BHAIRAVLAL Vs. PYARELAL

JUDGEMENT

(1.) THIS second appeal has been filed by the judgment debtor appellants against the concurrent finding of the Assistant Collector, Udaipur as well as the Revenue Appellate Authority, Udaipur scaling down the mortagage debt of the decree holder Respondent Ex-Jagirdar, in a suit for redemption filed by him against the appellants, in the Court of the Assistant Collector Udaipur during execution proceedings under sec. 47 of the Civil Procedure Code.

(2.) TWO preliminary objections were raised by the counsel for the respondent that this second appeal was not maintainable firstly, for the reason that Poonamchand was one of the appellants in the lower court and he has not been impleaded as the appellant here and the appeal was bad for non-joinder of necessary party. Secondly, a copy of the decree of the Revenue Appellate Authority has not been filed and only a copy of the judgment has been filed. Under O. 41, Rule 1 of the Civil Procedure Code unless a decree of the order appealed against is filed the appeal is not maintainable. In support (he counsel cited A; I. R. 1951, Madhya Bharat page 61. To these preliminary objections the counsel for the appellant replied by saying that under order 41 Rule 4 of the Civil Procedure Code, where a common ground exists between the defendants and plaintiff one or all could file and maintain an appeal and it is not necessary to implead all persons as parties to these proceedings. In this case we have seen the judgment from which it appears that in this case a suit for redemption has been filed against members of one family and all the important branches of the family have been impleaded and if some are left out the suit or the appeal cannot be considered as bad for non-joinder of parties. For failure to implead Poonamchand as appellant the appeal is still maintainable by the other appellants.