defendant No. 1s creditors?"the learned Additional District Judge No. 1, Udaipur, by his judgment dated September 17, 1969, dismissed the suit. While deciding issue No. 3, it was found by him that the assignment-deed (sale-deed) Ex. 1 is sham and bogus, collusive and fraudulent transaction and that there was no genuine transaction.
( 3 ) HERE, it may be mentioned that Kesrimal was defendant No. 8. There were in all ten defendants inclusive of Maharaj Ekling Singh (judgment-debtor-defendant No. 1 ). Against the judgment and decree of the dismissal of the plaintiffs suit, an appeal under S. 96, C. P. C. was filed. In that appeal defendant No. 8, who was party in the suit was not impleaded as respondent. On August 16,1973, on behalf of the respondents, a preliminary objection was raised that the appeal was not properly constitut
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