ADHIR KUMAR DUTTA Vs. BINYIT LATA DUTTA

JUDGEMENT

(1.) THIS Rule was issued upon an application for addition of a party respondent in a pending first appeal. That appeal was filed by the applicants (petitioners) against the decision of the trial court in Title (Partition) Suit No. 5 of 1951 of the court of the 5th Subordinate Judge at Alipur, directing sale of certain properties. The sale, however, was held before the appeal could be filed and stay of confirmation of the sale eventually failed to remain effective on account of certain circumstances beyond the control of the petitioners and the sale has since been confirmed. The petitioners have now applied for making the auction purchaser (opposite party No. 2) a party respondent (respondent No. 2) to the appeal. They also want stay of delivery of possession. After hearing the learned Advocates for the parties, we propose to make this Rule absolute in part.

(2.) WE direct that opposite party No. 2 be added as a party respondent to the connected first appeal. We make this order under section 107, read with Order 1, rule 10, of the Code of Civil Procedure,and we may add that we have also ample powers in that behalf under section 151 of the Code which preserves,and is, indeed, the depository of,the inherent powers of courts,and, in support of our view, if any authority is needed, we may refer to the decision of this court, reported in (1) 12 C. L. J. 91 (Saroda Kanto Das v. Gobinda Mohan Das), we may also refer in that connection to the observations of Krishnan, J. in the Order of Reference in the Full Bench case of the Madras High Court, namely, Baluswami Aiyar v. Lakshman Aiyar (2) I. L. R. 44 Mad. 605 at pages 608-9. We have not the least doubt in our mind that, in the circumstances which have happened in this case, this court, as the appellate court, has ample powers under the provisions quoted to add opposite party No. 2 as a party respondent to the pending appeal; otherwise there is every chance of the appeal becoming infructuous with serious prejudice to the appellants. This is certainly not a case underor, at any rate, falling within the express terms of,-Order 41, rule 20 of the Code of Civil Procedure, to the applicability of which the opposite parties object and in support of their objection cite certain decisions, but neither that provision nor any other rule in Order 41 is exhaustive of the powers of the appellate court to add parties in a pending appeal and they do not limit or affect the exercise of such powers by the appellate court either under section 107, read with Order 1, rule 10 of the Code, or under its inherent jurisdiction (vide section 151) and such powers may always be exercised by the appellate court, though undoubtedly, with some caution, in appropriate cases. We think the present case calls for the exercise of such powers.

(3.) AS to the other prayer, made in this Rule, namely, for stay of delivery of possession, we will grant that only on terms, namely, that the appellants petitioners will furnish security in the court below to the satisfaction of that court to the extent of a sum of Rs. 2,000 within three weeks from date for any loss that may be suffered by the added respondent (auction purchaser) by reason of this stay of delivery of possession, including loss of interest or mesne profits, etc. as the case may be. In default, the Rule, so far as stay of delivery of possession is concerned, will stand discharged. [certain directions were thereafter given regarding the hearing of the appeal and the costs of the Rule. Ed. ]