A. Sujanapal vs Maniyadath Balan and Others

M.M. Pareed Pillay, J.—The Revision Petitioner filed I.A. 611 of 1987 to implead him as supplemental 8th Respondent in A.S. 104 of 1982 at a time when the appeal was not pending. The appeal was allowed on 15th November 1985. I.A. 611 of 1987 was filed only on 13th March 1987. I.A. 610 of 1987 was filed under Order 41, Rule 21 to rehear the appeal. Both the petitions were dismissed by the District Judge. Against the order in I.A. 610 of 1987 the C.M.A. has been filed.

The District Judge rejected the petitions on the ground that revision Petitioner was not a party to the proceedings culminating in A.S. 184 of 1982 and so the decision in that appeal would not be binding upon him. District Judge also held that Order 41, Rule 21 can be invoked only by a party to the proceedings and not by an outsider.

Under Order 41, Rule 19 re-admission of the appeal dismissed for default can be sought by the Appellant if he establishes that he was prevented by any sufficient cause from appearing before the Court when the appeal was taken up for Clearing. Order 41, Rule 21 provides that where an appeal is heard ex parte and judgment is pronounced against the Respondent it is open to him to make an application before the appellate Court to rehear the appeal. The essential condition is that he must satisfy the Court that notice was not duly served upon him or that he was prevented by sufficient cause from appearing before the Court when the appeal was called on for hearing. In such a case the Court shall rehear the appeal. Order 41, rules 19 and 21 clearly show that only the party to the proceedings can make an application for rehearing. A person who is not a party to the proceedings cannot file an application under Order 41, Rule 19 or Rule 21. Admittedly A.S. 184 of 1982 was allowed by the District Judge and it was long after that the revision Petitioner filed the application for rehearing of the appeal. As the revision Petitioner was not a party to the proceedings, he cannot invoke Order 41, Rule 2, 1 and urge rehearing of the appeal.

Counsel for the revision Petitioner submitted that the District Judge ought to have allowed the impleading petition and had it been allowed the revision Petitioner would have been entitled to maintain the application for rehearing of the appeal. There is no force in the above contention as the appeal was not pending when the impleading petition was filed. The impleading petition was filed only on 13th March 1987 whereas the appeal was allowed on 15th November 1985. As the appeal was not pending before the District Judge, I.A. 611 of 1987 filed by the revision Petitioner to implead him in the appeal was not maintainable.

The learned District Judge was justified in dismissing the petitions. There is no merit in the C.R.P. and C.M.A. are dismissed.