SURYA KANTA JANA Vs. TARAK NATH JANA

JUDGEMENT

(1.) This Rule is issued as to why the petitioner should not be transferred from the category of respondents to that of appellants. The suit was brought by the appellants in Appeal from Order No. 433 of 1925 in the Court below against Defendant No. 1 (the executor) for accounts and other reliefs, as also for administration of the estate of the testator. The plaintiffs, as well as the various sets of respondents, are beneficiaries under the Will. The plaintiffs applied in the Court below for the appointment of a Receiver to the estate of the deceased. The learned Subordinate Judge appointed a receiver to a portion of the estate for reasons stated by him in his judgment. The, plaintiffs thereupon preferred the miscellaneous appeal against that order of the Court below, making all the defendants respondents to the appeal. The present petitioners, who are some of the beneficiaries under the Will, and Defendants Nos. 5 to 7 in the suit have reason to believe that the plaintiffs have made up their differences with the executor (Defendant No. 1) and are not diligent in the prosecution of the appeal which may fail for want of prosecution. They have accordingly applied to be transposed to the category of appellants so that in the event of the present appellants failing to prosecute the appeal they may proceed with it. This application is opposed by the executor (Respondent No. 1) and by the plaintiffs-appellants.

(2.) The point which is strenuously argued before ns is somewhat novel. It is contended that this Court, as a Court of appeal, has no power to transfer a respondent to the category of appellants. I may mention that such applications are often made to this Court and in many cases granted when a party is transposed from one category to the other. But we have been invited in this case to test the practice on legal grounds. The power that the appellate Court has got in this matter is generally said to have been derived from Order 1, Rule 10 read with Section 107, Civil P.C. But in my opinion it is safer to rest it on the inherent jurisdiction of the Court to act in furtherance of the ends of justice. I intend first to examine the cases which have been cited by the learned vakil for Respondent No. 1 in support of this contention.

(3.) Reference has been made to a decision of Maclean, C.J., and Banerjee, J. in, Dwarha Nath Biswas V/s. Debendra Nath Tagore [1899] 4 C.W.N. 58. The question in that case is with regard to the application of Section 27 of the Code of 1882 which corresponds to Order 1, Rule 10, Clause (1). whereas the present case comes under that rule and is governed by Clause (2) which corresponds to Section 32 of the old Code. In that case the trustees preferred an appeal. Before the appeal was beard the trustees lost their interest in the property in suit. The beneficiaries who succeeded in driving the trustees out applied to this Court for prosecuting the appeal in place of the trustees. The learned Judges held that Section 27 of the Code of 1882 had no application. The reason which the learned Chief Justice gave for his decision was that on a proper reading of Section 582 of the old Code, which partially corresponds to Section 107 of the New Code, it was clear to his Lordship that the provisions of Section 27 were applicable to suits only. Section 582 runs thus: The appellate Court shall have, in appeals under this chapter, the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this-Code on Courts of original jurisdiction in respect of suits instituted under Ch. V & Ch. XXI so far as may be (the word plaintiff shall be held to include a plaintiff-appellant, the word defendant a plaintiff-respondent or defendant respondent and the word suit an appeal ) in proceedings arising out of the death, marriage or insolvency of parties to an appeal.