Alla Subba Reddi vs Vanga Koti Reddi and Another

Raghava Rao, J.—I am of opinion that these civil revision petitions must fail. The point raised is one with reference to the power of the Court

under Order 41, Rule 33, Civil Procedure Code, which the leaded Subordinate Judge of Tenali refused to exercise by his orders under revision.

I shall state a few facts in order to make the legal position arising for decision clear. There were two suits each one of which was by different

plaintiff against the same two defendants, for damages for malicious prosecution. It was alleged in the plaint in each suit that the two defendants had

conspired to initiate a criminal prosecution. The cause of action alleged in each suit was, it may by taken, identical. The suits were decreed by the

trial Court and two sets of appeals were taken to the appellate Court by each of the two defendants in the suit. One set of appeals. that is by the

petitioner before me was dismissed for default and the C.M.A.s preferred to this Court against the order of refusal to set aside the dismissals for

default were also dismissed by this Court. The other set of appeals by the other defendants in the two suits shared a better fate They were allowed

after the dismissals for default of the appeals by the petitioner before me but before the dismissal by this Court of the C.M.A.s preferred by him. A

few day after the dismissal of the C.M.A.s by this Court the petitioner applied under Order 41, Rule 33 of the CPC in the appeals of the other

defendant which had by then been disposed of in his favour. The petitioner made the request to the appellate Court in those appeals that he may be

added and that the same relief may be granted to him as had been granted to the appellant in those appeals. The learned Subordinate Judge

rejected the request.

In my opinion the learned Subordinate Judge is right. Assuming as contended by Mr. Krishnamurthi, the learned advocate for the petitioner, that

the party applying under Order 41, Rule 33 of the CPC need not have been a party originally to the appeal in which he applies, assuming that it

would be enough if he was a party to the suit out of which the appeal has arisen, in which he seeks to apply, (vide Thirumalachariar v. Athimoola

Karayalar (1932) 65 M.L.J. 15). I have no doubt however that the relief which can be granted under Order 41, Rule 33, Civil Procedure Code,

can only be granted in a pending appeal, not in an appeal already disposed of. It is true that the latitude of the discretion vested in the Court under

that provision of law is very large under the Full Bench ruling of this Court reported in S.M.S. Subramanian Chettiar (dead) and Another Vs.

Sinnammal and Others, , but the discretion is invokable obviously only in a pending appeal. Further, the party applying for relief in the present case

already pursued his remedy by way of his own appeal which ended rather unfortunately for him in the dismissal for default which even more

unfortunately became final by reason of the dismissal of the C.M.A.s preferred to this Court. The concluding words of the rule, namely, "" although

such respondents or parties may not have filed any appeal or objection "" seem to suggest that where he pursued such a remedy but failed he could

not apply under this rule. In view of these difficulties in the way of the petitioner his revision petitions are dismissed.

As the respondents in each civil revision petition were not represented by counsel, I asked for the assistance of Mr. V. V. Sastri as amicus curia

when the last civil revision petitions came on for hearing before me. Mr. V.V. Sastri has appeared as requested. I thank him for the assistance

rendered by him. No costs.