JUDGMENT Das Gupta, J. - The Appellant was Defendant No. 4 in partition-suit, being Title Suit No. 4 of 1938, in the Court of the Second Additional Subordinate Judge of Alipore. A prelimina decree having been passed in that suit, a commissioner we appointed, but, before the final decree was passed, an application was filed by the Respondent No. 1, Rai Sahib Upendra Nath Ghosh, stating that he had purchased from this Appellant by registered kabala his undivided share of the properties which were the subject-matter of the partition in the suit, along with other properties and praying that the name of Defendant No. be struck off from the cause-title and the name of the petition Rai Sahib Upendra Nath Ghosh be substituted in his place (sic) that the plaint be amended accordingly and the petition granted leave to prosecute the suit. This application was opposed by the present Appellant, whose main contention was that the alleged conveyance was not an out-and-out sale, but a mortgage and a transaction which was in substance a loan, there being a condition and agreement that, in case the Appellant paid back the amount with 15 per cent, interest within three years, the said loan would be satisfied. In spite of many adjournments granted at the instance of this Appellant, the Appellant was, however, absent when this application for substitution came up finally for hearing. The matter was taken up ex parte for hearing. On consideration of the evidence, the court decided that there had been an assignment in favour of the Respondent No. 1, as alleged by him and ordered that substitution be made as prayed for and that the plaint be amended. The present appeal is directed against this order of the Subordinate Judge allowing substitution. 2. Two points have been taken by Mr. Sen on behalf of the Appellant. First, he contends that a further opportunity should have been given to his client to establish his case that there was actually no assignment of his interest in favour of the Respondent No. 1. 2. Two points have been taken by Mr. Sen on behalf of the Appellant. First, he contends that a further opportunity should have been given to his client to establish his case that there was actually no assignment of his interest in favour of the Respondent No. 1. His second and main contention, however, is that, in any case, when the case of assignment, as sought to be made by the Respondent No. 1, was strenuously challenged by the Appellant, the proper order in this case which should have been passed by the learned court below was one of bringing the Respondent No. 1 on the record as a party in addition to the Appellant and not one of substitution in place of the Appellant after striking out the latter's name. 3. Order XXII, Rule 10 of the Code of Civil Procedure, which provides for the bringing oil record of parties on devolution of interest on assignment during the pendency of a suit runs thus: In other cases of an assignment, creation or devolution of any interest during he 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. 4. As the rule stands it merely provides for the suit being continued by or against the person on whom an interest has devolved or to whom an assignment has been made. It does not itself make any provision whether an order should be made for continuance of such a suit by or against such a person in addition to the person already on the record or in substitution for him. There is here a change of language from that used in the earlier Code, where it was stated in Section 372 as follows: In other cases of assignment, creation or devolution of any interest pending he suit, the suit may, with the leave of the court, given either with the consent of all parties or after service of notice in writing upon them and hearing their objections, if any, be continued by or against the person to whom such interest has come either in addition to or in substitution for the person from whom it has passed, as the case may require. 5. 5. This alteration of language was the subject-matter of consideration by the Privy Council in the case of Manindra Chandra Nandi v. Ram Lal Bhagat (1922) ILR 1 Pat. 581 : L.R. 49 IndAp 220. At first sight it might appear, as is indicated in the comment of Sir Dinshaw Molla in his edition of the Code of Civil Procedure, that the Privy Council thought that the result of the deletion of the words "in "addition to" was that the proper order to be made in such cases was only for substitution. It is abundantly clear, however, from their Lordships' judgment that they were nor in that case considering at all the question as regards the form of the order to be made, namely, whether the continuance should be in addition to or in substitution for the person already on the record. What they were considering in that case was whether, when there has not been a total devolution of interest, a party could be added. The deletion of the words "in addition to" was obviously of considerable importance in that connection and it was in this connection that their Lordships remarked that the words "in addition to" in the earlier Code had disappeared. There is nothing in this judgment to justify a conclusion that in their Lordships' opinion the result of the deletion of the words "in addition to" was that only substitution could be made. It is important to notice in this connection that not only the words "in addition to" have been deleted but the words "in substitution for" have also been deleted. If it was the intention of the legislature that parties on whom interest has devolved could only be substituted, there was no need for deletion of the words "in substitution for". 