BHUBENSHWAR PRASAD NARAIN SINGH Vs. SIDHESWAR MUKHERJEE

JUDGEMENT

(1.) These appeals arising out of suits between the same parties have been heard together by their consent. The appeals were on behalf of defendant 1 as originally constituted. His minor sons, who were defendants 3 and 4 in the suits were not made co-appellants and were arrayed as respondents to the appeals. On their behalf, applicants have been made before this Court by their guardians ad litem to have them transposed from the category of the respondents to t at of the appellants. It is stated on their behalf that on account of the default of their guardians-ad litem who represented them in the Court below, no appeal was filed on their behalf In the circumstances of the present case their prayer is allowed as their transposition from the category of the respondents to that of the appellants does not in any manner change the scope of the appeals, and the main question which has to be decided in the appeals remains the same, and it is necessary in the ends of justice to so transpose them.

(2.) Dr. D.N Mitter, however, appearing on behalf of the contesting respondents opposed this application. He raised a contention that as Section 22, Limitation Act, had no application to appeals, this transposition could not be done, and he relied upon the decision in the case of Chandrika Ray V/s. Ram Kuer Thakur A.I.R. 1923 Pat. 88, in support of his contention that the application of a 22, Limitation Act is limned to suits only. That Section 22, Limitation Act does not apply to appeals cannot be questioned, but it does not appear how its non-application to appeal. can be in the way of an appellate Court exercising its power to transpose a respondent to the category of an appellant in proper cases. The effect of Section 22 of the Act not applying to appeals, is, that where a respondent is transposed to the category of an appellant, the appeal as regards him will not be deemed to have been instituted when he was so made an appellant. The appeal is one and the date of its filing even as regards him will be the date on which it was originally filed. To my mind, the only cases where the appellate Court will not exercise its power and will not allow a respondent to be transposed to the category of an appellant, is, where the result of such transposition is likely to be, that new grounds not common to the appellants already on the record, may have to be determined for disposing of the appeal Order 41, Rule 4, Civil PC., fully empowers an appellate Court to reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be, irrespective of the fact that the appeal is preferred only by one of the plaintiffs or one of the defendants, if the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants. Order 41, Rule 38, Civil P.C., authorises the appellate Court to pass any decree and to make any order which ought to have been passed or made, and this power may be exercised by the Court not with standing that the appeal is as to the part only of the decree, and may be exercised in favour of all or any of the respondents or parties although such respondents and parties may not have filed any appeal or objection. The appellate Court, having such large powers to pass whatever decree it considers just and proper in the case that comes betore it can certainly allow transposition of a respondent to the category of an appellant in cases where ends of justice require it.

(3.) The appeals, therefore, now stand as having been instituted on behalf of not only defendant 1 but as also on behalf of the minor defendants 8 and 4.