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Durga Charan Sarkar Vs. Jotindra Mohan Tagore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal493
AppellantDurga Charan Sarkar
RespondentJotindra Mohan Tagore and ors.
Cases ReferredChina and Japan v. Prem Chand Rai Chand
Excerpt:
parties - joinder of parties--dismissal of suit for non-joinder of parties--necessary party--civil procedure code (act xiv of 1882) sections 28, 32, 295 and 315--english judicature act, 1875, order xvi, rules 11 and 48. - .....it is contended on behalf of the plaintiff that the courts below were wrong in holding, that the decree-holders other than those at whose instance the property was brought to sale were necessary parties to the suit. it is argued that, as those other decree-holders did not proceed to bring the property in dispute to sale, no right to any relief existed as against them in respect of the matter of the present suit, that section 28 of the code of civil procedure therefore by implication shows that they could not have been joined as defendants in the present suit, and if they could not have been joined as defendants their absence could not amount to a defect in the form of the suit. it is also argued that even the decree-holder at whose instance the property in dispute was brought to sale.....
Judgment:

Banerjee and Stevens, JJ.

1. This appeal arises out of a suit brought by the plaintiff appellant for establishment of his right to and confirmation of his possession of certain immoveable property, and for a declaration that it was not liable to attachment and sale in execution of certain decrees held by defendants Nos. 1 to 4 against defendants Nos. 5 to 7. Subsequently, upon the property in suit being sold in execution of the decree held by defendant No 1 and purchased at auction by two persons Radha Rani Chowdhurani and Jagut Gowri Chowdhurani, they were added as defendants Nos. 8 and 9. The defence, so far as it is necessary to be considered for the purposes of the present appeal, was that the suit; could not proceed in the absence of certain persons, who, like the defendants Nos. 1 to 4, had obtained decrees against defendants Nos. 5 to 7, and had attached the property in dispute, and on attachment at whose instance claims had been preferred by the plaintiff and had been rejected upon adjudication.

2. The first Court allowed that objection, but it also went into the merits of the case and dismissed the suit as well on the preliminary objection as on the merits. On appeal the Lower Appellate Court has affirmed the decree of the first Court without going fully into the merits of the case, it being of opinion that the objection as to defect of parties was fatal to the plaintiff's case.

3. In second appeal it is contended on behalf of the plaintiff that the Courts below were wrong in holding, that the decree-holders other than those at whose instance the property was brought to sale were necessary parties to the suit. It is argued that, as those other decree-holders did not proceed to bring the property in dispute to sale, no right to any relief existed as against them in respect of the matter of the present suit, that Section 28 of the Code of Civil Procedure therefore by implication shows that they could not have been joined as defendants in the present suit, and if they could not have been joined as defendants their absence could not amount to a defect in the form of the suit. It is also argued that even the decree-holder at whose instance the property in dispute was brought to sale was only a proper but not a necessary party to the suit; and in support of this argument the case of the Bank of Hindustan, China and Japan v. Premchand Rai Chand (1868), 5 Bom., H.C., 83, is cited. It has been further urged that the mere fact of a person having a remote interest in the subject matter of the suit, would not be a sufficient ground for holding that he is a necessary party; nor would the fact of any of the defendants being entitled to be indemnified by a third party in the event of the suit succeeding make such third party a necessary party to it, and in support of this last contention the case of Mahomed Badsha v. Nicol, Fleming and others (1878) I.L.R., 4 Cal., 355 is relied upon. On the other hand it is argued for the respondents that, although the other decree-holders, whose absence from the record has given rise to the objection on the ground of defect of parties, did not actually cause the sale of the property in dispute in execution of their decrees, yet they, like the decree-holder defendant No. 1, applied for attachment and sale of the property in execution of their decrees, and successfully resisted the claim of the present plaintiff to the attached property, and they abstained from bringing the property to sale only because, the law, Section 295 of the Code of Civil Procedure, entitled them to share in the proceeds realised by the sale brought about by defendant No. 1 rateably with him, and the other decree-holders who had taken out execution against defendants Nos. 5 to 7; and that being so, it is contended, those decree-holders cannot be said to be persons against whom no right to any relief existed in respect of the subject-matter of this suit. It is further argued for the respondents that, as by Section 315 of the Code of Civil Procedure, the auction purchaser defendant is entitled to a refund of the purchase-money from any person to whom the same may have been paid, and as a part of that money has been paid to the absent decree-holders, he will be prejudiced, if the suit is allowed to proceed in the absence of those decree-holders.

