P L D 1950 Baghdad-ul-Jadid 57 (PLP)

A I R 1937 Lah. 347 relied on; 67 P R 1910 ; 62 P R 1906; 23 P R 1879; 18 P R 1908; 39 Mad. 382 held not applicable. (b) Civil Procedure Code (V of 1908)‑

Order 1, rule 10‑No appeal in eye of law before Court‑‑No transposition possible. Transposition can be considered and take place in an appeal which is otherwise competent. If there is no appeal before the Court there can be no transposition. JUDGMENT

One Bachha, since deceased, was the owner of certain landed property. Allah Diwaya as his representative got it mutated in his favour on the ground that he was not heard of for several years and as such had died the civil death. After the mutation was sanctioned in his name he sold the land in favour of Ramzan and others. Bachha after the said sale appeared and brought a suit for the possession of the land alleging that Allah Diwaya was incompetent to sell it during his life‑time. He succeed ed in the Court of first instance. An appeal was preferred by the purchasers against that decision. Bachha died during the pendency of the appeal and Allah Diwaya was brought on the record as his legal representative. The appeal was accepted by the District Judge, Rahimyar Khan. Against that decision the present appeal was preferred virtually by Allah. Wasaya and Ilahi Bakhsh, sons of Allah Diwaya though the heading of the appeal is Bachha, deceased through his legal heirs and representatives. Allah Wasaya and Ilahi Bakhsh, sons of Allah Diwaya. A question arose whether the appeal on behalf of Allah; Wasaya and Ilahi Bakhsh who were not parties to the original suit was competent. If the appeal is properly seen then it would appear‑that it is not even on behalf of Allah Wasaya and Ilahi Bakhsh but it is really on behalf of Bachha deceased. , There is no denial of the fact that no appeal could be competent on behalf of the deceased. But even if we ignore this aspect of the case and hold that the appeal is really on behalf of Allah Wasaya and Ilahi Bakhsh, the question is whether an appeal on behalf of the persons who were not parties to the original suit was competent. Noticing this difficulty an application was made by Allah Diwaya who is respondent in the case to transpose him on the side of the appellants. Question arises whether, he could be transposed. Two questions arise in this connection : firstly, whether a respondent can be transposed on the side of the appellant in an appeal which is absolutely incompetent,, Transposition to our mind can be considered and take place in an appeal which is otherwise competent. If there is no appeal before the Court there can be no transposition. In the present case as we will presently show there is no appeal in the eyes of law before this Court. Consequently no transposition can eke place at all. Secondly, whether Allah Diwaya could be brought on the side of the appellant even if it be held that his sons had no right to bring this appeal. The acceptance of the application of Allah Diwaya to be brought on the side of the appellants would not be tantamount to the addition of an appellant but to the substitution. Substitution is always disallowed and more particularly when the period of limitation has elapsed. We would, therefore, hold that Allah Diwaya's applica tion to transpose him to, the side of the appellants cannot be accepted and hence rejected. The next question is whether the appeal could be lodged by the sons of Allah Diwaya. Abdul Rasul on behalf of the appellants has taken our considerable time in arguing that as the sons of Allah Diwaya are the heirs of the deceased Bachha of his immovable ancestral property hence they were the legal re presentatives of the deceased and they were competent to bring the appeal. His position is wrong and untenable. In support of his argument he referred us to 67 P R 1910, 62 P R 1906, 23 P R 1879; 18 P R 1908, 39, Mad.

382. All that we can say, about these authorities is that they have no semblance of relevancy to the question in issue. The matter is very clear as has been held in 1937 Lah. 347. that only persons whose names appear as parties to the decree or order of the Court below are entitled to appeal if they are aggrieved, A person whose name does not appear in the array of parties can ask the Court to implead him by including his name in the parties If he does not choose to do so, he cannot maintain an appeal. These minors if they liked could go before the District Judge after the death of Bachha and get themselves impleaded as a party to‑the appeal. If they have not done so they were incompetent to appeal during the presence of their father Allah Diwaya. This; appeal, therefore, is not entertainable and is dismissed with costs. K.M.A. Appeal dismissed