INDER NATH Vs. RAM DASS

JUDGEMENT

(1.) This order will dispose of Civil Miscellaneous 3899 of 1967, 21 of 1968 and 214 of 1968 in R.F.A. No. 147-D of 1965. Dealing first with Civil Miscellaneous 3899 of 1967, this application was presented in this court by Shri Kartar Nath, respondent No. 5, R.F.A. No. 147-D of 1965, under Order 1 Rule 10 read with Section l07 sub-section (1) and Section 151, Civil Procedure Code, for transposing him from the array of respondents to that of appellants in the appeal. The application is dated 31/10/1967 and was apparently presented in this court on the same date. According to the averments made in this application, the appellant, Shri Inder Nath, along with respondents 5 and 6 (Shri Kartar Nath and Shri Pashori Lal) instituted a suit for dissolution of partnership and rendition of accounts against the defendants. In the suit, a preliminary decree was passed on 8-11-1965 declaring the partnership to have been dissolved on 1-8-1953. The trial court ultimately awarded to the defendants (respondents No. 1 to 4 in this appeal) a decree for Rs. 12,941.00 with costs against the plaintiffs. Inder Nath has been described in this application to be a cousin of respondent No. 6 and is also stated to be related to Shri Kasturi Lal, son of respondent No. 5. The appeal presented by Shri Inder Nath in his own name was, so proceeds the application, understood by all the parties interested to be, for the common benefit and protection of the Judgment- debtors. Contribution by respondent No. 5 towards the expenses of the appeal has also been assessed. Execution of the decree having been sued out by respondent No. 1, the appellant on or about 22-8-1966 applied for staying the execution proceedings, but the same was resisted by the decree-holders. One Hira Lal, also applied in August, 1967 for execution of the impugned decree in the court below on the averment that he had purchased that decree for a sum of Rs. 9,000.00 from the legal representatives of respondent No. 1 and from respondents Nos. 2 and 4. According to respondent No. 5, the appellant has colluded with respondents Nos. 2 to 4 and with the legal representatives of respondent No. 1 and is trying to take undue advantage to the prejudice of respondent No. 5 through the instrumentality of Hira Lal, who is the applicant's own nominee. On these averments, it has been prayed that respondents No. 5. be transposed from the array of respondents to that of the appellants.

(2.) On 22-4-1968, the appellant through his counsel Shri A. L. Sehgal presented an application (C. M. No. 214 of 1968) under Order 23, Rule 1, read with Section 151 Civil Procedure Code, for withdrawing the appeal unconditionally. In the meantime, on 17-1-1968, Hira Lal had applied (C. M. No. 21 of 1968) to this court under Order 22, Rules 10 and 11 read with Section 151, Civil Procedure Code, for the substitution of his name in place of respondents Nos. 1 to 4 on the averment that the decree appealed from had been assigned in his favour on 10-8-1967 by the legal representatives of respondent No. 1 and by the respondents Nos. 2 to 4 for a consideration of Rs. 9,000.00.

(3.) Before us Shri A. L. Sehgal has very strongly argued that this court should ignore the other two applications and should firstdispose of C.M. No. 214 of 1968 presented in this court on 22-4-1968 because the appellant has an absolute and unqualified right to withdraw his appeal whenever he choses and even if other applications of prior date are pending adjudication in this court, the application for withdrawing the appeal must be given priority, over all other applications and the appeal should be dismissed forthwith, as withdrawn, notwithstanding the suggestion of the grave prejudice it may cause to these other litagating parties whose applications are before the court and which may become infructuous. In support of his submission, Shri Saigal has placed reliance on Bijayananda Patnaik v. Satrughna Sahu and others and specific reliance has been placed on the following observations at page 1571: