SARIPALLI NOOKANNA Vs. RAMISETTY VENKATA RAO

JUDGEMENT

(1.) This Civil revision petition raises the question whether it is open to a defendant, who is the appellant in the appeal, to invoke Order 8-A, Civil P. C., which provides for third-party procedure for the first time in appeal without any such application being made in the trial court.

(2.) The necessary facts may be stated. O. S. No. 163 of 1960 on the file of the court of the District Munsif, Peddapuram , was filed against the petitioners in this civil revision petition. The suit was filed on the foot of a promissory note which was resisted by the petitioners on the ground that the suit promissory note was not supported by consideration and that on 11-5-1967 a registered mortgage bond for Rs. 10,000.00 was executed in favour of the plaintiffs brother and towards excess interest in respect of that mortgage the suit promissory note was nominally executed in favour of the plaintiff. It was urged that the said mortgage bond was made that the suit promote was cancelled . The trial court decreed the plaintiffs suit and the defendants preferred an appeal in A. S. No. 58 of 1965 on the file of the court of the Subordinate Judge, Kakinada. During the pendency of the appeal, I. A. No. 2692 of 1971 was filed by the petitioners, appellants in the appeal, under the Order 8-A of the Code of Civil Procedure to impead Ramisetti Paparao, brother of the plaintiff, as a defendant. The allegations in the petition were that the suit promissory note was devoid of consideration and that it was executed only in connection with a mortgage bond executed only in connection with a mortgage bond executed in favour of Ramesetty Paparao which contained an endorsement that the suit promissory note was discharged, that Ramisetty Paparao without returning the suit promissory note, got the plaintiff to file the suit against the defendants and that Ramisetty Paparao was liable to pay the said amount to the defendants in the event of the suit of the plaintiff being decreed on the promissory note. The appellate Court dismissed that application on the grounds ; Firstly, that the application under O. 8-A, was not maintainable at the stage of the appeal ; and secondly, on the facts no question of contribution or indemnify arose as between the proposed third party and the defendants . In this revision, the conclusions of the court below on both the points is challenged.

(3.) Point No. 1 : Is it open to the defendant to file an application under O. 8-A Civil P. C. to implead a third-party claiming contribution or indemnify from him at the stage of appeal ?