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Paras Ram Vs. Maharaj Ekling Singhji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Spl. Appeal No. 46 of 1974
Judge
Reported inAIR1985Raj236
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 - Order 1, Rule 10 - Order 21, Rules 58 and 63 - Order 41, Rule 20
AppellantParas Ram
RespondentMaharaj Ekling Singhji and ors.
Advocates: M.C. Bhandari, Adv.
DispositionAppeal dismissed
Cases ReferredP. Anandu v. M. Acharyulu
Excerpt:
- - 8. the success of the appeal in his absence would result in conflict with the judgment between the plaintiff and kesrimal, defendant no. it was observed in chockalingam chetty's case air 1927 pc 252 as under :as regards the rest of the case, owing to the plaintiff's failure to make these defendants respondents within the time limited for filing an appeal, these appeals, so far as they are concerned, are prima facie barred by limitation, and they are entitled to hold the decrees in their favour, which, as pointed out by their lordships in a very recent case, is a substantive right of a very valuable kind of which they should not lightly be deprived. 11. we are satisfied that no valid exception can be taken to the judgment under appeal......applicable to the case on hand.8. as stated above, defendant no. 8 contested the suit and the suit filed by the plaintiff-appellant was dismissed. a finding was recorded that the amount regarding which the assignment-deed (ex. 1) was made by the defendant-judgment-debtor did not create any right, title or interest in favour of the plaintiff. while allowing the appeal, a finding, contrary to the one which has been recorded is bound to result in two conflicting decisions and if so, then, it is futile to contend that defendant no. 8 was not a necessary party. in this view of the matter, the non-joinder of kesrimal (defendant no. 8) was fatal to the maintainability of the appeal and, therefore, the learned single judge was right in holding that the appeal cannot be said to be properly.....
Judgment:

S.K. Mal Lodha, J.

1. This appeal hasbeen filed by the plaintiff against the judgment dated August 20, 1973 of the learned single Judge by which the appeal filed by him under Section 96. C.P.C. was dismissed on the ground that it was not properly constituted.

2. The plaintiff-appellant instituted a suit for declaration under Order XXI, Rule 63, C.P.C averring that the amount of Rs. 13,788.14, which was attached in execution cases Nos. 56/66. 75/66 and 63/66 of the court ofCivil Judge, Udaipur is not liable to attachment as it was also prayed that the attachment so made should be set aside. Defendant No. 1 Maharaj Ekling Singhji was the judgment-debtor. In this appeal he was impleaded as respondent No. 1. He died during the pendency of the appeal and his legal representatives have been brought on record who are also respondents. It was also alleged by the plaintiff that there was a decree against defendant No. 1 for Rs. 5,973.95, which was obtained from the court of Civil Judge, Udaipur on September 14, 1964 by defendants Nos. 2, 5, 6 and 7 and one Tarachand. Under Order XXI, Rule 52, C.P.C., a sum of Rs. 6503/-, which represented the amount of compensation, was attached. This amount was awarded by the Sub-Divisional Officer, Vallabh Nagar. Defendants Nos. 9 and 10 got attached before judgment, a sum of Rs. 4500/- out of the said sum. Ultimately, a decree was passed on November 24, 1966 against defendant No. 1. Defendant No. 8 Kesarimal, who has not been impleaded as a party in the appeal under Section 96, C.P.C. got attached a sum of Rs. 2704.11 vide Execution Case No. 53/66 of the Court of Civil Judge, Udaipur. The plaintiff submitted objections under Order XXI, Rule 58, C.P.C. They were dismissed. Hence, the suit under Order XXL Rule 63, C.P.C. was filed.

The case of the plaintiff is that the compensation amount of Rs. 14,712.39 was assigned to him by registered sale-deed (assignment-deed) dated Feb. 18, 1963. After assignment, defendant No. 1 ceased to have any right, title or interest in the said sum. The suit was instituted on February 24, 1967. The three sets of the defendants (decree-holders) contested the suit, inter alia, on the ground that the assignment deed (sale-deed) dated February 18, 1963 is a sham transaction and without consideration and that it was executed with an intention to defeat the claim of the creditors. The assignment of the amount by way of sale was also assailed on the ground that no assignment could take place because it was not an actionable claim. It was submitted that as defendant No. 1 was the sole owner of the amount, the amount of compensation was liable to attachment in execution of the decrees. Certain other pleas were also raised, with which we are not concerned. Defendant No. 1 filed the written statement admitting the claim of the plaintiffs. The learned Additional District Judge No. 1, Udaipurframed the necessary issues. It is not necessary to reproduce all the issues except issue No. 3, which, according to us, is material. It is as follows :--

'Whether the sale in favour of the plaintiff is sham and without consideration and has been made to defeat the claim of defendant No. 1's creditors?'

