Kumarayya, J.
1. This petition which, on reference, is before us raises a short point, whether a settlee pendente lite of one of the items of suit property can be added as a party to an appeal brought by the plaintiff, as a person interested in the result thereof.
2. It may be expedient to make a brief statement of facts which are in a narrow compass. Gonugunta Subbarayudu (petitioner-plaintiff) laid an action in the year 1959 for partition of joint family properties against his brother Srisailam, his mother Viramma, and two other persons, alienees of items 5 of the suit property. The brother did not survive long. He died leaving his mother as his only heir, who had already claimed in the suit that items 1 to 6 of the suit schedule property constituted her separate properties and hence could not be made available for partition. Her claim eventually was accepted but only in relation to item 1 and also item 6, which she had already settled on May 17, 1960, on her daughter's son. Eluri Brahmanandam. The settlee did not choose to come on record as party to the suit. The decision in the suit went favourable to his interest. The plaintiff preferred his appeal in 1961. Some time thereafter the settlee thought it necessary in his interest to come on record. On April 6, 1962, he accordingly made an application to be brought on record as a person interested in the appeal by reason of the settlement deed in his favour. On the following day i.e. on April 7, 1962, the appellant (plaintiff) and the settlor (2nd defendant) filed a compromise memo wherein the latter gave up her claim to item 6 as her separate property. Then both of them opposed the petition of the settlee on the ground that the settlement reeled on was vitiated by fraud and undue influence and was highly grief-stricken on account of the demise of her son and was not in a position to understand the nature of the transaction. The Principal Subordinate Judge nevertheless allowed the application following the dictum Venkata Narasimha Raju v. Katteboyina Yellamanda, : AIR1960AP32 in preference to that in Doraikannu Asari v. Nataraja Chetty, (1951) 2 Mad LJ 26 and directed that he be added as a party to the appeal. Aggrieved by that order the appellant has filed this revision petition.
3. It is the conflict in the above decisions that has given occasion to reference of the matter to this Bench Perhaps the conflict would not have arisen if the Divisional Bench case in Seethai Achi v. Meyappa Chettiar 66 MLJ 517, which was followed in : AIR1960AP32 (supra), were cited before the learned Judge who decided 1951-2 Mad LJ 26 (supra). Curiously enough, of the two decisions in question, the earlier was not brought to the notice of the learned Judge who decided the later case. Be that what it may, the question now for consideration is whether the Principal Subordinate Judge had jurisdiction to add Eluri Brahmananda, as a party to the appeal.
4. It must always be borne in mind that addition of parties to a pending proceedings is not a matter of substantive right but only one of procedure. Procedure being handmaid of justice, rules of procedure are always designed to advance the cause and subserve the ends of justice. The right application thereof must necessarily rest on the discretion of the Court which has to be exercised on principles of equity, justice and good conscience of the Court having regard to the facts and circumstances of each case. There are several provisions made in the Civil Procedure Code for the addition of parties in various contingenecies and at various stages. We may refer in this behalf to some of the provisions of the Civil Procedure Code contained in Or. 1 R. 10, O. 22, Rules 10 to 12, O. 41, R. 20 and Section 146 C. P. C. The policy underlying these provisions is that the parties necessary to the very constitution of the suit i.e., persons in whose absence the suit cannot be determined or persons whose presence is essential in order to effectively and completely adjudicate upon and settle all questions involved in the suit or who will be prejuidiced upon and settle all questions invloved in the suit or who will be prejudiced by their not being joined as parties may, consistent with the principles of equity and justice, be added as parties. Thus, it all turns upon facts and circumstances of each case and demands of equity and justice having regard to the relevant procedural rule.
5. We, therefore, propose to notice whether the third party is interested in the result of the appeal, whether he will be prejudiced by his not being joined as a party, whether the provisions of the Code permit his joiner and circumstances of the case warrant the same.
6. Eluri Brahmanandam, who seeks to be added as a party, is no other than the 2nd defendant's daughter's son. The settlement deed, on the strength of which he has made his application was registered on May 17, 1960 when the suit for partitions still pending. The subject-matter of settlement is item 6 of the plaint schedule property, which was claimed in the suit to be the separate property of the settler and was eventually found so. It is plain the transfer was pendente lite and the right of the settlee pendente lite and the right of the settlee was therefore governed by the provisions of Section 52 of the Transfer of Property Act, which reads thus:
'During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable propertry is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose.
Explaination: For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force'.
