Probhat Chandra Biswas vs Gopal Chandra Mukherji and Others

This appeal arises out of a partition suit. The suit wag decreed, and the defendant No. 1 alone appealed. There were nice defendants in the suit. learned Judge held that the questions raised in the appeal could not be decided in the absence of the other eight defendants. The defendant No, 1 thereupon asked the Appellate Court to add the other eight defendants as parties to the appeal under Order XLI, Rule 33. The learned Judge refused to do so on the ground that the powers given to an Appellate Court under Order XLI, Rule 33, were not intended to be applicable in a partition suit and accordingly dismissed the suit. The defendant No. 1 has appealed to this Court.

We are unable to hold that the Appellate Court has no power to exercise the powers conferred upon it by Order XLI, Rule 33, in partition suits. There is no restriction of the powers as to any class of suits under that rule. Whether in any particular case the power should be exercised is one in the discretion of the Appellate Court, but the learned Judge has not exercised any discretion, as he was of opinion that he had no power under the rule in a partition suit. We think, therefore, that the case should go back to the lower Appellate Court in order that it may consider whether the powers conferred upon it by Orer XLI, Rule 33, should be exercised in this case,

In this Court also all the defendants have not been made parties to the second appeal; only four of them have been made parties. It is stated on behalf of the appellant that the others have no interests in the property and, therefore, have not been made parties. The Court of Appeal below will, therefore, consider this question first of all, and if it finds that the defendants who have not been made parties to this appeal have interest in the suit, the decree of the lower Appellate Court will stand with costs of this Court. If, however, it is found that they have no interest and are not necessary parties, the Court will proceed to decide the other question mentioned in the first part of our judgment and dispose of the appeal according to law, and upon such terms as to costs as he may think fit. The appellant must however, bear his own costs in this Court.