The Chief Justice.-This application raises a question of some importance as regards the right of the respondent in an appeal to prefer objections to the decree of the lower court without preferring a separate appeal. The application has been made in A. S. No. 153 of 1947 on the file of this Court which was an appeal preferred by defendants 1 to 3 in O. S. No. 54 of 1945 in the Court of the Subordinate Judge of Guntur against a preliminary decree for partition passed in favour of the plaintiffs who are respondents 1 and 2 in the appeal. Besides the plaintiffs only the fourth defendant has been made a respondent in the appeal. In the Court below there were six defendants and the plaintiffs are the sons of one Venkatasubbayya and the first defendant is his brother. Defendants 2 and 3 are the minor sons of the first defendant. Defendants 4 and 5 are the sisters of the first defendant. The 6th defendant is his father-in-law. The fifth and sixth defendants were made parties to the suit, because it was alleged by the plaintiffs that they were in possession of properties belonging to the joint family consisting of them and defendants 1 to 3. This application is concerned with the fifth defendant in whose name land shown as item No. 24 of Schedule A of the plaint stands. The plaintiffs claimed this item as joint family property, but their claim was negatived by the lower court.

The plaintiffs-respondents 1 and 2 have filed the present application to implead defendants 5 and 6 as respondents 5 and 6 to a memorandum of cross-objections filed by them against the decree of the lower Court. The 6th defendant died sometime after the application and this application was pressed only in respect of the 5th defendant. It is opposed by the 5th defendant. It is common ground that on the date of this application a separate appeal against the 5th defendant would be out of time.

Though the application was ostensibly made for impleading the 5th defendant as a party in the memorandum of objections and the provisions of Order 41, rule 20 and Order I, rule 10 read with section 107 of the Civil Procedure Code were relied on in the application, the learned counsel for the petitioners contended in the main that he was entitled to file the memorandum of objections against the 5th defendant under the provisions of Order 41, rule 22 of the Code, because that rule conferred on a respondent a right to file an objection to the decree against any party to the suit, whether such party was or was not a party to the appeal. If, however, it was necessary to make the 5th defendant a party, because she had not been made a party to the appeal, he relied upon the provisions of Order 1, rule 10 read with section 107 of the Code.

Learned counsel for the 5th defendant took up the position that the provisions of Order 41, rule 22 did not enable one respondent to prefer objections against another respondent, at any rate, when the objection sought to be taken was one in which the appellants were in no way interested. It was not disputed that the objection sought to be preferred by the petitioners against the 5th defendant has nothing to do with the appellants, defendants 1 to 3. It would be an a fortiori case if the party against whom the objection was sought to be preferred was not even a party to the appeal. As this contention was opposed to the decision of the Full Bench of this. Court in Munusami Mudaliar v. Abbu Reddi1, a fuller Bench of five Judges has been constituted.

As there has been considerable divergence of judicial opinion on the question and as the view which prevailed in Munisami Mudaliar v. Abbu Reddi1, is different from the view now uniformly held by several other High Courts, it is desirable that I should trace the history of the right of a respondent in an appeal to prefer objections to the decree appealed against without filing a separate appeal, with reference both to successive enactments and the judicial decisions construing such enactments.

S. 348 of the Cod

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