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1999 DIGILAW 153 (KER)

Joy v. Narayana Menon

1999-03-17

P.K.BALASUBRAMANYAN

body1999
Judgment :- P.K. Balasubramanyan, J. This Civil Miscellaneous Petition purports to be one under O. XXIIR.10(1) of the Code of Civil Procedure praying that the court may be pleased to grant leave to the petitioners therein to file Second Appeal against the judgment and decree in A.S.227 of 1990 on the file of the District Court, Palakkad. On receipt of notice of this application the contesting respondents have appeared and opposed the application. They have inter alia questioned the applicability of O. XXIIR.10(1) of the Code of Civil Procedure invoked by the petitioners. At the hearing Mr. K.C. John, Sr. Counsel appearing on behalf of the petitioners submitted that O. XXIIR.10(1) of the Code of Civil Procedure was erroneously quoted since that provision applies only when a proceeding is actually pending in the court to which the application is made and since in this case there is no pending proceeding, the permission is sought relying on S.146 of the Code of Civil Procedure and hence the petition may be treated as one under S.146 of the Code. Even as an application under S.146 of the Code of Civil Procedure it is opposed by the contesting respondents as not maintainable. It is contended that no leave-could be granted to the petitioners to file the Second Appeal against the decree of the appellate court. 2. O.S.183 of 1985 on the file of the Munsiffs Court of Palakkad was filed by one Thomas and one Rosamma against the contesting respondents, respondents 1 and 2 herein. The suit was one for the perpetual injunction restraining the contesting respondents from entering the plaint B Schedule property and from using any portion of the plaint B schedule property as a way and for the mandatory injunction directing them to remove a gate newly constructed on the north south wall of their property. The suit was resisted by the contesting respondents and by judgment and decree dated 30.6.1990 the suit was decreed. The contesting respondents, defendants in the suit filed an appeal before the District Court challenging the decree. The appeal was filed oh 17.11.1990. The plaintiffs were the respondents in the appeal. On24.8.1991 while the appeal was pending, plaintiff No. 2 in the suit who was allegedly the owner of the property claimed to be the servant tenement assigned the property to one Thressia Rabeiro as per document No. 2920 of 1991. The appeal was filed oh 17.11.1990. The plaintiffs were the respondents in the appeal. On24.8.1991 while the appeal was pending, plaintiff No. 2 in the suit who was allegedly the owner of the property claimed to be the servant tenement assigned the property to one Thressia Rabeiro as per document No. 2920 of 1991. Thressia Rabeiro made no attempt to come on record in the pending appeal before the District Court by invoking O. XXIIR.10 of the Code of Civil Procedure. On 15.9.1993 Thressia Rabeiro in her turn sold the property to the present petitioners. The present petitioners also made no attempt to get themselves impleaded in the pending appeal before the District Court. The appeal before the District Court proceeded with the original plaintiffs on the array of parties. By judgment and decree dated 20.12.1997, the lower appellate court allowed the appeal and reversing the decree of the trial court dismissed the suit filed by the plaintiffs, assignors of the assignor of the petitioners. The plaintiffs in the suit applied for a certified copy of the judgment and decree of the lower appellate court and obtained the same on 12.6.1998. According to the petitioners these certified copies were handed over to them by the plaintiffs in the suit, respondents in A.S.227 of 1990 before the District Court and since as assignee from the plaintiffs they feel aggrieved by the judgment and decree passed by the lower appellate court, they are filing the Second Appeal before this court. Since they are not eo-nominee parties in the appeal before the appellate court, they have filed C.M.P. 1975 of 1998 seeking permission to file the Second Appeal. It may incidentally be noted that the appeal filed against the judgment and decree of the District Court is filed in time going by the endorsements in the judgment and decree of the appellate court produced with the Memorandum of Second Appeal. 3. The first aspect to be considered is whether the petitioners are entitled to take advantage of the endorsements in the certified copies of the judgment and decree applied for and obtained by the respondents in the appeal before the District Court. 3. The first aspect to be considered is whether the petitioners are entitled to take advantage of the endorsements in the certified copies of the judgment and decree applied for and obtained by the respondents in the appeal before the District Court. The decision of this Court in Oommen v. Moran Mar Baselius Mar Thoma Mathews (1984 KLT 553) as affirmed by the Supreme Court in Oommen v. Moran Mar Baselius Marthoma Mathews (1992 (2) KLT 293(SC)) indicates that a person other than the one who applied for and obtained the certified copies of the judgment and decree may not be entitled to take advantage of the endorsements in the judgment and decree so as to say that the appeal filed by him was within time. But in this case the Second Appeal is sought to be filed not by another party to the decree using the copies obtained by some other party but the Second Appeal is sought to be filed by the assignee from the respondents in the appeal. Of course the assignee is not a direct assignee but is an assignee from an assignee of the respondent in the appeal. Since the assignee or an assignee from the assignee steps into the shoes of the party to the decree and is bound by the decree, it is possible to say that the principle of the decision referred to above may not apply to the present case. This is not a case where he was already on the array of parties and was affected by the decree and was trying to file an appeal not on the basis of the copies applied for and obtained by him but taking advantage of the copies obtained by a co-defendant or a co-respondent in the appeal as was the position in the decision referred to above. 