Application to transpose as appellant allowed.

Order.- This petition under Order 1 rule 10 and section 151 of the Code of Civil Procedure is to transpose the second respondent in S.A. No. 412 of 1975 as the third appellant in the above said second appeal. The suit was filed against the petitioner herein and also the two appellants in the above second appeal for redemption. The petitioner herein is no other than the son of the first appellant and the brother of the second appellant. The decree is a joint decree and it is executable against the petitioner and also against the appellants 1 and 2 herein jointly. It is clear from the facts of the case that since the petitioner was away in Singapore at the time of filing the second appeal and since there was some delay in sending the vakalath, the petitioner was impleaded as the second respondent in the second appeal.

2. This application to transpose is opposed by the first respondent purely on the ground that the petitioner must file an independent second appeal and also the right under the law of limitation has accrued to the first respondent herein. Mr. Sreekumaran Nair the learned counsel for the petitioner and also first and second appellants in the above second appeal submits that there is absolutely no conflict of interest between the appellants now on record and the petitioner herein and further the appellants are agreeable for such a transposition. He cited Radhaballabh Prasad Narain Singh v. Raghunath Lal and others1 wherein some Privy Council reports have also been referred to. In that decision a Bench of the Patna High Court has held, as follows:

“The Court including the High Court in second appeal, has power at any stage under Order 1, rule 10, to permit a transposition of parties. The power is discretionary and its use will depend upon the circumstances of the particular case. The purpose of it is to enable the Court to be in a position to determine the real questions in controversy between the parties and to avoid allowing a mere technical objection successfully to defeat a just claim .”

3. As I have stated already, it is a joint decree which can be executed jointly against the appellants now on record and also the petitioner herein. Order 41, rule 4 of the Code of Civil Procedure says:

“ Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on 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 the defendants, as the case may be.”

Thus, it is clear that the petitioner even without filing an appeal himself can have the benefits of the decree on the appeal now filed by the appellants herein.

4. Order 1, rule 10 (2) of the Code of Civil Procedure is wide enough to give discretion to this Court to transpose the necessary party if it finds that he can effectively along with the appellants put forth the contention in respect of a joint decree got against the appellants and also the petitioner herein.

5. Mr. Padmanabhan, the learned counsel appearing for the first respondent cited a decision in Ch. Surat Singh and others v. Manohar Lal and others1wherein it has been, held that the appeal has to be dismissed for want of necessary party to the appeal. That was a case in which the party deliberately omitted to implead the necessary party in the appeal. In those circumstances the Supreme Court under Order 41, rule 20 of the Code of Civil Procedure dismissed the appeal. I do not think it has any relevance when dealing with; the present case on different facts and circumstances.

6. Mr. Padmanabhan also cited a decision is Venukuri Krishna Reddi and another v. Kota Ramireddi and others2, which dealt with Order 41, rule 33 of the Code of Civil Procedure, giving right to the parties concerned, questioning the respondent’s right to get the benefit of the decree obtained by the appellants. I

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