MAZHAR IMAM Vs. LAXMI NARAIN

JUDGEMENT

(1.) In this revision application the question that has been raised for consideration is as to whether an application under Order 41, Rule 19 of the Code of Civil Procedure for restoration of an appeal can be maintained by only some. of the appellants or it is necessary that all of them should either join as petitioners or otherwise must be impleaded as opposite party.

(2.) The relevant facts are these :--Title Appeal No. 55 of 1967 was filed by six appellants in the court of the District Judge, Hazaribagh. It was, however, dismissed for default on the 22nd February 1968 due to non-compliance of certain peremptory orders; in regard to filing of notices etc. An application under Order 41, Rule 19 of the Code of Civil Procedure was thereupon filed by only one of them, namely, appellant No. 5. The other appellants were neither im-pleaded as opposite party to the said application. A question was raised in the court of appeal below that such an application by only one of the appellants was not competent under Rule 19 of Order 41 of the Code of Civil Procedure. The learned District Judge has overruled this objection on the ground that the interest of all appellants was indivisible and, therefore, only one of them could represent the rest of them. He, accordingly, allowed the application and restored the appeal for rehearing.

(3.) In this Court Mr. Awadh Kishore Prasad appearing on behalf of the petitioners raised the same question that in absence of the other appellants, either as petitoners or in the category of the opposite party, the application under Order 41, Rule 19 of the Code of Civil Procedure was not maintainable.