E. Madhavi Amma and ors. Vs. E. Indusekharan and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/721026
SubjectCivil
CourtKerala High Court
Decided OnJul-16-1992
Case NumberC.M.P. Nos. 1317 and 1318 of 1990 and 4069 of 1992 in M.F.A. No. 338 of 1987
Judge Varghese Kalliath and; P.K. Balasubramanyan, JJ.
Reported inAIR1992Ker390
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 1, Rule 10(5) - Order 41, Rule 20 and 20(2); Code of Civil Procedure (CPC) (Amendment) Act, 1976; Limitation Act, 1963 - Sections 21
AppellantE. Madhavi Amma and ors.
RespondentE. Indusekharan and ors.
Appellant Advocate P. Jayasankar,; C.K. Aravindaksha Menon and; V. Sankara
Respondent Advocate T.A. Narayanan Nair and; Gopal P., Advs.
Cases ReferredManohar Lal v. Seth Hiralal
Excerpt:
civil - inherent power - section 151, order 1 rule 10 (5) and order 41 rule 20 of code of civil procedure, 1908 - whether appellant court has jurisdiction to bring on record omitted party - when omission to implead party bona fide appellate court in exercise of its inherent powers under section 151 can add parties left out in appeal - by virtue of order 41 rule 20 (2) appellate court has power to add omitted party even after period of limitation in order to decide cause on merits. - - a caveat was filed by the third defendant in the proceeding and objections were filed by defendants 4 and 5 as well disputing the genuineness and the due execution of the will. it is significant and interesting to note that one of her legal representatives is the first respondent in the appeal himself and hence it could not be said that the estate of the first defendant went completely unrepresented in the appeal on her death. it is also interesting to note that the privy council itself observed in its judgment reported in air 1927 pc 252 at page 256 that: manohar lal, air 1971 sc 240, notices that 'the appellants have not shown any good ground for not impleading lt. is not exhaustive of the power of an appellate court to implead parties who have been left out under a bona fide mistake or for like other reasons. 21 of the limitation act says that it is done so that an omission to implead a person owing to a bona fide mistake does not deprive a person of his rights against that person if the court is satisfied in that behalf.balasubramanyan, j.1. c. m. p. no. 4069 of 1992 is only an application for amending c. m. p. no. 1318 of 1990 by including the names of the legal representatives sought to be impleaded in c. m. p. no. 1317 of 1990 and in the application c. m. p. no. 1318 of 1990 for condoning the delay as against them. it is stated that due to an inadvertent omission their names were not shown in c. m. p. no. 1318 of 1990. there is no reason not to accept the said submission and therefore c. m. p. no. 4069 of 1992 is only to be allowed. we allow that application.2. an appliction for probate was filed by the first respondent in the above appeal under section 276 of the succession act in respect of a will said to have been executed by one parameswara menon under which he was appointed the executor. a caveat was filed by the third defendant in the proceeding and objections were filed by defendants 4 and 5 as well disputing the genuineness and the due execution of the will. the proceedings thus became contentious proceedings within the meaning of rule 26 of the rules framed by the high court of kerala under the succession act. the application was therefore converted into a suit, o. s. 12 of 1983 on the file of the district court, ernakulam and tried us such. by judgment dated 30-1-1986 the 1st additional district judge, ernakulam granted probate to the first respondent herein, in terms of the act. being aggrieved by the said decision defendants 4 and 5 in the suit filed the above appeal. defendant no. 4 appellant no. 1, having died, his legal representatives have been impleaded as additional appellants 3 to 8 in the appeal.3. one e. parukutty amma, who was one of the legatees under the will was the first defendant in the suit. when the appeal was filed by defendants 4 and 5 in the suit challenging the decision of the trial court, the first defendant parukutty amma was omitted to be impleaded in the appeal. it appears that this fact of omission was discovered only when it was pointed out by counsel for the first respondent-plaintiff when the appeal came up for hearing. for, this is what the first respondent himself has stated in his counter affidavit to c. m. p. no. 1318 of 1990:'the counsel for the appellants realised the defect in the appeal only when the 1 st respondent's counsel pointed out that the appeal was not maintainable on the ground of non-impleadment of the 1st defendant. the above appeal first came up for hearing on 26-2-1990. at the time of argument the counsel for the 1st repondent pointed out that the appeal was not maintainable as the 1st defendant was not party in the appeal'.at this stage the appellants made two applications. m. p. no. 1317 of 1990 seeking to amend the memorandum of appeal by impleading additional respondents 10 to 14 in the appeal and c. m. p. no. 1318 of 1990 for condoning the delay in seeking to implead those persons. these applications are opposed by the first respondent the executor and the legal representatives of the deceased first defendant.4. the suit was decreed on 30-1-1986 and the appeal was filed in time on 15-12-1986. the appeal challenged the entire decree granted by the trial court. when the appeal was filed the first defendant parukutty amma who was omitted to be shown as one of the respondents in the appeal was alive. the appeal was defective for the non-impleading of parukutty amma and the defect obviously was due to an inadvertent omission on the part of counsel for the appellants to include her in the cause title of the memorandum of appeal as the appeal could not proceed without her. the question became complicated since the first defendant -- the omitted party -- died on 29-11-1988 before the defect of her non-impleading was discovered by the appellants. this necessitated not merely the joining of the first defendant as a party to the appeal, but also to bring on record her legal representatives. it is significant and interesting to note that one of her legal representatives is the first respondent in the appeal himself and hence it could not be said that the estate of the first defendant went completely unrepresented in the appeal on her death. whatever that be, the question that arises for considertion is as to whether this court has the jurisdiction or power to bring on record the omitted first defendant and thereafter to implead her legal representatives in the above appeal.on the facts as noted already it is not much in dispute that the original omission in impleading the first defendant was an inadvertent mistake on the part of counsel for the appellants who prepared and filed the above appeal.5. it is contended with a tenacity born of conviction by sri t. a. narayanan nair counsel for the first respondent ably supplemented by sri p. gopal, counsel for the ' legal representatives of the deceased first defendant, that this court has no jurisdiction to bring on record the deceased first defendant or to implead her legal representatives thereafter in view of her death,in the above appeal at this distance of time. it is their case that the first defendant not having been impleaded, the appeal was ill-constituted and there having been no appeal against the first defendant valuable rights have accrued to her, being one of the legatees under the will accepted by the trial court and that the said rights accrued to her cannot be divested by this court at this distance of time especially when she was already dead and what is now sought by the appellants is to bring on record her legal representatives. referring to the decisions of our court reported in gouri amma v. gopalakrishna panicker, 1966 ker lt 715, gopala pillai v. chellappan pillai, 1966 ker lt 1154 : (air 1966 kerala 317) and ammukutty amma v. madhavi amma, 1971 ker lt 50: (air 1971 kerala 90) (fb) the learned counsel contend that the appeal is ill-constituted as the first defendant was a necessary party to the appeal and without her on the party array a decree of reversal that could be passed by this court would lead to inconsistent decrees and hence the appeal could not be decided on the merits. it is the further submission of the learned counsel that the first defendant not being a person interested in the result of the appeal, not having been brought in the appeal originally and the appeal having become barred by limitation as against her, could not be impleaded by this court in exercise of its power under order 41 rule 20 of the civil p.c. for this proposition the learned counsel placed great reliance upon the decision of the privy council in chockalingam chetty v. seethai ache, air 1927 pc 252 wherein their lordships have stated thus:'a defendant against whom a suit has been dismissed and as against whom the right of appeal has become barred, cannot be deemed to be interested in the result of the appeal filed by the plaintiff against the other defendants. it is for the plaintiff appellant who applies to the court to exercise its powers under this rule to show what is the nature of the interest of such defendant'.the learned counsel also submits that this position has been accepted by the full bench in the decision reported in ammukutty amma v. madhavi amma, 1971 ker lt 50 : (air 1971 kerala 90). the position is further sought