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S. RATNASABAPATHI PILLAI V/S GOPALA AIYAR & ANOTHER, decided on Tuesday, August 22, 1939.
[ In the High Court of Madras, S.A. No. 508 of 1936 & C.M.A. No. 252 of 1936. ] 22/08/1939
Judge(s) : PATANJALI SASTRI
Advocate(s) :
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  "1940 (2) MLJ 349"  







    Civil Procedure Code (V of 1908) - Order 22 Rule 10 & Rule 11 & Section 146 & Section 151 -     Patanjali Sastri J.1. The facts giving rise to the Civil Miscellaneous Appeal and the connected Second Appeal No. 508 of 1936 are briefly these. One Sambasivan Pillai the third respondent herein brought the suit O.S. No. 268 of 1932 for recovery of the plaint mentioned property from the first respondent herein on the ground that it had been leased by him to one Vyasachariar who let the first respondent into possession as a sub-tenant and that the latter was bound to surrender possession as the lease to Vyasachariar had been terminated.2. The trial Court decreed the suit on 26th September 1933 and the first respondent preferred an appeal A.S. No. 7 of 1935 on the file of the Subordinate Judges Court of Mayavaram. By that time the first respondent had discovered that there had been a partition suit between the third respondent and his two sons and that a final decree had been passed therein on the 25th August 1927 under which the suit property had been allotted to the sons of the third respondent. That partition suit culminated in a second appeal (S.A. No. 630 of 1933) to this Court which was dismissed on 15th September 1933. On these facts the first respondent contended in his appeal to the Subordinate Judge of Mayavaram that the third respondent had no right to sue for recovery of the property as he had lost the right to such property by reason of the final decree passed in August 1927 under which the suit property as already stated had been allotted to the third respondents sons. In view of this contention the appellant herein who is one of the sons of the third respondent who got the property under the partition decree filed I.A. No. 13 of 1935 in A.S. No. 7 of 1935 in the lower appellate Court under Order 22 Rule 10 Civil Procedure Code to implead himself as a supplemental respondent in the appeal so as to enable him to resist the first respondents appeal as the rightful owner of the property and thus safeguard his interests therein. The Court below dismissed this application and allowed the appeal and this Civil Miscellaneous Appeal and the connected second appeal have been preferred against the said order and decree respectively.3. The learned Counsel for the appellant has urged three contentions before me in the C.M.A. First he argued that the appellant was entitled to come on record under Section 146 Civil Procedure Code and that the lower Court was wrong in dismissing the petition without considering the applicability of that section. I do not however see how that provision is applicable to the appellant in the circumstances of the case. That section would apply only if the appellant could be properly regarded as claiming under the third respondent who originally brought the action and was the sole respondent in the appeal in the Court below. But it is clear that the appellant cannot be so regarded as he got the suit property by virtue of the partition decree referred to already and not by reasonof any assignment or devolution from his father the third respondent. I must therefore reject this contention.4. The appellants Counsel next urged that Order 22 Rule 10 applied to the case and the appellant is entitled to be impleaded in the appeal under that provision. But as pointed out by the Court below reading that provision in the light of Rule 11 of the same order it is clear that unless the assignment creation or devolution referred to in the provision occurred during the pendency of the appeal that provision would not entitle the appellant to be impleaded in the appeal and from the material dates already given it will be seen that the appellant acquired the suit property as his separate and absolute property by virtue of the partition decree passed during the pendency of the suit and before the appeal was filed even taking the date of the dismissal of the second appeal as the date when the partition became final between the parties. It cannot therefore be said that the appellant acquired any title during the pendency of the appeal as contemplated in Order 22 Rule 10 read with Rule 11 see Phul Chand v. Khwaja Tahir Husain A.I.R. 1934 All. 442 and Kanti Chander Mukerji v. Pirbhu Dayal A.I.R. 1935 Lah. 119.5. Lastly it is urged that if neither Section 146 nor Order 22 Rule 10 was applicable to the facts of this case the Court had inherent powers under Section 151 of the Civil Procedure Code to implead the respondent as otherwise the appellant would be deprived of all opportunity of resisting the appeal and might run the risk of even losing the property to which the first respondent was found to have no manner of right or title. I should be disposed to consider this argument with more favour if I could see my way to hold that the appellants case was altogether outside the purview of Order 22 Rule 10. But I am of opinion that the accrual of exclusive title to the appellant in respect of the suit property under the partition decree could properly be regarded as1 the creation of an interest within the meaning of Order 22 Rule 10 so that if the appellant had only applied under that provision to be impleaded during the pendency of the suit his application would have been in order and the present difficulty would have been avoided. He however failed to do so and made this application only during the pendency of the appeal when it was no longer maintainable under that provision for the reasons already indicated. The appellant had thus an appropriate remedy under a specific provision of the Code of which how ever he failed to avail himself and he cannot therefore be allowed to invoke the inherent powers of the Court. It has often been held that there is no room for the exercise of such powers in a case coming within any specific provision of the Code. See Joshi Shib Prakash v. Jhinguria (1923) I.L.R. 46 All. 144 Ghuznavi v. The Allahabad Bank Ltd. (1917) I.L.R. 44 Cal. 929 (F.B.) and Vallabhbhai Naranji v. Chhotalal Purshottamdas & Co. (1926) I.L.R. 51 Bom. 26. This contention also must therefore be rejected.6. In the result the appeal fails and is dismissed with costs. It is conceded that if the Civil Miscellaneous Appeal is dismissed the Second Appeal cannot be sustained. It is accordingly dismissed but I make no order as to costs therein.