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Velammal Alias Thayammal Vs. Lakshmu Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1916Mad828(2); 31Ind.Cas.814
AppellantVelammal Alias Thayammal
RespondentLakshmu Ammal and anr.
Excerpt:
civil procedure code (act v of 1908), section 107, clause (2), order i, rule 10 - duty of appellate court to implead all necessary parties--necessary party omitted--decree for sale, whether operative. - .....(if it is found that defendants nos. 1 and 2 are co-owners of the equity of redemption with 3rd defendant) whether the appeal was barred. the decree for sale passed in a suit in which a necessary party under order xxxiv, rule 1 (4th defendant, at any rate, being such a party) was knowingly omitted from the array of parties in appeal, cannot be allowed to stand.2. we must set aside the judgment and decree of the lower appellate court and direct the appeal to that court to be restored to file. the lower appellate court will dispose of it afresh after making defendants nos. 1, 2 and 4 parties to that appeal. costs will abide.
Judgment:

1. Under Order I, Rule 10, and Section 107, Clause (2), of the Code of Civil Procedure, the lower Appellate Court ought to have made the defendants Nos. 1, 2 and 4 parties to the appeal preferred to it, before deciding that appeal. The question may then arise (if it is found that defendants Nos. 1 and 2 are co-owners of the equity of redemption with 3rd defendant) whether the appeal was barred. The decree for sale passed in a suit in which a necessary party under Order XXXIV, Rule 1 (4th defendant, at any rate, being such a party) was knowingly omitted from the array of parties in appeal, cannot be allowed to stand.

2. We must set aside the judgment and decree of the lower Appellate Court and direct the appeal to that Court to be restored to file. The lower Appellate Court will dispose of it afresh after making defendants Nos. 1, 2 and 4 parties to that appeal. Costs will abide.


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