to be supported by reference to the decisions reported in surat singh v. manohar lal, air 1971 sc 240, vasant appanna mang v. gangadhar madhavrao inamdar, air 1983 noc 110 (kant) and the decision reported in paras ram v. ekling singhji (air 1985 raj 236).6. the scope of the decision of the privy council reported in air 1927 pc 252 has come up for consideration before various high courts in india. the decision has not been understood as laying down an absolute proposition that a defendant omitted from an appeal and not sought to be brought in before limitation can in no event be said to be interested in the result of the appeal. it has been observed that the question whether the omitted party would be a person interested in the result of the appeal would depend on the facts of the case and the nature of the reliefs claimed. in the decision reported in alabhai vajsurbhai v. bhura bhaya, air 1937 bom 401, a division bench of the bombay high court explained the decision reported in air 1927 pc 252. that court observed that 'the assumption that, that decision lays down an inflexible rule of interpretation of the expression 'interested in the result of the appeal'in order 41, rule 20, is erroneous'. it was further held that 'those remarks imply that the question whether the interest of the respondents, proposed to be added still survives in the appeal, must depend on the nature of the litigation, the decree passed, the subject-matter of the appeal and the effect of the decision in appeal in their absence.'7. similarly the madras high court in the decision reported in swaminatha v. gopalaswami, air 1937 mad 741 explaining the decision of the privy council stated:'granting therefore that the parties sought to be added are necessary, as distinguished from proper parties, we have no doubt whatever that order 41, rule 20, applies. a little reflection will show that mr. venkatrama sastri's contention cannot be correct, for as already observed, according to him no person against whom the right of appeal has become barred can ever be added as a respondent under this provision. if this argument be sound, order 41, rule 20 can never be brought into play; it must for all practical purposes remain a dead letter. it is difficult to conceive a case where the right of appeal does not become barred as against a party not impleaded by the time the appeal comes on for hearing; for, under the rule be it noted, the action to be taken is at the hearing of the appeal.'the view that the decision of the privy council cannot be taken as laying down that no person against whom the right of appeal has become barred can ever be added as a respondent under the provisions of order 41, rule 20, civil p.c. has also been adopted by the lahore high court in the decision reported in shanti lal v. firm hira lal sheo narain, air 1941 lahore 402 the nagpur high court in maruti v. khushalrao, air 1951 nag 415, the full bench of the punjab high court in the decision reported in notified area committee v. gobind ram, air 1959 punjab 277 and the jammu and kashmir high court in sham lal v. sultan, air 1961 j & k 9. the high court of punjab in the decision reported in air 1959 punjab 277 (fb) made an exhaustive survey of this question and answered the question posed before the full bench regarding the power of an appellate court to implead a party who had been left out from the array of parties at the time of filing the appeal as follows:'1. that, if a party to the original proceedings is not impleaded in appeal on account of a bona fide and honest mistake on the part of the appellant, the appellate court has ample powers under order xli, rule 20, civil p.c., to allow the mistake to be rectified and the party to be added;2. that, section 107(2) read with order 1, rule 10, civil p.c., enables the appellate court to add parties in appeals in suitable cases, but this power must be exercised within the period of limitation; and3. that, apart from the provisions of order xli, rule 20, civil p.c., the appellate court has inherent powers to permit parties to be added to appeals in suitable cases and the language of rule 20 of order xli is not exclusive or exhaustive so as to deprive the appellate court of the inherent powers in this respect.'the question was surveyed by a division bench of the jammu and kashmir high court in the decision reported in sham lal v. sultan, air 1961 j & k 9 and that court held that the court had power under order 41, rule 20 of the code to add a party who had been accidently left out at the time of filing the appeal. that court also held that even otherwise the appellate court has ample power under section 151 of the code to add an omitted party in circumstances arising out of mistake or bona fide omission. it is also interesting to note that the privy council itself observed in its judgment reported in air 1927 pc 252 at page 256 that:'assuming that under this rule the court in a proper case might add a defendant as respondent for the purpose of passing a decree against him, their lordships see no sufficient reason for interfering with the refusal of the appellate court to do so in this instance.'thereby indicating that what was laid down therein was not intended to be an absolute rule to cover all the cases.8. but the high court of andhra pradesh in the decision reported in p. anandu v. acharyulu, air 1958 andh pra 743 (fb) has taken the view that the interest of the omitted party in the appeal must be determined with reference to a time when he is not brought on record and it cannot be posited that such a respondent continues to have any interest in the appeal if the decree in his favour had become final by reason of an appeal not having been presented against it. but it may be noted that the said decision proceeded to point out that in that case the appeal as originally brought related only to the properties included in 'a' schedule to that plaint in which the persons who were sought to be later made parties to the appeal had no interest at all and they had also not been impleaded. it was in such a situation that the full bench held that the parties therein concerned cannot be said to be interested in the result of the appeal which did not pertain to the property in which they had claimed an interest. the full bench had taken the view that the inherent power of the court cannot be invoked in a case where the provisions of order 41, rule 20 of the civil p.c. in terms did not apply. but it does not appear that the observations of mr. justice sulaiman in united provinces v. atiqa begum, air 1941 fc 16 was brought to their lordships' notice in that decision. that apart, in the light of the various other aspects pointed out in this order, we are not inclined to fully agree with the view of the andhra pradesh high court that order 41, rule 20 of the civil p.c. is exhaustive of the powers of an appellate court in the matter of impleading respondents to an appeal who had been omitted to be impleaded at the inception. we are also of the view that an originally omitted party can never be considered to be interested in the result of the appeal against the others cannot be accepted without qualification.9. it remains now to notice the other decisions referred to by the learned counsel. in the decision reported in ammukutty amma v. madhavi amma, 1971 ker lt 50 : (air 1971 ker 90) the full bench after quoting the passage from the decision reported in air 1927 pc 252 concluded by stating :'counsel for the appellant has not been able to show why we should exercise our discretion in favour of the appellant to deprive valuable rights which have accrued to defendants 2 and 4 to 8 in the suit. we do not think that this is a fit case, even assuming that we have power to implead the new parties, to allow the appellant to implead fresh parties at this stage.'the main question that arose in that decision was whether the appeal in that case was properly constituted. there is also no independent discussion of the question falling for decision in this case. it has also not been laid down by the full bench that the appellate court has no power outside order 41, rule 20 of the civil p.c. to implead a party in the appeal which is defective for want of implead-ing of a party.10. the decision reported in surat singh v. manohar lal, air 1971 sc 240, notices that 'the appellants have not shown any good ground for not impleading lt. col. yadav as a party in the appeal. today an application has been filed for impleading him as a party-respondent in the appeal. it is a highly belated application. on their own showing it is clear that the appellant did not act with due diligence. we do not think that we should entertain that application'. it cannot be said that this decision is an authority for the proposition that a party left out cannot be impleaded in the appeal at a later stage or that it is a decision explaining the scope of order 41, rule 20 of the civil p.c.11. the decision reported in air 1985 raj 236 has merely followed the decision of the privy council and that of the andhra pradesh high court referred to earlier. it has also not discussed the views of the other high courts on the scope of the decision of the privy council reported in air 1927 pc 252. no further reasons are also given in that decision in support of the view expressed therein.12. that a party in whose favour there is a decree is a necessary party to the appeal by the defendant who challenges the whole decree cannot be in dispute. the non-impleading of such a party would