Back
HIGH COURT OF ORISSA
S. P. Mohapatra And S. Barman, JJ.
K. RAJA GOPAL RAO - Appellant
Versus
DOLGOBINDA SAHU - Respondent
Second Appeal 162 Of 1954
Decided On : SEPTEMBER 24, 1958
ORDER XXI, RULE 63, C. P. C. - JUDGMENT-DEBTOR AND JOINT DECREE-HOLDER - NECESSARY PARTIES TO APPEAL - INCONSISTENT DECREES - LIMITATION ACT, SECTION 5 - MISTAKE OF LAW BY COUNSEL - NOT A SUFFICIENT GROUND FOR CONDONATION OF DELAY.
Fact of the Case:
Defendant No. 2, a claimant in a proceeding under Order XXI, Rule 58, C. P. C., brought a second appeal against the dismissal of his appeal on a preliminary issue that vitally interested persons were not made party-respondents. The suit arose from a claim case brought by Defendant No. 2 under Order XXI, Rule 58, C. P. C., which was allowed, leading the decree-holder to file a suit under Order XXI, Rule 63, C. P. C. The trial court decreed in favor of the decree-holder and the other joint decree-holder, Defendant No. 4, finding that the properties belonged to the judgment-debtor and that Defendant No. 2 was a mere name-lender. Defendant No. 2 appealed, but the appeal was dismissed on a preliminary issue.
Finding of the Court:
The court held that the judgment-debtor and the joint decree-holder were necessary parties to the appeal and that their absence would lead to inconsistent decrees. The court also held that the mistake of law by the appellant's counsel was not a sufficient ground for condoning the delay in making the joint decree-holder a party to the appeal.
Issues: 1. Whether the judgment-debtor and the joint decree-holder were necessary parties to the appeal. 2. Whether the mistake of law by the appellant's counsel was a sufficient ground for condoning the delay in making the joint decree-holder a party to the appeal.
Ratio Decidendi: 1. The court held that the judgment-debtor and the joint decree-holder were necessary parties to the appeal because their interests would be directly affected by the outcome of the appeal. If the appeal were to succeed, the judgment-debtor would lose his property and the joint decree-holder would lose his right to execute the decree against the property. 2. The court held that the mistake of law by the appellant's counsel was not a sufficient ground for condoning the delay in making the joint decree-holder a party to the appeal. The court noted that the mistake was not a reasonable one and that the appellant had not taken any steps to rectify the mistake until after the appeal had been dismissed.
Final Decision: The court dismissed the second appeal with costs.
S. P. MOHAPATRA, J.
( 1 ) DEFENDANT No. 2, who was a claimant in a proceeding under Order XXI, Rule 58, c. P. C. has brought this second appeal against the judgment and decree-dated 262-1954 of Sri K. C. Mohapatra, Subordinate Judge of Cuttack, dismissing the appeal on. a preliminary issue as the persons vitally interested in the appeal were not made party-respondents.
( 2 ) THE suit out of which the present appeal arises was one under Order XXI, Rule 63, C. P. C. the plaintiff being the decree-holder who was unsuccessful in the Claim case brought by the present defendant No. 2, appellant, under Order XXI, Rule 58 c. P. C. The plaintiff and defendant No. 4 obtained a money decree on 23-2-1943 for a sum of Rs. 3582/8/3, when the properties in suit were attached by the plaintiff, a claim was put forth by the present defendant No. 2, which being allowed the plaintiff brought, the suit.
( 3 ) DEFENDANT No. 1 is the judgment-debtor. Defendants 3 and 3-Ka are the zamindars. Defendant No. 4 is the joint decree-holder along with the plaintiff. The plaintiff's case is that defendant No. 1, the judgment-debtor, made a wilful default in the payment of rent and being in collusion with the zamindars brought the properties in suit to sale and an execution of a sale decree for rent defendant No. 2 was the purchaser. The plaintiff's assertion is that the sale was a sham transaction; the real purchaser was the judgment-debtor, defendant No. 1 himself. So the plaintiff is entitled to proceed in execution against the properties in suit.
( 4 ) THE case of the claimant, defendant No. 2, was that he was a bona fide purchaser and the judgment-debtor, defendant No. 3, had no right, title or interest in respect thereof.
( 5 ) THE suit was decreed on the finding that the properties really belong to the judgment-debtor, defendant No. 2 being a mere name-lender in the sale. The trial court, therefore, concluded that the plaintiff and defendant No. 4, the other joint decree-holder, are jointly entitled to the reliefs sought. Against this decision of the trial court defendant No. 2 brought the appeal in the Court of the District Judge of cuttack.
( 6 ) THE appeal having been dismissed on the preliminary issue that it is incompetent, the question which arises for determination is: "whether the judgment-debtor, defendant No. 1, and the joint decree-holder, defendant No. 4, are necessary parties to the appeal so that the appeal cannot proceed in their absence, or that they are only proper parties and there is no bar to the appeal proceeding in their absence". Mr. M. S. Rao, appearing on behalf of the appellant, cites decisions to the effect that a judgment-debtor is not a necessary party. He starts with an old decision of the Allahabad High Court reported in Ghasi Ram v. Mangal Chand ILR 28 All 41 (A) where their Lordships Banerji and Richards, JJ. decided that where a decree-holder brings a suit against a successful claimant to establish that certain property belongs to his judgment-debtor and that he is entitled to bring it to sale in execution of his decree, the only person against whom he claims relief is the successful claimant. To such a suit the judgment-debtor is not a necessary party. Their Lordships observed in the judgment: "if an unsuccessful claimant brings a suit and he seeks to establish his claim against both the decree-holder and the judgment-debtor, the latter is of course a necessary party". This observation was also not accepted in subsequent decisions. Mr. Rao relied on a few observations made in the case reported in Mahomed Hasim Ali Khan v. Iffat ara Hamidi Begum AIR 1942 Cal 180 (B ). That was a case involving quite a number of points; but their Lordships did make an observation that the judgment-debtor is not a necessary party but only a proper party to the suit under Order xxi, Rule 63 where the plaintiff is the decree-holder. On that point their Lordships followed the previous decision of the Allahabad High Court. But their Lo
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
