The main legal point established is the court's power to transpose parties under Order 1 Rule 10 to ensure complete justice between the parties.

Kanwaljit Singh Ahluwalia, J.

1. M/s Bee Gee Corporation Private Limited, respondent no.3 and M/s Bee Gee Potteries Private Limited, respondent No.4 and their directors had obtained a loan from respondent No.1-Bank. Naseeb Chand Gupta stood as a guarantor. Respondent No.1-Bank has filed a suit for recovery. The defendants to the suit had lost as the decree was passed in favour Of respondent No.l- Bank. Naseeb Chand Gupta, who stood as a guarantor, has expired. His legal representatives have filed Regular Second Appeal No. 1034 of 2008, which was decided by a Coordinate Bench of this Court and it was held that an opportunity of hearing ought to be granted to the legal representatives of Naseeb Chand Gupta, whose property was attached as he stood as a guarantor. As a result of the order dated 21.4.2009 (Annexure P2), passed by this Court in Regular Second Appeal, the Appellate Court is seized of the appeal which was filed by respondents No.3 and 4.

2. During the pendency of the appeal, an application under Order 1, Rule 10 read with section 151 CPC was filed by the legal representatives of Naseeb Chand Gupta that they should be transposed as appellants.

3. Pandit Vinod Sharma, Advocate, appearing for the petitioners, has urged that the interest of the petitioners is in conflict with respondent No.1-State Bank of Patiala. Therefore, if both respondents No.3 and 4 are treated as respondents, he will not be able to project his plea that respondent No.l-Bank could not effect any recovery from Naseeb Chand Gupta. It has been further urged that an appeal has been abandoned by the appellants, therefore, the plea, which is contrary to the interest of respondent No.l- Bank, ought to be projected.

4. A grievance has been made that the lower Appellate Court has committed a grave error by not allowing the above said application whereby a prayer was made that the legal representatives of Naseeb Chand Gupta, who were impleaded as respondents, be transposed as appellants.

5. Learned counsel for the petitioners has placed reliance upon a judgment rendered in case Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Another AIR 1958 Supreme Court 394, wherein it was observed as under:-

"10. We accordingly set aside the order of the Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1995. As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in their being on record two appellants with conflicting interest. But, in any event, the Court can, if necessary, take action suo motu either under O.1 R.10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal, as was done in In re Mathews: Oates v. Mooney, 1905-2 Ch. 460(G), and Vanjiappa Goundanv. Annamalai Chettiar, 1939-2 Mad LJ 551 : (AIR 1940 Mad 69) (H). As for costs, the appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal. The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal".

6. A further reliance has been placed upon a judgment rendered in case Kiran Tandon v. Allahabad Development Authority and Another (2004)10 Supreme Court Cases 745 to say that the Court has a power under Sub-rule (2) Order 1 Rule 10 CPC to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made. An emphasis has been laid upon the following observations of the Honble Apex Court:-

"This power could be exercised by the High Court in appeal, if necessary, suo motu, to do complete justice between the parties. In fact, the pleas raised by ADA and the State of U.P. were identical, and in order to effectuate complete adjudication of the question involved in the appeal it was in the