Basi Reddy, J.
1. This is an application under Order XXIII Rule 3 C. P. C. filed by the appellant and the 1st respondent in A. S. No. 195 of 1958 on the file of this Court, to record a compromise entered into by them and pass a decree in accordance therewith. The appellant was the plaintiff in O. S. No. 112 of 1954 on the file of the Subordinate Judge's Court, Srikakulam and the 1st respondent was the defendant therein. Respondents 2 to 5 in A. S. No. 195 of 1953 who purchased the suit property pendente lite and who were added as parties to the appeal by an order of this Court, object to the recording of the compromise and passing a decree in terms thereof on the ground that it is fraudulent and collusive and is intended to defeat their rights.
2. Before dealing with the rival contentions of the patties, the material facts which are undisputed may be set out in bare outline.
3. Sri Raja Lakshmi Narasimha Sanyasiraju Feda Baliar Simhulu (who will be referred to as the appellant) succeeded to the zamindari of Salur after his father's death on 24-3-1940. As he was a minor at that time, the management of the estate was taken over by the Court of Wards. The suit lands were ryoti lands covered by patta No. 44 in Salur Zamindary. They consisted of wet lands of an extent of Ac. 12-26 cents and dry lands of an extent of Ac. 19-96 cents. The appellant was the landholder and the Omkaram people were the ryots of the suit lands. On the latter defaulting in the payment of rent, summary Suit No. 242 of 1943 was filed by the Court of Wards before the Special Deputy Collector, Vijayanagaram, for arrears of rent and a decree was obtained. In execution of that decree, the suit lands were sold on 22-4-1943. The Court of Wards on behalf of the appellant purchased those lands and delivery was taken on 21-4-1946. The Court of Wards was in possession of the suit lands from 21-4-1946 till 14-6-1947. On the latter date, the Court of Wards sold the leasehold interest In the suit lands in open auction.
The highest bidder at the auction was one Kottu Jagannadha Rao (who will be referred to as the 1st respondent). His bid was for Rs. 700/- per fasli. The lease was for three years, namely, for faslis 1357, 1358 and 1359. It was confirmed by the Court of Wards by an order dated 16-6-1947. The 1st respondent entered Into possession of the suit lands 'on 14-6-1947 in pursuance of the said lease. He paid the rent for the first year but fell into arrears for the remaining two years. The Court of Wards issued a notice dated 18-8-1948 to the 1st respondent to which the latter gave a reply setting up occupancy rights in the suit lands. Thereupon the Court of Wards filed Summary Suit No. 65 of 1951 on the file of the Special Deputy Collector, Srikakulam for recovery of possession of the suit lands and for arrears of rent. During the pendency of the suit, Salur Estate was notified and taken over by the Government on 12-1-1959 under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari] Act, XXVI of 1948. On attaining majority, the appellant took over the management of these properties on 1-9-1952. S. S. No. 65 of 1951 was dismissed on 29-5-1953 on the ground that the estate had been taken over and the suit had abated.
4. The next stage in the litigation was the institution of O. S. No. 112 of 1954 by the appellant for recovery of Rs. 5453-14-0 towards rent or damages for use and occupation for the five years 1949-50, to 1953-54 and for recovery of possession of the suit lands after ejecting the 1st respondent therefrom and for subsequent profits and for costs. The suit was tried by the Principal Subordinate Judge, Srikakulam, who by a judgment and decree dated 10-2-1958 dismissed the suit with costs holding inter alia that the suit lands were not leased out to the 1st respondent under Madras Act 1 of 1944 but that they had been leased under the Madras Estates Land Act as contended by the 1st respondent; that the terms of the lease were illegal and void as contended by the 1st respondent; that the 1st respondent had acquired permanent rights of occupancy in the suit lands, and that the 1st respondent is a 'ryot' within the meaning of the Madras Estates Land Act.
