NARAYANAM NARASIMHACHARYULU Vs. PASUPULETI SAMBAIAH

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal is directed against the judgment and order of the Subordinate Judge, Tenali in A. S. No. 95 of 1954 reversing the judgment and order of the District Munsif, Tenali, refusing to implead the present appellants as parties on an application made under Order 1 Rule 10 of the Code of Civil Procedure.

(2.) At the outset, a preliminary objection has been raised on behalf of the appellants viz. that the first appeal in the Subordinate Judges Court, Tenali will not lie as any order made under Order I Rule 10, Civil P. C. is not appealable under Order XLIII of the Code of Civil Procedure. He therefore contended that the first appeal itself was not competent and the learned Subordinate Judge had no jurisdiction to deal with the matter and reverse the finding and order of the learned District Munsif of Tenali.

(3.) On the question, if the lower appellate court had no jurisdiction to entertain the appeal, whether this Court has jurisdiction to entertain a Second Appeal or a Civil Miscellaneous Appeal, the learned counsel for the appellants relied on a decision reported in Sitaramamurti v. Lakshminarayana Murti, (1942) 2 Mad LJ 568: (AIR 1943 Mad 185) wherein it was held that although technically speaking a Second Appeal itself is incompetent in the circumstances, since the wrong order of the lower appellate Court in interfering with the judgment and order of the Court of first instance had to be set aside whether it be On the ground of jurisdiction or some other defect, this court has got jurisdiction to that extent to do justice by restoring the correct order and neutralising the mischief done by the order of the lower appellate court which was open to objection. In that case, a Division Bench of the Madras High Court held that the Subordinate Judge, entertaining the appeal as an appeal against an order, dismissed it holding that the learned District Munsifs decision was correct. A Civil Miscellaneous Second Appeal had been filed in that Court and jt was objected that no appeal lay to the Subordinate Judge, the rule providing for a right of appeal having been declared to be ultra vires. This objection was met by a prayer from the appellant that he may be permitted to pay the deficient court-fee in the lower appellate court treating the appeal to that court as an appeal against the amended decree and that he may also be permitted to pay the deficient court-fee in the High Court treating the civil miscellaneous second appeal as a regular second appeal. It is undeniable that similar prayers had been granted by the High Court in several cases where no objection has; been raised to the procedure. No doubt, the position is different in cases in which the lower appellate court, assuming a jurisdiction which was not in fact vested in it, had amended the trial courts decree. But it cannot be said that when the lower appellate Court has wrongly assumed an appellate jurisdiction but has declined to interfere with the trial courts decree, any right of second appeal is conferred by that wrongful assumption of jurisdiction. The decisions in Raman Nambyar v. Rayiram Naman, 67 Mad LJ 43: ILR 57 Mad 777; (AIR 1934 Mad 484) and similar cases would not govern a case in which the lower appellate Court has left the trial courts decree intact.