1. The suit as originally framed was based on the liability arising out of a promissory note executed by defendants Nos. 1 to 3. The petitioner has been added as 4th defendant as being the transferee of the debtor's liability, and he seeks to have the order making him a party set aside in these proceedings under Section 115, Civil Procedure Code.
2. The addition of a party under Order I, Rule 10 is ordinarily a matter within the discretion of the Court trying the suit, and an erroneous exercise of discretion in a matter of procedure should not be regarded as something done illegally in the exercise of the Court's jurisdiction. Sitaramaya v. Ramappaya (1917) 5 L.W. 207 is an authority of a Single Judge of this Court for the view that even in such cases the High Court can interfere in revision, but I respectfully doubt its correctness, and I think that the law will soon make its clear that that view was wrong, if the recommendations of the Civil Justice Committee are accepted.
3. But in the present case the liability of the petitioner under his sale-deed and the liability of defendants Nos. 1 to 3 under the promissory note are quite distinot and prima facie there would appear to be hare not only a misjoinder of parties, but a misjoinder of causes of action in which case a Bench of this Court has held in Arunachalam Chettyar v. Arunachalam Chettyar A.I.R. 1922 Mad. 436 that a Court of Revision should interfere unless and until the law is amended. I think I am bound by that decision.
4. But I find that besides adding the petitioner as a party to the suit, the lower Court allowed the plaintiff to amend the plaint by adding a paragraph in which this petitioner's liability as a transferee of the contractual liability of defendants Nos. 1 to 3 is put in issue. The petitioner has not asked this Court to interfere with the order of the lower Court permitting this alteration of the character of the suit, and I do not think it necessary to declare that the trial should not be allowed to proceed in the manner permitted by the Trying Court. In Deb Narain Dutt v. Ram Sadhan Mandal (1911) 41 Cal. 137 and Ajudhia Nath v. Anant Das (1881) 3 All. 799, the liability of a transferee of a debtor's liability was held to be a question on which the Court could adjudicate without referring the plaintiff to a separate suit. In para 7 of the defendant's written statement he has raised a question of estoppel which will have to be disposed of in the suit. It cannot be decided in these proceedings.
5. The civil revision petition is, therefore, dismissed with costs.