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Jogesh Chandra Banerjee Vs. Sarada Kumar Chakravarti and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal127,49Ind.Cas.834
AppellantJogesh Chandra Banerjee
RespondentSarada Kumar Chakravarti and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rules 4, 33 - appellate court, power of, to modify decree in respect of persons not parties to appeal. - .....modified the decree of the court of first instance in so far as those two defendants were concerned. in our opinion, the learned judge ought not to have modified the decree of the court of first instance in favour of these absent defendants without making them parties, as he was entitled to do, to the appeal before him. the judgment and decree appealed from must accordingly be set aside and the case sent back to the lower appellate court to have the appeal re-heard on the same evidence after the learned judge has made the defendants nos. 2 and 3 and also the defendant no. 11 parties to the appeal. costs will be dealt with by the learned judge of the lower appellate court at the time of the re-hearing of the appeal.
Judgment:

1. This is an appeal against the decision of the learned Officiating Subordinate Judge of Tipperah, dated the 26th April 1916, modifying the decision of the Munsif of Comilla, The cape is somewhat out of the common. The plaintiff brought the suit for ejectment from certain land within the Municipality. In the first Court, the defendant No. 2 did not appear and the suit was decreed against him. The defendant No. 3 was a party and the suit was partially decreed against him. The defendant No. 1 was also a party. Then the defendant No. 1 preferred an appeal to the Court of the Subordinate Judge and he lost his appeal in full. The learned Judge, however, without making the defendants Nos. 2 and 3 parties to the appeal, modified the decree of the Court of first instance in so far as those two defendants were concerned. In our opinion, the learned Judge ought not to have modified the decree of the Court of first instance in favour of these absent defendants without making them parties, as he was entitled to do, to the appeal before him. The judgment and decree appealed from must accordingly be set aside and the case sent back to the lower Appellate Court to have the appeal re-heard on the same evidence after the learned Judge has made the defendants Nos. 2 and 3 and also the defendant No. 11 parties to the appeal. Costs will be dealt with by the learned Judge of the lower Appellate Court at the time of the re-hearing of the appeal.


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