Case Note & Summary
The case involves a second appeal filed by the appellants, who claimed to be the defendants in Regular Civil Suit No.54/2001. However, upon examination of the record, the High Court found that the appellants were not the defendants in the original suit. The suit was filed by the respondent (Shiva Yeshwant Parab Gaunkar) against certain named defendants, and the appellants were not among them. The suit was decreed ex parte against the defendants. The appellants, who were not parties to the suit, filed a second appeal challenging the decree. The core legal issue was whether the appellants, as non-parties, could maintain a second appeal. The court analyzed the provisions of Order 41 Rule 22 and Order 41 Rule 33 of the Code of Civil Procedure, 1908, and held that a person who is not a party to the suit cannot file an appeal against the decree unless he is aggrieved and has a right to be heard. The appellants failed to demonstrate any such right. The court also noted that even if the decree was alleged to be collusive, the proper remedy for a stranger is to file a separate suit to set aside the decree on the ground of fraud or collusion, not to file an appeal. Consequently, the second appeal was dismissed with costs. The court emphasized that the answer to the question whether the appellants were defendants in the original suit resolved the entire dispute.
Headnote
A) Civil Procedure - Second Appeal - Maintainability - Order 41 Rule 22, Order 41 Rule 33, Section 100 Code of Civil Procedure, 1908 - The appellants were not defendants in the original suit and did not file any application to be impleaded. The suit was decreed ex parte against the defendants. The appellants filed a second appeal challenging the decree. The court held that the second appeal is not maintainable as the appellants were not parties to the suit and cannot be treated as defendants. The appeal was dismissed with costs. (Paras 1-10) B) Civil Procedure - Collusive Decree - Res Judicata - Section 11 Code of Civil Procedure, 1908 - The appellants alleged that the decree was collusive. The court observed that even if the decree was collusive, the appellants, being strangers to the suit, cannot challenge it in appeal. They must file a separate suit to set aside the decree on the ground of fraud or collusion. (Paras 5-8) C) Civil Procedure - Locus Standi - Non-party Appeal - Order 41 Rule 22, Order 41 Rule 33 Code of Civil Procedure, 1908 - The court held that a person who is not a party to the suit cannot file an appeal against the decree unless he is aggrieved and has a right to be heard. The appellants failed to show any such right. (Paras 6-9)
Issue of Consideration
Whether the appellants, who were not defendants in the original suit, can maintain a second appeal challenging the decree?
Final Decision
The second appeal is dismissed with costs.
Law Points
- Order 41 Rule 22 CPC
- Order 41 Rule 33 CPC
- Section 100 CPC
- res judicata
- collusive decree
- maintainability of second appeal
- locus standi of non-party