disable the appellate court to reverse or modify the decree of the trial court in view of the fact that the decree has become final as against the non-implead-ed party and a modification may result in conflicting decrees being passed in the same litigation. where an appellate court finds that a party has been omitted to be impleaded under a bona fide mistake and the cause cannot be decided without that party before the court and the interests of justice warrant an adjudication on the merits then the appellate court draws its power under order 41, rule 20 of the civil p.c. to implead the omitted party so as to do justice between the parties. in this context, to say that a party who is not impleaded is not a person interested in the appeal and to further say that the power under order 41, rule 20 of the civil p.c. cannot be exercised would be really self-defeating, as that would amount to really penalising an appellant for a bona fide mistake committed by him or by his counsel or which may even arise out of a mistake of the lower court in drawing up the decree. under these circum-stances it does not appear to us to be just or proper to asusme that the privy council, would have intended to lay down as an absolute proposition that in no case a party who is left out and who has not been impleaded in an appeal within time could be said to be interested in the outcome of the appeal.13. that in the absence of the first defendant, the appeal could not proceed and would be defective cannot be in dispute in the light of the decisions of the supreme court in state of punjab v. nathu ram, air 1962 sc 89 and rameshwar prasad v. shambehari lal jagannath, air 1963 sc 1901. that this situation has arisen in the present case due to a bona fide omission on the part of counsel for the appellants cannot be ignored. going by the submission of the learned counsel for the respondents it would mean that order 41, rule 20 of the civil p.c. does not cover the situation on hand because according to him the first defendant is not a party interested in the outcome of the appeal in the light of the decisions referred to by him. this aspect has already been dealt with. even if the position is as canvassed for by the respondents, this court can and ought to look outside order 41, rule 20 of the civil p.c. to see whether there is any power in the court to implead the deceased first defendant and on her death her legal representatives in the above appeal. that such a power can be exercised by an appellate court is clear from the decision of the federal court reported in united pro-vincices v. atiqa begum, air 1941 fc 16, where discussing the power of the court to pass the order for impleading, mr. justice sulaiman observed:'it is contended before us that the powers of an appellate court are restricted within the limits imposed by order 41, rule 20, and that the same restriction is imposed on a court hearing a second appeal under order 42, civil p.c. that rule no doubt permits of making a person respondent, who was a party to the suit in the original court, and who has not been made a party to the appeal, but is interested in the result of the appeal. obviously, this rule would not apply to the present case. but the language of the rule does not show that it is exclusive or exhaustive so as to deprive a cout of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by section 151, civil p.c. as the hon'ble supreme court has observed in manohar lal v. seth hiralal, air 1962 sc 527, in areas not specifically covered by the provisions of the code, the inherent power of the court is not taken away. if that be so, as observed by his lordship mr. justice sulaiman, the appellate court can in a case of this nature travel outside order 41, rule 20 of the civil p.c. in cases not covered by that rule and exercise its discretion to implead the omitted party or as in this case the legal representatives of the omitted party to the appeal and there is nothing in the decision of the privy council or of the full bench of this court referred to earlier which can stand in the way of such an exercise of power.14. this view has been adopted also by the decisions referred to earlier and the said decisions have held that the powers of the court under order 41, rule 20 of the civil p.c. is not exhaustive of the power of an appellate court to implead parties who have been left out under a bona fide mistake or for like other reasons. in fact in the decision reported in air 1951 nagpur 415 the omission to join a party as respondent in the appeal was due to a bona fide mistake as in the present case and the nagpur high court held that in such circumstances the appellate court in the exercise of its inherent powers under section 151 of the civil p.c. can add parties left out in the appeal. similarly a bona fide omission to implead in the appeal due to an error in the drafting of the decree of the court below was held not to preclude the appellate court from exercising its inherent power to add as party the persons so left out while filing the appeal even after the period of limitation. see air 1961 j & k 9. there is no absolute rule propounded by the privy council that the party left out due to a bona fide mistake and in fact who was intended to be made a party to the appeal, cannot be said to be a person who is interested in the result of the appeal as the appeal is intended to be filed against the whole decree including a challenge to the interest of the person who has been omitted to be included. as pointed out already in the case on hand, the omission to implead the first defendant was due to a bona fide error on the part of counsel for the appellants at the time of drafting and filing the appeal and it was not the intention to leave out the first defendant from the appeal or not to challenge the decree as against the first defendant especially in view of the fact that the decree proceeded on a ground common to all the defendants including the first defendant, namely, the acceptance of the due execution of the will under which the first defendant was also a legatee with the others.15. the addition of sub-rule (2) to order 41, rule 20 of the civil p.c. by the amendment of the code in the year 1976 makes it clear that the appellate court has the power to add a party who has been omitted in the appeal even after the period of limitation, once he is shown to be a person coming within order 41, rule 20 of the civil p.c. if the decision of the privy council is taken to lay down an absolute proposition that a party who has been left out and in whose favour the period of limitation for the appeal had expired cannot be said to be a party interested in the result of the appeal filed against the other defendants is pushed to its logical conclusion, sub-rule (2) added by the 1976 amendment itself would become otiose. sub-rule(2) demonstrates that the court retains the power to implead a party who will be interested in the outcome of the appeal even after the period of limitation provided reasons are available and the court records them. it appears to us that the proviso adopts the view that is discernible from the decisions of the madras, bombay, punjab, and jammu and kashmir high courts. it also appears to us that sub-rule (2) of order 41, rule 20 of the civil p.c. is incorporated so as to put it beyond doubt that notwithstanding the fact that the appeal against an omitted party has become barred by limitation the court has still the power on cause being shown to implead him in appeal so as to bring about an adjudication of the cause on the merits. the argument therefore that 'a person who is left out can never be a party interested in the outcome of the appeal cannot be accepted without qualification.16. this approach is also supported by the proviso to section 21 of the limitation act, 1963 read with order 1, rule 10(5) of the civil p.c. which gives a discretion to the court while impleading a party to treat the party as having been impleaded within the period of limitation notwithstanding the fact that the real impleading is done beyond the period of limitation. the objects and reasons for the insertion of the proviso to sec. 21 of the limitation act says that it is done so that an omission to implead a person owing to a bona fide mistake does not deprive a person of his rights against that person if the court is satisfied in that behalf. the developing concept of justice is to give the courts wider powers to get over the procedural bottlenecks so as to enable the court to do real justice between the parties in a cause. this broader approach would certainly be stultified by putting undue restrictions on the power of the appellate court to implead the absolutely necessary parties so as to enable it to decide the cause on the merits.17. in the light of our conclusion that the court has the power to implead a person left out originally, we hold that c.m.p. no. 1317 of 1990 and c.m.p. no. 1318 of 1990 are maintainable. we have already noticed that the omission to implead the first defendant was due to a bona fide omission on the part of counsel. the first defendant having died her legal representatives are sought to be impleaded. they have to be impleaded in addition to recording respondent no. 1 also as one of the legal representatives of deceased defendant. in the circumstances of the case we find that both the applications deserve to to be allowed.in the result all the applications are allowed as prayed for. the appeal will now be posted for hearing.
Judgment:

