Skip to content


T.V. Kochuvareed Vs. Kasim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 384 of 1956 (E)
Judge
Reported inAIR1960Ker342
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 1, Rule 10(2)
AppellantT.V. Kochuvareed
RespondentKasim
Appellant Advocate K. Atchutha Menon and; T. Chandrasekhara Menon, Advs.
Respondent Advocate V. Narayana Menon,; M. Madhavan Nair,; R. Sankaradasan T
DispositionPetition dismissed
Cases Referred and Vimlabai D. Vashishtha v. General Assurance. Society Ltd.
Excerpt:
- - 8. counsel for the petitioner placed strong reliance on three cases of the bombay high court under the motor vehicles act, 1939 :sarupsing v. but must say that we are not satisfied that there is any valid reason in this case for the exercise of the inherent powers of the court......the action under section 96(2), if a decree were to be passed in favour of the plaintiff in an undefended action a statutory liability will be cast upon insurance company to satisfy the decree inasmuch as the statutory notice has been served upon it; and the real question that arises for our determination is whether an insurance company is entitled to defend the action on merits not in its own names not in its own right, but in the name of the defendant' and answered the question in the affirmative. the successful invocation of the inherent power in the three cases appears to have been based on the special facts and circumstances of those cases and the rights and liabilities embodied in section 96 of the motor vehicles act, 1939. . 9. we have heard counsel for the petitioner at length;.....
Judgment:

M.S. Menon, J.

1. This petition ig directed against the order of the District Judge of Trichur in M. P. No. 1848 of 1956 in O. S. No. 125 of 1955. The suit is for damages for the breach of a contract.

2. The defendant (2nd respondent) filed a written statement raising various contentions on 17-1-1956. On 28-1-1956 the plaintiff (1st respondent) applied for attachment before judgment of an estate belonging to the defendant (2nd respondent). In that proceeding the petitioner before us executed a security bond and averted the attachment.

3. On 12-7-1956 the defendant filed a petition withdrawing all his contentions and agreeing to a decree as prayed for in the plaint. The suit, we are told, has not yet been decreed.

4. On 24-7-.1956 the petitioner filed M. P. No. 1848 of 1956 and prayed for an order 'impleading the petitioner as a defendant in the suit or alternatively allowing the petitioner to enter appearance and defend the suit in the name of the defendant and for that purpose to do all acts that may be necessary in the name of the defendant'. In the affidavit in support of the petition the petitioner said :

'The plaintiff and defendant colluded and entered into a fraudulent arrangement by which they agreed that a decree be allowed to be passed for the whole plaint claim and the proceeds will be divided between them. This is an act of sheer fraud committed by them with a view to make illegal gain for themselves. If evidence is recorded and the case goes to its natural termination, the plaintiff will not secure a decree at all, and if, by the defendant refusing to proceed with his defence, a decree is to be passed in favour of the plaintiff, I, stand to lose more than Rs. 30,000. I offered further to indemnify the defendant against the consequences of his defending the case and I am prepared to do so in any manner proposed by the Court.

5. The lower court considered the arguments advanced on behalf of the petitioner and dismissed the petition. The contentions urged before us are the same as those which were advanced in the Court below.

6. The first contention is that the petition can be allowed in view of Order 1, Rule 10 (2) of the Code of Civil Procedure, 1908 :

'The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'

It is impossible to say that the petitioner ought to have been joined 'as plaintiff or defendant' in the suit as he came into the picture only subsequent to the institution of the suit by the execution of the security bond on 9-3-1956. We find it equally impossible to say that his presence before the Court is necessary for the adjudication of any of 'the questions involved in the suit.'

7. The second contention is that the petition should be allowed in exercise of the inherent powers saved under Section 151 of the Code of Civil Procedure, 1908, which provides that nothing in that Code 'shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.' The exercise of the inherent power of the Court must depend solely on the facts and circumstances of each case, and the decided cases to whicli our attention was drawn afford little or no guidance.

8. Counsel for the petitioner placed strong reliance on three cases of the Bombay High Court under the Motor Vehicles Act, 1939 : Sarupsing v. Nilkant, AIR 1953 Bom 109, Royal Insurance Co. Ltd. v. Abdul Mahomed Meheralli, (S) AIR 1955 Bom 39 and Vimlabai D. Vashishtha v. General Assurance. Society Ltd., (S) AIR 1955 Bom 278. The latest of the three cages is (S) AIR 1955 Bom 39. In that case the Court said :

'The facts here are rather significant. The defendant is not in India. He has left India and he had to be served with a summons in the suit by substituted service and the possibilities are that at the hearing of the suit he will not appear to defend the action. Therefore, this very extraordinary situation arises, that although the defendant may not defend the action and although the insurance company cannot be made a party to the action under Section 96(2), if a decree were to be passed in favour of the plaintiff in an undefended action a statutory liability will be cast upon insurance company to satisfy the decree inasmuch as the statutory notice has been served upon it; and the real question that arises for our determination is whether an insurance company is entitled to defend the action on merits not in its own names not in its own right, but in the name of the defendant'

and answered the question in the affirmative. The successful invocation of the inherent power in the three cases appears to have been based on the special facts and circumstances of those cases and the rights and liabilities embodied in Section 96 of the Motor Vehicles Act, 1939. .

9. We have heard counsel for the petitioner at length; but must say that we are not satisfied that there is any valid reason in this case for the exercise of the inherent powers of the Court.

10. Section 145 of the Code of Civil Procedure, 1908 provides :

'Where any person has become liable as surety-

(a) for the performance of any decree or any part thereof, or

(b) for the restitution of any property taken in execution of a decree, or

(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the. purpose of appeal, be deemed a party within the meaning of Section 47 :

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.'

(10a) Every legitimate contention that the petitioner in his capacity as a surety can possibly raise will be open to him when action is taken against him, and we sec no reason whatsoever for bringing him on record to contest on his own behalf or in the name of the defendant (2nd respondent) a case which as far as the parties to it are concerned has been settled and does not subsist for adjudication.

11. It follows that this petition has to be dismissed, and we order accordingly. The lower Courtdirected the parties to bear their costs. We shalldo the same.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //