1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.125 OF 2010. with CIVIL APPLICATION NO.12837/2010. 1) Madhavrao s/o Pandharinath Jadhav and others. - APPELLANTS VERSUS 1) Bhagwan s/o Yadavrao Jadhav and others. - RESPONDENTS ***** Mr.GG Suryawanshi, Advocate for Appellants; Mr.PS Pawar, Advocate for Resp.Nos.1 & 2; Mr.DG Kamble, Adv. h/for Mr. SA Nagarsoge, Adv. for Respondent No.3. ----- CORAM : K.U.CHANDIWAL,J. DATE : 24th November,2010. PER COURT: 1) Heard. 2) The order of remand is questioned in this Appeal from Order. Following would be a substantial question of law between the parties, - “Whether the first Appellate Court could, in the fact situation, travel 2 and expand the scope of Section 99 of Civil Procedure Code, which inhibits to disturb or reverse a decree on the ground of mis-joinder or non- joinder ?” 3) Admit. 4) Counsel for respective parties waive service. By consent, heard finally. 5) It was canvassed by the respondent in his Regular Civil Appeal No.136/2008 before the learned District Judge that his application (Exhibit-57) was not considered by the court of first instance and consequently, it was required to be so done in appeal. 6) The legal position is illustrated in Section 99 of Civil Procedure Code, which reads as under : “99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction, - No decree shall be reversed or substantially varied,nor shall any case be remanded, in appeal on account of any misjoinder or non- joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the 3 Court; Provided that nothing in this section shall apply to non-joinder of a necessary party.”” 7) In the controversy revolving the parties, the exercise that has been carried by the learned Judge was certainly against the spirit of Section 99 of CPC. The order smacks of illegality and, therefore, warrants interference. The substantial question of law formulated as above is answered in favour of the appellants. The impugned order is set aside. Consequently, the judgment and decree in RCS No.192/2007 to remain in tact. No costs. CA disposed of. 8) The respondents are at liberty to adopt appropriate proceedings permissible under law. 9) Appeal from Order disposed of as above. (K.U.CHANDIWAL) JUDGE bdv/