Shiv Ram vs Sitawanti & Others

Respondents herein obtained a decree for possession of a piece of land which decree became final after litigation between the parties for a long

period in various Courts. In execution application filed by the respondents decreeholders appellant judgmentdebtor took certain objections

regarding identification of the land and also the structures standing thereon which objections were disposed of by the learned Addl. District Judge,

Jammu on 2621975 holding that possession of the land, description of which had been sufficiently provided, be handed over to the decreeholders

and malba of the structures existing thereon should be removed by the judgmentdebtor. Against that order appellant herein filed appeal which was

dismissed by the learned Single Judge of this Court vide order passed on December 11, 1981 on preliminary objection raised by the other side as

one of the decreeholders had not been impleaded in appeal as a party. Aggrieved by that order appellant has filed this Letters Patent Appeal.

We have heard the learned counsel for the parties and perused the record. Mr. Sharma learned counsel appearing for the appellant has argued that

by sheer inadvertence name of Balkrishan Sareen, one of the decreeholders was not incorporated in memo of appeal but the court had power

under Order 41 Rule 20 C. P. C. for Issuing direction to implead such necessary party in the case. In this regard he has referred to certain

pronouncements of various Courts which we are discussing hereafter. He has further contended that the Additional District Judge had also

committed error in holding that the decree was executable when in fact no proper identification of the land had been given by the decreeholders in

their plaint and, moreover, there were huge structures standing thereon. Mr. Soodan learned counsel for the respondents has pleaded that

Balkrishan Sareen being one of the decreeholders was a necessary party who was not impleaded in appeal filed by the appellant herein and as the

decree was indivisible there was no option left for the appellate court except to dismiss the appeal on that ground.

Before proceeding further we have to appreciate the law contained in Order 41 Rule 20 C. P. C. which is as under :

Where it appears to the Court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred,

but who has not been made a party to the appeal, if interested in the result of the appeal, court may adjourn hearing to a future date to be fixed by

the court and direct that such person be made a respondent.

Now following subpara (2) has been added by C. P. C. Amendment Act:

(2) No respondent shall be added under this rule after expiry of period of limitation for appeal, unless the court, for reasons to be recorded, allows

that to be done, on such terms and the costs as it think

The abovesaid provision of law only authoriocs addition of persons as parties to the case who were parties to the suit. Under Sec. 107C.P.C. and

under its inherent powers an appellate court has also power to add as parties to the suit persons who were not parties in the first appellate court

but such power can only be exercised if there is good ground for doing so and should not be exercised in a case of extreme neglect. It is a question

for the court in its discretion to determine in each case whether or not it will make an order for the addition of a party as contemplated by order 41

Rule 20 C. P. C.

In AIR 1959 Patna 258 it has been held that where heirs of one of the decree holders were made parties to execution proceedings out of which

appeal arose but were not made party to the appeal, they being codecree,. holders were interested in the result of appeal and as such could be

made .party even at the time of hearing of the appeal. In AIR 1961 J&K9 the principle laid down is that where omission on the part of

defendantsappellants to implead as respondents the legal representatives of the deceased plaintiffs or the subsequently added plaintiffs was due to

the error in the decree and the judgment which did not show these persons as coplaintiffs such persons can be impleaded as respondents. In AIR

1983 J&K 29 it has been held that an appeal being the continuation of the suit, a person may be added as a party to it, even at the stage of appeal

provided his addition is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in

the suit. Mr. Sharma has also laid stress on another case. Mahavir Parsad vs Jagay Ram and others reported as AIR 1971 SC 742 and pointed

out that in accordance with the principle laid down in that case the appellate Court was not divested of its jurisdiction to pass order in appeal even

if one of the decreeholders had not been brought on record as party. In this case their lordships of the Supreme Court have dealt with Rule 4 of

Order 41 C. P: C. and held that competence of the appellate court to pass a decree appropriate to the nature of dispute in an appeal filed by one

of the civil persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who

was jointly interested in the claim has been made a party respondent and on his death his heirs have not been brought on the record. This principle

is on different footing and does not apply to the facts of present case at all where we are concerned with nonimpleadment of one of the

decreeholders in appeal.

It comes out from record that appeal was filed on March 5, 1975 in which Balkrishan Sareen, one of the decreeholders, was not impleaded as a

party. Said appeal was disposed of on December 11, 1981, i.e. after more than five years and nine months and during the pendency of appeal

appellant herein, who was also appellant in the appeal, did not even make an oral prayer for allowing him to implead Balkrishan Sareen as

partyrespondent. Even at the time of disposal of appeal no such prayer was made. When the appellant was so much negligent in prosecuting his

appeal there was hardly any reason for the appellate court to come to his rescue sue moto. The powers vested in Court under Order 41 Rule 20

C. P. C. do not empower the Court to exercise jurisdiction in such cases of extreme neglect. The decree passed in favour of the decreeholders

was also in regard to a piece of land which as such was indivisible and the first appellate court thus rightly dismissed the appeal on preliminary

objection raised by counsel for the decreeholders. This litigation is going on between the parties for the last more than four decades and to take

another view Will also not be in the interests of justice, in any manner.

Mr. Sharma has referred to the contents of the decree which, according to him, is not executable because of certain legal flaws. That is a matter to

be looked into by the Executing Court and we are not required to decide that point in this appeal.

For the aforesaid reasons we find no merit in this .appeal which is dismissed, without making any order as to costs.