7. It is manifest from the above provision that transfer of right or interest in the suit property effected by any of the parties to a suit during the tendency of the suit or proceeding, without the authority of the Court, shall not defeat the object or prevail over the result of the suit or proceeding. The case would be different if the suit or proceeding, during the pendency of which the transfer was effected, is collusive. No such limitation would then arise. It is also manifest that this provision in order to remove all uncertainly as to duration of the limitations placed on the right of the transferee, determines in no uncertain terms the duration of the suit or proceeding in the Explaination to that provision.
8. It is therefore clear that the settlement in favour of Eluri Brahmanandam, which was effected during the pendency of the suit, by reason of Section 52 of the Transfer Property Act, was subject to the final result of the suit. Bound as he was by the result of the suit it was open to the settlee to come record under O. 22, R. 10 C. P. C. with the leave of the Court, at any time till the final decree in the partition suit is passed and take part in the proceedings safeguarding the interests of the settlor under whom he claims title to the particular property. He did not apply to the trial Court to be made a party to the suit. He allowed the suit to continue as ever against his settlor alone and eventually a preliminary decree was passed, which was favourable to his interests. Obviously enough, he was entitled to the benefit thereof. There was no occasion for him therefore to carry the matter in appeal as a person claiming under the settlor. After the aggrieved party, i.e. the plaintiff, had gone in appeal, the dispute with regard to the right to the particular property was again at large. Thus, he was interested in the result of the appeal for the right that he got in the settled property was subject to the result of that appeal as well. The scope of Or. 22, Rule 10, C. P. C. is not wide enough so as to permit him to apply to be impleaded as a party in the appeal, because the transfer was not effected pending that proceedings but prior thereof. Nor does Order 22, Rule 11, C. P. C. which provides that in the application of O. 22, to appeals, so far as may be, the word 'suit' shall be held to include an appeal, can confer that right on him. But that does not mean that bound as he is by the result of the appeal, he is left without any remedy of safeguarding his interests. We have, already noticed that in the interests of justice, the Civil Procedure Code has sought to make provision in relation to various contingencies. We have, therefore, to examine what is the relevant provision applicable to this contigency. Order 1, Rule 10 and Section 146 are some of the other provisions where under third parties may come on record. Order 1, Rule 10 applies to suit but read with Section 107(2), C. P. C. may even be applicable to appeals:
9. Section 146, C. P. C., reads thus:-
'Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him'.
10. Two conditions are to be fulfilled before a proceeding be taken or an application be made by or against any person under Section 146, C. P. C. It is firstly essential that the Civil Procedure Code does not provide otherwise in any of its provisions. Then again, the person who seeks to make an application must be claiming under one who could make such application. If these two requirements are satisfied, the third party can apply for being brought on record in order that the appeal be continued against him. As declared by the Supreme Court in Saila Bala Dassi v. Nirmala Sundari Dassi, : [1958]1SCR1287 . Section 146 being a beneficent provision should be construed liberally so as to advance the cause of justice and not in a restricted or techniqual sense. There is little doubt that the settlor was a necessary party to the appeal. The settlee in relation to one of the suit items is her representative in interest. As such he claims that item of property under her. Under the provisions of Section 146, he can make an application to be brought on record so that the appeal may be continued against him. The only further requisite condition for the exercise of such a right is that the Code should not provide otherwise. The question that would arise then is whether any proivsion in the Code is expressly against or inconsistent with this procedural privilege. In this connection the only provision that requires to be examined or considered in that behalf is Order 41, Rule 20, C. P. C. It reads thus:
'Where it appears to the Court at the hearing that any person who was 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 is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent'.
11. This provision is concerned with a party to the suit who was not made a party to the appeal though interested in the result of the appeal. The Court then in exercise of its discretion may direct that he be made a respondent. Cases where the party sought to be impleaded in the appeal was not nomine a party to the suit are outside the pruview of this provision. So also are the cases where persons seek to be added as co-appellants. Indubitably the rule contained therein is based on the salutary principle that no person should be prejudiced by modification made behind his back in the decree on appeal. That rule being of universal application is wide in its scope and is not limited to the language of this provision. This provision having regard to its language being limited to only certain contingency, does not appear to be exclusive or exhaustive of the powers of the appellate Court in relation to appeals before it. Indeed there has been some divergence of views in this behalf. The conflict of decisions between the High Courts of Calcutta and Patna on one hand and the High Courts of Allahabad Bombay, Lahore and Rangoon on the other, seems to have been set at rest by the decision of the Federal Court in United Provinces v. Atiqa Begum. AIR 1941 FC 16. A Full Bench of the Punjab High Court in Notified Area Committee Buria v. Gobind Ram Lachhman Dass, (FB) has held interalia that apart from the provisions of Order 41, Rule 20 C. P.C. the appellate Court has inherent powers to permit parties to be added to appeals in in suitable cases and the language of Rule 20 of O. 41, is not exclusive or exhaustive so as to deprive the appellate Court of the inherent powers in this behalf. When once it is clear that Rule 20 of Order 41 is not exhaustive of the powers of the appelate Court for impleading or adding parities to the appeal, certainly powers under Order 1, Rule 10, C. P. C. read with Section 107(2), C. P. C., and under other appropriate provisions including Section 151, C. . C., in proper cases can be availed of even in appeals. a transferee during the pendency of an appeal can be added as party to the appeal under the express provisions of Order 22, Rule 10, C. P. C. That could not have been possible if Order 41, R 20 C. P. C. was intended to be exhaustive of the powers of the appellate Court. It is obvious that a person who was not eo nomine a party to the suit also can be added as a party to the appeal under the provisions of the Code. In other words, the Code permits such addition of parties. The transferee can, therefore, take benefit of Section 146 and apply to be brought on record, for such a course id not prohibited by any other provision of the Code.
