Decided on September 25,1953

Alli Sheriff Appellant
Salur Ammanna Respondents


Panigrahi, J. - (1.) THE Appellant and Respondents 3 to 5 were Defendants in Title Suit No. 51 of 1947 filed by Respondents 1 and 2. There was a compromise decree in the suit whereby the Defendants took up the liability to construct the western wall which was in disputes It was also declared that the Plaintiffs and the Defendants will have joint rights in the suit wall. The actual process of construction was agreed to be left to the supervision of the Defendant No. 3 and one Abdul Wahab. It was provided further that in case the other two persons found themselves unable to start construction the Court would get the western wall constructed. Its common ground that the Court had to appoint a commissioner to get the wall constructed as the third Defendant and Abdul Wahab could not get it done. The commissioner appointed by the Court proceeded with the construction, but before it had made progress the Plaintiffs moved the trial court for an order directing the demolition of the new construction as it had encroached upon their land. This prayer of the Plaintiffs was allowed by the trial court and was upheld in appeal by the Subordinate Judge. It is against this order that the present miscellaneous appeal was filed by due of the Defendants, the Plaintiffs and the other Defendants being made parties to the appeal. For some reason or other the appellate intimated the Court that he would not press the appeal as against Respondents 3 to 5 who were co -Defendants in the court below: he appeal was accordingly dismissed as against these persons. The preliminary point taken here is whether the appeal, as it is now constituted, is competent. It is clear that if the Appellant were to succeed the result would be that there will be two inconsistent decrees as the order in favour of the Plaintiffs as against Respondents 8 to 5 has become final on account of their not having appealed, The Plaintiff may, therefore claim execution as against Respondents 8 to 5. Mr. Mohapatra however contends that under Order 41 Rule 4, Code of Civil Procedure, the Court may grant him relief, as also to Respondents 3 to 5, as the order under challenge proceeding on a ground common to all of them. Undoubtedly, it is so, but that rule would be applicable only when the appeal itself is properly constituted and the parties are before the court. Now that Respondents 3 to 5 have been expunged from the record no relief common to the Appellant as well as Respondents 3 to 5 can be granted. Nor can the decree in favour of the Plaintiffs be varied or reversed for the benefit of these who are not before the Court. Mr. Mohapatra then argued that they may be brought on the record now and if necessary he would file a petition for condoning the delay. I am not prepared to accede to this request particularly because Respondents 3 to 5 who had been made parties to the appeal have been expunged from the record and at the request of the Appellant himself.
(2.) I would accordingly hold that this appeal is incompetent and do not think it necessary to go into the merits. The appeal is dismissed with costs. Hearing fee Rs. 35/ -.;

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