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G. Basavaiah V. Samir Kumar Pattnaik - (High Court of Orissa) (10 Jul 2017)

When there has been devolution of interest during pendency of suit, suit may, by leave of Court, be continued by or against persons upon whom such interest has devolved



By present application, challenge is made to order passed by District Judge, whereby appellate Court rejected application of Petitioner under Order XXII Rule 10 of Code of Civil Procedure, 1908 (C.P.C.) to substitute him in place of deceased-Appellant. During pendency of suit, Petitioner had purchased suit land from Defendant-appellant by means of a registered sale deed dated 19th April, 2010 and mutated same in his name. After death of Defendant-appellant, he filed an application under Order XXII Rule of 10 CPC to allow him to substitute in place of deceased-Appellant and continue appeal. According to him, since legal representatives of deceased-Appellant have not taken steps for substitution, he is seriously affected. His interest has devolved after him. Respondent filed objection to the same stating therein that, trial Court had passed order of status quo. Appellate court held that, alleged sale deed executed in favour of Petitioner by Defendant can be treated as non-existent. Petitioner has no right to be substituted in place of deceased-Appellant and rejected the petition.

Apex Court in case of Dhurandhar Prasad Singh vs. Jai Prakash University and others, held that, Order XXII Rule of 10 of CPC, provides for cases of assignment, creation and devolution of interest during pendency of a suit other than those referred to in foregoing Rules and is based on principle that, trial of a suit cannot be brought to an end merely because interest of a party in subject matter of suit is devolved upon another during its pendency but such a suit may be continued with leave of Court by or against person upon whom such interest has devolved. But, if no such a step is taken, suit may be continued with original party and person upon whom interest has devolved will be bound by and can have benefit of decree, as case may be, unless it is shown in a properly constituted proceeding that, original party being no longer interested in proceeding did not vigorously prosecute or colluded with adversary resulting in decision adverse to party upon whom interest had devolved.

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 time prescribed, there is automatic abatement of suit and procedure has been prescribed for setting aside abatement under Rule 9 on grounds postulated therein. In cases covered by Rule 10, legislature has not prescribed any such procedure in event of failure to apply for leave of Court to continue proceeding by or against person upon whom interest has devolved during pendency of a suit which shows that, legislature was conscious of this eventuality and yet, has not prescribed that, failure would entail dismissal of suit as it was intended that, proceeding would continue by or against original party although, he ceased to have any interest in 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 record.

Under Rule 10, Order 22 of CPC, when there has been a devolution of interest during pendency of a suit, suit may, by leave of Court, be continued by or against persons upon whom such interest has devolved and this entitles, person who has acquired an interest in subject-matter of litigation by an assignment or creation or devolution of interest pendente lite or suit or any other person interested, to apply to Court for leave to continue suit.

In Amit Kumar Shaw and another vs. Farida Khatoon and another, apex Court held that, application under Order XXII Rule 10 of CPC, can be made to appellate Court even though devolution of interest occurred, when case was pending in trial Court. It further held that, under Order XXII, Rule 10 of CPC, no detailed inquiry at stage of granting leave is contemplated. Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing suit by or against person on whom interest has devolved by assignment or devolution. Question about existence and validity of assignment or devolution can be considered at final hearing of proceedings. An alienee pendente lite is bound by final decree that may be passed in suit. Such an alienee can be brought on record both under this Rule as also under Order 1 Rule 10. Since, under doctrine of lis pendens, a decree passed in suit during pendency of which a transfer is made binds transferee, his application to be brought on record should ordinarily be allowed. Doctrine of lis pendens applies only where lis is pending before a Court. Further, pending the suit, transferee is not entitled as of right to be made a party to suit, though Court has discretion to make him a party. But transferee pendente lite can be added as a proper party, if his interest in subject matter of suit is substantial and not just peripheral. A transferee pendente lite to the extent, he has acquired interest from Defendant is vitally interested in litigation, whether transfer is of the entire interest of Defendant; latter having no more interest in property may not properly defend suit. He may collude with Plaintiff.

Though Plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 of CPC, an alienee pendente lite may be joined as party. Court has discretion in 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 party from whom he has acquired that interest. He is entitled to be impleaded in suit or other proceedings where transferee pendente lite is made a party to litigation; he is entitled to be heard in matter on merits of case. Order passed by District Judge is quashed. Application filed by Petitioner under Order XXII Rule 10 of CPC is allowed.

Relevant : Dhurandhar Prasad Singh vs. Jai Prakash University and Ors. MANU/SC/0381/2001; Amit Kumar Shaw and Anr. vs. Farida Khatoon and Anr. MANU/SC/0284/2005


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