In fact, in : [1958]1SCR1287 , where it was contended on behalf of the appellant that the application made to the appellate Court under Order 22. Rule 10, C. P. C. was unsustainable as the transfer in favour of the applicant had been made prior to the filing of the appeal and not during its pendency, the Supreme Court, having accepted this contention, observed that the application filed by the appellant fell within Section 146, C. P. C. and she was entitled to be brought on record under that Section. It is obvious that the appellant before the Supreme Court was not a party to the suit even though the transfer was made pending suit. The application was made pending appeal. Relying on Sitaramaswami v. Lakshmi Narasimha, ILR 41 Mad 510 = (AIR 1919 Mad 755 (2) ), it was held that appeal was proceeding for the purpose of the section. It was also held referring to the dictum in ILR 41 Mad 510 = (AIR 1955 SC 376), that the expression 'claiming under' is wide enough to include cases devolition and asssignment mentioned in Order 22, Rule 10, C. P. C. In view of this high authority it is clear that the application of this high authority it is clear that the application of the settlee to be brought on record is maintainable under Section 146, C. P. C. and the Court below has committed no error of law in entertaining this petition and granting the same.
12. It was argued that inasmuch as the plaintiff (appellant) and the 2nd defendant (settler) had filed a compromise memo adjusting their claims the Court had no power to consider the application of the third party and bring him no record as Rule 3 of Order 23 is mandatory in character and enjoins on the Court the duty of recording the compromise and passing a decree in terms thereof. In support of this contention reliance has been placed on (1951) 2 Mad LJ 26. That was a case where the transferee of the suit property from one of the parties to the suit between the date of the decree and the filing of the appeal to the District Court by the aggrieved party, had applied to be brought on record a day after the compromise memo filed by the parties to the appeal was recorded though the decree in terms was not passed immediately. The application of the transferee was resisted by all the parties to the appeal on the ground that the assignment was not true and further it was vitiated by fraud and collusion. The alienee was nevertheless directed to be impleaded as a party to the appeal. When the matter came up in appeal Chandra Reddy J. (as he then was) relying inter alia on the decisions in Laraiti v. Shiamsunmderlal, AIR 1932 All 478 and Setupathi v. Secy. of State, (1952) 50 Mad LJ 59 = AIR 1926 Mad 341 and distinguishing the ruling in Lakshan Chunder v. Nikunjamoni Dassi, AIR 1924 Cal 188 allowed the appeal and held that the alienee could not be impleaded as a party to the appeal after the compromise memo was recorded though his interests might be prejuidiced by the compromise reached between the parties. It was also observed that the inquiry into the genuineness and validity of the assignment was foreign to the scope of the appeal and could not, therefore be gone into.
13. Of course, in the case with which we are concerned, the memo of compromise was filed a day later and not earlier than the date of the petition of the alinee. It is therefore, obvious that on the date of the application the question whether there was a compromise in the appeal did not fall for consideration. It was subsequent thereto that the compromise memo was filed. No action was taken thereon by the Court. Having regard to the provisions of Rule 3 of Order 23, it is only where it is only where it is proved to the satisfaction of the Court that the suit or appeal has been adjusted by a lawful agreement or compromise that the Court has to record the said compromise. In other words, whether the compromise memo is lawful or not cannot be a mere matter of assumption. It is left to the satisfaction and decision of the Court after sue inquiry, if need be. So then the filing of the memo by itself does not warrant the recording of the compromise; much less passing a decree in terms of the compromise. There is still a long way off between the two stages. The petition filed earlier by the third party must necessarily receive prior consideration. The right to apply implies a right to have an ajudication on the application, for otherwise the right would be merely illusory or nugatory. Of course, the granting of leave by the Court for addition of the party is discretionary with the Court but it is a discretion which is to be exercised judicially after due consideration of all the circumstances of the case. It cannot be rejected in limine without consideration of the circumstances simply because a compromise memo has been filed sub- subsequnently. Nor can the petition be rejected simply on the ground that the transferor had denied the genuineness of the assignement or the parties' alleged fraud or collusion.
