1. The only material facts are that plaintiff obtained a decree against 1st defendant and his sons', 3rd and 4th defendants for the amount of a debt incurred by the first mentioned. Third and 4th defendants appealed not making 2nd defendant, 1st defendant's undivided nephew, a party. Plaintiff, however, here 1st respondent, filed a memo, of objection against him and statedly on account of that memo, had made him a party to the appeal in the lower Appellate Court, A degree was given by the lower Appellate Court against him: and he now appeals, the only ground of appeal argued being that, as he was not originally a party to the appeal, no memo could be filed to his prejudice.
2. The Full Bench decision in Munisamy Mudaly v. Albu Reddy 27 Ind. Cas. 323 : 38 M.P 705 : (1915) M.W.N. 45 : 27 M.L.J. 740 has placed beyond doubt the right of one respondent to proceed against another by memo of objection and the only question, therefore, is whether the one is entitled to have the other made a party in order that he may do so. Appellant argued that he is not, because the only provision in Order XLI relating to appeal?, rule 20, for the addition of parties refers to 'the appeal' and 'the result of the appeal,' not also to the memo of objection, and cannot be utilised for the purpose of the latter. Contra it is argued that 'the appeal' is referred to in Order XLI, rule 20, as meaning and including all the proceedings in the Appellate Court, whether those involved in the disposal of the appeal proper or also those involved by the memo. The latter construction commends itself as consistent with the reference to ' the appeal' in rules 21, 23, 24, 25, 27,30, 33, unaccompanied by anything explicitly rendering them applicable to a memorandum of objection or by any other separate provision for the procedure at the hearing of the latter. In these circumstances, the appellant's argument must be rejected. The appeal is dismissed with costs.
3. In this case the lower Appellate Court allowed the plaintiff, who was originally the sole respondent in the appeal to that Court by defendants Nos. 3 and 4, to file a memo, of cross-objection to the decree of the first Court under Order XLI, rule 22, Civil Procedure Code, against the 2nd defendant who had not been made party to the appeal by appellants, and for the purpose of disposing of that memo, added the 2nd defendant as the 2nd respondent to the appeal, under rule 20, on the application of the plaintiff. That Court, finding the claim of the plaintiff established against the 2nd respondent also, allowed the memo of cross-objection and varied the decree of the first Court and gave a decree to the plaintiff against him as well.
4. No objection is raised on the merits to that decree, but it is contended that the procedure adopted is unauthorised by the rules and is ultra vires and that plaintiff's only proper remedy was to appeal against the decree of the 1st Court himself so far as it dismissed his suit against the 2nd defendant. It must be conceded in the appellants' favour that the 2nd defendant was not a necessary party to the appeal so far as the appeal of the appellants was concerned. The appellant's Vakil contends that rule 22 doss not permit a respondent in an appeal to file cross-objections against any person who is not made a party to the appeal by the appellant and who, not being a necessary party for the purposes of the appeal, need not have been added by him as a respondent. It is, however, conceded by the learned Vakil that the somewhat narrow view taken of the scope of rule 22 in Jadunandan Prosad Singha v. Koer Kallyan Singh 13 Ind. Cas. 653 : 15 C.L.J. 61 : 16 C.W.N. 612, which is followed in Shib Chandra v. Dulcken 43 Ind. Cas. 78 : 28 C.L.J. 123, has not been adopted by our High Court. It has been ruled here by a Full Bench in Munisamy Mudaly v. Abbu Reddy 27 Ind. Cas. 323 : 38 M.P 705 : (1915) M.W.N. 45 : 27 M.L.J. 740 that it was open to a respondent under rule 22 to file a memo, of cross-objection against any other respondent, whether the appellant was interested in it or not. The present case no doubt goes one step further as a new respondent had to be added to the appeal to bring the memo of objections under the rule adopted by the Full Bench and to dispose it of on the merits. The question whether this could be properly done is not free from doubt, but I am inclined to agree with my learned brother that it is not beyond the Court's power to do it. It is true that in the case in Valliammai Achi v. Nataraja Pillay 13 Ind. Cas. 906 : 11 M.L.T. 157 : (1912) M.W.N. 198 Miller, J., held sitting as a single Judge that it could not be done. But in coming to that conclusion, the learned Judge followed the view of the Calcutta High Court in Jadunandan Prosad Singha v. Koer Kallyan Singh 13 Ind. Cas. 653 : 15 C.L.J. 61 : 16 C.W.N. 612 above referred to and as that view has now been dissented from by our High Court, the authority of his ruling is lost. The language of rule 22 is quite wide enough in my view to enable a respondent to take any cross objection to the decree which he should have taken by way of appeal, as it expressly says. His right is not restricted to filing objection against parties already on record; the rule makes no such restriction. We are not concerned with the question whether the rule is reasonable or not but only with its meaning; after the ruling of the Full Bench any argument that it is unreasonable to allow a person to obtain relief against another by way of memo of cross-objections because a third person has appealed when he himself has not, cannot be supported.
5. It seems to me that the present Code is much wider in scope than the repealed Code in 1882 in the matter of allowing the Appellate Court to deal with the whole case. Rule 33 is a clear indication of it. There is no reason, therefore, to restrict the scope of rule 22 by reading words into it allowing cross-objections to be filed only against parties to the appeal. No doubt rule 22, Clause (3), shows that notice of memo of objections should be given to all parties affected by it, but I can see nothing in the clause which requires that they should have been made parties to the appeal by the appellant. If they are not already parties to the appeal record, the Court can and will make them parties to hear their objections to the cross-objections being allowed, as was done in the present case.
6. It is next argued that under rule 20 such persons cannot be made party respondents when they are not interested in the result of the appeal. It may be pointed out that rule 20 does not exhaust the Appellate Court's power to add parties as Order I, rule 10, read with Section 107, Civil Procedure Code, also gives such power. Furthermore, I agree with my learned brother that we should treat the memo of cross objections as included in and as a part of the appeal proceedings, and when a person is interested in the results of the appeal, rule 20 will in terms authorise his addition as a party respondent to the appeal record. Unless we treat the memorandum as part of the appeal proceeding there will be a difficulty, as pointed out by my learned brother, in applying several rules in Order XLI to it, which obviously apply to it. In fact the Code does not make separate provision for the disposal of such memoranda except in the special case provided for in rule 22, Clause (4). The rules relating to appeals seem to be intended to govern them also so far as possible.
7. I am, therefore, of opinion that the action of the lower Appellate Court in the present case was within its powers and cannot be set aside as ultra vires.
8. The second appeal fails and I agree that it should be dismissed with costs.