JUDGMENT : G.K. Misra, J. - One Suka, Dibya obtained a preliminary decree for partition and asked for final decree in T.S. No. 362 of 1951 in the Court of the Second 'Munsif, Cuttack. The intervener opposite party alleged that on 1-1-1967 Suka Dibya transferred her undivided 8 annas interest by a registered sale deed to him. Suka Dibya, the sole Plaintiff died on 28-1-1967 leaving a daughter Prema Debi and the Defendant., her husband's brother. On 30-1-1967 the intervener filed an application for substitution under Order 22, Rule 10 Code of Civil Procedure. The Petitioner objected flaying that Suka's condition became serious on 21-1-1967 and she was removed to Cuttack General Hospital, and that the sale deed was a fraudulent transaction. The learned Munsif allowed the application of the intervener for substitution. The Petitioner's appeal to the District Judge failed. Against the appellate order, this Civil Revision has been filed. 2. The only contention advanced by Mr. Mukherji is that without examining the validity of the assignment the application under Order 22, Rule 10 CPC should not have been allowed. The contention requires careful examination. Order 22, Rule 10, Sub-rule (1) CPC runs thus: 10(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. The opposite party claims devolution of interest by the assignment. The question is whether the application should be allowed. The expression "the suit may, by leave of the Court, he continued" furnishes the key to the solution of the problem. The power is discretionary with the Court, and the discretion cannot he arbitrarily exercised. In order that discretion should be judicially and not arbitrarily exercised, the Court must, in the first instance, see that the assignment is a valid one. Before the application is allowed the assignee must be called upon to establish that the assignment is genuine and valid, and transfers real interest in the property in favour of the assignee. Unless this is done, it is difficult for a Court of law to say that the assignee should be permitted to be impleaded in place of the deceased Plaintiff. Unless this is done, it is difficult for a Court of law to say that the assignee should be permitted to be impleaded in place of the deceased Plaintiff. Such a view also does not cause injustice as a right of appeal has been provided under Order 43, Rule 1(e) Code of Civil Procedure. It says that an appeal shall lie from an order under Order 2, Rule 10 giving or refusing to give leave. Thus both the parties would have a right of appeal. 3. The authorities on the point are not uniform. It is not necessary to refer to all the catena of authorities on the point. It would be sufficient to say that the contrary view is represented in Krishna Behari Goel Vs. Raj Mangal Persad and Others. I am not inclined to accept this view as laying down good law. On the contrary, the view taken by me is fully supported in Rengasami v. Ramanathen AIR 1935 Mad. 428, and Nanjanamal v. Eswaramurthi AIR 1954 Mad. 592 , though the reasons have not been clearly put forth. I am therefore clearly of opinion that before an application under Order 22, Rule 10 CPC is allowed, the assignee claiming devolution of interest must be called upon to establish that the assignment is valid and genuine. Unless this is done, it is difficult for the Court to grant leave for impleading the assignee in place of the Plaintiff. 4. In the result, the impugned order is set aside and the Civil Revision is allowed. The case must go back on remand to the trial Court who would, in the first instance, record evidence as to whether the assignment is genuine and valid. If the finding be in favour of the assignee, then the application for substitution under Order 22, Rule 10 CPC must be allowed, otherwise not. In the circumstance parties to bear their own costs of this proceeding. Final Result : Allowed