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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7889  OF 2015 (Arising out of S.L.P. [C] No.36889 of 2013)

Sharadamma … Appellant

Vs.

Mohammed Pyrejan (D) through LRs. & Anr. … Respondents

J U D G M E N T

ARUN MISHRA, J.

1. Heard learned counsel for the parties.

2. Leave granted.

3. This is an appeal against the judgment and order dated 24.9.2013 passed by

the High Court  of  Karnataka at  Bangalore in Regular  First  Appeal  No.1735 of

2011, dismissing the appeal filed by the plaintiff-appellant on the ground that she

had  released  her  interest  in  the  suit  property  in  favour  of  her  daughter  Smt.

Padmavathi  on  11.4.2011  and  said  Padmavathi,  in  turn,  had  transferred  the

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property  in  favour  of  Mr.  G.R.  Ramesh  vide  sale  deed  dated  20.4.2011.

Consequently, she had lost her right to continue the appeal preferred as against

dismissal of the suit vide judgment and order dated 16.6.1990.

4. The facts, in brief, indicate that Sharadamma, plaintiff-appellant had filed

Original Suit No.6020 of 1998 on 5.8.1998 for the purposes of declaration of title

and for  restoration  of  possession on the  strength  of  registered  sale  deed dated

10.11.1965.  The  plaintiff  had  also  claimed  a  sum  of  Rs.3,000/-  towards  past

damages and a further sum of Rs.20/- per day as continuing damages. The suit was

dismissed by the trial court against which the plaintiff had preferred regular first

appeal  before  the  High  Court.  The  same  has  been  dismissed  on  the  aforesaid

ground by the impugned judgment and order.

5. We have heard learned counsel for the parties and opine that the impugned

judgment is patently illegal. Merely due to the assignment or release of the rights

during the pendency of the appeal, the appellant did not in any manner lose the

right  to  continue  the  appeal.  Merely  by  transfer  of  the  property  during  the

pendency  of  the  suit  or  the  appeal,  plaintiff  or  appellant,  as  the  case  may be,

ordinarily has a right to continue the appeal. It is at the option of the assignee to

move an  application  for  impleadment.  Considering the  provisions  contained in

Order  22  Rule  10 and Order  22  Rule  11 of  the  Code  of  Civil  Procedure,  the

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impugned judgment and order of the High Court cannot be allowed to be sustained.

Order 22 Rule 10 and Order 22 Rule 11CPC are extracted hereunder :

ORDER XXII, RULES 10 AND 11. “10. Procedure in case of assignment before final order in suit.- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon  whom  such  interest  has  come  or  devolved.

(2)  The attachment of  a decree pending an appeal  therefrom shall  be  deemed  to  be  an  interest  entitling  the  person  who procured such attachment to the benefit of sub-rule (1).  

x x x x x

11. Application of Order to appeals.- In the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held  to  include  an  appellant,  the  word  “defendant”  a respondent, and the word “suit” an appeal.”

6. A bare reading of the provisions of Order XXII Rule 10 makes it clear that

the legislature has not envisaged the penalty of dismissal of the suit or appeal on

account of failure of the assignee to move an application for impleadment and to

continue the proceedings. Thus, there cannot be dismissal of the suit or appeal, as

the case may be, on account of failure of assignee to file an application to continue

the  proceedings.  It  would  be  open to  the assignor  to  continue  the  proceedings

notwithstanding the fact that he ceased to have any interest in the subject-matter of

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dispute. He can continue the proceedings for the benefit of assignee. The question

is no more  res integra. This Court in  Dhurandhar Prasad Singh v. Jai Prakash

University & Ors. [2001 (6) SCC 534] has laid down thus :

“6.  In  order  to  appreciate  the  points  involved,  it  would  be necessary to refer to the provisions of Order 22 of the Code, Rules  3  and  4  whereof  prescribe  procedure  in  case  of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit  but  if  such an application is  not  filed within the time prescribed by law, the suit  shall  abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for  cases  of  assignment,  creation  and  devolution  of  interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a  party  in  the  subject-matter  of  the  suit  has  devolved  upon another during its pendency but such a suit may be continued with the leave of the court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in  a  properly  constituted  proceeding  that  the  original  party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom the interest had devolved. The

