VADLAMUDI VENKATESWARLU Vs. RAVIPATI RAMAMMA

JUDGEMENT

(1.) This application raises a question of some importance as regards the light of the respondent in an appeal to prefer objections to the decree of the lower Court without preferring a separate appeal. The application has been made in A. S. No. 153 of 1947 on the file of this Court which was an appeal preferred by defendants 1 to 3 in O. S. No. 54 of 1945 in the Court of the Subordinate Judge of Guntur against a preliminary decree for partition passed in favour of the plaintiffs who are respondents 1 and 2 in the appeal. Besides the plaintiffs, only defendant 4 has been made a respondent in the appeal. In the Court below, there were 6 defendants and the plaintiffs are the sons of one Venkatasubbayya and defendant 1 is his brother. Defendants 2 and 3 are the minor sons of defendant 1. Defendants 4 and 5 are the sisters of defendant 1. Defendant 6 is his father-in-law. Defendants 5 and 6 were made parties to the suit, because it was alleged by the plaintiffs that they were in possession of properties belonging to the joint family consisting of them and defendants 1 to 3. This application is concerned with defendant 5, in whose name land shown as item No. 24 of Schedule. A of the plaint stands. "The plaintiffs claimed this item as joint family property, but their claim was negatived by the lower Court.

(2.) The plaintiffs-respondents 1 and 2 have filed the present application to implead defendants 5 and 6 as respondents 5 and 6 to a memorandum of cross-objections filed by them against the decree of the lower Court. Defendant 6 died sometime after the application and this application was pressed only in respect of defendant 5. It is opposed by defendant 5. It is common ground that on the date of this application a separate appeal against defendant 6 would be out of time.

(3.) Though the application was ostensibly made for impleading defendant 5, as a party in the memorandum of objections and the provisions of Order 41, Rule 20 and Order 1. Rule 10, read with Section 107, Civil P. C. were relied on in the application, the learned counsel for the petitioners contended in the main that he was en-titled to file the memorandum of objections against defendant 5 under the provisions of Order 41, Rule 22 of the Code, because that rule conferred on a respondent a right to file an objection to the decree against any party to the suit, whether such party was or was not a party to the appeal. If, however, it was necessary to make defendant 5, a party, because she had not been made a party to the appeal, he relied upon the provisions of Order 1, Rule 10 read with Section 107 of the Code.