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Report No. 54

Order 41, rule 20

41.58. As to Order 41, rule 20, the earlier Report1 on the Code discussed the controversy as to whether a respondent can be added in an appeal after the period of limitation for appeal had expired. The decisions on the subject will be found discussed in the under mentioned cases2-3.

Some of these decisions4 proceed on the inherent power of the court to add the respondent in such cases.

1. 27th Report, note on Order 41, rule 20.

2. P. Anandu v. M. Acharyulu, AIR 1958 AP 43 (FB).

3. Notified Area Committee, Burin v. Gobind Ram, AIR 1959 Punj 277 (278) (FB).

4. For example:

(a) Munshi Ram v. Abdul Aziz, AIR 1943 Lah 252.

(b) Pritam Ram v. Dhani Ram, AIR 1924 Pat 1773.

41.59. In a recent case1 the Andhra Pradesh High Court held that Order 41, rule 20, 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 appellate court can, then, in exercise of its discretion direct that he be made a respondent. This provision is only limited to certain contingencies. It was held:

"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 suitable cases and the language of rule 20 of Order 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 appellate court for impleading or adding parties 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.P.C. in proper cases can be availed of even in appeal.......It is obvious that a person who was not eo nomine a party to the such also can be added as a party to the appeal under the provisions of the Code".

1. Subbaraydu v. Brahmanandan, AIR 1970 AP 211 (215) (DB) following Notified Area Committee, Buria v. Gobind Ram, AIR 1959 Punj 277 (FB).

41.60. In this case it was, therefore, held that the court below did not err in permitting the petitioner to be made a party to the appeal who was a settle pendent lite of one of the items of suit property brought by the plaintiff and was a person interested in the results thereof.

41.61. In one Kerala case,1 the question raised was whether a party could be impleaded in the Civil Revision Petition after the expiry of the period prescribed for filing the petition. The Kerala High Court held that though the law of limitation does not apply to an addition of parties by the court of appeal under Order 41, rule 20 of the Code, yet the power under that provision is discretionary, and should not be exercised in all cases, for instance, where the party is extremely negligent. But if the court finds it necessary to bring a party upon the record of an appeal, in order to do justice between the parties, the court has ample power to do so irrespective of limitation, even in second appeal.

Even apart from the provisions of Order 41, rule 20, the High Court has power, under section 151 of the Code, to add a respondent to the appeal, even after the expiry of the period of limitation for the appeal against him, if in the circumstances of the case before it, it thinks fit to do so. The conditions to be satisfied before a party is impleaded under Order 41, rule 20 are in the first place, that the person must have been a party to the suit but not made party in the appeal, and secondly, that the person added is one interested in the result of the appeal. Once the impleadment is found necessary in the interests of justice, the question of limitation need not deter the court, because the necessity for the impleadment strikes the Court only at the time of hearing, and by that time, in most cases, the period allowed for filing the appeal or revision will be over.

1. Rugmani v. Chellappa Routher, 1969 Ker LT 789.

41.62. In the circumstances, the prayer for impleadment was allowed.

41.63. In one Punjab case,1 it was held that where a memorandum of appeal does not mention the name of a contesting party, and the mistake creeps in on account of the erroneous certified copies having been supplied by the court officials to the appellant, he should not be made to suffer on account of the mistake having been committed by some officer of the court in the discharge of his duties. It is quite apparent that the appellant or his counsel did not notice that error at the time when the appeal was filed, and the names of the parties in the memorandum of appeal had been mechanically copied out from those mentioned in the heading of the judgment of the trial court. The mistake on the part of the appellant or his counsel is, therefore, bona fide and honest, and the appellate court has ample power to allow the mistake to be rectified and the party added, even after the expiry of period of limitation for appeal.

1. Puran Singh v. Gehal Singh, ILR (1969) 2 Punj 369 (372), following Notified Area Committee, Burin v. Gobind Ram, AIR 1959 Punj 277 (FB).

41.64. In one Patna case1, the appeal was filed by an insolvent in time against one of the creditors. When the other two creditors were made parties to the appeal, the period of limitation under section 75(4) of the Provincial Insolvency Act had expired. It was held that under provisions of Order 41, rule 20, even at the time of hearing of appeal, the court could make persons interested in the result of the appeal party to the appeal, and the question of limitation would not arise in such cases.

1. Rameshwar Lal Agarwala v. Kuti Mian, 1969 Labour IC 790 (792) (Pat) quoted in the yearly Digest, (1969), Col 470.

41.65. In an Allahabad case1 under the U.P. Consolidation of Holdings Act, 1954 (Section 48), failure to implead necessary parties to appeal was held to be fatal. It was held that the court was not bound to have necessary parties brought on record.

1. 1966 All WR (HC) 138-Quoted in the Yearly Digest, (1968), p. 473.

41.66. It is obvious that the position is, to some extent, nebulous.1 The previous Commission did examine it and stated that the correct view is that after the period of limitation has expired against a party he ceases to be "interested in the appeal" within the meaning of rule 20, as interpreted by the Privy Council.2

1. 27th Report.

2. Chelalingam v. Scethai, ILR 6 Rang 29: AIR 1937 PC 252.

41.67. The previous Commission also noted that the question whether such a party can be impleaded under the inherent power of the Court, or whether a separate appeal can be filed against that respondent after obtaining leave of the Court under section 5, Limitation Act were (in the view of the Commission) different matters. The previous Commission considered it unnecessary to make any amendment to cover such cases.

41.68. We are, however, of the view that it would be better if the position as regards rule 20 is clarified, and we think that the restrictive view, namely, that a respondent cannot be added after expiry of the period of limitation, should be expressly enacted. At the same time the court should have powers to grant requests for, impleading a party after expiry of limitation for reasons to be recorded.


41.69. Accordingly, we recommend that the following sub-rule should be added1 in Order 41, rule 20-

"(2) No respondent shall be added under this rule after the expiry of the period of limitation for appeal, unless the court for reasons to be recorded, allows that to be done, on such terms as to costs, as it thinks fit".

1. Existing Order 41, rule 20, to be renumbered as Order 41, rule 20, sub-rule (1).

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