1. This is an application by Apparao the brother of the plaintiff, against the order of the Subordinate Judge, adding him, on the defendant's application, as a party. [After setting out the facts his Lordship proceeded.]
2. It is argued for the petitioner that it would be unjust to add him as a party at this stage and that the Courts had no jurisdiction,--the trial Court because this Court's order on remand did not expressly so authorise, this Court because Apparao was not a party in the lower Courts; and unjust because he not being a party could not adduce evidence to prove the nature of the deed and would now be bound by the decree though he had no opportunity of contesting the suit. Lastly, he cannot be added by reason of the finding on issue 7 that he was not a necessary party.
3. Order XLI, Rule 20, Civil Procedure Code, has no application. It is not this Court which adds him as a party but the trial Court. The trial Court can do so under Order I, Rule 10, Civil Procedure Code, at any stage of the proceedings. It is quite true that under Order XLI, Rule 20, Civil Procedure Code, an, appellate Court cannot add as a party to an appeal a person who was not a party to the suit: Shiam Lal, Joti Prasad v. Dhanpat Rai ILR (1925) All. 353 and Monjiram v. Manecklal (1928) 31 Bom. L.R 672.
4. Similarly, issue No. 7 and the finding are not in the way. That issue was raised by the plaintiff. The defendant had from the outset contended that Apparao was a necessary party. It was the plaintiff who resisted, and Apparao who knew and gave evidence supported the plaintiff and did not himself ask to be made a party. The rent note was in favour of Ramrao alone and the suit was tried as a suit on a rent note and not as a redemption suit. The rinding is correct that Apparao was not a necessary party. But now that by agreement the character of the suit has been altered into a suit for redemption under Order XXXIV, Rule 1, Civil Procedure Code, he is a necessary party. The previous finding is not therefore in the way.
5. The only question which remains on the merits is, whether, notwithstanding Order XXXIV, Rule 1, Civil Procedure Code, ho should not be joined because he was not originally joined. Under the circumstances above, he had, strictly speaking, no opportunity to adduce evidence if he chose in regard to the nature of the deed. But this objection on the facts of this particular case is more theoretical than real. Actually Ramrao had throughout exhausted his effort to show that the deed was not a deed of mortgage but was a deed of sale. He was to a certain extent supported by the present petitioner Apparao at least passively inasmuch as Apparao admitted that ho alone managed the lands and knew all about the properties. Apparao when he had an opportunity himself supported his brother at least to the extent of showing that the price as a transaction of sale was adequate and not inadequate. In these circumstances, under Order XXXIV, Rule 1, he was rightly made a party. And as the suit for redemption as it now is and, for the reasons stated above, has reached the stage it has actually undergone, and inasmuch as now he only objects that his brother or he himself did not apply to be made a party as they could have chosen, I am of opinion that he should not be allowed now to raise the entire question afresh and further prolong the litigation, which has already lasted for eight years. Accordingly, the order of the trial Court was in my opinion right, and the application fails.
6. The rule is discharged with costs.