AIR 2003 KERALA 1 ::(2002) 2 CivilCourtC 649 ::2002 (3) RecCivR 497 ::2002 (1) KerLT 936 ::ILR(ker) 2002 (2) KER 546

Kerala High Court

Hon'ble Judge(s): P. R. Raman , J

(A) Civil P.C. (5 of 1908) , O.23 R.1A, O.1 R.10— Appeal - Dismissal of, as withdrawn - Transposition of respondent as appellant - Permissible. The application filed by the respondent for transposing himself as an appellant cannot be rejected on the mere ground that the application was filed in an appeal and not in a suit, since the provisions of Order 23, Rule 1-A read with Order 1, Rule 10, CPC will apply to a proceeding in appeal as well. A respondent in an appeal is entitled to seek himself to be transposed as an appellant, if he satisfies the conditions otherwise.(Para 7) Even though O. 23, R. 1-A and O. 1, R.10, CPC refers to the expression 'suit' and the "plaintiff", it cannot, for that reason, be sought to restrict the application of the provision to a proceeding in a suit alone since the appeal is the continuation of the proceedings of the suit and in the absence of any separate provision to deal with such a situation it has to be held that the principles contained under Order 23, Rule 1-A and Order 1, Rule 10 must apply to the proceedings in appeal as well.(Para 7) (B) Civil P.C. (5 of 1908) , O.23 R.1A— Appeal - Transposition as appellant of respondent declared ex parte - Order declaring him ex parte need not be set aside - His rights there....