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Kombi Achen and ors. Vs. Kochunni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1898)ILR21Mad352
AppellantKombi Achen and ors.
RespondentKochunni
Cases ReferredRamjiwan Mal v. Chand Mal I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, section 561--appeal dismissed for want of necessary parties--memorandum of objections. - central excise act, 1944.[c.a. no. 1/1944]. section 11: [p. santhasivam, a. kulasekaran & s. tamilvanan, jj] possession of property taken by bank under the securitisation & reconstruction of financial assets and enforcement of security interest act, 2002 - claim towards tax due priority - held, where the bank took possession of the property under section 13 of the s..r.f.a.e.s.i. act, it would be a secured creditor and would have precedence over crowns debt namely excise department in instant case, in the absence of specific provision of first charge in central excise act as well as customs act. generally, the dues to government i.e., tax, dues etc (crows..........it was contended for the appellants that it cannot be heard inasmuch as the appeal has not been heard on the merits, and therefore there has been no hearing of the appeal within the meaning of section 561, code of civil procedure. we cannot accept this contention, as we consider that the question of non-joinder is one that arises in the appeal itself, and is not extraneous to it, as would be a question as to whether it was presented in proper time or not ramjiwan mal v. chand mal i.l.r. 10 all. 587. upon this question of non-joinder the appellant was heard, and it follows that there was a sufficient hearing of the appeal to entitle the respondent to be heard on his objections.3. as to the merits of the objections themselves they turn on questions of fact and accordingly we dismiss.....
Judgment:

1. The appellant has failed to join as parties to his second appeal the second defendant and eight others, who represent the mortgagee. In their absence, the decree of the lower Court cannot be varied, and we see no sufficient reason for allowing the appellant at this stage to bring them on the record. On this ground we must dismiss the second appeal with costs.

2. As to the memorandum of objections, it was contended for the appellants that it cannot be heard inasmuch as the appeal has not been heard on the merits, and therefore there has been no hearing of the appeal within the meaning of Section 561, Code of Civil Procedure. We cannot accept this contention, as we consider that the question of non-joinder is one that arises in the appeal itself, and is not extraneous to it, as would be a question as to whether it was presented in proper time or not Ramjiwan Mal v. Chand Mal I.L.R. 10 All. 587. Upon this question of non-joinder the appellant was heard, and it follows that there was a sufficient hearing of the appeal to entitle the respondent to be heard on his objections.

3. As to the merits of the objections themselves they turn on questions of fact and accordingly we dismiss them also with costs.


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