The learned Additional District Judge No. 1, Udaipur, by his judgment dated September 17, 1969, dismissed the suit. While deciding issue No. 3, it was found by him that the assignment-deed (sale-deed) Ex. 1 is sham and bogus, collusive and fraudulent transaction and that there was no genuine transaction.

3. Here, it may be mentioned that Kesrimal was defendant No. 8. There were in all ten defendants inclusive of Maharaj Elding Singh (judgment-debtor-defendant No. 1). Against the judgment and decree of the dismissal of the plaintiffs suit, an appeal under Section 96, C.P.C. was filed. In that appeal, defendant No. 8, who was party in the suit was not impleaded as respondent On August 16, 1973, on behalf of the respondents, a preliminary objection was raised that the appeal was not properly constituted as Kesrimal, who is one of the creditors and was impleaded as defendant No. 8 in the suit for declaration under Order XXI, Rule 63, C.P.C., has not been impleaded as respondent On August 20, 1973, a reply was submitted that Kesrimal, who had contested the suit, agreed to withdraw the attachment and, in fact, withdrew the attachment and so he was not made a party to the appeal Before the learned single Judge, learned counsel submitted that Kesrimal had no subsisting interest in the subject-matter of the suit and so, the question of there being two conflicting adjudications of the case, does not arise. According to the learned counsel, Kesrimal was not a necessary party in the appeal. However, an application under Order XLI Rule 20, C.P.C was filed on behalf of the appellant praying that Kesrimal may be impleaded as party-respondent to the appeal, and delay so caused in impleading him may be condoned. The learned single Judge found that after Kesrimal had contested the suit and it had resulted in an adjudication in favour of Kesrimal, regarding the title of the plaintiff in the suit money based on the assignment-deed in his favour, any contrary decision in appealis bound to lead to two contradictory decrees, in respect of the attached compensation amount He also did not consider it proper to allow the application filed on behalf of the appellant to implead Kesrimal as party-respondent in the appeal after the lapse of four years. He therefore, upheld the preliminary objection and dismissed the appeal as not property constituted. The plaintiff has filed this special appeal under Section 18(1) of the Rajasthan High Court Ordinance. 1949.

4. We have heard Mr. M.C Bhandari, learned counsel for the appellant as nobody has appeared on behalf of the respondents to oppose the appeal.

5. Learned counsel for the appellant has assailed the findings recorded by the learned single Judge. On the basis of the submissions that were made by the learned counsel for the appellant, the following two points arise for our determination :--

(1) Whether in the facts and circumstances of the case, defendant No. 8 Kesrimal was a necessary party to the appeal, which was filed by the plaintiff under Section 96, C.P.C. and if so, whether his non-joinder affects the maintainability of the appeal?

(2) Whether the learned single Judge was not right in not allowing the application filed on behalf of the appellant under Order XLI, Rule 20, C.P.C. for impleading Kesrimal, defendant No. 8, as party-respondent to the appeal?

6. There is no dispute with regard to the following facts : The plaintiff-appellant instituted a suit for declaration against the three sets of decree-holders, who have levied execution Cases Nos. 56/66,75/66 and 53/66. The objections filed under Order XXI, Rule 56, C.P.C were dismissed. The suit under Order XXI, Rule 63, C.P.C was instituted. Defendant No, 8 Kesrimal sought to execute his decree vide Execution Case No. 53/66. He filed a separate written statement on June 9, 1967 contesting the suit. After trial, the suit of the plaintiff-appellant was dismissed. In other words, there was an adjudication in favour of the creditors (decree-holders) including Kesrimal inasmuch as the suit under Order XXL Rule 63, CP.C. filed by the plaintiff-appellant was dismissed. The plaintiff filed the appeal challenging the dismissal of the suit under Order XXI, Rule 63, C.P.C. as illegal and erroneous.

7. One important fact which is to be kept in mind while considering the correctness of the finding of the learned single Judge that the appeal was not properly constituted inasmuch as defendant No. 8 Kesrimal was not impleaded as a party, is that the suit for declaration under Order XXI, Rule 63, C.P.C. was dismissed after contest by the creditor-defendants and one of the creditor-defendants, as stated above, was defendant No. 8. The success of the appeal in his absence would result in conflict with the judgment between the plaintiff and Kesrimal, defendant No. 8. In such cases, the important test is whether the allowing of the appeal may lead to the Court's coming to a decision which may be in conflict with the decision between the appellant and the left-out necessary respondents, which would result in passing a contradictory decree which had become final with respect to the same subject matter between the appellant and the left-out necessary respondents. The aforesaid test laid down regarding abatement of appeal against one respondent in State of Punjab v. Nathu Ram AIR 1962 SC 89, Sri Chand v. Jagdish Parshad AIR 1966 SC 1427, and R. P. Gupta v. Murli Prasad AIR 1972 SC 1181, is equally applicable to the case on hand.

