Andhra HC (Pre-Telangana)
Chaganti Lakshmi Rajyan And Ors. vs Kolla Rama Rao on 22 December, 1997
Equivalent citations: 1998(1)ALD497, 1998(1)ALT621
ORDER
1. These two Civil Revision Petitions arise out of a reference made by our learned brother Justice Krishna Saran Shrivastav, who doubled the correctness of/ the decision reported in /I Srinivasa Rao v. 7. Subba Rao, 1972 (1) An.WR (SN) 13, which is a case of father absconding being a defendant in a suit filed on the foot of a promissory note, and sons claiming to be impleaded as defendants, has been accepted.
2. The suit O.S.No.22 of 1995 is filed on the basis of a promissory note alleged to have been executed by one Mr. Raghava Rao, husband of the first petitioner and father of Petitioners 2 to 4. Alter summons were received by Raghava Rao, he engaged aqr Advocate, who sought time for filing written statement on 12-9-1995. In fact adjournments were granted on payment of costs, and the suit was finally posted to 17-10-1995, on which dale, the defendant was called absent and set ex parte. An ex parte decree was passed on 27-10-1995. The respondent - decree holder filed E.P.No. 118 of 1995. Then the petitioners filed applications to implead themselves as parties to the execution petition on the ground that Raghava Rao was absconding from 6-9-1995 and he could not be traced inspite of their best efforts, including giving a report in the police station and the respondent who is having knowledge about these facts purposely omitted to implead the petitioners as parties to the suit who have very good defence in the suit and therefore, without impleading them the execution petition cannot be proceeded as the decree is not valid and binding on them. With similar allegations they have also filed an application before the trial Court for selling aside, the ex parte decree, along with an application to condone, Ihe delay of 27 days in filing the said application. As the execuling Court dismissed the application for substitution of the names of the petitioners in place of missing Judgment deblor, Raghava Rao, the petitioners filed C.R.P.No.2144 of 1997. As the trial Court allowed the applicalion -I.A.No.718 of 1996 seeking condonalion of delay in filing Ihe application to set aside the ex parte decree, the respondent filed C.RP.No.2558 of 1997.
3. When these Civil Revision Petitions came up before our learned brother Justice Krishna Saran Shrivasta v. he, referred, the civil revision petitions to a Division Bench, as he felt that there is a conflicting legal opinion on the question whether the heirs of an absconding defendant should be permitted to be impleaded as parties to the suit, though he is alive.
4. Before we go into the, conflicting decisions, it is necessary to have a look at the relevant provisions. Order 1 Rule 3 reads thus:
"3. Who may be joined as Defendants :-All persons may be joined in one "suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise."
Under this rule, all persons may be joined as defendants in a suit where (1) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions and (2) if separate suits were brought against such persons, any common question of law or fact would arise. The provisions of Rule 3 are only permissive, and it is not mandatory that every person who is ultimately interested in the suit should be. impleaded as a defendant. In order to justify the joining of more than one person as defendants, it is not obligatory on the part of the plaintiff to show that all the defendants are concerned in all the alt the reliefs claimed or all the transactions comprised in the suit. Enough if some common link or nexus is found to satisfy the requisite ingredient as to there being the same act or transaction or series of acts or transactions. Thus, under Rule 3, it is not imperative to add all those who have a semblance of right or interest in the subject matter of the suit as parties. The main object of this Rule is to avoid multiplicity of suits if possible without embarrassment to the litigants.
5. Order 1 Rule 10 is the another relevant provision which enables the Court to strike out or add parties at any stage of the proceeding. Sub-rules (1) and (2) of Rule 10 of Order 1 read thus:
"10. Suit in name of wrong plaintiff:-
(1) Where a suit has been instituted in, the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties:--The Court may at any stage of the proceedings, either upon or without the application of either parry, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
Necessary parties are those who ought to have joined and without whom no order can be passed effectively as their presence is necessary for the constitution of the suit itself, in other words; without whom no effective decree can be passed. Proper party is one without whom no effective order can be made, whose presence is necessary for a complete and final adjudication of the dispute. Normally speaking plaintiff is the dominant litus, and he is the master of the suit. He can choose parlies to the suit as well as forum. He cannot normally be compelled to fight against a party whom he does not wish to fight and against whom he does not seek any relief. The question of addition of parlies underOrder I, Rule 10 CPC mainly not one of initial jurisdiction of the Court, but clearly of judicial discretion which has to be exercised in the light of the facts and circumstances of each case. For instance, where the subject matter of the litigation is as regards declaration of status or legal character the accepted rule of direct interest or interest in presenti may be relaxed, provided the Court opines that by adding such a party, it would be in a position effectively and completely adjudicate upon the controversy.
