INDIAN NATIONAL CONGRESS I Vs. BALAN

JUDGEMENT

(1.) The revision petitioner filed IA 611 of 1987 to implead him as supplemental 8th respondent in AS 184 of 1982 at a time when the appeal was not pending. The appeal was allowed on 15-11-1985. IA 611 of 1987 was filed only on 13-3-1987. IA 610 of 1987 was filed under O.41 R.21 to rehear the appeal. Both the petitions were dismissed by the District Judge. Against the order in IA 610 of 1987 the CMA has been filed.

(2.) The District Judge rejected the petitions on the ground that revision petitioner was not a party to the proceedings culminating in A.S. 184 of 1982 and so the decision in that appeal would not be binding upon him. District Judge also held that O.41 R.21 can be invoked only by a party to the proceedings and not by an outsider.

(3.) Under O.41 R.19 readmission of the appeal dismissed for default can be sought by the appellant if he establishes that he was prevented by any sufficient cause from appearing before the Court when the appeal was taken up forbearing. O.41 R.21 provides that where an appeal is heard ex parte and judgment is pronounced against the respondent it is open to him to make an application before the appellate Court torehear the appeal. The essential condition is that he must satisfy the court that notice was not duly served upon him or that he was prevented by sufficient cause from appearing before the Court when the appeal was called on for hearing. In such a case the Court shall rehear the appeal. O.41 R.19 and 21 clearly show that only the party to the proceedings can make an application for rehearing. A person who is not a party to the proceedings cannot file an application under O.41 R.19 or R.21. Admittedly AS 184 of 1982 was allowed by the District Judge and it was long after that the revision petitioner filed the application for rehearing of the appeal. As the revision petitioner was not a party to the proceedings, he cannot invoke O.41 R.21 and urge rehearing of the appeal.