KANNUSAMI CHETTI Vs. MRAHIMAT AMMAL

JUDGEMENT

(1.) C.M.P. No. 2553 of 1930 - This second appeal was filed by the 7 defendant impleading the plaintiff alone as the respondent. The suit was filed by the plaintiff for the recovery of a certain amount by the sale of the hypothecated properties, and if, for any reason, the Court should hold that the plaintiff cannot proceed against the hypotheca, she prays that defendants 8 to 10 should be held liable to pay the suit amount jointly and severally.

(2.) The facts of the case are briefly these. The plaintiff's father Mahomed Rowther became entitled at a family partition to the mortgage debt due under the original of Ex. B, dated 17th December, 1902 and executed by one Section N. Mahomed Rowther. The plaintiff was a young girl of 2 years when her father died. In 1911 the 8 defendant, who is the plaintiff's mother, thought of remarriage and fraudulently assigned the aforesaid mortgage bond on behalf of herself and the minor plaintiff in favour of the 9 defendant under Ex. G-1. The 9 defendant in his turn assigned it in favour of the 10 defendant. The aforesaid assignment by the 8th defendant is void and ineffectual so far as the plaintiff's share in the mortgage debt is concerned. On the strength of the aforesaid assignment, the 10 defendant filed O.S. No. 99 of 1913 on the file of the Additional District Munsif's Court of Madura impleading the present plaintiff and also defendants 8 and 9 as parties thereto. The plaintiff was then a minor and was not properly represented and the decree in that suit cannot therefore affect her interests. She has therefore filed the present suit for two kinds of relief in the alternative. The first Court dismissed the plaintiff's suit as against all the defendants except the 8th. On appeal by the plaintiff, the lower appellate Court gave a decree in plaintiff's favour for the amount found due to her as against the hypotheca, in the hands of the 7 defendant, dismissing the claim against the 10 defendant. As against that decree, the 7 defendant has filed this second appeal impleading the plaintiff alone as respondent. During the pendency of this appeal, an application was made by the plaintiff (respondent) to add the 10 defendant also as a co- respondent in the appeal. It is C.M.P. No. 2553 of 1930. The reasons for impleading the 10th defendant as a party respondent in this appeal are stated in the affidavit filed in support of that petition. On the 7 of August, 1930, the Master passed an order directing the 10th defendant to be made a party to the appeal. That order was passed without previous notice to the 10 defendant. It is now urged by the 10 defendant, that under the Appellate Side Rules the Master had no jurisdiction to direct the addition of a party as a co-respondent and therefore that order is ultra vires. It appears that such an order is not within the competence of the Master to pass, and accordingly, I allowed that petition to be treated as not disposed of in the eye of law and heard arguments on both sides at great length for the purpose of determining whether the 10 defendant can be added as a co-respondent in the circumstances of this case.

(3.) Two contentions have been put forward on behalf of the 10 defendant to persuade the Court to dismiss this petition. One is that under Rule 20 of Order 41, Civil Procedure Code, which alone gives the power to an appellate Court to add a party as respondent, the 10th defendant cannot be added, as he cannot be deemed to be interested in the result of the appeal. The second is that the Court's discretion under Rule 33 of Order 41, Civil Procedure Code, should not be exercised in favour of the plaintiff (respondent) by interfering with the dismissal of her suit as against the 10 defendant by the Courts below, regardless of the fact that the 10 defendant has acquired a valuable right on account of the omission on the part of the plaintiff to file either an appeal or a memorandum of objections within the period of limitation.