S.P. Mohapatra, J.
1. Defendant No. 2, who was a claimant in a proceeding under Order XXI, Rule 58, C.P.C. has brought this second appeal against the judgment and decree-dated 26-2-1954 of Sri K. C. Mohapatra, Subordinate Judge of Cuttack, dismissing the appeal on. a preliminary issue as the persons vitally interested in the appeal were not made party-respondents.
2. The suit out of which the present appeal arises was one under Order XXI, Rule 63, C.P.C. the plaintiff being the decree-holder who was unsuccessful in the Claim Case brought by the present defendant No. 2, appellant, under Order XXI, Rule 58 C.P.C. The plaintiff and defendant No. 4 obtained a money decree on 23-2-1943 for a sum of Rs. 3582/8/3, when the properties in suit were attached by the plaintiff, a claim was put forth by the present defendant No. 2, which being allowed the plaintiff brought, the suit.
3. Defendant No. 1 is the judgment-debtor. Defendants 3 and 3-Ka are the Zamindars. Defendant No. 4 is the joint decree-holder along with the plaintiff. The plaintiff's case is that defendant No. 1, the judgment-debtor, made a wilful default in the payment of rent and being in collusion with the zamindars brought the properties in suit to sale and an execution of a sale decree for rent defendant No. 2 was the purchaser. The plaintiff's assertion is that the sale was a sham transaction; the real purchaser was the judgment-debtor, defendant No. 1 himself. So the plaintiff is entitled to proceed in execution against the properties in suit.
4. The case of the claimant, defendant No. 2, was that he was a bona fide purchaser and the judgment-debtor, defendant No. 3, had no right, title or interest in respect thereof.
5. The suit was decreed on the finding that the properties really belong to the judgment-debtor, defendant No. 2 being a mere name-lender in the sale. The trial Court, therefore, concluded that the plaintiff and defendant No. 4, the other joint decree-holder, are jointly entitled to the reliefs sought. Against this decision of the trial court defendantNo. 2 brought the appeal in the Court of the District Judge of Cuttack.
6. The appeal having been dismissed on the preliminary issue that it is incompetent, the question which arises for determination is:
'Whether the judgment-debtor, defendant No. 1, and the joint decree-holder, defendant No. 4, are necessary parties to the appeal so that the appeal cannot proceed in their absence, or that they areonly proper parties and there is no bar to the appeal proceeding in their absence'.
Mr. M. S. Rao, appearing on behalf of the appellant, cites decisions to the effect that a judgment-debtor is not a necessary party. He starts with an olddecision of the Allahabad High Court reported in Ghasi Ram v. Mangal Chand ILR 28 All 41 (A) where their Lordships Banerji and Richards, JJ. decided that where a decree-holder brings a suit against a successful claimant to establish that certain property belongs to his judgment-debtor and that he is entitled to bring it to sale in execution of hisdecree, the only person against whom he claims relief is the successful claimant. To such a suit the judgment-debtor is not a necessary party. Their Lordships observed in the judgment:
'If an unsuccessful claimant brings a suit and he seeks to establish his claim against both thedecree-holder and the judgment-debtor, the latter isof course a necessary party'.
This observation was also not accepted in subsequent decisions. Mr. RaO relied on a few observations made in the case reported in Mahomed Hasim Ali Khan v. Iffat Ara Hamidi Begum AIR 1942 Cal 180 (B). That was a case involving quite a number of points; but their Lordships did make an observation that the judgment-debtor is not a necessary party but only a proper party to the suit under Order XXI, Rule 63 where the plaintiff is the decree-holder. On that point their Lordships followed the previousdecision of the Allahabad High Court.
But their Lordships went further to lay down that the judgment-debtor is not a necessary partyeven when the unsuccessful claimant is the plaintiff. In support of this second proposition their Lordships relied upon a Single Judge decision of the Madras High Court reported in Suppan Asari v. Alima Bibi AIR 1934 Mad 587 (C). Without referring to any other decision on the point we may take it as a correct proposition that a judgment-debtor is not a necessary party to a suit brought under Order XXI, Rule 63, but only a proper party.
7. But the question before us is entirely different. The position takes a different turn, if the judgment-debtor is made a party in the suit brought under Order XXI, Rule 63 by the decree-holder and a decree is passed by the trial Court in his presence, the decree is binding against him, and further if the decree is in his favour, that it so say, if it is held in the suit that the property belongs to the judgment-debtor, he is entitled to take advantage of the decree. In such a case, whether the judgment-debtor is a necessary party in appeal against such a decree is the real question before us.
The test determining whether a person is a necessary party to an appeal or not or whether the appeal can proceed in his absence is mainly whether in the event of the appeal being allowed as against the remaining respondent or respondents there would or would not be inconsistent decrees in the same litigation in respect of the same subject-matter. The principle has always him accepted that if the appeal succeeds which will lead to incongruous position of inconsistent decrees on account of a particular person not being made a party in the 'appeal even though her was a party to the suit itself, the entire appeal must fail.
In the present case the decree was that the properties belonged to the judgment-debtor and it was passed in the presence of the claimant the judgment-debtor and both the joint-decree-holders. But now if the appeal was to proceed before the District Judge and the District Judge would eventually allow the appeal finding that the properties really belong to the claimant, incongruous and anomalous positions are inevitable. In the same proceedings it cannot be held in respect of the same properties that they belong solely to each of the two persons.
