CHARANDAS CHATURBHUJ Vs. CHHAGANLAL PITAMBARDAS AND ALIBHOY KHUSAL

JUDGEMENT

(1.) The plaintiff filed this suit against the defend-nuts for damages for broach of contract because the defendants failed to take delivery of 100 bales of cotton which they had contracted to buy for the September delivery 1918. On the 8th January 1920 leave was given to the defendants to issue a Third Party notice against one Alibhoy Khushal. The defend. ants claimed to be. indemnified by Alibhoy Khushal in respect of the breach of the contract with the plaintiff, because Alibhoy surveyed the said bales and failed to take delivery of the same from the plaintiff under the delivery order which had been sent to him. The Third Party entered an appearance on the 8th of March. The defendant then took out a summons for directions. The Third Party proceedings have been introduced into this Court by rules, while the Code of Civil Procedure makes no mention , at all of such procedure.

(2.) Rule 130 is as follows:- If a third party appears pursuant to the third party notice, the defendant giving the notice may apply to the Court or Judge for directions, and the Court or Judge, upon the hearing of such application, may, if satisfied that there is a question proper to be tried as to the liability of the third party to make the contribution or indemnity claimed, in whole or in part, order the question of such liability, as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, an the Court or Judge may direct; and, if not so satisfied, may pass such decree as the nature of the case may require in favour of the defendant giving the notice against the third party.

(3.) Again under Rule 131:- The Court or a Judge upon the hearing of the application mentioned in Rule 130 may, if it shall appear desirable to do so, give the third party liberty to defend the suit, upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, documents to be delivered, or amendments to be made, and give such directions as to the Court or Judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the third party shall be bound or made liable by the decree in the suit.