5. Against this judgment and decree, the present appeal, A. S. No. 196 of 1958 was preferred by the appellant on 24-7-1958. During the pendency of the appeal, the 1st respondent sold a moiety of the suit lands to one Arisetti Seetharamayya (who will be referred to as the 2nd respondent) under a registered sale deed dated 11-8-1958 for a sum of Rs. 6000/- and the 2nd respondent was put in possession of those lands. About a year later, the 1st respondent sold the remaining half of the suit lands to three individuals (who will be referred. to as respondents 3 to 5) under a registered sale deed dated 10-7-1959 for a sum of Rs. 6000/- and they were put in possession of these lands on that date. The result was that thereafter, during the pendency of A. S. No. 196 of 1958, the 1st respondent had no interest in the subject-matter of the litigation as the entire interest had been assigned to respondents 2 to 5 by reason of the sale in their favour.
6. The next stage in this litigation was the filing of an application in this Court by respondents 2 to 5, C. M. P. No. 6489 of 1959 in A. S. No. 196 of 1958 for being impleaded as party-respondents to the above appeal. To that application the appellant and the 1st respondent were made parties. The appellant did not even file a counter. The 1st respondent filed an affidavit wherein he admitted that subsequent to the disposal of the suit in the Subordinate Judge's Court and during the pendency of the appeal in the High Court, he had sold one half of the suit lands to the 2nd respondent and the remaining half to respondents 3 to 5 and had received full consideration and put them in possession of the lands. And in paragraph 5 of his affidavit, the following significant averment was made :
'Thus the entire interest in the suit lands has now devolved on the petitioners herein (meaning respondents2 to 5) and I have no further interest in the lands which are now the subject-matter of the above appeal. The petitioners are both proper and necessary parties to the appeal and they alone are interested in prosecuting the appeal. I have no objection to their being Imp leaded as party respondents to the above appeal.'
C. M. P. No. 6489 of 1959 came up for hearing before Seshachelapati J. on 30-9-1959 and the learned Judge allowed the petition with the following observation:
'No opposition. Ordered.'
The result of this order was that respondents 2 to 5 wire brought on record and stood In the array of respondents in the appeal; A. S. No. 196 of 1958.
7. While matters stood thus, the appellant and the 1st respondent filed the present application (C. M. P. No. 2561 of 1960) under Order XXIII Rule 3 C. P. C., setting out the memorandum of compromise entered into between them with a prayer that the compromise be recorded and a decree be passed in terms thereof.
8. Respondents 2 to 5 seek to resist the application to record the compromise firstly 'on the ground that the compromise is the result of fraud and collusion between the appellant and the 1st respondent and intended to defeat their rights, and secondly on the ground that since they (respondents 2 to 5) have been added as party-respondents to the appeal, the compromise entered into between the appellant and the 1st respondent is nor binding on them (respondents 2 to 5) and they are entitled to contest the appeal on merits.
9. For the purpose of disposing of this application, it Is not necessary to give a definite finding as to whether the compromise entered into between the appellant and the 1st respondent is fraudulent or collusive.
10. The real question that falls for determination is whether, in view of the fact that respondents 2 to 5 have been made parties to the appeal, they are entitled to object to the decree being passed in terms of the compromise entered into between the appellant and the 1st respondent, and claim that the appeal be decided on its merits. It was contended by the learned advocate for respondents 2 to 5 that the point arising for decision In this application is concluded by a Full Bench ruling of the Madras High Court in Veeraraghava Reddi v. Subba Reddi, ILR 43 Mad 37 : (AIR 1920 Mad 391). The above decision does lay down that an alienee pen-dente lite who has been added as a party to the litigation, is entitled to object to a decree being passed in terms of a compromise arrived at between his alienor and the opposite party; and that such a compromise, although it may be binding on the alienor, cannot affect the rights of the alienee to claim a decision on the merits.
