Indian Kanoon - Search engine for Indian Law

The contention of the learned Counsel for the appellant, in other Words, was that Prakash Chand must be deemed to be represented by the other five persons and it cannot be said that his interests in the appeal were not properly safeguarded. It was vehemently urged that the present was hot a case in which it could be said that Prakash Chand was not "interested in the result of the appeal" and therefore, it was a fit case in which Prakash Chand should be added as a party either under the provisions of Order XLI, Rule 20, Civil Procedure Code, or under the provisions of Order 1, Rule 10, read with Section 107, Civil Procedure Code, or under the inherent powers of the Court saved by Section 151, Civil Procedure Code. The learned Counsel for the appellant also filed an application under Order XLI, Rule 20, read with Section 151, Civil Procedure Code, seeking permission to add the name of Prakash Chand as a respondent in the memo of parties,

In view of the important nature of the question of law and because of the fact that this question arises frequently in a number of cases, I thought it fit to refer the same to a larger Bench.

8. The point that falls for decision is as follows :

Whether a party to the original suit who has not been impleaded in appeal within the period of limitation prescribed for fifing the same can be added as a party to the appeal either under the provisions of Order XLI, Rule 20, Civil Procedure Code, or those of Order 1, Rule 10, Civil Procedure Code, read with Section 107, Civil Procedure Code, or under the inherent powers of the Court saved by Section 151, Civil Procedure Code?

34. The next point that arises for decision is whether a party can be added in appeal irrespective of the provisions of Order XLI Rule 20, Civil Procedure Code, either under Order 1 Rule 10, read with Section 107(2), Civil Procedure Code, or under the inherent powers saved by Section 151, Civil Procedure Code.

35. Their Lordships of the Privy Council referred to Order 1 Rule 10 and Section 107, Civil Procedure Code, but recorded no decision with regard to the applicability or otherwise of the said provision. Now, Section 107(2) of the Code of Civil Procedure provides as under :

"Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein,"

It is argued on behalf of the appellant that the appellate Court has under this provision of law the same powers as have been conferred by the Code on Courts of original jurisdiction. Provisions of Order 1, Rule 10, Civil Procedure Code, are then relied upon, and it is contended that the appellate Court can allow addition of parties under the said provisions. The powers of the original Court under the provisions of this rule, however, are subject to Section 22 of the Indian Limitation Act, and there can be no doubt that as a combined effect of Section 107(2). Order 1, Rule 10, Civil Procedure Code, and Section 22 of the Indian Limitation Act, the appellate Court can always) allow a party to be added, if no question of limitation is involved in the matter. Once the period of limitation has run out, the appropriate provisions enabling the appellate Court to allow parties to be added to the appeal will, in my opinion be those contained in Order XLI, Rule 20, Civil Procedure Code, or Section 151, Civil Procedure Code.