Balasubramanyan, J.

1. C. M. P. No. 4069 of 1992 is only an application for amending C. M. P. No. 1318 of 1990 by including the names of the legal representatives sought to be impleaded in C. M. P. No. 1317 of 1990 and in the application C. M. P. No. 1318 of 1990 for condoning the delay as against them. It is stated that due to an inadvertent omission their names were not shown in C. M. P. No. 1318 of 1990. There is no reason not to accept the said submission and therefore C. M. P. No. 4069 of 1992 is only to be allowed. We allow that application.

2. An appliction for probate was filed by the first respondent in the above appeal under Section 276 of the Succession Act in respect of a Will said to have been executed by one Parameswara Menon under which he was appointed the Executor. A caveat was filed by the third defendant in the proceeding and objections were filed by defendants 4 and 5 as well disputing the genuineness and the due execution of the Will. The proceedings thus became contentious proceedings within the meaning of Rule 26 of the Rules framed by the High Court of Kerala under the Succession Act. The application was therefore converted into a suit, O. S. 12 of 1983 on the file of the District Court, Ernakulam and tried us such. By Judgment dated 30-1-1986 the 1st Additional District Judge, Ernakulam granted probate to the first respondent herein, in terms of the Act. Being aggrieved by the said decision defendants 4 and 5 in the suit filed the above appeal. Defendant No. 4 Appellant No. 1, having died, his legal representatives have been impleaded as Additional Appellants 3 to 8 in the appeal.