11. Learned Advocates for the appellant and the 1st respondent while conceding that the Full Bench decision is in point, sought to distinguish it on the ground that whereas in the case with which the Full Bench was dealing, the alienee had been brought on record as a party-respondent by an order made under Order XXII Rule 10 C. P. C., in the present case, the application by respondents 2 to 5 to be impleaded as parties to the appeal was fifed under Order 1 Rule 10 C. P. C. and not under Order XXII Rule 10 C. P. C. and consequently the ratio of the Full Bench ruling does not apply to the present case, it was further urged that the scope and effect of the two provisions are entirely different and it was also pointed, out that whereas an order under Order 1 Rule 10 C. P, C. is not appealable, an order made under Order XXII Rule 10 is appealable, as provided by Order XLIII Rule 1(1) C. P. C.
12. It is true that in C. M. P. No. 6489 of 1959 filed by respondents 2 to 5 for being made parties to'the appeal, the provision of law quoted was Order 1 Rule 10 C. P. C., but it is apparent on the averments made in the affidavit filed in support of that application that respondents 2 to 5 were really seeking to invoke the provisions of Order XXII Rule 10(1) C. P. C. so as to enable them to prosecute the appeal and not merely to be brought on record under Order 1 Rule 10 C. P. C. as silent spectators. in paragraph 5 of the affidavit, it was stated;
'Thus the entire interest in the suit lands has row devolved on the petitioners herein and they are necessary and proper parties to the appeal and they alone are interested in the prosecution of the appeal. The 2nd respondent has no further interest in the suit lands and tne appeal.'
In the next paragraph it was prayed;
'It is therefore necessary in the interests of justice that this Honourable Court be pleased to implead the petitioners herein as party respondents 2 to 5 in the above appeal as otherwise they will suffer irreparable loss.'
As already pointed out, in the affidavit filed by the 1st respondent, a similar averment was made and that was to the following effect:
'Thus the entire Interest In the suit lands has now devolved on the petitioners herein and I have no further interest in the lands which are now the subject-matter of the above appeal. The petitioners are both proper and necessary parties to the appeal and they alone are interested in prosecuting the appeal. I have no objection to their being impleaded as party-respondents to the above appeal.'
13. As noticed already, the appellant did not oppose the application; he did not even file a counter. Therefore, it Is obvious that at that stage, every one understood the application made by respondents 2 to 5 as one made for being added as party-respondents to enable them to continue the appeal, because the Interest in the suit properly had been assigned to them by the 1st respondent and the latter had no stake at all in the appeal. That is precisely what Rule 10(1) of Order XXII C. P. C. contemplates. It runs thus:
'In other cases of an assignment, creation or devolution of any Interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.'
Rule II of Order XXII C. P. C. provides:-
'In the application of this order to appeals, so far at may be, the word 'plaintiff' shall be held to includean appellant, the word 'defendant' a respondent and the word 'suit' an appeal.'
14. It is wall to remember that in matters like this, it is not the form that counts but the substance, and the citation of a wrong provision of law does not conclude the matter one way or the other.
15. The further contention on behalf of the appellant was that he might have appealed against the order impleading respondents 2 to 5, had the application been one under Order XXII Rule 10 C. P. C, instead of one under Order 1 Rule 10 C. P. C. as it appeared 'ex-facie'. While this is attractive as an argument, it has no basis in reality, for, if the appellant was genuinely interested in contesting the application at that stage, one would have expected him to have put up some opposition, but on the contrary he did not even choose to file a counter.
16. On the whole, I am satisfied that the application by respondents 2 to 5 in C. M. P. No. 6489 of 1959 was meant to be one under Order XXII Rule 10 C. P. C. and the fact that Order 1 Rule 10 C. P. C. was by mistake quoted in the application had neither missed nor prejudiced any one. That being so, the Full Bench ruling in Veeraraghava Reddi v. Subba Reddi, ILR 43 Mad 37: (AIR 1920 Mad 391) (FB), governs this case, and I have no option but to refuse to record the compromise in so far as it affects the interests of respondents 2 to 5,
17. The result will be that this application is dismissed and the appeal will be heard on the merits.