REBALA BABU REDDI Vs. DODLA RAMI REDDI

JUDGEMENT

(1.) THE District Judge was clearly in error in relying on the case of Subramanian Chetty v. Veerabadran Chetty 31 M. 442 : 4 M.L.T. 104 : 18 M.L.J. 452 which was decided under the old Code of Civil Procedure which did not contain provisions similar to those found in Order XLI, Rule 33, introduced for the first time in the new Code. He was entitled, in order to promote the ends of justice, to make the 1st defendant a party respondent to the appeal and to pass a decree against him in favour of the plaintiff under Order XLI, Rule 33, if the Court of first instance had erroneously exonerated the 1st defendant. See Jadunandan Prosad Singha v. Koer Kallyan Singh 13 Ind. Cas. 653 : 16 C.W.N. 612 : 15 C.L.J. 61 : Munisami Mudaly v. Abbu Reddy 27 Ind. Cas. 323 : 27 M.L.J. 740 : (1915) M.W.N. 45 : 38 M. 705 and Imbichunni Nair v. Narayana Nambudri 21 Ind. Cas. 767 : (1913) M.W.N. 1024.

(2.) BUT I do not think that this is a fit case for interference in revision against an interlocutory order passed in an appeal case, especially as the petitioner (the plaintiff) has filed a memorandum of objections in the lower Appellate Court against the 1st defendant and I am not at all sure that he cannot succeed in making the 1st defendant liable through the proceedings in the Appellate Court in connection with that memorandum of objections without making the 1st defendant a direct respondent in the appeal proceedings. It may well be argued (though I do not wish to give a final opinion on the question) that, as Sub-rules (3) and (4) of Order XLI, Rule 22, speak in very general language of a "party who may be affected by such objection" and of "notice to the other parties as the Court thinks fit" and Order XLI, Rule 22, does not confine itself to the appellants or the respondents mentioned in the appeal memorandum, any party to the suit and to the lower Court s decree who would be affected by the memorandum of objections, can be made a party to the said memorandum though he was not made a party in the appeal memorandum. Further, it might be reasond ably expected that in view of the opinion expressed in the 1st portion of this judgment, the lower Court would be inclined to review its order refusing to make the 1st defendant a party to the appeal. I would, therefore, dismiss the petition presented under Section 115 of the Code of Civil Procedure. There will be no order as to costs under the circumstances.