3. One E. Parukutty Amma, who was one of the legatees under the Will was the first defendant in the suit. When the appeal was filed by defendants 4 and 5 in the suit challenging the decision of the trial court, the first defendant Parukutty Amma was omitted to be impleaded in the appeal. It appears that this fact of omission was discovered only when it was pointed out by counsel for the first respondent-plaintiff when the appeal came up for hearing. For, this is what the first respondent himself has stated in his counter affidavit to C. M. P. No. 1318 of 1990:

'The counsel for the appellants realised the defect in the appeal only when the 1 st respondent's counsel pointed out that the appeal was not maintainable on the ground of non-impleadment of the 1st defendant. The above appeal first came up for hearing on 26-2-1990. At the time of argument the counsel for the 1st repondent pointed out that the appeal was not maintainable as the 1st defendant was not party in the appeal'.

At this stage the appellants made two applications. M. P. No. 1317 of 1990 seeking to amend the Memorandum of Appeal by impleading additional respondents 10 to 14 in the appeal and C. M. P. No. 1318 of 1990 for condoning the delay in seeking to implead those persons. These applications are opposed by the first respondent the executor and the legal representatives of the deceased first defendant.

4. The suit was decreed on 30-1-1986 and the appeal was filed in time on 15-12-1986. The appeal challenged the entire decree granted by the trial court. When the appeal was filed the first defendant Parukutty Amma who was omitted to be shown as one of the respondents in the appeal was alive. The appeal was defective for the non-impleading of Parukutty Amma and the defect obviously was due to an inadvertent omission on the part of counsel for the appellants to include her in the cause title of the Memorandum of Appeal as the appeal could not proceed without her. The question became complicated since the first defendant -- the omitted party -- died on 29-11-1988 before the defect of her non-impleading was discovered by the appellants. This necessitated not merely the joining of the first defendant as a party to the appeal, but also to bring on record her legal representatives. It is significant and interesting to note that one of her legal representatives is the first respondent in the appeal himself and hence it could not be said that the estate of the first defendant went completely unrepresented in the appeal on her death. Whatever that be, the question that arises for considertion is as to whether this court has the jurisdiction or power to bring on record the omitted first defendant and thereafter to implead her legal representatives in the above appeal.On the facts as noted already it is not much in dispute that the original omission in impleading the first defendant was an inadvertent mistake on the part of counsel for the appellants who prepared and filed the above appeal.

5. It is contended with a tenacity born of conviction by Sri T. A. Narayanan Nair counsel for the first respondent ably supplemented by Sri P. Gopal, counsel for the ' legal representatives of the deceased first defendant, that this court has no jurisdiction to bring on record the deceased first defendant or to implead her legal representatives thereafter in view of her death,in the above appeal at this distance of time. It is their case that the first defendant not having been impleaded, the appeal was ill-constituted and there having been no appeal against the first defendant valuable rights have accrued to her, being one of the legatees under the will accepted by the trial court and that the said rights accrued to her cannot be divested by this court at this distance of time especially when she was already dead and what is now sought by the appellants is to bring on record her legal representatives. Referring to the decisions of our court reported in Gouri Amma v. Gopalakrishna Panicker, 1966 Ker LT 715, Gopala Pillai v. Chellappan Pillai, 1966 Ker LT 1154 : (AIR 1966 Kerala 317) and Ammukutty Amma v. Madhavi Amma, 1971 Ker LT 50: (AIR 1971 Kerala 90) (FB) the learned counsel contend that the appeal is ill-constituted as the first defendant was a necessary party to the appeal and without her on the party array a decree of reversal that could be passed by this court would lead to inconsistent decrees and hence the appeal could not be decided on the merits. It is the further submission of the learned counsel that the first defendant not being a person interested in the result of the appeal, not having been brought in the appeal originally and the appeal having become barred by limitation as against her, could not be impleaded by this court in exercise of its power under Order 41 Rule 20 of the Civil P.C. For this proposition the learned counsel placed great reliance upon the decision of the Privy Council in Chockalingam Chetty v. Seethai Ache, AIR 1927 PC 252 wherein their Lordships have stated thus:

'A defendant against whom a suit has been dismissed and as against whom the right of appeal has become barred, cannot be deemed to be interested in the result of the appeal filed by the plaintiff against the other defendants. It is for the plaintiff appellant who applies to the court to exercise its powers under this Rule to show what is the nature of the interest of such defendant'.

