Adhir Kumar Dutta vs Bidyut Lata Dutta

This Rule was issued upon an application for addition of a party Respondent in a pending First Appeal. That appeal was filed by the applicants (Petitioners) against the decision of the trial Court in title (partition) suit No. 5 of 1951 of the Court of the 5th Subordinate Judge at at Alipore, directing sale of certain properties. The sale, however, was held before the appeal could be filed and stay of confirmation of the sale eventually failed to remain effective on account of certain circumstances beyond the control of the Petitioners and the sale has since been confirmed. The Petitioners have now applied for making the auction-purchaser (opposite party No. 2) a party Respondent (Respondent No. 2) to the appeal. They also want stay of delivery of possession.

After hearing the learned Advocates for the parties, we propose to make this Rule absolute in part.

We direct that opposite party No. 2 be added as a party Respondent to the connected First Appeal. We make this order u/s 107, read with Order 1, Rule 10 of the Code of Civil Procedure, and we may add that we have also ample powers in that behalf u/s 151 of the Code which preserves, and is, indeed, the repository of the inherent powers of courts, and, in support of our view, if any authority is needed, we may refer to the decision of this Court, reported in Saroda Kanto Dass v. Gobinda Mohan Das (1910) 12 C.L.J. 91. We may also refer in that connection to the observations of Krishna J. in the Order of Reference in the Full Bench case of the Madras High Court, namely, Baluswami Aiyar v. Lakshman Aiyar (1921) ILR 44 Mad. 605, 608, 609, at pp. 608-9. We have not the least doubt in our mind that, in the circumstances which have happened in this case, this Court, as the appellate Court, has ample powers under the provisions quoted to add opposite party No. 2 as a party Respondent to the pending appeal, otherwise there is every chance of the appeal becoming infructuous with serious prejudice to the. Appellants. This is certainly not a case under or, at any rate, falling within the express terms of Order 41, Rule 20 of the Code of Civil Procedure, to the applicability of which the opposite parties object and in support of their objection cite certain decisions, bits neither that provision nor any other rule in Order 41 is exhaustive of the powers of the appellate Court to add parties in a pending appeal and they do not limit or affect the exercise of such powers by the appellate Court either u/s 107, read with Order 1, Rule 10 of the Code, or under its inherent jurisdiction (vide Section 151) and such powers may always be exercised by the appellate Court, though undoubtedly, with some caution, in appropriate cases. We think the present case calls for the exercise of such powers.

In the above view, we deem it unnecessary to consider the applicability or otherwise of Order 22, Rule 10 (read with Rule 11 and Section 107) of the Code to this case.

As to the other prayer, made in this Rule, namely, for stay of delivery of possession, we will grant that only on terms, namely, that the Appellants Petitioners will furnish security in the court below to the satisfaction of that court to the extent of a sum of Rs. 2,000 within three weeks from date for any loss that may be suffered by the added Respondent (auction-purchaser) by reason of this stay of delivery of possession, including loss of interest or mesne profits, etc., as the case may be. In default, the Rule, so far as stay of delivery of possession is concerned, will stand discharged.

We understand that the connected First Appeal is ready for hearing. Let it appear in the monthly list of March next and let the appeal be placed for hearing on the Daily List within the second week of March.

The costs of this Rule will abide the final result of the appeal hearing fee being assessed at two gold mohurs for each appealing set.