4. After considering the arguments of both sides we are of opinion that the view taken by the Courts below that the absent decree-holders are necessary parties to this suit is correct. The Code of Civil Procedure does not contain any express provision as to who should be considered necessary parties, and what would be the effect of the omission of a plaintiff to bring on the record all necessary parties. Section 34, however, by implication shows that an objection for want of parties is a valid objection to a suit or proceeding; and Sections 28 and 32 by implication show who are to be deemed necessary parties. Reading Sections 28 and 32 together we think that in order that a, party may be considered a necessary party defendant, two conditions must be satisfied, first, that there must be a right to some relief against him in respect of the matter involved in the suit; and second, that his presence should be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Now let us see whether those conditions are satisfied as regards the absent decree-holders. As they had applied for attachment and sale of the property now in dispute in execution of their decrees, and had successfully resisted the claim of the present plaintiff under Section 278 of the Code of Civil Procedure, it is clear that the plaintiff, if his suit is well founded, has the right to ask for a declaration as against them that the property in dispute is not liable to sale in execution of their decrees, and that the order disallowing his claim was wrongly made. Indeed, we find that there is a prayer in the present plaint, namely, prayer (K) which is to the effect that the entire taluk, that is the property in dispute, may be held and declared as not fit to be attached and sold in execution of the decrees of any of the principal defendants. If there was a right to claim that relief as against the principal defendants there was an equal right to claim the same relief as against the absent decree-holders. The first condition, therefore, is, in our opinion, quite satisfied.

5. Is the second condition also satisfied? We are of opinion that it is. For in order to enable the Court to adjudicate upon and settle effectually and completely all the questions involved in the suit, it is, we think, necessary that all the decree-holders, who had taken out execution against the judgment-debtors, and caused attachment of the property now in dispute and who have obtained satisfaction rateably out of the proceeds realized by the sale of that property, under Section 295 of the Code of Civil Procedure, ought to be before the Court. They are all interested in seeing that the question as to the proprietary right in the property in dispute is correctly determined, and they all run the risk, in the event of the present suit succeeding, of being made liable under Section 315 of the Code of Civil Procedure to repay to the auction-purchaser defendant the purchase-money which has been rateably received by them. They are, in our opinion, necessary parties for this double reason. They are interested in the result of the suit, and two of the defendants, namely, defendants Nos. 8 and 9, the auction-purchasers are interested in having them before the Court as their absence will certainly cause inconvenience, and may possibly cause injury to them so far as the enforcement of their right to the refund of the purchase-money goes. If this suit succeeds, the auction-purchaser defendants would, under Section 315 of the Code of Civil Procedure, be entitled to receive back the purchase-money from the persons to whom it has been paid; some of those persons are the absent decree-holders; and, if this suit proceeds in their absence, the decree made in it will be no evidence against them. So that the auction-purchasers will be put to the inconvenience of having the matter readjudicated in their presence with the possibility of a different result being arrived at, and with a consequent possible risk of injury to them. It was argued that, if that were so, the same reason might have held good in the case of Mahomed Badsha v. Nicol, Fleming and others (1878) I.L.R., 4 Cal., 355; but the Court in that case was of a different opinion. We think that case is clearly distinguishable from the present. There, as here, the defendant, it is true, was entitled to be indemnified by certain other parties; but those other parties in that case, unlike the absent decree-holders in this case, had no interest in the subject-matter of the suit, nor had the plaintiff any right to any relief as against them, whereas in the present suit the plaintiff, as has been said above, has a right to some relief as against the absent decree-holders.

6. It is argued that our Code of Civil Procedure embodies only Rule 11 of order XVI of the rules made under the Judicature Act, but does not incorporate Rule 48 of order XVI known as the third party procedure, and that, therefore, the mere fact of some of the parties to the suit being entitled to be indemnified by certain third parties cannot make those third parties necessary parties, nor has the Court any power to make them parties. We are of opinion that this contention is incorrect. The absent decree-holders are not merely parties against whom the auction-purchaser defendants are entitled to claim some indemnity. They are persons who have an interest in this suit, and they are persons against whom a right to relief exists in the plaintiff, if the suit is well-founded. As for the case of the Bank of Hindustan, China and Japan v. Prem Chand Rai Chand (1868) 5 Bom. H.C. 83, no doubt it was there held that the decree-holder who brought the property then in dispute to sale was a proper party, but no question was raised in that case as to whether he was a necessary party or not.

7. We may add that the view we take is in accordance with that expressed in Story's Equity Pleadings, paragraph 138, where the learned author observes: 'In the next place an interest of the absent parties in the subject-matter ex directo, which may be injuriously affected, is not indispensable to the operation of the general rule, for, if the defendants actually before the Court may be subjected to undue inconvenience, or to danger of loss, or to future litigation, or to a liability under the decree more extensive and direct, than if the absent parties were before the Court, that of itself will, in many cases, as we shall presently see, furnish a sufficient ground to enforce the rule of making the absent persons parties.' In the present ease not only are the auction-purchaser defendants likely to be subjected to inconvenience, and possible injury, by reason of the absence of the other decree-holders, but what is more, they themselves have an interest in the subject-matter of the suit.

8. It was faintly urged that the Lower Appellate Court was wrong in holding that the absent decree-holders cannot be made parties now as the relief against them is barred by limitation, and the ground upon which the argument was based was that as the decrees of the absent decree-holders have been satisfied, it was unnecessary to bring any suit to have the order made in the claim case against them set aside. But this argument overlooks the fact that the satisfaction of the decree which is made the basis of the contention, is sought to be rendered nugatory by the act of the plaintiff in bringing the present suit.

9. We are, therefore, of opinion that the Courts below were right in holding that the suit was not maintainable by reason of the plaintiff not having made the absent decree-holders parties to it.

10. The appeal consequently fails and must be dismissed with costs.


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