4. Neither S.96 nor S.100 of the Code of Civil Procedure specifies who can file an appeal. But it is recognised that any of the parties to an action or matter and any person served with copies of the judgment or order may appeal (by leave, where leave is necessary). A person who is not a party and who has not been served with such notice, cannot appeal without leave but a person who might properly have been a party may obtain leave to appeal. (See Halsburys Laws of England). A person who is not a party and who has not been served with such notice, cannot appeal without leave but a person who might properly have been a party may obtain leave to appeal. (See Halsburys Laws of England). In re Securities Insurance Company ((1894) 2 Ch. 410) Lindley, L.J. stated: "I understand the practice to be perfectly well settled that a person who is a party can appear (of course within the proper time) without any leave, and that a person who without being a part; is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to b aggrieved by an order can make out even a prima face case why he should have leave he get it; but without leave he is not entitled to appeal". The question was considered by the High Court of Madras in Sm. K. Pormalag Animal v. State of Madras (ATR 1953 Madras 485). After referring to the relevant aspects and the decision of the Bombay High Court in Bombay Province v. West Ind Automobile Association (AIR 1941 Bom. 141), Chief Justice Rajamanner stated the position thus: "The provision as regards appeal in England are not materially different from the contained in the Civil Procedure Code or Letters Patent. In neither of them is there any express mention of persons who could appeal. In our opinion the practice consistently followed by the English Courts is a just and equitable practice and is in no way inconsistent with the doctrine that a right of appeal can only be created by statute. With respect to the learned judges of the Bombay High Court, we agree with them that there is no reason why the practice should be followed by Courts in India". Thus the Rules was stated to be that while a party to the suit against whom judgment was given could appeal against it as of right, a person who was not on the party array, who was bound by the decree or whose interests were prejudicially affected by it may appeal with the leave of the appellate court. This principle was accepted and followed by the Division Bench of our High Court in Executive Officer v. Raghavan Filial (AIR 1961 Ker. 114). This principle was accepted and followed by the Division Bench of our High Court in Executive Officer v. Raghavan Filial (AIR 1961 Ker. 114). It is not necessary to multiply authorities on this question except to refer to the decision of the Supreme Court in Smt. Jatan Kumar Golcha v, M/s. Golcha Properties Ltd, ((1971) 3 SCR 247). Their Lordships have stated: "It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment." The principle of grant of leave to appeal to a party who was a subsequent purchaser of one of the items involved in the suit was extended in the matter of granting permission to file a Civil Revision Petition invoking S.115 of the Code of Civil Procedure by the High Court of Madras in Sri. Rajendra Mills Ltd„ Salem v. Pandian Bank Ltd. (1983 II M.L. J. 139). Thus by showing that they are aggrieved by the decree of the appellate court which is binding on them, the petitioners are entitled to seek leave from this court for filing a Second Appeal against the decree. 5. As conceded by Mr. K.C. John, learned Senior Counsel appearing for the petitioners, O. XXIIR.10 of the Code of Civil Procedure may not have any application to the situation obtaining in this case. The petitioners could have approached the District Court wherein the appeal was pending when they took the assignment from Thressia Rabeiro, assignee from the plaintiffs-respondents in that court by invoking O. XXII R.10 of the Code of Civil Procedure. Once that appeal was disposed of, petitioners cannot any more claim that there is any proceeding pending to which they could be impleaded in terms of O. XXII R.10 of the Code of Civil Procedure. Of course, the right to come in under O. XXII R.10 of the Code of Civil Procedure may not be one as of right but may depend upon the discretion that may be exercised by the court in permitting or not permitting the joining on the party array by the assignee. (See the decision of the Full Bench in Goutami Devi Sitamony v. Mahadevan Sivarajan (1976 KLT 263 (FB). (See the decision of the Full Bench in Goutami Devi Sitamony v. Mahadevan Sivarajan (1976 KLT 263 (FB). Permission under that Rule has to be sought in a suit, appeal or proceeding when it is pending in a court and not when it is terminated as regards that court and nothing has been commenced in any other court. There is no proceeding pending in this court in which the petitioners can seek to get themselves impleaded by invoking O. XXIIR.10 of the Code of Civil Procedure. Therefore, they can only seek leave of this Court to file a Second Appeal challenging the judgment and decree of the lower appellate court in the basis that since they were claiming under the respondents in the appeal before the appellate Court proceedings may be taken by them to challenge the decision of the appellate court before the appropriate court by invoking S.146 of the Code of Civil Procedure. 