The language Order 22, Rule 10 places no such limitation that for its application, assignment creation or develutioin referred to therein should be an admitted or undisputed fact. It is always open to the Court, as held in Enday Ali v. Binodini. (1919) 29 Cal LJ 362 = (AIR 1919 Cal 323) and Surendra v. Niteyndra AIR 1926 Cal 173, to enquire into such dispute and pass the necessary order. The dictum of a Divisional Bench of the Madras High Court, consisting of Sundarem Chetty and Pandrang Row, JJ, in 66 Mad LJ 517 = (AIR 1934 Mad 337) also is to the same effect. Unfortunately that case was not brought to the notice of the learned Judge who decided, (1951) 2 Mad LJ 26. The ruling cited in the later case, referred to above, were considered by the said Division Bench. The learned Judges followed the decision in AIR 1924 Cal 188 (supra) in preference to the dictum in 50 Mad LJ 59 = (AIR 1926 Mad 341) (supra) and AIR 1932 All 478 (supra). In the above-mentioned Calcutta case even after the parties actually on record had reported the terms of settlement and the Court ordered that a decree should be drawn up accordingly, an assignee was added under Order 22, Rule 10, C. P. C. to enable him to impeach the settlement. On the question whether Order 22, Rule 10 is confined only to cases of undisputed assignment, creation or devolution of interest, the Division Bench, following the view taken in 29 Cal LJ 362 = (AIR 1919 Cal 323) and Surendra v. Nitendra, AIR 1926 Cal 173, observed that no such limitation is contained in that order. We believe that the view expressed in (1951) 2 Mad LJ 26 would not have been the same had this Divisional Bench case been brought to the notice of the learned Judge who decided that case.
14. In Nanjammal v. Eshwaramurthi, (1954) 1 Mad LJ 530 = (AIR 1954 Mad 592) a Divisional Bench of the Madras High Court, consisting of Satyanarayana Rao and Balakrishna Ayyar, JJ., held that the transferee pendenete lite on being brought on record as a party to the litiagation, is not bound by the compromise between his transferor and the opposite party and is entitiled to object to a decree being passed in terms of such a compromise. If the application to be brought on record is filed prior to the filing of the compromise memo, his right to object can in no way be defeated. Nor can the filing of compromise memo per se terminate the proceeding. It was also held that merely be because the settlement deed is disputed by one party or the other the jurisdiction of the Court to inquire the truth or genuineness of the deed is not taken away, nor can such inquiry be deemed to be foreign to the scope of appeal in which application is made. The learned Judges then practically overruled the decision in (1951) 2 Mad LJ 26 (supra) as being erroneous in law and referred to earlier cases in support of their dicta.
15. The view taken by this Court in : AIR1960AP32 accords with the settled view of the Madras High Court already discussed above. It has been held there that till a compromise decree is passed under O. 23, Rule 3, C. P. C., the litigation cannot be regarded to have terminated and an alienee pendente lite is entitled to object to a decree being passed under Order 23, Rule 3 in terms of compromise between the alineor and the opposite party after he is brought on record. With due deference to the learned Judge, we are of the view that (1951) 2 Mad LJ 26 (supra) was not correctly states the law consistent with the view taken by the earlier Division Benches on the points discussed above.
16. It folllows from the above discussion that the application of the settlee pendente lite was one under Section 146, C. P. C., that it could be entertained notwithstanding that the truth and validity of the settlement cannot be deemed to be foreign to the scope of the appeal, that filing of a compromise memo was no bar to entertaining the application or inquiry into its merits, that filing of a compromise per se does not terminate the proceedings before the appellate Court, that the petitioner who has filed his petition earlier than the compromise memo, has a right to object to the compromise and the Court has a duty to inquire into it once he is added as a party, that though addition as a party is discretionary with the Court, it is a discretion which is to be exercised judicially after duly considering the petition that the Court below did not err in entertaining the petition or deciding it on merits for the petitioner being made a party.
17. This Revision Petition, therefore, fails. It is dismissed with costs.
18. Petition dismissed.