CHAUTH MAL Vs. JINSI

JUDGEMENT

(1.) THE circumstances that give rise to this revision may briefly be stated thus, Chauth Mal Maidhulal brought a suit against Balla, Kanhaiyalal and Hardeva in the court of the sub -judge, Sawai Madhopur on 8.7.1944 with the allegations that Chhitor, the father of Chauth Mal, plaintiff, mortgaged the land in dispute with Balla, defendant, for Rs, 126/ - in Jeth Svt. 1972 corresponding to June, 1915 A.D., that Balla mortgaged the same with Kanhaiyalal for an equivalent consideration in Jeth Svt. 1983 and that Kanhaiyalal also mortgaged it with Hardava in Svt. 1997 for Rs. 226/ - The Civil Judge returned the plaint which was eventually presented before the Assistant Collector who decreed the suit on 7.8.1947 against all the three defendants. Balla defendant filed and appeal against this decree before the Collector Sawai Madhopur. It is significant to observe that Chauth Mal alone was impleaded as respondent in this appeal and Kanhaiyalal and Hardeva were not made parties to it. The first appellate court allowed Ballas appeal and set aside the decree of the trial court on 18.7.1950. Thereupon the plaintiffs went up in second appeal before the Additional Commissioner and in this second appeal only Jinsi and Ramchander, son of Balla - - Balla having died in the meantime were made respondents. This appeal was rejected on 26.11.51. Hence this revision by the plaintiff.

(2.) THE learned counsel for the applicants was required to address arguments on the point as to whether in the exercise of revisional jurisdiction the Board can reverse the decree of the lower appellate court against all the three defendants in the face of the fact that two of these defendants, Kanhaiyalal and Hardeva (Hardeva having die now is being represented by his son Raja Ram), were not impleaded as respondents in both the appeals. It has been argued on behalf of the applicant that it is open to the Board to join them as necessary parties inspite of the fact that they had not been made parties in the two appeals and the period of limitation of appeals against them had expired. The following decisions have been cited in support of this contention: A I.R. 1940 Patna 137, A I.R. 1924 Patna 773, A.I.R. 1918 Patna 825, A.I.R. 1933 Madras 806, A.I R. 1921 Calcutta 722 and A.I.R. 1941 Lahore 402, The learned counsel for the opposite party has invited our attention to note No. 3 of order 41 rule 20 at page 3350 of Chitaleys C.P.C., 1951 edition, which runs as follows: - -