The learned counsel also submits that this position has been accepted by the Full Bench in the decision reported in Ammukutty Amma v. Madhavi Amma, 1971 Ker LT 50 : (AIR 1971 Kerala 90). The position is further sought to be supported by reference to the decisions reported in Surat Singh v. Manohar Lal, AIR 1971 SC 240, Vasant Appanna Mang v. Gangadhar Madhavrao Inamdar, AIR 1983 NOC 110 (Kant) and the decision reported in Paras Ram v. Ekling Singhji (AIR 1985 Raj 236).

6. The scope of the decision of the Privy Council reported in AIR 1927 PC 252 has come up for consideration before various High Courts in India. The decision has not been understood as laying down an absolute proposition that a defendant omitted from an appeal and not sought to be brought in before limitation can in no event be said to be interested in the result of the appeal. It has been observed that the question whether the omitted party would be a person interested in the result of the appeal would depend on the facts of the case and the nature of the reliefs claimed. In the decision reported in Alabhai Vajsurbhai v. Bhura Bhaya, AIR 1937 Bom 401, a Division Bench of the Bombay High Court explained the decision reported in AIR 1927 PC 252. That court observed that 'the assumption that, that decision lays down an inflexible rule of interpretation of the expression 'interested in the result of the appeal'in Order 41, Rule 20, is erroneous'. It was further held that 'those remarks imply that the question whether the interest of the respondents, proposed to be added still survives in the appeal, must depend on the nature of the litigation, the decree passed, the subject-matter of the appeal and the effect of the decision in appeal in their absence.'

7. Similarly the Madras High Court in the decision reported in Swaminatha v. Gopalaswami, AIR 1937 Mad 741 explaining the decision of the Privy Council stated:

'Granting therefore that the parties sought to be added are necessary, as distinguished from proper parties, we have no doubt whatever that Order 41, Rule 20, applies. A little reflection will show that Mr. Venkatrama Sastri's contention cannot be correct, for as already observed, according to him no person against whom the right of appeal has become barred can ever be added as a respondent under this provision. If this argument be sound, Order 41, Rule 20 can never be brought into play; it must for all practical purposes remain a dead letter. It is difficult to conceive a case where the right of appeal does not become barred as against a party not impleaded by the time the appeal comes on for hearing; for, under the Rule be it noted, the action to be taken is at the hearing of the appeal.'

The view that the decision of the Privy Council cannot be taken as laying down that no person against whom the right of appeal has become barred can ever be added as a respondent under the provisions of Order 41, Rule 20, Civil P.C. has also been adopted by the Lahore High Court in the decision reported in Shanti Lal v. Firm Hira Lal Sheo Narain, AIR 1941 Lahore 402 the Nagpur High Court in Maruti v. Khushalrao, AIR 1951 Nag 415, the Full Bench of the Punjab High Court in the decision reported in Notified Area Committee v. Gobind Ram, AIR 1959 Punjab 277 and the Jammu and Kashmir High Court in Sham Lal v. Sultan, AIR 1961 J & K 9. The High Court of Punjab in the decision reported in AIR 1959 Punjab 277 (FB) made an exhaustive survey of this question and answered the question posed before the Full Bench regarding the power of an Appellate Court to implead a party who had been left out from the array of parties at the time of filing the appeal as follows:

'1. that, if a party to the original proceedings is not impleaded in appeal on account of a bona fide and honest mistake on the part of the appellant, the appellate Court has ample powers under Order XLI, Rule 20, Civil P.C., to allow the mistake to be rectified and the party to be added;

2. that, Section 107(2) read with Order 1, Rule 10, Civil P.C., enables the appellate Court to add parties in appeals in suitable cases, but this power must be exercised within the period of limitation; and

3. that, apart from the provisions of Order XLI, Rule 20, Civil P.C., the appellate Court has inherent powers to permit parties to be added to appeals in suitable cases and the language of Rule 20 of Order XLI is not exclusive or exhaustive so as to deprive the appellate Court of the inherent powers in this respect.'

The question was surveyed by a Division Bench of the Jammu and Kashmir High Court in the decision reported in Sham Lal v. Sultan, AIR 1961 J & K 9 and that court held that the court had power under Order 41, Rule 20 of the Code to add a party who had been accidently left out at the time of filing the appeal. That court also held that even otherwise the Appellate Court has ample power under Section 151 of the Code to add an omitted party in circumstances arising out of mistake or bona fide omission. It is also interesting to note that the Privy Council itself observed in its judgment reported in AIR 1927 PC 252 at page 256 that:

'Assuming that under this rule the court in a proper case might add a defendant as respondent for the purpose of passing a decree against him, their Lordships see no sufficient reason for interfering with the refusal of the appellate Court to do so in this instance.'

thereby indicating that what was laid down therein was not intended to be an absolute rule to cover all the cases.

