1. The first defendant is the appellant.
2. The respondent, who has filed his memorandum of objections (the plaintiff in the suit) has by mistake, he says, omitted to make the 2nd and 3rd defendants parties to the memorandum and applies now to add their names to the record.
3. It has been contended that I have no power to add parties to an appeal except under Order XLI, Rule 20 of the Code of Civil Procedure, but I am clear that there is no ground for that contention. But it is also contended that inasmuch as the 2nd and 3rd defendants are not interested in the appeal preferred by the appellant, they ought not to be made parties; not only does the appellant claim no relief against them, but if the plaintiff succeeds against them, the appellant will be in no way directly affected, but, if affected at all, will be indirectly benefited, for it is said the plaintiff will recover property not only for himself but for the appellant. The appellant, however, does not seek any relief in this direction.
4. In these circumstances, can the 2nd and 3rd defendants be made parties at the respondent's instance? Order XLI, Rule 22, gives the right to the respondent to take by way of memorandum of objections any objection to the decree which he could have taken by way of appeal and the Sub-rule (3) seems to make clear, what at one time was in doubt, that the respondent may raise objections against co-respondents. But in the most recent case which I have seen, Jadunandan Prasad Singh v. Koer Kallyan Singh 15 C.L.J. 61 : 13 Ind. Cas. 653 the principles adopted in Bishun Churn Roy Chowdhry v. Jogendra Nath Roy 26 C.K 114 are affirmed; while it is noted that the new Code is in some respects wider than the old. Applying the principles laid down in the earlier decisions, the learned Judges state as a test that where a person is not a necessary party to the appeal, a respondent should not be permitted to raise objections against him (page 64). If I apply that test, I must dismiss this application. I am asked to hold that, according to the views of this Court, that test would not be applicable, But I have been referred to no case here in which objections have been allowed, when the plaintiff-respondent preferring the objection can gain nothing as against the appellant, and when the other respondents against whom the objections are urged are in no way affected by the decision of the question to be decided between the appellant and the respondent preferring the objection.
5. Wide as are the words of the Code, I am prepared to accept what I deem to be the view taken by the Calcutta High Court of their scope, at any rate so far as to hold that in a case like the present, the plaintiff must proceed not by way of memo, of objections but by way of appeal.
6. I dismiss the application with costs.