PONNUSWAMI ASARI Vs. AMPALANIANDI MUDALI

JUDGEMENT

(1.) The only material facts are that plaintiff obtained a decree against 1st defendant and his sons , 3rd and 4th defendants for the amount of a debt incurred by the first mentioned. Third and 4th defendants appealed not making 2nd defendant, 1st defendant s undivided nephew, a party. Plaintiff, however, here 1st respondent, filed a memo, of objection against him and statedly on account of that memo, had made him a party to the appeal in the lower Appellate Court, A degree was given by the lower Appellate Court against him: and he now appeals, the only ground of appeal argued being that, as he was not originally a party to the appeal, no memo could be filed to his prejudice.

(2.) The Full Bench decision in Munisamy Mudaly v. Albu Reddy 27 Ind. Cas. 323 : 38 M. 705 : (1915) M.W.N. 45 : 27 M.L.J. 740 has placed beyond doubt the right of one respondent to proceed against another by memo of objection and the only question, therefore, is whether the one is entitled to have the other made a party in order that he may do so. Appellant argued that he is not, because the only provision in Order XLI relating to appeal?, rule 20, for the addition of parties refers to "the appeal" and "the result of the appeal," not also to the memo of objection, and cannot be utilised for the purpose of the latter. Contra it is argued that "the appeal" is referred to in Order XLI, rule 20, as meaning and including all the proceedings in the Appellate Court, whether those involved in the disposal of the appeal proper or also those involved by the memo. The latter construction commends itself as consistent with the reference to the appeal in rules 21, 23, 24, 25, 27,30, 33, unaccompanied by anything explicitly rendering them applicable to a memorandum of objection or by any other separate provision for the procedure at the hearing of the latter. In these circumstances, the appellant s argument must be rejected. The appeal is dismissed with costs. Krishsan, J.

(3.) In this case the lower Appellate Court allowed the plaintiff, who was originally the sole respondent in the appeal to that Court by defendants Nos. 3 and 4, to file a memo, of cross-objection to the decree of the first Court under Order XLI, rule 22, Civil Procedure Code, against the 2nd defendant who had not been made party to the appeal by appellants, and for the purpose of disposing of that memo, added the 2nd defendant as the 2nd respondent to the appeal, under rule 20, on the application of the plaintiff. That Court, finding the claim of the plaintiff established against the 2nd respondent also, allowed the memo of cross-objection and varied the decree of the first Court and gave a decree to the plaintiff against him as well.