TEJ MAL SOWCAR Vs. JAGAPPILLA PAPAYAMMA

JUDGEMENT

(1.) In this case the 1st and 2nd defendant each obtained a decree for money against the third defendant, and certain property was attached as belonging to the judgment-deptor in execution of each of the decrees. When the attachment was made at the instance of the 1st defendant, plaintiffs Nos. 1 to 3 and the 4th defendant, who are sisters, put in a claim petition urging that the property attached belonged originally to their mother, the 3rd defendant s wife, that they had succeeded as heirs and that, therefore, 1st defendant had no right to attach it as belonging to the 3rd defendant. No claim-petition was put in when the second defendant made the attachment. This suit is instituted by the plaintiffs, three out of four sisters, for a declaration "that the attachments made by 1st and 2nd defendants are not valid" on the ground that the property does not belong to the 2nd defendant.

(2.) In issue was raised as to whether the suit was not bad for misjoinder of the causes of action on the ground that that there was really no cause of action against (sic) defendant as no chum-petition had been pat in against his attachments and that at any rate the plaintiffs had not the same cause of action against the first and second defendants. The District Munsif upheld the (sic) of misjoinder and decided on the merits also against the plain riff s holding that the property belonged to the 3rd defendant and not to his wife.

(3.) On the appeal preferred by the plaintiffs, the Subordinate Judge held that there was no misjoinder of causes of action and, disagreeing with the District Munsif on the merifs, held that the property belonged to the mother of the plaintiffs and the 4th defendant and passed to them by inheritance and he passed a decree as prayed for in the plaint. Mr. Ramesam in second appeal argues that the Subordinate Judge was wrong in holding that there was no misjoinder. We have not heard his arguments on this question fully as we have come to the conclusion that even if there was misjoinder, we should no interfere with the judgment of the lower Appellate Court on that ground. Section 99 of the Civil Procedure Code (Act V of 1908) enacts that " no decree shall be reversed or substantially varied...on account of any misjoinder of parties or causes of action." The learned Vakil for the appellant contends that this Section is not applicable to this case as the gait was instituted while the Repealed Procedure Code (Act XIV of 1882) was in force and the corresponding Section in that Code, namely, Section 578 did not make any provision similar to that in Section 99 of the new Code in cases of misjoinder of causes of an action. But we are of opinion that the Section is one regulating the procedure of the Appellate Court, and that, therefore, it is applicable to appeals heard after the Act came into fore. The Section was held to apply in a similar case Aiyavu Mooppan v. Vellayya Nadan 34 M 55 : 7 A.L.J. 567 : 6 Ind. Cas. 15 : 8 M.L.T. 16 : (1910) M.W.N. 229. Mr. Ramesan relied on Venkata Narasimha Appa Row v. Lakhshmi Venkayamma Row 7 M.L.T. 296 : 5 Ind. Cas. 102 where he contends that Order XII, Rule 33, dealing with the powers of an Appellate Court, in pronouncing judgment was held not to apply to appeals presented before the new Act came into operation. That, was an appeal under Section 15 of the Letters Patent against the judgment of this Court, the two Judges who originally heard the appeal differing in opinion. It is not clear whether the learned Judges may not have meant that the procedure in Letters Patent Appeals is not governed by Order XII, Rule 33. However that may be, in several subsequent crises it was held that Order XII, Rule 83, would be applicable to all cases where an appeal is heard after Act V of 1908 came into force.