1. In this case the plaintiff sues to recover possession of certain property usufructurily mortgaged by the 1st defendant to the 6th defendant's grandfather whose interest was-subsequently purchased by the plaintiff in execution of a money decree against the 6th defendant's grandfather. In the alternative, the plaintiff seeks to recover the amount of the mortgage debt due on the mortgage by the 1st defendant to the 6th defendant's grandfather. Prior to the purchase in execution by the plaintiff of the 6th defendant's grandfather's interst, the plaint alleges that the 6th defendant's grandfather, for the purpose of defeating the plaintiff's claim against him, got the 1st defendant to execute a collusive mortgage of the same property in favour of the 2nd defendant's father who sued on this mortgage and brought the suit-property to sale when it was purchased by defendants Nos. 3 to 5. The lower appellate Court held that the 2nd mortgage was collusive, but that defendants Nos. 3 to 5 were bona fide purchasers for value and gave the plaintiff a personal decree against the 2nd defendant. The 2nd defendant then preferred this second appeal, and the learned Advocate-General who appeared for the 1st respondent (plaintiff) admitted that he could not support the decree against the present appellant, and this second appeal must accordingly be allowed, and the decree of the lower appellate Court modified and the suit against the second defendant dismissed with costs throughout. At the hearing of this second appeal on the 13th November 1907, the Advocate General when admitting that he could not support the decree against the 2nd defendant applied that defendants Nos. 1 and 3 to 9 should be made parties to the second appeal in order to fix them with liability, and the Court on the authorities cited made the order subject to objections. Defendants Nos. 1 and 3 to 9 who have now been made parties, appear and object that Section 559, C.P.C., is inapplicable, and that they have been wrongly made parties, and after hearing the question fully argued, we are of opinion that their objection is well founded. Section 559, C.P.C., provides that 'if it appear to the Court at the hearing-that any person who was a party to the suit in the Court against whose decree the appeal is made, but who has not been made a party 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. Looking at the language of the section apart from authority, it would appear to have been inserted to protect parties to the suit, who had not been made respondents in the appeal, from being prejudiced by modifications made behind their backs in the decree under appeal. The party whom it is sought to bring on is required to be interested in the result of the appeal, that is to say, he must be shown to be interested in the result of the appeal before he is brought on, for once he is brought he may be said to acquire an interest as a result of being brought on. Now when a defendant has been f exonerated and there is no appeal against so much of the decree as exonerates him, no decree can be passed against him in an appeal by any other party to the suit as he is no party to such appeal, and he cannot in our opinion, be said to be interested in the result of such appeal by another party unless the decree sought to be obtained against the respondents in the appeal would have the effect of prejudicing him in some way or other; This is the interpretation put upon the section in Atma Ram v. Balkishen I.L.R. (1883) A. 267, where the learned judges say: 'We do not think that Section 559 of the Code-empowers an appellate Court virtually to make an appeal for an appellant who has refrained from availing himself of his privileges under the law, by introducing for him other respondents than those he has included in his petition of appeal. Moreover, we do not think it can be said that Atma Ram was interested in the result of the appeal, as, having the unappealed decree of the Assistant Commissioner behind him, his position was secure. We may further observe that Section 559 was adapted from Section 73 of Act VIII of 1859, and, follows the language of that section, with some modifications. The persons to be brought on under that section were ' all the persons who may be entitled to, or who claim some share or interest in the subject-matter of the suit, and who may be likely to be affected by the result,' and these persons are described in the marginal note to the section as 'parties appearing to be interested in a suit.'
3. In Upendra Lal Mukerjee v. Girindra Nath Mukerjee I.L.R. (1898) C. 565 a Bench, of the Calcutta High Court refused to follow Atma Ram v. Balkishen I.L.R. (1883) 252 and referred to cases such as the present in which the plaintiff having obtained a decree against one of several defendants might well rest content with this decree until1 the defendant, who had been held liable, preferred an appeal, when he would naturally desire to fall back on his claim against the exonerated defendants in the result of the appeal being successful. In such a case, it would be open to the plaintiff after the filing of the appeal to prefer another appeal against so much of the decree as exonerated any of the defendants, and if his appeal would be out of time there might possibly be ground for excusing the delay. But, however, this may be, the hardships which might arise in a case of this kind is no reason for extending the section to cases which do not come within the scope of the language used in the section as we understand it. We may further observe that the decision in Upendra Lal Mukerjee v. Girindra Nath Mukerjee I.L.R. (1898) Cal. 565 was followed with reluctance in Hudson v. Basdeo Bajpye I.L.R. (1898) C. 109 and was disapproved as to this point by the referring judges in Rup Jaun Bibee v. Abdul Kadir Bhuyan I.L.R. (1904) Cal. 643. It was no doubt held by the Full Bench to have been rightly decided, but no question as to Section 559, C.P.C., was actually before the Full Bench as, the appellant had made all the other parties respondents. We have not been referred to any reported case in this Court; and for the reasons already given, we prefer to follow Atma Ram v. Balkishen I.L.R. (1883) A. 267 and uphold the objection and set aside with costs, the order making defendants Nos. 1 and 3 to 9 respondents to the second appeal.