SHIV RAM Vs. SITAWANTI

JUDGEMENT

(1.) RESPONDENTS herein obtained a decree or possession of a piece of land which decree became final after litigation between the parties for a long period in various Courts. In execution application filed by the respondents decree -holders appellant judgment -debtor took certain objections regard identification of the land and also the structures standing thereon which objections were disposed of by the learned Addl. District Judge, Jammu on 26 -2 -1975 holding that possession of the land, description of which had been sufficiently provided, be handed over to the decree -holders and malba of the structures existing thereon should be removed by the judgment -debtor. Against that order appellant herein filed appeal which was dismissed by the learned Single Judge of this Court vide order passed on December 11, 1981 on preliminary objection raised by the other side as one of the decree -holders had not been impleaded in appeal as a party. Aggrieved by that order appellant has filed this Letters Patent Appeal.

(2.) WE have heard the learned counsel for the parties and perused the record. Mr. Sharma learned counsel appearing for the appellant has argued that by sheer inadvertence name of Balkrishan Sareen, one of the decree -holders was not incorporated in memo of appeal but the court had power under Order 41 Rule 20 C. P. C. for issuing direction to implead such necessary party in the case. In this regard he has referred to certain pronouncements of various Courts which we are discussing hereafter. He has further contended that the Additional District Judge had also committed error in holding that the decree was execute able when in fact no proper identification of the land had been given by the decree -holders in their plaint and, moreover, there were huge structures standing thereon. Mr. Soodan learned counsel for the respondents has pleaded that Balkrishan Sareen being one of the decree -holders was a necessary party who was not impleaded in appeal filed by the appellant herein and as the decree was indivisible there was no option left for the appellate court except to dismiss the appeal on that ground.

(3.) BEFORE proceeding further we have to appreciate the law contained in Order 41 Rule 20 C. P. C. which is as under : - "Where it appears to the Court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, if interested in the result of the appeal, court may adjourn hearing to a future date to be fixed by the court and direct that such person be made a respondent."