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2016 DIGILAW 286 (ALL)

UMASHANKAR v. RAMASHANKAR RAI

2016-01-21

SURYA PRAKASH KESARWANI

body2016
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Shri Abhishek Kumar, learned counsel for the appellant. 2. This appeal has been filed challenging the remand order dated 30.11.2015 in Civil Misc. Appeal No. 265 of 2010 passed by the Court of Additional District Judge, Court No. 6., Ballia setting aside the order dated 26.10.2010 passed by the Court of Civil Judge (Junior Division) East, Ballia in O.S. No. 500 of 1991 who rejected the Application (54-c) of the respondent Nos. 1 to 7 herein under Order XXII Rule 10 of C.P.C. 3. The facts of the present case are that one Sri Parikshit Rai s/o Padamdev Rai, resident of Village and Post Office-Karnayee, District-Ballia was the owner of some immovable properties. He allegedly executed a sale-deed dated 11.4.1989 at District-Baxur (Bihar) in favour of Smt. Parvati Devi. Subsequently on 1.10.1991 he filed O.S. No. 500 of 1991 alleging that the aforesaid sale-deed is fraudulent and consequently prayed for cancellation of the same. Thereafter, the aforesaid Parikshit Rai sold his immovable properties in question by way of sale-deeds dated 14.8.1991 to Sri Ramashankar Rai and others (respondent Nos. 1 to 7 herein). During the pendency of the aforesaid suit, Parikshit Rai died on 31.7.1995. The appellant herein filed an application dated 26.10.1995 under Order XXII Rule 3 of C.P.C. for substitution of his name as plaintiff in the aforesaid O.S. No. 500 of 1991 on the basis of an unregistered will of Parikshit Rai dated 2.2.1994. The said substitution application was allowed by order dated 3.3.1999 by the Court of Additional Munsif, Ballia. The respondent Nos. 1 to 7 herein filed an application on 28.10.1995 under Order XXII Rule 10 of C.P.C. for being substituted as assignee in the aforesaid O.S. No. 500 of 1991. The said application was rejected by the Court of Civil Judge (Junior Division) East, Ballia by order dated 26.10.2010 on the ground that the appellant herein has already been substituted as legal heir of late Parikshit Rai. Aggrieved with this order, the respondent Nos. 1 to 7 herein filed Civil Misc. Appeal No. 265 of 2010 in the Court of Additional District Judge, Court No. 6, Ballia, which was allowed by the impugned order dated 30.11.2015 and the matter was remanded with the direction to the Court concerned to dispose of the Application (54-c) of the respondent Nos. 1 to 7 herein filed Civil Misc. Appeal No. 265 of 2010 in the Court of Additional District Judge, Court No. 6, Ballia, which was allowed by the impugned order dated 30.11.2015 and the matter was remanded with the direction to the Court concerned to dispose of the Application (54-c) of the respondent Nos. 1 to 7 herein, in accordance with the directions given in the order. In the memorandum of appeal filed by the respondent Nos. 1 to 7 herein, it was stated in ground Nos. 7, 8, 14 and 17 that the appellant herein is the son-in-law of the defendant Smt. Parvati Devi and the unregistered will is a forged paper prepared with the motive not to contest the suit properly being son-in-law of the defendant herself. Aggrieved with the order passed in Civil Misc. Appeal No. 265 of 2010 dated 30.11.2015, the appellant herein has filed the present appeal. 4. Learned counsel for the appellant submits that the appellant is the legal representative of late Sri Parikshit Rai (plaintiff of O.S. No. 500 of 1991) and consequently he was substituted as plaintiff in the said suit under Order XXII Rule 3 C.P.C. on the basis of will dated 2.2.1994, and consequently, the Court below has committed a manifest error of law to direct the Court concerned to decide the Application (54-c) of the respondent Nos. 1 to 7 herein, in accordance with the directions given in the order who claim to be assignees on the basis of sale-deeds dated 14.8.1991. The respondent Nos. 1 to 7 as assignee cannot be substituted. 5. In support of his submission, learned counsel for the appellant relies upon the decision of this Court in the case of Jatav Panchayat Committee and another v. VIIth Additional District Judge, Etawah and others, AIR 2000 All 253 (paragraphs 10 and 11), a Full Bench judgement of Patna High Court in the case of Baijnath Ram v. M.T. Tunkowati Kuer, AIR 1962 (Patna) 285 and another decision of this Court of learned Single Judge in the case of Raghunath and others v. The District Judge, Mirzapur and others, 1986 ALL LJ 25 (paragraph 6). 6. He further submits that once the order dated 3.3.1999 on the substitution application of the appellant was passed in presence of the respondent Nos. 6. He further submits that once the order dated 3.3.1999 on the substitution application of the appellant was passed in presence of the respondent Nos. 1 to 7 under Order XXII Rule 3 of C.P.C. Which was not challenged by the aforesaid respondents and therefore it attained finality and shall operate as res judicata against the respondent Nos. 1 to 7 herein. 