6. In the light of the above discussion, it is necessary to examine whether the heirs of the absconding defendant should be impleaded as parties in execution proceedings of a decree passed ex parte against the said defendant.
7. In some what similar circumstances, Justice A. V. Krishna Rao, observed that where the father - defendant is absconding, inevitably there could be an ex parts money decree against the defendant and it may be difficult for the sons of the defendant to resist the execution petition to prove the discharge if any and instead of leaving the contentions which the petitioners seek to raise at the stage of execution proceedings, it is always desirable that they should be impleaded as defendants in the suit itself.
8. It is a case where the suit was pending and the sons of the defendant applied before an ex parte decree could be passed. This judgment has no analogy to the facts of the case on hand. In this case, an ex parte decree was already passed, of course, an application to set aside the ex parte decree is said to be pending. In the execution petition filed by the respondent-decree holder, petitioners are seeking to come on record. Their defence is that as the original defendant did not contest the suit, he has lost a valuable right to put forth his defendi. Our learned brother Justice Krishna Saran Shrivastav has narrated the facts as unfolded in this case, slating that the suit is filed against the defendant in his individual capacity only on the strength of a pronote and as such, theheirs of the defendant neither appear to be necessary nor proper parties for the simple reason that there is no privily of contract between them and even if the respondent -plaintiff obtains a decree against the absconding defendant, the same cannot be executed against the interest of the sons or other members of the Joint Hindu family, but it can only be executed to the extent of the joint share in the property belonging to the defendant. Unless the respondent - plaintiff comes out with a case that the debt was contracted by the defendant - father in his capacity as Kartha of Joint Hindu family, and inasmuch as the suit was filed against the father in his individual capacity, the question of impleading the sons or other heirs does not arise.
9. However, under Hindu Law it is well settled that a decree obtained against the father for his personal debt can be executed against the sons' shares in the Joint family properties unless the debt is tainted by immorality and as such it would be, open to the sons to raise such objections to the execution proceedings.
10. The next question is whether Order 1, Rule 10 has application to the proceedings other than suits and appeals. A Division Bench of this Court in Sardar Ali Khan v. S. Deputy Collector, 1993 (2) ALT 155 observed as follows:
"The scope and application of Order 1, Rule 10(2) CPC is to add parties, necessary or proper, to enable the Court, to effectually and completely adjudicate all the questions that are involved in a case. The use of the words "at any stage of the proceeding" in sub-rule (2) of Rule 10 in Order 1 manifests that the power vested in the Court under that provision can be exercised only when the proceedings before it are alive and still pending. In other words, the application of Order 1, Rule 10(2) should be confined only to cases where any proceedings are pending before the Court. The very purpose and object of this provision beingto make any party a defendant or respondent or plaintiff or appellant in a proceeding, in order to enable the Court to make an effective and complete adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party."
The Division Bench in order to come to the said conclusion, relied on a decision reported in Lingammal v. Chinna Venkatatnmal (ILR 6 Madras 237). Therefore, we have no hesitation to hold that an application to implead as parties to the execution petition is not maintainable after the disposal of the suit.
11. In the light of the above discussion. we do not find any error in the order of the lower Court.
12. However, Sri G. Peda Babu, learned Counsel for the petitioner submits that even in execution petition sons and other heirs of Jiaghava Rao are entitled to raise several pleas like (i) the property attached is not the exclusive property of the Judgment-debtor or it is the Joint family properly in which other co-parceners have rights along with the Judgment debtor; (ii) the property sought to be attached is the exclusive or separate property of one of the heirs etc., and for this purpose, they are entitled to be impleaded as parties to the Execution Petitioa This cannot be a ground, in our view, to implead the petitioners as parties to the execution proceeding. It is not as if the petitioners have no remedy to raise such pleas by way of other proceeding. Order 21, Rule 58, or Rule 103 or Section 47 of the Code of Civil Procedure amply provide safeguards to the petitioners in such a situation. Therefore, the objection of the learned Counsel for the petitioners, in our view, cannot alter the situation
13. As already seen the application under Order 9 Rule 13 C.P.C. filed by the petitioners to set aside the ex parte decree passed against Raghava Rao is still pending. As such, it would not be proper for us to decide the merits of the said application.Accordingly we express no opinion on the maintainability or the merits of the said application, and it is for the lower Court where the application is pending to dispose of the same in accordance with law.
14. C.R.P.No.2558 of 1997 : The lower Court found that the reasons assigned by the petitioners for condoning the delay in filing the application to set aside the ex parte decree are sufficient, and accordingly, allowed the said application. As the lower Court ordered the application in its discretion, and as we have no reason to find fault with the discretion exercised by the lower Court as arbitrary or unreasonable, we cannot interfere with the order of the lower Court in this Civil Revision Petition
15. In the result, both the Civil Revision Petitions fail, and they are accordingly dismissed. No costs.