1. The petitioners are the decree-holders in Original Suit No. 56 of 1940 on the file of the Subordinate Judge's Court, Cocanada, and against the decree an appeal has been filed in this Court by some of the defendants. The sixteenth defendant in the lower Court is not a party to the appeal but the decree-holders seek to file a memorandum of cross-objections against him under Order 41, Rule 22 of the Code of Civil Procedure. The sixteenth defendant objects on two grounds, firstly, that it is not open to the respondents in the appeal, to file a memorandum of cross-objections against a person who is not a party in the appeal, and secondly, that it is not open to the Court to add him as a party to the appeal merely for this purpose.
2. The learned advocate for the petitioners relies on the decision in Ponnuswami Asari v. Palaniandi Mudali (1920) 11 L.W. 602 in which it was held that the appellate Court has jurisdiction under Order 41, Rule 20 of the Code of Civil Procedure to add a defendant as a party to an appeal even though the defendant may not be interested in the original appeal. The facts in that case were that defendants 3 and 4 in the suit in the trial Court had appealed against the plaintiff's decree, making him the sole respondent. The plaintiff then applied to implead the second defendant and preferred a memorandum of cross-objections against him asking for a decree against his share also, relief against the second defendant having been refused in the trial Court. By the time the plaintiff applied to bring the second defendant on record and file a memorandum of cross-objections against him, limitation for preferring an appeal had expired but nevertheless it was held that the lower appellate Court had jurisdiction and that the procedure adopted in adding the second defendant was not irregular although he was not interested in the result of the appeal.
3. The learned advocate for the respondents has cited the decision in Chockalingam Chetti v. Seethai Acha (1927) 54 M.L.J. 88 : L.R. 55 IndAp 7 : I.L.R. 6 Rang. 29 (P.C.) and he contends that the decision relied on by the learned advocate for the petitioners has been overruled. In this case it was decided by the Privy Council that an appellate Court has power to add a party only if he is interested in the result of the appeal and if the period of limitation for preferring an appeal against him had expired, he could not be said to be interested in the appeal. The following observations in the judgment are of particular interest:
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 a 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. It was for the plaintiff-appellant, who applied to the Court to exercise its powers under this rule, to show what was the nature of their interest and this he has failed to do.
Their Lordships are therefore of opinion that the Appellate Court were right in rejecting his application under this rule.
This decision - clearly overrules the decision of this Court in Ponnuswami Asari v. Palaniandi Mudali (1920) 11 L.W. 602. It follows that the sixteenth defendant cannot, therefore, be impleaded as a party under Order 41, Rule 20 of the Code of Civil Procedure, since limitation has run out in his favour. However, it is contended by the petitioners' learned advocate that the filing of a memorandum of cross-objections under Order 41, Rule 22 of the Code is not limited in its application to parties who are already on the record and that it is open to the decree-holder-petitioners' to file a memoraridutn of cross-objections against the sixteenth defendant although he was not a party. This aspect of the matter has been dealt with in the case of Rajendmnath Chatterjee v. Makes Lata Debi I.L.R.(1925) Cal 270 where it was held that the Civil Procedure Code, does not contemplate the filing of cross-objections against a person who is not a party to the appeal. The basis of that decision was the wording of Clause (3) of Rule 22 of Order 41, which is in these words:
Unless the respondent files with the objection a written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
The learned Judges considered that the use of the word ' party ' indicated that the rule contemplated the filing of cross-objections only against a person who was already a party to the appeal. The same view was taken by Curgenven, J., in the case of Venkata Narasimha Rao v. Krishnabayamma : AIR1929Mad479 , where he held that a party who has not filed an appeal against another party not himself an appellant cannot have him added for the purpose of filing a memorandum of cross-objections where the time for appealing has expired.
4. It follows that when a respondent in an appeal proposes to file a memorandum of cross-objections against a person who is a not party to that appeal, two distinct operations are necessary. He must first implead the person as a party under Order 41, Rule 20 of the Code and then, having done so, he must put in his memorandum of cross-objections under Rule 22. In order that he may succeed under Rule 20, he must bring his application within the time allowed for filing an appeal against the person sought to be impleaded. Having succeeded in getting him impleaded, he must file his memorandum of cross-objections within the period of limitation contemplated by Rule 22. In the present case the period contemplated by Rule 20 having expired and the sixteenth defendant not already being a party, it is no longer open to the petitioners to file a memorandum of cross-objections against him.
5. In the result the petition is ordered to be dismissed with the costs of the respondent sought to be added.