8. But the High Court of Andhra Pradesh in the decision reported in P. Anandu v. Acharyulu, AIR 1958 Andh Pra 743 (FB) has taken the view that the interest of the omitted party in the appeal must be determined with reference to a time when he is not brought on record and it cannot be posited that such a respondent continues to have any interest in the appeal if the decree in his favour had become final by reason of an appeal not having been presented against it. But it may be noted that the said decision proceeded to point out that in that case the appeal as originally brought related only to the properties included in 'A' schedule to that plaint in which the persons who were sought to be later made parties to the appeal had no interest at all and they had also not been impleaded. It was in such a situation that the Full Bench held that the parties therein concerned cannot be said to be interested in the result of the appeal which did not pertain to the property in which they had claimed an interest. The Full Bench had taken the view that the inherent power of the court cannot be invoked in a case where the provisions of Order 41, Rule 20 of the Civil P.C. in terms did not apply. But it does not appear that the observations of Mr. Justice Sulaiman in United Provinces v. Atiqa Begum, AIR 1941 FC 16 was brought to their Lordships' notice in that decision. That apart, in the light of the various other aspects pointed out in this order, we are not inclined to fully agree with the view of the Andhra Pradesh High Court that Order 41, Rule 20 of the Civil P.C. is exhaustive of the powers of an Appellate Court in the matter of impleading respondents to an appeal who had been omitted to be impleaded at the inception. We are also of the view that an originally omitted party can never be considered to be interested in the result of the appeal against the others cannot be accepted without qualification.

9. It remains now to notice the other decisions referred to by the learned counsel. In the decision reported in Ammukutty Amma v. Madhavi Amma, 1971 Ker LT 50 : (AIR 1971 Ker 90) the Full Bench after quoting the passage from the decision reported in AIR 1927 PC 252 concluded by stating :

'Counsel for the appellant has not been able to show why we should exercise our discretion in favour of the appellant to deprive valuable rights which have accrued to defendants 2 and 4 to 8 in the suit. We do not think that this is a fit case, even assuming that we have power to implead the new parties, to allow the appellant to implead fresh parties at this stage.'

The main question that arose in that decision was whether the appeal in that case was properly constituted. There is also no independent discussion of the question falling for decision in this case. It has also not been laid down by the Full Bench that the Appellate Court has no power outside Order 41, Rule 20 of the Civil P.C. to implead a party in the appeal which is defective for want of implead-ing of a party.

10. The decision reported in Surat Singh v. Manohar Lal, AIR 1971 SC 240, notices that 'the appellants have not shown any good ground for not impleading Lt. Col. Yadav as a party in the appeal. Today an application has been filed for impleading him as a party-respondent in the appeal. It is a highly belated application. On their own showing it is clear that the appellant did not act with due diligence. We do not think that we should entertain that application'. It cannot be said that this decision is an authority for the proposition that a party left out cannot be impleaded in the appeal at a later stage or that it is a decision explaining the scope of Order 41, Rule 20 of the Civil P.C.

11. The decision reported in AIR 1985 Raj 236 has merely followed the decision of the Privy Council and that of the Andhra Pradesh High Court referred to earlier. It has also not discussed the views of the other High Courts on the scope of the decision of the Privy Council reported in AIR 1927 PC 252. No further reasons are also given in that decision in support of the view expressed therein.

12. That a party in whose favour there is a decree is a necessary party to the appeal by the defendant who challenges the whole decree cannot be in dispute. The non-impleading of such a party would disable the Appellate Court to reverse or modify the decree of the trial Court in view of the fact that the decree has become final as against the non-implead-ed party and a modification may result in conflicting decrees being passed in the same litigation. Where an Appellate Court finds that a party has been omitted to be impleaded under a bona fide mistake and the cause cannot be decided without that party before the Court and the interests of justice warrant an adjudication on the merits then the Appellate Court draws its power under Order 41, Rule 20 of the Civil P.C. to implead the omitted party so as to do justice between the parties. In this context, to say that a party who is not impleaded is not a person interested in the appeal and to further say that the power under Order 41, Rule 20 of the Civil P.C. cannot be exercised would be really self-defeating, as that would amount to really penalising an appellant for a bona fide mistake committed by him or by his counsel or which may even arise out of a mistake of the lower Court in drawing up the decree. Under these circum-stances it does not appear to us to be just or proper to asusme that the Privy Council, would have intended to lay down as an absolute proposition that in no case a party who is left out and who has not been impleaded in an appeal within time could be said to be interested in the outcome of the appeal.

13. That in the absence of the first defendant, the appeal could not proceed and would be defective cannot be in dispute in the light of the decisions of the Supreme Court in State of Punjab v. Nathu Ram, AIR 1962 SC 89 and Rameshwar Prasad v. Shambehari Lal Jagannath, AIR 1963 SC 1901. That this situation has arisen in the present case due to a bona fide omission on the part of counsel for the appellants cannot be ignored. Going by the submission of the learned counsel for the respondents it would mean that Order 41, Rule 20 of the Civil P.C. does not cover the situation on hand because according to him the first defendant is not a party interested in the outcome of the appeal in the light of the decisions referred to by him. This aspect has already been dealt with. Even if the position is as canvassed for by the respondents, this Court can and ought to look outside Order 41, Rule 20 of the Civil P.C. to see whether there is any power in the Court to implead the deceased first defendant and on her death her legal representatives in the above appeal. That such a power can be exercised by an appellate Court is clear from the decision of the Federal Court reported in United Pro-vincices v. Atiqa Begum, AIR 1941 FC 16, where discussing the power of the Court to pass the order for impleading, Mr. Justice Sulaiman observed:

