Akshaya Kumar Rath JUDGMENT
Dr. Akshaya Kumar Rath, J.
1. By this application under Article 227 of the Constitution of India, challenge is made to the order dated 26.02.2014 passed by the learned District Judge, Cuttack in R.F.A. No. 17 of 2011, whereby and whereunder, learned appellate court rejected the application of the petitioner under Order XXII Rule 10 C.P.C. to substitute him in place of the deceased-appellant.
2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the opposite party as plaintiff instituted C.S. No. 467 of 2006 in the court of the learned Civil Judge (Sr. Div.), 1st Court, Cuttack for specific performance of contract impleading one Lokanath Das as defendant. The defendant entered appearance and filed written statement denying the assertions made in the plaint. The suit was decreed. Assailing the judgment and decree, the defendant filed R.F.A. No. 17 of 2011 before the learned District Judge, Cuttack. Since there was delay in filing the appeal, an application under Sec. 5 of the Limitation Act was filed to condone delay. While the matter stood thus, the appellant died on 29.06.2013 leaving behind his widow, son and daughter. It is apt to state here that during pendency of the suit, the petitioner had purchased the suit land from the defendant-appellant by means of a registered sale deed dated 19.04.2010 and mutated the same in his name. After death of the defendant-appellant, he filed an application under Order XXII Rule 10 C.P.C. to allow him to substitute in place of the deceased-appellant and continue the appeal. According to him, since the legal representatives of the deceased-appellant have not taken steps for substitution, he is seriously affected. His interest has devolved after him. The respondent filed objection to the same stating therein that the learned trial court had passed the order of status quo. Violating the same, the defendant-appellant alienated the property to deprive the plaintiff from the fruits of litigation. The transaction is void. Learned appellate court held that the alleged sale deed executed in favour of the petitioner by the defendant can be treated as non-existent. The petitioner has no right to be substituted in place of the deceased-appellant and rejected the petition.
3. Mrs. Padmaja Pattanaik, learned counsel for the petitioner submitted that during pendency of the suit, the defendant alienated the land in favour of the petitioner by means of a registered sale deed for a valid consideration. Thereafter, the petitioner mutated the land in his favour. Since the legal heirs of the defendant-appellant have not taken steps to prosecute the appeal, the petitioner filed an application for substitution. She further submitted that there was devolution of interest. She relied on the decision of the apex Court in the case of Dhurandhar Prasad Singh vs. Jai Prakash University and others, MANU/SC/0381/2001 : AIR 2001 SC 2552.
4. Per contra, Mr. Pradipta Kishore Nanda, learned counsel for the opposite party submitted that learned trial court directed the parties to maintain status quo over the suit property. The defendant executed the sale deed in favour of the petitioner in contravention of the order of status quo. The alleged sale deed is void. Thus, there is no devolution of interest upon the petitioner.
5. The apex Court in the case of Dhurandhar Prasad Singh (supra) held that Order XXII Rule 10 C.P.C. 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 suit is 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 a 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 interest had devolved. The legislature while enacting Rules 3, 4 and 10 has made clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing 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. 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.
6. In Amit Kumar Shaw and another vs. Farida Khatoon and another, MANU/SC/0284/2005 : AIR 2005 SC 2209, the apex Court held that the application under Order XXII Rule 10 can be made to the appellate Court even though the devolution of interest occurred when the case was pending in the trial court. It further held that under Order XXII, Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under O 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed. The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as party. The Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. A transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.
7. In the wake of aforesaid, the order dated 26.02.2014 passed by the learned District Judge, Cuttack in R.F.A. No. 17 of 2011 is quashed. The application filed by the petitioner under Order XXII Rule 10 C.P.C. is allowed. Learned appellate court shall proceed with the appeal.
The petition is allowed. No costs.
© Manupatra Information Solutions Pvt. Ltd.