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Kariam Kuppusawami Naidu and ors. and Vs. Desayi Numberumal Chetty and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.693
AppellantKariam Kuppusawami Naidu and ors. And; Krishnasawmi Naidu
RespondentDesayi Numberumal Chetty and ors.
Excerpt:
appeal - presentation by some of parties against whom adverse order passed--reversal of lower court's decree--second appeal--remand of case--final decree--appeal against final decree--right of parties who did not originally appeal to join in final appeal. - .....decree in favour of all the defendants as in fact he did by dismissing the suit. but the district judge's decree was set aside by this court and the appeal that was remanded for re-hearing was the appeal of the 5th defendant only. it was, no doubt, open to the district judge again, after the remand, to pass a decree in favour of the other defendants also. but he was not bound to do so. we cannot accept the contention that because the civil procedure code gave power to the court to pass a decree in favour of the appellants also, they became constructively parties to the appeal. the district judge was not bound -to deal with the case except in so far as the parties to the appeal were concerned, though it was open to him to do so, if, in the exercise of his discretion, he thought fit. the.....
Judgment:

1. The persons who have preferred this second appeal were defendants Nos. 11, 12, 13 and 16 in the original suit. The Munsif passed a decree in the plaintiff's favour. These defendants did not appeal against it. The 5th defendant preferred an appeal. The Appellate Court dismissed the suit. A second appeal was presented against that judgment by the plaintiff, and he did not make any of these appellants parties. This Court reversed the decree of the District Judge and remanded the appeal foe fresh disposal. The preliminary objection is taken that, as no appeal was preferred against the judgment of the District Munsif by the appellants and as they were not parties to the appeal in the lower Court, they are incompetent to prefer this second appeal. It is contended for the appellants that the 5th defendant appealed against the whole of the decree of the District Munsif and it was open to the District Judge to pass a decree in favour of all the defendants as in fact he did by dismissing the suit. But the District Judge's decree was set aside by this Court and the appeal that was remanded for re-hearing was the appeal of the 5th defendant only. It was, no doubt, open to the District Judge again, after the remand, to pass a decree in favour of the other defendants also. But he was not bound to do so. We cannot accept the contention that because the Civil Procedure Code gave power to the Court to pass a decree in favour of the appellants also, they became constructively parties to the appeal. The District Judge was not bound -to deal with the case except in so far as the parties to the appeal were concerned, though it was open to him to do so, if, in the exercise of his discretion, he thought fit. The appeal must be held to be incompetent. It was quite open to the appellants to apply to the lower Appellate Court to make them parties. It is argued that the 4th defendant, who is the appellant in Second Appeal No. 1735, was expressly referred to in the judgment of this Court in second appeal. The learned Judges he heard the case directed the District Court to decide whether the plaintiffs had the right set up of performing the Kattlais and whether the defendants Nos. 4, 5 and 6 are members of the plaintiff's community entitled to the rights of that community in the temple. But they did not make the 4th defendant a party to the second appeal, nor did they direct the District Court to make him a party to the second appeal before it after the remand. We are, therefore, obliged to hold that the direction in the judgment of this Court does not improve the position of the 4th defendant. These second appeals must, therefore, be dismissed, with costs.

2. The memorandum of objections relates to two matters. With regard to the first, namely, the costs of the trustees, we see no reason to interfere. The second matter is the form of the injunction. The decree directs that the defendants should award to the plaintiffs the emoluments and honours attached to certain services they performed. There is no reason for any apprehension that the trustees would be bound to give the emoluments if the duties of the office are not performed. We, therefore, dismiss the memorandum of objections without costs.


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