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1965 DIGILAW 249 (ALL)

Hafiz Mushtaq Ahmad v. Mohammad Idris

1965-07-30

M.C.DESAI, S.C.MANCHANDA

body1965
JUDGMENT M.C. Desai, C.J. - This application is made only under Or. 16, Rule 13 of the Supreme Court Rules. The sole respondent to the appeal now pending in the Supreme Court is said to have transferred all his interest in the property in dispute in the Supreme Court appeal to the applicants and the applicants in the connected application. Under Rule 13 of Or. 16 of the Supreme Court Rules where the record subsequent to its dispatch to this Court becomes defective by reason of the death, or change of status, of a party to the appeal, or for any other reason, the court appealed from shall, upon an application made in that behalf made by any person interested, cause a certificate to be transmitted to the Registrar of this Court showing who, in the opinion of the court appealed from, is the proper person to be substituted or entered on the record, in place of, or in addition to the party on record." The question before us is whether the record can be said to have become defective by the respondent's assigning all his interest in the subject matter in dispute to the applicants. When a party dies the record does become defective and the defect must be removed by deleting his name and substituting names of other persons. There cannot remain on the record the name of a dead person because a dead person can never be a party to a proceeding. Similarly, when a party's status is changed, the record becomes defective and the defect must be removed and the new status of the party must be entered on the record in place of the old status. When the old status has disappeared it cannot be allowed to remain on the record. In these two cases, which are expressly referred to in the rule, the record undoubtedly becomes defective but the same cannot be said when a party merely assigns his interest during the pendency of an appeal by the other (unsuccessful) party. When a party to a suit assigns his interest, there is no necessity of bringing on the record the name of the assignee Under Or. 22, Rule 10 of the Code of Civil Procedure. the suit may, by leave of the court, be continued, by or against the person to or upon whom the interest has been assigned. When a party to a suit assigns his interest, there is no necessity of bringing on the record the name of the assignee Under Or. 22, Rule 10 of the Code of Civil Procedure. the suit may, by leave of the court, be continued, by or against the person to or upon whom the interest has been assigned. This provision makes it clear that the record does not become defective and it does not become obligatory to amend it to remove any defect. If the record became defective, there would have been a provision for compulsory removal of the defect. The only consequence of the assignment of the interest is that the assignee may be permitted by the court to continue the suit or to defend it. The name of the assignor is not required to be I deleted from the record or the name of the assignee is not required to be entered in its place. The record of the civil court does not require to be altered at all. This means that it does not become defective. There is no reason why the record of a Supreme Court appeal should be held to become defective by assignment. 2. Sri Shambhu Prasad relied upon the words "the proper person to be...... entered on the record...... in addition to the party on the record." These words do not indicate that the rule contemplates a record becoming defective by assignment of interest by a party. Addition of a person's name may become necessary when the defect caused by change in the status of a party is to be removed. In any case, whether there is a defect in the record or not, has to be ascertained first, and then the question will arise how the defect is to be removed. The meaning of "the record becomes defective" cannot depend upon the action which may be taken after the record is found to have become defective. The words "for any other reason" must be understood ejusdem generis with the words "by reason of the death or change of status of a party to the appeal" occurring earlier. Just as the death of a party and the change of the status causes a defect in the record, which must be removed, so also other reason must cause a defect in the record which must be removed. 3. Just as the death of a party and the change of the status causes a defect in the record, which must be removed, so also other reason must cause a defect in the record which must be removed. 3. Sri Shambhu Prasad in the alter native relied upon Order 22, Rule 10 already referred to. We have no power under this rule; only the Supreme Court can pass an order under it. 4. We hold that Rule 15 does not apply and dismiss this application.