'It is contended before us that the powers of an appellate Court are restricted within the limits imposed by Order 41, Rule 20, and that the same restriction is imposed on a Court hearing a second appeal under Order 42, Civil P.C. That rule no doubt permits of making a person respondent, who was a party to the suit in the original Court, and who has not been made a party to the appeal, but is interested in the result of the appeal. Obviously, this rule would not apply to the present case. But the language of the rule does not show that it is exclusive or exhaustive so as to deprive a Cout of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by Section 151, Civil P.C. As the Hon'ble Supreme Court has observed in Manohar Lal v. Seth Hiralal, AIR 1962 SC 527, in areas not specifically covered by the provisions of the Code, the inherent power of the Court is not taken away. If that be so, as observed by His Lordship Mr. Justice Sulaiman, the Appellate Court can in a case of this nature travel outside Order 41, Rule 20 of the Civil P.C. in cases not covered by that rule and exercise its discretion to implead the omitted party or as in this case the legal representatives of the omitted party to the appeal and there is nothing in the decision of the Privy Council or of the Full Bench of this Court referred to earlier which can stand in the way of such an exercise of power.

14. This view has been adopted also by the decisions referred to earlier and the said decisions have held that the powers of the Court under Order 41, Rule 20 of the Civil P.C. is not exhaustive of the power of an Appellate Court to implead parties who have been left out under a bona fide mistake or for like other reasons. In fact in the decision reported in AIR 1951 Nagpur 415 the omission to join a party as respondent in the appeal was due to a bona fide mistake as in the present case and the Nagpur High Court held that in such circumstances the Appellate Court in the exercise of its inherent powers under Section 151 of the Civil P.C. can add parties left out in the appeal. Similarly a bona fide omission to implead in the appeal due to an error in the drafting of the decree of the Court below was held not to preclude the Appellate Court from exercising its inherent power to add as party the persons so left out while filing the appeal even after the period of limitation. See AIR 1961 J & K 9. There is no absolute rule propounded by the Privy Council that the party left out due to a bona fide mistake and in fact who was intended to be made a party to the appeal, cannot be said to be a person who is interested in the result of the appeal as the appeal is intended to be filed against the whole decree including a challenge to the interest of the person who has been omitted to be included. As pointed out already in the case on hand, the omission to implead the first defendant was due to a bona fide error on the part of counsel for the appellants at the time of drafting and filing the appeal and it was not the intention to leave out the first defendant from the appeal or not to challenge the decree as against the first defendant especially in view of the fact that the decree proceeded on a ground common to all the defendants including the first defendant, namely, the acceptance of the due execution of the will under which the first defendant was also a legatee with the others.

15. The addition of Sub-rule (2) to Order 41, Rule 20 of the Civil P.C. by the amendment of the Code in the year 1976 makes it clear that the Appellate Court has the power to add a party who has been omitted in the appeal even after the period of limitation, once he is shown to be a person coming within Order 41, Rule 20 of the Civil P.C. If the decision of the Privy Council is taken to lay down an absolute proposition that a party who has been left out and in whose favour the period of limitation for the appeal had expired cannot be said to be a party interested in the result of the appeal filed against the other defendants is pushed to its logical conclusion, Sub-rule (2) added by the 1976 amendment itself would become otiose. Sub-rule(2) demonstrates that the Court retains the power to implead a party who will be interested in the outcome of the appeal even after the period of limitation provided reasons are available and the Court records them. It appears to us that the proviso adopts the view that is discernible from the decisions of the Madras, Bombay, Punjab, and Jammu and Kashmir High Courts. It also appears to us that Sub-rule (2) of Order 41, Rule 20 of the Civil P.C. is incorporated so as to put it beyond doubt that notwithstanding the fact that the appeal against an omitted party has become barred by limitation the court has still the power on cause being shown to implead him in appeal so as to bring about an adjudication of the cause on the merits. The argument therefore that 'a person who is left out can never be a party interested in the outcome of the appeal cannot be accepted without qualification.

16. This approach is also supported by the proviso to Section 21 of the Limitation Act, 1963 read with Order 1, Rule 10(5) of the Civil P.C. which gives a discretion to the Court while impleading a party to treat the party as having been impleaded within the period of limitation notwithstanding the fact that the real impleading is done beyond the period of limitation. The objects and reasons for the insertion of the proviso to Sec. 21 of the Limitation Act says that it is done so that an omission to implead a person owing to a bona fide mistake does not deprive a person of his rights against that person if the Court is satisfied in that behalf. The developing concept of justice is to give the Courts wider powers to get over the procedural bottlenecks so as to enable the Court to do real justice between the parties in a cause. This broader approach would certainly be stultified by putting undue restrictions on the power of the Appellate Court to implead the absolutely necessary parties so as to enable it to decide the cause on the merits.

17. In the light of our conclusion that the Court has the power to implead a person left out originally, we hold that C.M.P. No. 1317 of 1990 and C.M.P. No. 1318 of 1990 are maintainable. We have already noticed that the omission to implead the first defendant was due to a bona fide omission on the part of counsel. The first defendant having died her legal representatives are sought to be impleaded. They have to be impleaded in addition to recording respondent No. 1 also as one of the legal representatives of deceased defendant. In the circumstances of the case we find that both the applications deserve to to be allowed.

In the result all the applications are allowed as prayed for. The Appeal will now be posted for hearing.