6. Learned counsel for the contesting respondents submitted that S.146 of the Code of Civil Procedure has application only if there w as no other provision in the Code which was attracted. Counsel relied on the opening words of S.146 reading "save as otherwise provided by this Code or by any other law for the time being in force" in support. Counsel also referred to the decision of the Supreme Court in Jugalkishore Sarafv. Raw Cotton Co. Ltd. (1955 (1) SCR 1369) wherein their Lordships stated "the effect of the expression save as otherwise provided in this Code' contained in S.146 is that a person cannot make an application under S.146 if other provisions of the Code are applicable to it". Counsel submitted that while the appeal was pending before the appellate court, O. XXII R.10 of the Code of Civil Procedure was available to the petitioners herein for being invoked and hence this is not a case where S.146 of the Code could be attracted on the basis that there was no other provision in the Code applicable to the situation. It is the submission of counsel for a respondents that the petitioners having failed to take advantage of the availability of an approach to the appellate court in the pending appeal before that court by invoking O. XXIIR.10 of the Code of Civil Procedure, they are not entitled to approach this court with this Second Appeal by seeking to invoke S.146 of the Code of Civil Procedure. 7. Learned counsel for the petitioners submitted in answer that since there was no pending proceeding now, the petitioners could not approach the court by invoking Order XXII R.10 of the Code of Civil Procedure and hence it must be taken that then was no other provision under which the petitioners could approach the court for leave to appeal than S.146 of the Code. Counsel submitted that since O. XXII R.10 has in application now though it might had application when the appeal was pending in the District Court and the petitioners had taken the assignee from the assignee of ft respondent in that appeal, the petitioners are entitled to invoke S.146 of the Code ar seek the leave of this Court for filing the Second Appeal. Counsel relied on the decision of the Supreme Court in Saila Bala v. Nirmala Sundari (AIR 1958 SC 394). There their Lordships have held. " An appeal is a proceeding for the purpose of S.146 and further the expression "claim under" is wide enough to include cases of devolution and assignment mentioned in 0.22,R. Whoever is entitled to be but has not been brought on record under 0.22, R.10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code Counsel therefore, submitted that in the light of the ratio of this decision, the petitioners who are aggrieved by the decree of the appellate court and who are bound by the decree of the appellate court can seek leave of this court for filing the Second Appeal against the decree. 8. It may be noted that in Saila Bala 's case the prior decision in Jugalkishore Saraf (1955 (1) SCR 1369) was referred to and followed by their Lordships. 8. It may be noted that in Saila Bala 's case the prior decision in Jugalkishore Saraf (1955 (1) SCR 1369) was referred to and followed by their Lordships. The decision in Saila Bala was also followed by the Supreme Court in Govindrao Mahadik v. Devi Sahai (AIR 1982 SC 989) wherein their Lordships held that even if strict sense an application would not fall under O. XXII R.10 of the Code of Civil Procedure, yet Section 146 of the Code Of Civil Procedure would certainly enable a person to maintain an application. The decision in Shew Bux v. Bengal Breweries Ltd. (AIR 1961 SC 137) was also referred to. 9. I may incidentally notice that this court had occasion to consider the scope of S.146 of the Code of Civil Procedure in Chothy Theyyathan v. John Thomas (1997 (1) KLT 464) though in connection with the binding nature of a decree for injunction'against the legal representative or subsequent assignee and also in Rajappan v. Sankarm Sudhakaran (1997 (1) KLT 748). 10. In the light of these decisions, it is clear that the petitioners are entitled to seek leave of this court for filing a Second Appeal against the decree of the lower appellate court by invoking S.146 of the Code of Civil Procedure and by showing that they are persons aggrieved by the decree which is binding on them since they are assignees from the parties to the appeal before the District Court pending that appeal. Then the question whether having failed to get themselves impleaded in the appeal before the lower appellate court, the petitioners are precluded from approaching this court with this application under ]S.146 of the Code of Civil Procedure. In Cherukutty v. Velappu (1987(1) KLT 565) a Division Bench of this Court held that it is not mandatory that an assignee should substitute himself in the place of his assignor by invoking 0. XXII R.10(1) of the Code of Civil