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legislature  while  enacting  Rules  3,  4  and  10  has  made  a clear-cut distinction. In cases covered by Rules 3 and 4, if right to  sue  survives  and  no  application  for  bringing  the  legal representatives  of  a  deceased  party  is  filed  within  the  time prescribed,  there  is  automatic  abatement  of  the  suit  and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule  10,  the  legislature  has  not  prescribed  any  such procedure in the event of failure to apply for leave of the court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the legislature was conscious of this eventuality and yet has not  prescribed that failure would entail  dismissal  of  the  suit  as  it  was  intended  that  the proceeding would continue by or against the original party although he ceased to have any interest  in the subject  of dispute in the event of failure to apply for leave to continue by  or  against  the  person  upon  whom  the  interest  has devolved for bringing him on the record.

7. Under Rule 10 Order 22 of the Code, when there has been a devolution of  interest  during the pendency of  a suit,  the suit may, by leave of the court, be continued by or against persons upon  whom such  interest  has  devolved  and  this  entitles  the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave,  he takes the obvious risk that the suit  may not be properly  conducted  by  the  plaintiff  on  record,  and  yet,  as pointed out by Their  Lordships of the Judicial  Committee in Moti Lal v. Karrabuldin [ILR (1898) 25 Cal. 179] he will be bound  by  the  result  of  the  litigation  even  though  he  is  not

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represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit,  the  suit  in  his  hands  is  not  a  new  suit,  for,  as  Lord Kingsdown of  the  Judicial  Committee  said  in  Prannath Roy Chowdry v. Rookea Begum [(1857-60) 7 MIA 323], a cause of action is not prolonged by mere transfer of the title. It is the old suit  carried  on  at  his  instance  and  he  is  bound  by  all proceedings up to the stage when he obtains leave to carry on the proceedings.

x x x x x

26. The plain language of Rule 10 referred to above does not suggest  that  leave  can  be  sought  by  that  person  alone  upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest  has devolved and this applies in a case where the interest  of the plaintiff has devolved. Likewise, in a case where interest of the defendant has devolved, the suit may be continued against such a  person  upon  whom  interest  has  devolved,  but  in  either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of a party to the suit has devolved during its pendency, then there may  be  preposterous  results  as  such  a  party  might  not  be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his

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interest may be properly represented as the original party, if it ceased to have an interest in the subject-matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by  colluding  with  the  other  side.  If  the  submission  of  Shri Mishra is accepted, a party upon whom interest has devolved, upon his  failure  to  apply for  leave,  would be deprived from challenging  correctness  of  the  decree  by  filing  a  properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend  the  litigation  or,  in  doing  so,  colluded  with  the adversary. Any other party, in our view, may also seek leave as, for  example,  where the plaintiff filed a suit  for partition and during its pendency he gifted away his undivided interest in the Mitakshara coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute  the suit,  but  if  there is  any other co-sharer  who is supporting  the  plaintiff,  he  may  have  a  cause  of  action  to continue  with  the  suit  by  getting  himself  transposed  to  the category of plaintiff as it is well settled that in a partition suit every defendant is a plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission  of  learned  counsel  appearing  on  behalf  of  the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested.”

(emphasis supplied)

7. This Court in  Jaskirat Datwani v. Vidyavati & Ors.  [2002 (5) SCC 647],

while relying upon Dhurandhar Prasad (supra), has laid down that even if no step

is taken by assignee, suit may be continued by the original party and the person

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upon whom the interest  has devolved will  be bound by the decree,  particularly

when such party had the knowledge of the proceedings. Ordinarily, the person is

bound by the decree until and unless it is shown that the decree was based upon

fraud or collusion etc.

8. Resultantly, we are of the opinion that the High Court has gravely erred in

law in dismissing the appeal on the aforesaid ground. Thus, its judgment and order

being unsustainable, are hereby set aside. We remit the appeal to the High Court

for deciding the same afresh in accordance with law after hearing the parties. The

appeal is allowed. No order as to costs.

…………………………J.  (Kurian Joseph)

New Delhi; ………………………..J. September 23, 2015. (Arun Mishra)