SUTHARSANA CHARIAR Vs. SSAMARAPURI CHETTIAR

JUDGEMENT

(1.) In this case, we have heard arguments at some considerable length but before dealing with the points that arise for determination in the appeal itself, an objection to the competency of the appeal raised on behalf of the respondents may be disposed of. The objection that was taken was really two-fold. The facts relating to the objection may be very briefly stated. In the Court of first instance, before the learned Subordinate Judge, the plaintiffs obtained a decree and defendant 2 filed an appeal to the District Court. During the pendency of that appeal, defendant-appellant 2 became an insolvent and all his right, title and interest became vested in the Official Assignee of Madras, who was brought on the record as appellant 2. The appeal proceeded and the District Judge allowed the appeal and dismissed the plaintiffs action. It was thereupon that the plaintiffs preferred this second appeal. The objection that is now taken is that the real party interested in opposing the appeal and interested in the subject-matter of the appeal who is the Official Assignee at present, has not been property made a party to this second appeal at all, and secondly that if the Court should consider that he was properly made a party respondent to the appeal, the appeal had become barred by the law of Limitation when he was so made a party-respondent.

(2.) It is clear from a glance at the memorandum of appeal filed in this -second appeal that the name of the Official Assignee was not shown in the first instance as a party-respondent in the cause-title. The appeal itself seems to have been presented to this Court on 20th November 1925 and what we notice is that more than a year thereafter on 3 December 1926, the name of the Official Assignee is inserted by way of correction and authenticated by the initials of the Deputy Registrar of this Court. I think there is considerable force in the argument of the learned Counsel for the respondents that the lugging in of the name of a respondent in that manner cannot properly be regarded as adding a new respondent to the appeal in the proper manner. There is also no doubt whatever that, right or wrong, the view taken by the Officer of this Court who authorized the correction was that the omission of the Official Assignee from the roll of respondents was in the nature of a clerical error, and that therefore having regard to the terms of rule 20 of the Appellate Side Rules of this Court, it was an error the correction of which the Registrar was competent to authorize. The question that therefore arises is whether in view of these facts, the true and proper view to take is whether it was merely in the nature of a clerical error that was properly allowed to be corrected by the authority of this Court entitled to do so, or whether the correction was, as contended for the respondents, tantamount to making a new party to the appeal and therefore unauthorized. One other question, of course, would also arise if the view taken should turn out to be that the Official Assignee must be regarded as having been made a party-respondent to this appeal only on 3 December 1926, or in other words, if the view taken should be that the appeal, so far as the Official Assignee is concerned, was presented only on that date or must be so regarded, and that is the question of extension of time for filing the appeal.

(3.) With regard to the first of these questions, it is clear that the appellants in this case had absolutely no purpose or motive whatsoever in not making the Official Assignee party- respondent to the appeal. He was the real appellant in the Court below and a perusal of the grounds of appeal show that the appeal related entirely, if not exclusively, to matters in which the Official Assignee was directly interested. After all, an appeal is merely in law, in the nature of a petition to the Court of appeal by the party feeling aggrieved by the judgment and decree of the lower Court for the purpose of reversing or modifying such judgment or decree and the memorandum of appeal is nothing but the grounds on which the person preferring the appeal asked the appellate Court so to reverse or modify the decree. If, therefore, from the grounds of appeal it is perfectly clear that the relief prayed for by the appellants at the hands of the Court of appeal had relation almost exclusively to the matters in which the Official Assignee was directly interested, there is really no reason to suppose that for some reason unexplained, if not also inexplicable, the appellants should have abandoned the appeal so far as the Official Assignee Was concerned or should be deemed to have elected to exonerate him. There may be cases in which such an inference may be possible, but this is not such a case. Now then, if there is no room for the conclusion that the appellants may be regarded as having elected not to proceed against the Official Assignee in the appeal, what is the result? The result is that for some reason, his name alone was omitted to be inserted in the category of respondents in the cause title. "What was it due to?" is the next question. With regard to this, we have the statement made by the learned vakil who appears for the appellants and preferred the appeal in the letter he wrote to the officer of this Court and also made personally to us that it was due to a mistake that the name was omitted and that the mistake was due to his clerk, who after the grounds of appeal were drafted was directed to copy out the cause title, happening to copy out the cause title of the case from the records of the litigation at an earlier stage, at a stage in which the Official Assignee was not a party, because the case had been before the District Court from the Court of first instance more than once.