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Calcutta High Court
Surya Kanta Jana And Ors. vs Tarak Nath Jana And Ors. on 13 August, 1926
Equivalent citations: AIR 1927 Cal 37
Author: Suhrawardy


Suhrawardy, J.

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. 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.

4. The latter half of the section which has not been reproduced in Section 107 of the present Code, refers to special matters as death, marriage and insolvency where the word ‘plaintiff’ should be held to include appellant and ‘defendant’ should include respondent. With reference to this provision the learned Judges remarked thus:

But having regard to the fact that Section 582, where it makes any special provisions applicable to suits applicable also to appeals, expressly enacts that such provisions shall be so applicable, I am of opinion that this could not be said that the earlier part of the section was intended to make all the provisions applicable to suits applicable also to appeals so as to make it possible for us to say that Section 27 applies to appeals, the word appeal being substituted for the word suit in that section and the word ‘appellant’ being substituted for the word ‘plaintiff’.

5. The case therefore is no authority for the present purpose; and it has further been dissented from by the Patna High Court in Srimate Hemangini Debi v. Hari Das Banerji [1918] 3 Pat. L.J. 409. The same learned Judges (Maclean, C.J., and Banerjee, J.) subsequently held in Gyanananda Asran v. Kristo Chandra Mukerjee [1903] 8 C.W.N. 404, that Section 32 coupled with Section 582, Civil P. C. (1882) gives the appellate Court power to add as parties to the appeal persons who are not parties to the original suit; and they further went on to observe that even if this be not so, Section 32 is not exhaustive and the appellate Court had inherent power in a case dealing with public trusts to add in the appeal such new parties as might be necessary for the protection of public interest. The same view was taken by the Patna High Court in Hemangini Debi v. Hari Das Banerji [1918] 3 Pat. L.J. 409 above referred to. These cases are instances where a person who was not even a party to the suit was added as a party to the appeal. If the Court has power to do that, there is no reason why if; should not have the power to transfer a party from one category to another.

6. Reference was also made in this connexion to the case of Vasudeo Balkrishna v. Salu Bai [1885] 10 Bom. 227 where it was held that there was no power in the Civil PC (Act XIV of 1882) to make a party to the suit a co-appellant and that Sections 32 and 582 give the appellate Court power only to strike out the name of a party or to direct new parties to be added to the suit whether as plaintiff or as defendant. I am not prepared to follow the reasoning of the decision, but it may be distinguished on its own facts. There the suit wan brought against a widow and her adopted son, on a mortgage bond executed by the widow alone. Her son did not appear at the hearing of the suit which was decreed against the mother. She preferred an appeal and, some time after the son wanted to be added as a co-appellant. The learned Judges refused the prayer, and on the facts of the case probably rightly. The defence of the mother was that she had never executed the bond. The son wanted to appear as an appellant and contended that even if the bond was executed by the mother she had no right to do so and it did not bind the properties in his hands. It was changing the nature of the litigation entirely and it was not proper that he should have been made a co-appellant and allowed to raise new issues. This decision moreover was passed at a time when the inherent jurisdiction of the Court was not fully realized.

7. I have carefully considered all the ob sections raised by the learned vakil for Respondent No. 1 as also by the learned advocate who represents the appellant in the miscellaneous appeal and I have come to the conclusion that this Court has ample power in the interest of justice to add parties’ or to transpose a party from one category to another. In the present case it is very desirable that it Should be done. From the conduct of the parties it is apparent that the suspicion of the present petitioner that the appellant is colluding with Respondent No. 1, the executor, is not groundless.

8. The Rule is accordingly made absolute. The petitioners will be transferred from the category of respondents to that of appellants with permission to prosecute the appeal, if they so choose. The Respondent No. 1 and the appellant should pay one gold mohur each to the petitioner as hearing fee.

Mullick, J.

9. I agree.

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