A single defendant can appeal based on common grounds without needing all co-defendants in the appeal.

JUDGMENT

The 1^st defendant in O.S.No.510/2007, a suit for speci performance before the Sub Court, Alappuzha, has come up in this appeal aggrieved by the dismissal of the A.S.No.74/2009 by the District Court, Alappuzha, on the ground that the co-

defendant has not been impleaded in the appeal.

2. The brief facts necessary for the disposal of the appeal are as follows:

O.S.No.510/2007 is instituted by the respondent/plaintiff for specific performance of an agreement of sale dated 31.05.2007. According to the plaintiff, the defendants are the co-owners of the plaint schedule property extending to 10 cents comprised in Resurvey No.40/10-9 in Block No.7 of Pathirappally Village. An agreement of sale pertaining to the same was executed by the defendants for a total consideration of Rs.2,00,000/- and that the plaintiff had already parted with an amount of Rs.1,33,000/-. The period fixed for performance of the agreement was three months from 31.05.2007. The defendants resisted the suit. On a full fledged trial, the trial court by judgment dated 08.04.2009 allowed the suit and granted a decree for specific performance. Against the said judgment and decree, the 1^st defendant alone A.S.No.74/2009 before the District Court, Alappuzha. When the appeal came up for consideration before the first appellate court, it was pointed out by the respondent/plaintiff that the appellant/1^st defendant had not impleaded the 2^nd defendant, who is the co-owner of the property, as a party to the appeal and therefore, the judgment and decree against the 2^nd defendant had become become final and conclusive, and would operate as res judicata against the appellant/1^st defendant. This contention was accepted and the appeal was dismissed as one not maintainable. Hence, the present appeal.

3. On 02.01.2013, this Court framed the following substantial question of law:

“(i). Whether the Lower Appellate Court was justified in dismissing the appeal on the ground of non-impleadement of co-defendant in view of Order XLI Rule 4 CPC.”

and an interim stay was granted against the execution of the judgment and decree of the trial court.

4. Heard, Adv.M.Narendra Kumar - learned counsel appearing for the appellant and Adv.M.R.Arunkumar - learned counsel appearing for the respondent.

5. On a consideration of the submissions raised across the Bar, this Court is of the view that the first appellate court erred egregiously in dismissing the appeal as not maintainable. It is true that the 2^nd defendant has not been impleaded in the appeal as a co-respondent, but then the appellant/1^st defendant has an independent right to prosecute the appeal on the grounds available to him, especially since he is one of the co- owners of the property. At the best it could be construed that, as regards the share of the 2^nd defendant is concerned, the judgment and decree has become conclusive.

6. Further, on a consideration of the appeal on merits, if the first appellate court finds that the judgment and decree is unsustainable, at that point of time, the non-filing of the appeal by the 2^nd defendant could be considered appropriately. At any rate, it cannot be held that non-filing of the appeal by the 2nd defendant would operate as res judicata as far as the 1^st defendant is concerned. Therefore, the said view is palpably wrong, which requires interference of this Court in this appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC).

7. Moreover, in view of the provisions under Order 41 Rule 4 of the CPC, one of the several defendants can obtain reversal of the whole decree where it proceeds on ground common to all. This aspect has been completely missed by the first appellate court. In the above circums