8. As stated above, defendant No. 8 contested the suit and the suit filed by the plaintiff-appellant was dismissed. A finding was recorded that the amount regarding which the assignment-deed (Ex. 1) was made by the defendant-judgment-debtor did not create any right, title or interest in favour of the plaintiff. While allowing the appeal, a finding, contrary to the one which has been recorded is bound to result in two conflicting decisions and if so, then, it is futile to contend that defendant No. 8 was not a necessary party. In this view of the matter, the non-joinder of Kesrimal (defendant No. 8) was fatal to the maintainability of the appeal and, therefore, the learned single Judge was right in holding that the appeal cannot be said to be properly constituted in the absence of the non-joinder of Kesrimal (defendant No. 8). The first question that has been formulated by us above, is, therefore, answered in affirmative.

9. So far as the dismissal of the application which was filed on August 28, 1973 for impleading Kesrimal as party-respondent to the appeal is concerned, suffice it to mention that that application itself was made afterfour years inasmuch as the appeal was filed on Sept 30, 1969. The application was under Order XLI, Rule 20, and Order I, Rule 10, read with Section 151, C.P.C. The addition of respondent to the appeal is expressly dealt with in Order XLI, Rule 20, C.P.C., which reads as under :--

'Power to adjourn hearing and direct persons appearing interested to be made respondents.-

(1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been madeaparty to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent

(2) No respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit.'

10. One of the tests for the purpose of impleading the respondent is that he must be interested in the result of the appeal. The expression 'interested in the result of the appeal', was examined in Chockalingam v. Seethai AIR 1927 PC 252, wherein, it was held that where a defendant has been exonerated in the lower Court and no appeal had been filed against him within the period of limitation, he cannot be said to be interested in the result of the appeal filed by the appellant against other respondents and that, in any event, it was for the appellant who sought to make respondent to show what was the nature of the interest he had in the appeal. Their Lordships of the Privy Council reached this view in spite of the fact that the presence of the proposed party-respondent was necessary to enable the Court to decide on the merits certain questions that arose in the appeal. It follows from the decision of the Privy Council that for the addition of a party-respondent under Order XLI, Rule 20, C.P.C., the test is not whether his presence before the Court was necessary for the adequate disposal of the appeal on its merits, but whether the proposed party is one whose interests are likely to be prejudiced by the determination of the appeal as constituted. It was observed in Chockalingam Chetty's case AIR 1927 PC 252 as under :--

'As regards the rest of the case, owing to the plaintiff's failure to make these defendants respondents within the time limited for filing an appeal, these appeals, so far as they are concerned, are prima facie barred by limitation, and they are entitled to hold the decrees in their favour, which, as pointed out by their Lordships in a very recent case, is a substantive right of a very valuable kind of which they should not lightly be deprived.' When parties are added by the Court after the institution of the suit so far as they are concerned for purposes of limitation and the rights which they may have acquired under the Limitation Act are, therefore, sufficiently safeguarded. The addition of a respondent whom the appellant has not made a party to the appeal is expressly dealt with in Order 41, Rule 20 on which the plaintiff relied, both, in the appellate Court and before their Lordships. That rule empowers the Court to make such party a respondent when it appears to the Court that he is interested in the result of the appeal.

Giving these words their natural meaning and they cannot be disregarded it seems impossible to say that in this case the defendants against whom these suits have been dismissed, and as against whom the right of appeal has become barred, are interested in the result of the appeal filed by the plaintiff against the other defendants.'

On the basis of Chockalingam's case, various High Courts have taken the view that where a decree has been passed in favour of a person or a suit has been dismissed against a person and the period of limitation for appeal has expired, he cannot be deemed as interested in the result of appeal filed in the case pendingbetween other persons who were parties to the litigation in the lower court Reference in this connection may be made to P. Anandu v. M. Acharyulu AIR 1958 Andh Pra 743. It was observed by the Full Bench of the Andhra Pradesh High Court as follows :--

'In our opinion, Order 41, Rule 20 empowers an appellate Court to implead party to the suit as a supplemental respondent only if he is interested in the result of the appeal i.e. if he is to be affected by any decree or order to be passed in the appeal and not otherwise, and that the interest must be determined with reference to a time when he is not brought on record. It cannot be posited that such a respondent continues to have any interest in the appeal if the decree in his favour had become final by reason of an appeal not having been presented against it. The power of a Court in this behalf must be sought within the ambit of Order 41, Rule 20.'

In this view of the matter, Kesrimal (defendant No. 8) could not be impleaded as party-respondent to the appeal as prayed by the appellant in this application after a lapse of four years. In our opinion, the learned single Judge was right in dismissing the appellant's application under Order XLI, Rule 20, C.P.C., for, he cannot be said to be interested in the result of the appeal after expiry of period of four years.

11. We are satisfied that no valid exception can be taken to the judgment under appeal.

12. The result is that this appeal has no force. It is, accordingly, dismissed without any order as to costs.


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