9911796707
TMI Blog1958 (9) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of which the present appeal arises was one under Order XXI, Rule 63, C.P.C. the plaintiff being the decree-holder who was unsuccessful in the Claim Case brought by the present defendant No. 2, appellant, under Order XXI, Rule 58 C.P.C. The plaintiff and defendant No. 4 obtained a money decree on 23-2-1943 for a sum of ₹ 3582/8/3, when the properties in suit were attached by the plaintiff, a claim was put forth by the present defendant No. 2, which being allowed the plaintiff brought, the suit. 3 . Defendant No. 1 is the judgment-debtor. Defendants 3 and 3-Ka are the Zamindars. Defendant No. 4 is the joint decree-holder along with the plaintiff. The plaintiff's case is that defendant No. 1, the judgment-debtor, made a wilful de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, cites decisions to the effect that a judgment-debtor is not a necessary party. He starts with an old decision of the Allahabad High Court reported in Ghasi Ram v. Mangal Chand ILR 28 All 41 (A) where their Lordships Banerji and Richards, JJ. decided that where a decree-holder brings a suit against a successful claimant to establish that certain property belongs to his judgment-debtor and that he is entitled to bring it to sale in execution of his decree, the only person against whom he claims relief is the successful claimant. To such a suit the judgment-debtor is not a necessary party. Their Lordships observed in the judgment: "If an unsuccessful claimant brings a suit and he seeks to establish his claim against both the decree-h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the property belongs to the judgment-debtor, he is entitled to take advantage of the decree. In such a case, whether the judgment-debtor is a necessary party in appeal against such a decree is the real question before us. The test determining whether a person is a necessary party to an appeal or not or whether the appeal can proceed in his absence is mainly whether in the event of the appeal being allowed as against the remaining respondent or respondents there would or would not be inconsistent decrees in the same litigation in respect of the same subject-matter. The principle has always him accepted that if the appeal succeeds which will lead to incongruous position of inconsistent decrees on account of a particular person not being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till worse when we come to consider the case of the joint decreeholder, defendant No. 4, not being a party to the appeal. Mr. Rao contends that the plaintiff who was the sole respondent in the appeal before the lower appellate Court alone started the execution and brought the suit. In the plaint we get a very clear recital to the effect that defendant N6. 4 was a joint decree-holder along with the plaintiff in the aforesaid money decree dated 23-2-1943. It is further asserted that the suit has been brought for the benefit of both the plaintiff and defendant No. 4. Under the provisions of Order 21, Rule 15 C.P.C. the execution must also have been on behalf of and for the benefit of both the decreeholders even though the execution was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded that the technical rules of the First Schedule of the Code of Civil Procedure regarding impleading of parties should not be involved in such proceedings and the matter should be viewed in a more liberal way, regard always being had to the fact that there is no collusion between the debtor and the claimant and that there are persons who are bona fide litigating in respect of the title of the claimant under Section 11 of the Act. Their Lordships further observed, if there has been such a bona fide fight which results in a decree, in an appeal against that decree it is sufficient that those who took an active part in the proceedings under Section 11 are impleaded. It is not necessary to implead each and every creditor who either di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his lawyer and as such the lower appellate Court ought to have condoned the delay and made the joint decree-holder a party to the appeal. Can it be said that the advice was given in good faith? The expression 'good faith' has been defined in the Indian Limitation Act as "nothing shall be deemed to be done in good faith which is not done with due care and attention." The position, as it appears to us, is manifest that a slightest care and attention would have impelled the advocate to make others as necessary parties in the appeal. The position has been made clear on review of several cases on the point in my judgment in a Bench decision reported in Tirumala Bhaskara Rao v. Panasa Narayanamma (E), that it cannot be the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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