Procedure. If the assignee has confidence in the assignor he may remain in the background and allow the assignor to continue the proceedings. The assignee even if he does not become a party to the suit is bound by the decision against the assignor who is a party to the suit. The option to get himself impleaded in the suit or to let the assignor to carry on the litigation rests with the assignee. The assignee even if he does not become a party to the suit is bound by the decision against the assignor who is a party to the suit. The option to get himself impleaded in the suit or to let the assignor to carry on the litigation rests with the assignee. Here the case of the petitioners is that neither their assignor Thressia Rabeiro nor themselves were made aware of the pendency of the litigation by the assignor of Thressia Rabeiro and that is the reason why they did not take steps to get themselves impleaded before the District Court. But they have proceeded on the basis that they are bound by the decision rendered by the District Court and since they are assignees who are aggrieved by the decree, they may be granted leave to file the Second Appeal challenging the decree. 11. There is nothing in the Code which compels the court to reach the conclusion that an assignee pending a suit or appeal and who fails to get himself impleaded by invoking O. XXIIR.10(1) of the Code of Civil Procedure is estopped or precluded from further prosecuting the litigation by way of further appeal if it is permissible under law. As noticed earlier, the party to the decree could have filed a Second Appeal in this case without the leave of the court. But here since the appellants are assignees from an assignee of the party to the decree, they are obliged to seek leave of the court to file a Second Appeal even though they are bound by the decree of the lower appellate court. It cannot be held that the petitioners are not aggrieved by the decree being assignees pending the litigation in the broader sense and what they are seeking to do is only to invoke a right of appeal that is available to their assignor as a matter of right (subject of course to the limitation of S.100 of the Code of Civil Procedure) and to themselves on permission being granted. The only aspect men would be whether their assignor Thressia Rabeiro who took the assignment from the respondents in the appeal herself not having got impleaded in the appeal or not having sought permission to file a Second Appeal as further assignees, the petitioners are entitled to file the appeal in this court. The only aspect men would be whether their assignor Thressia Rabeiro who took the assignment from the respondents in the appeal herself not having got impleaded in the appeal or not having sought permission to file a Second Appeal as further assignees, the petitioners are entitled to file the appeal in this court. The decision of the Calcutta High Court in Sagora Bibi v. Sk. Manik (AIR 1987 Cal. 86) took the view that even if the first assignee was not impleaded, the second or subsequent assignee was not precluded from approaching the court for getting himself impleaded or for continuing the litigation. I see no reason why the ratio of that decision should not be adopted. In that view the petitioners herein as the assignees from the assignee of the respondent in the appeal before the District Court are entitled to seek the leave of this Court. 12. In Parvathiba v. Maruti (AIR 1945 Bom 69) the Bombay High Court took the view that in view of the provisions of S.146 of the Code a transfer of the property in suit from the plaintiff in the suit after the filing of the suit, would be a sufficient basis or foundation for an appeal by the transferee against the decree of the trial court. The ratio of the said decision also supports the position that the petitioners are entitled to seek permission to file this Second Appeal. Thus, on a consideration of the relevant aspects, I am satisfied that the present petition for permission to file the Second Appeal against the decree of the District Court by the present petitioners is maintainable and the petitioners could invoke S.146 of the Code of Civil Procedure. I also find that they are not estopped from seeking permission to file appeal by invoking S.146 of the Code of Civil Procedure merely for the reason that they did not take steps before the lower appellate court to get themselves impleaded by invoking O. XXII R.10(1) of the Code of Civil Procedure. Considering that they are bound by the decree passed by the lower appellate court and they are assignees of the property in suit, I am satisfied that they are entitled to the leave sought for by them. Considering that they are bound by the decree passed by the lower appellate court and they are assignees of the property in suit, I am satisfied that they are entitled to the leave sought for by them. But considering the fact that they could have avoided this situation by promptly getting themselves impleaded before the appellate court itself, I consider that they should be put on terms for the purpose of allowing this application and directed to compensate the contesting respondents for the costs incurred by them in defending this petition. I therefore, order that this petition will stand allowed and the permission sought for by the petitioners would stand granted on condition that the petitioners pay unconditionally towards the costs of respondents 1 and 2 in this court a sum of Rs. 500 within a period of one month from this date.