LAGUDUVA S KRISHNASWAMI IYER Vs. SANKARAPPA NAIDU

JUDGEMENT

(1.) The petitioner here was a joint decree-holder in a certain suit. The respondent here was the judgment-debtor in that suit. Against an order passed in execution on 21 October 1932 the judgment-debtor filed an appeal (A.S. No. 191) of 1932 within time. In that appeal he omitted the name of Laguduva S. Krishnaswami Ayyar, the present petitioner, and on 1st November 1933, in the cause of the appeal, he put in two Interlocutory Applications (I.A. Nos. 425 and 426 of 1933). The first application asked for a relief to add the petitioner as a respondent. The second asked for permission under Section 5, Limitation Act, to excuse the delay in preferring the appeal against him, which was out of time. The lower Court, granted both the petitions. There is no revision-petition against the order on I.A. No. 426 extending the period of limitation and that order has become-final. The present petition is against the order on I.A. No. 425 of 1933 giving, permission to add the petitioner as a. respondent.

(2.) The basis of the objection to the order is that under Order 41, Rule 20, since the appeal had abated against this petitioner, he was not a party "interested in the result of the appeal "and therefore the-lower appellate Court had no jurisdiction to have him impleaded as respondent. It is important in this case to keep clearly in mind the logical sequence of the orders passed, although one common order covers both. It is clear that I.A. No. 425 of 1933 asking to add the petitioner as a party had to be first, ordered before the second application (I.A. No. 426 of 1933) extending the period of limitation against him could be entertained. Consequently, it is-quite out of place to argue that the period of limitation having been extended, he must be held under Section 22, Limitation Act, to have been impleaded at the time when the appeal was originally filed. Strictly speaking also it is quite open to-this Court to go behind the findings of fact on which the limitation period was extended, because I am here dealing with an order which must be taken to have been passed before the application to extend the period of limitation was. entertained. I do not however wish to deal at any length with the reasons on which the lower Court extended limitation, as I think the whole matter can be argued more clearly without much reference to them. But I must mention what happened, which was this. The petitioner was entered in the cause title of E.P. No. 735 of 1927 as dead. Admittedly, no application was put in, to add his legal representative. But when it came to considering the extension of limitation the lower Court held this mistake in the cause title sufficient reason, to grant the extension, in spite of the fact that this petitioner in the course of the execution of the decree had been appearing in execution proceedings. As I said above, there is nothing to prevent my coming to a different finding from that reached by the learned District Judge in the petition to extend the period of limitation, as to whether the decree- holder (respondent) could be excused for the delay in filing the appeal and I must certainly remark that the fault was not entirely that of the Court in describing the petitioner as dead, because, if petitioner believed this incorrect description, he should have applied to have his legal representative brought on record which he did not do.

(3.) Turning to the main question before me there can be no doubt that the appeal which had been filed, was incompetent for the decree was a joint one. The argument addressed before me is that the lower Court had no power to render an incompetent appeal competent. The first case quoted for the petitioner is Badri Narayan V/s. E.I. Ry. Co. 1927 Pat. 23. This is in many respects like the present case. In that case, as in this, the appeal petition presented omitted to include some of the plaintiffs who were joint decree holders. It was held, that: Order 41, Rule 20, applies only when there is an appeal pending in the Court on which a decision may be given by the Court.