If they belong to the claimant in their entirety they cannot belong to the judgment-debtor and if they belong to the judgment-debtor solely how can it be held that they also belong to the claimant. The result of the trial Court's decision, which is final so far as the judgment-debtor is concerned as he is not a party in the appeal, is to the effect that the properties belong to the judgment-debtor alone. So how can the appellate court find that the properties are owned by the appellant-claimant. It is to be noted that even in this second appeal the judgment debtor has not been made a party at all and there were no subsequent efforts to make him a party in the lower appellate court. The appeal before the lower appellate Court was incompetent also on account of the judgment-debtor not being made a party.
8. The position is still worse when we come to consider the case of the joint decree-holder, defendant No. 4, not being a party to the appeal. Mr. Rao contends that the plaintiff who was the sole respondent in the appeal before the lower appellate Court alone started the execution and brought the suit. In the plaint we get a very clear recital to the effect that defendant N6. 4 was a joint decree-holder along with the plaintiff in the aforesaid money decree dated 23-2-1943.
It is further asserted that the suit has been brought for the benefit of both the plaintiff and defendant No. 4. Under the provisions of Order 21, Rule 15 C.P.C. the execution must also have been on behalf of and for the benefit of both the decree-holders even though the execution was filed by one of the decree-holders. The position must be taken to have been settled at rest by reference to the judgment of the trial court wherein in the last paragraph before order it is definitely made clear by the learned Munsif.
'In the result plaintiff and pro forma defendant No. 4 are jointly entitled to the reliefs sought'.
On this footing, therefore, when the judgment and decree of the trial court is final so far as defendant No. 4 is concerned, as he is not made a party in the appeal before the District Judge, defendant No, 4 would be perfectly competent to proceed against these properties in execution as against the judgment-debtor under Order XXI. Rule 15, C.P.C. But if the appeal before the District Judge succeeds then the plaintiff will not be entitled to proceed against these properties in execution. Nothing can be more an anomalous position than this. In this view, therefore, the appeal before the lower appellate Court was bound to fail as a whole, otherwise it would lead to totally inconsistent positions.
9. Mr. Rao relies upon a decision of their Lordships of the Supreme Court reported in Deputy Commissioner v. Rama Krishna Hardai, AIR 1953 SC 521 (D). The facts in the case before their Lordships of the Supreme Court were entirely different. That matter arose out of administrative proceedings under the U. P. Encumbered Estates Act. Their Lordships, after exhaustively examining the provisions of the U. P. Encumbered Estates Act and the entire scheme of the Act itself, concluded that the technical rules of the First Schedule of the Code of Civil Procedure regarding impleading of parties should not be involved in such proceedings and the matter should be viewed in a more liberal way, regard always being had to the fact that there is no collusion between the debtor and the claimant and that there are persons who are bona fide litigating in respect of the title of the claimant under Section 11 of the Act.
Their Lordships further observed, if there has been such a bona fide fight which results in a decree, in an appeal against that decree it is sufficient that those who took an active part in the proceedings under Section 11 are impleaded. It is not necessary to implead each and every creditor who either did not appear or put forward a written statement. The object of the Act is to grant relief to the landlord whose estate is encumbered with debts, by scaling down the debts and by depriving the creditors of their civil remedies.
The matter arose out of a summary proceeding under the said Act and their Lordships were considering not the case of joint creditors or joint decree-holders, but the cases of various independent creditors whether all of them should or should not be made parties. No point was involved in that case as in the present that anomalous or inconsistent decree would follow. Their Lordships further observed that it cannot be forgotten that under the provisions of Section 11 of the Act no provision has: been made for issuing notice to all the creditors. In our view, definitely the decision of the Supreme Court has no bearing on the pertinent question involved in the present second appeal.
10. Mr. Rao, in the last resort, draws our attention to a petition filed in the lower appellate Court for making the joint decree-holder a party after condoning the delay. This petition was filed on 10-2-1954, the appeal had been filed on 18-11-1952, that is to say, the petition was filed more than 14 months after. The learned lower Appellate Court has refused to condone the delay and make the joint decree-holder a party to the appeal. There was no separate petition filed under Section 5 of the Limitation Act.
Mr. Rao, however, contends that the client proceeded on the advice of his lawyer and as such the lower appellate Court ought to have condoned the delay and made the joint decree-holder a party to the appeal. Can it be said that the advice was given in good faith? The expression 'good faith' has been defined in the Indian Limitation Act as 'nothing shall be deemed to be done in good faith which is not done with due care and attention.' The position, as it appears to us, is manifest that a slightest care and attention would have impelled the advocate to make others as necessary parties in the appeal.
The position has been made clear on review of several cases on the point in my judgment in a Bench decision reported in Tirumala Bhaskara Rao v. Panasa Narayanamma, 22 Cut LT 309: ((S) AIR 1956 Orissa 124) (E), that it cannot be the rule of law that any mistaken advice given by a counsel i9 a sufficient ground under Section 5 of the Limitation Act. A party is not completely absolved of his responsibility and automatically becomes entitled to the protection under Section 5 of the Limitation Act merely by entrusting his work to a senior advocate.
But if the view taken by the legal adviser is quite a reasonable view even though mistaken andthe advice could be given by any senior lawyer inspite of due care and caution then only the party is entitled to the provisions of Section 5 or Section 14 of the Limitation Act. But this is not the position in the instant case. The advocate invited a great risk to his client without any justification whatsoever. The lower appellate Court was perfectly justified in rejecting the petition. Moreover, as we nave already mentioned, the appeal was incompetent even in the absence of defendant No. 1, the judgment-debtor who was not made a party and there was no attempt made to make him a party at any subsequent stage also.
11. In conclusion, therefore, the second appeal fails and is dismissed with costs.
S. Barman, J.
12. I agree.