Chamier and Piggott, JJ.
1. This is an application by the appellants in S.A. No. 922 of 1914, praying the court to make one Gajadhar Prasad a party to the appeal. The object of the suit brought by the respondent was to have a deed of sale executed by his father in favour of the appellants set aside. The respondent's elder 'brother, Gajadhar Prasad, who attested the deed of sale, was impleaded as a defendant. The first court decreed the claim. The defendants appealed, but they did not make Gajadhar Prasad a party to the appeal and it is admitted that they did not ask the court to exclude the share of Gajadhar Prasad from the operation of the decree of the first court. In this second appeal the defendants are apparently asking this Court to exclude from the operation of the decree the share of Gajadhar Prasad on the ground that he attested the sale deed. The application is resisted on the strength of a decision of this Court in Chunni v. Lala Ram (1893) I.L.R. 16 All. 5. This ruling has not been accepted by the Madras High Court} but so far as we are aware it has been consistently followed by this Court, or at all events has never been dissented from.
2. On the broad question whether a court in second appeal can under Order I, Rule 10, make a person who was not a party in the lower appellate court a party in second appeal, we are not prepared to differ from the decision of this Court. We note, however, that in the present case our decision will not tie the hands of the Bench trying the second appeal. If the Bench hearing the appeal comes to the conclusion that the lower appellate court ought to have taken up the question which has now been raised, it will be able to remand the case under Order XLI, Rule 23, and the lower appellate court will then be able to make Gajadhar Prasad a party. The substantial point for decision at the hearing of the appeal will be whether the defendants are entitled to raise the question at this stage. We have been referred to Order XLI, Rule 33. We express no opinion as to the applicability of this rule beyond saying that we are certainly not prepared to act under it at this stage. The present application is dismissed with costs.