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Jangli Sahu Vs. Gopinath Sahu and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.295
AppellantJangli Sahu
RespondentGopinath Sahu and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 20 - non-joinder of parties in appeal--discretion of court to make parties. - .....lower appellate court gave effect to the objection and dismissed the appeal refusing to make those persons parties to the appeal. it says: 'i see no reason to allow parties to be added now.' in second appeal to this court it is contended that under the provisions of order xli, rule 20, the court had discretion to make those persons respondents to the appeal and that it ought to have exercised the discretion vested in it, and made them respondents to the appeal. it is further contended that they were not absolutely necessary parties to the, appeal. it is doubtful whether they are necessary respondents to the appeal or not. in these circumstances, in our opinion, the court below ought to have made them parties and decided the appeal thereafter. we, therefore, set aside the decree of the.....
Judgment:

1. This was a suit upon a mortgage which was decreed by the first Court. Jangli Sahu, one of the defendants, appealed but did not make Har Sewak Man Tewari, the mortgagor, and Jagai Tewari, a subsequent mortgagee, respondents to the appeal. His case was that he was a purchaser of the property in lieu of the mortgages which had priority over the plaintiffs mortgage, and that, therefore, the plaintiffs were not entitled to bring the property to sale unless they had redeemed the prior mortgages. At the hearing of the appeal, a preliminary objection was taken to the effect that nonjoinder of the two aforesaid persons was fatal ' to the appeal. The lower Appellate Court gave effect to the objection and dismissed the appeal refusing to make those persons parties to the appeal. It says: 'I see no reason to allow parties to be added now.' In second appeal to this Court it is contended that under the provisions of Order XLI, Rule 20, the Court had discretion to make those persons respondents to the appeal and that it ought to have exercised the discretion vested in it, and made them respondents to the appeal. It is further contended that they were not absolutely necessary parties to the, appeal. It is doubtful whether they are necessary respondents to the appeal or not. In these circumstances, in our opinion, the Court below ought to have made them parties and decided the appeal thereafter. We, therefore, set aside the decree of the lower Appellate Court and send down the case to that Court with directions that Har Sewak Man Tewari and Jagai Tewari should be made respondents to the appeal and the case be decided according to law. The appellant will have his costs of this appeal including fees on the higher, scale.


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