6. The result of the consideration of the language in the section, in my opinion, is that the Code leaves it entirely to the judicial discretion of the court concerned to determine whether the continuance of the suit by or against the person on whom interest has devolved should be by way of addition to the party already on the record or in substitution for him. There are many cases, for example, the case of a suit for enforcement of a mortgage, where it is clearly necessary that the continuance should be by way of addition and not by way of substitution, as otherwise the personal remedy will not be available against the assignor. There may be many other cases, where it would be against the interest of justice to continue the suit against the person on whom the interest has devolved in addition to the person from whom the interest has devolved. Therefore, the court, when considering an application under Order XXII, Rule 10 has in each case to decide, after having come to a decision that there has been devolution of interest, whether the order of continuance should be by way of addition or in substitution for the person whose interest has devolved. 7. It is, therefore, necessary to consider whether the circumstances of the present case justify the contention of Mr. Sen that the proper order should have been one of addition of the Respondent No. 1 to the case and not of substitution in place of the Appellant. It is important to notice, in the first place, that in this case there is no dispute about the genuineness of the document or about the passing of the consideration. It is not anywhere said that the document is a fictitious deed by which no interest was intended to be transferred. On the contrary the case of the Appellant in his petition of objection clearly was that there was a real transaction and that the transaction, though ostensibly a sale, was really a mortgage with a, condition that if payment was made by certain time the said loan would be satisfied. On the very words used by the Appellant in his petition of objection, his defence to the case of assignment made by the Respondent No. 1 would be hit by the provisions of Section 58(c) of the Transfer of Property Act and the document would operate as a sale-deed even if there was such a condition which was not included in the document. 8. 8. What is perhaps even more striking in this case is that in the very sale-deed which is on the record and the gemuineness of which, as already said, has not been challenged by the Appellant, there is a definite clause by which the present Appellant authorised the Respondent No. 1 to be substituted in the partition-suit. The clause runs thus: You by the strength of this deed having substituted your name in my place in the said two partition suits and the suits which are filed by the mortgagees against me and pending the Land Acquisition proceedings will be entitled to conduct the same. If I am required to give any evidence or to prove any document or render any other help then I will do such works without any objection and I will remain bound to do so. 9. It seems to me that this clear stipulation in the deed that the Respondent No. 1 will be substituted in the Appellant's place in the partition-suit and that after such substitution the Appellant will render the Respondent No. 1 every assistance, is by itself almost a conclusive circumstance in support of the order actually made by the learned Subordinate Judge of substitution of the assignee in place of the assignor, namely, the Appellant. 10. One other circumstance, which, in my opinion, must have weighed with the learned Subordinate Judge in making the order of substitution in place of an order of addition was the conduct of the present Appellant in his court. The application for substitution was filed on November 30, 1944. It was taken up for hearing on May 27, 1947. The greater part of this delay appears, from the order-sheet which is in the paper-book, to have been due to the conduct of the present Appellant. In spite of all the time taken, however, he did not appear to contest this application on the day on which it was finally taken up, namely, on May 27, 1947. It was, in my opinion, not at all unreasonable for the Subordinate Judge to take the view that the objection raised by the Defendant No. 4 was not meant to be pressed seriously and that in fact Defendant No. 4 did not intend to dispute the truth and the fullness of the assignment. 11. It was, in my opinion, not at all unreasonable for the Subordinate Judge to take the view that the objection raised by the Defendant No. 4 was not meant to be pressed seriously and that in fact Defendant No. 4 did not intend to dispute the truth and the fullness of the assignment. 11. In my view, these circumstances fully justify the order actually made by the learned Subordinate Judge for substitution of the Respondent No. 1 in place of the Appellant after striking out his name from the cause title. 12. Mr. Sen did not seem to seriously press his other contention that his client should be given a further opportunity to prove his case that there was no real sale. Quite apart from the fact, as already said, that in the petition of objection no case was put forward that the transaction was fictitious, but the case was one of an ostensible sale, but a real mortgage with a condition that the sale will be void on certain events, the fact remains that the Appellant took more than two years' time to get ready to contest this application for substitution and the story of assignment; but when the matter finally did come up for hearing he did not choose to appear to contest or to go into the witness box or to adduce any evidence. He had more than sufficient opportunity for putting his case and did not avail himself of that opportunity. There is absolutely no justification, in my opinion, for remanding the case to give him further opportunity to adduce evidence. 13. My conclusion, therefore, is that the order passed by the learned Subordinate Judge is right and that the appeal should be dismissed with costs--hearing fee being assessed at three gold mohurs. Das J. 14. I agree.