7. I have carefully considered the submissions of learned counsel for the appellant and perused the record. 8. It is undisputed that late Sri Parikshit Rai had executed registered sale-deeds dated 14.8.1991 of the immovable properties in question in favour of respondent Nos. 1 to 3 over which the plaintiff appellant claim his right as legal heir on the basis of an unregistered will dated 2.2.1994. It is also undisputed that late Sri Parikishit Rai had filed the suit in question against Smt. Parvati Devi for cancellation of the sale-deed dated 11.4.1989 alleging it to be fraudulent. The aforesaid Smt. Parvati Devi is the mother-in-law of the appellant and the defendant in the suit. The allegation of the respondent Nos. 1 to 7 is that the appellant is in collusion with the defendant in the suit. Thus, the respondent Nos. 1 to 7 were squarely covered by the provisions of Order XXII Rule 3 C.P.C. 9. In the case of Smt. Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 (3) SC 394, Hon’ble Supreme Court held as under : 7. It is contended on behalf of the appellant that her application is maintainable under Order XXII, Rule 10 of the Civil Procedure Code, because Suit No. 158 of 1935 must be considered to have been pending until the decree therein was drawn up which was in 1954, and the transfer in her favour had been made prior thereto on May 12, 1952. The decision in Lakshan Chunder Dey v. Nikunjamoni Dassi, (1923) 27 CWN 755, is relied on, in support of this position. But it is contended for the first respondent that even if Suit No. 158 of 1935 is concerned as pending when the transfer in favour of the appellant was made, that would not affect the result as no application had been made by her to be brought on record in the original Court during the pendency of the suit. But it is contended for the first respondent that even if Suit No. 158 of 1935 is concerned as pending when the transfer in favour of the appellant was made, that would not affect the result as no application had been made by her to be brought on record in the original Court during the pendency of the suit. Nor could the application made to the appellate Court be sustained under 0rder 22, Rule 10, as the transfer in favour of the appellant was made prior to the filing of that appeal and not during its pendency. This contention appears to be well-founded; but that, however, does not conclude the matter. In our opinion, the application filed by the appellant falls within Section 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section. Section 146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It has been held in Sitharamaswami v. Lakshmi Narasimha, (1918) ILR 41 Mad 510 that an appeal is a proceeding for the purpose of this section, and that further the expression “claiming under” is wide enough to include cases of devolution and assignment mentioned in Order 22, Rule10. This decision was quoted with approval by this Court in Jugalkishore Saraf v. Raw Cotton Com. Ltd., wherein it was hold that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein, under Section 146 of the Civil Procedure Code as a person claiming under the decree-holder, even though an application for execution by him would not lie under Order 21, Rule 16, and it was further observed that the words “save as otherwise provided “ only barred proceedings, which would be obnoxious to some provision of the Code. It would follow from the above authorities that whoever is entitled to be but has not been brought on record under Order 22, Rule 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, and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji J. 8. It is next contended that Section 146 authorises only the initiation of any proceeding, and that though it would have been competent to the appellant to have preferred an appeal against the judoment of P. B. Mukharji J., she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe Section 146 narrowly in the manner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar v. Oovinddoss Krishnadass, (1921) ILR 44 Mad 919, that the assignee of a part of a decree is entitled to continue an execution application filed by the transferor-decree-holder. vide also Moidin Rutty v. Doraiswami, ILR 1952 Mad 622. The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under Section 146. (Emphasis supplied by me) 10. In the case of Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 (6) SCC 534 , Hon’ble Supreme Court held as under: 7. (Emphasis supplied by me) 10. In the case of Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 (6) SCC 534 , Hon’ble Supreme Court held as under: 7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin, ILR (1898) 25 Cal 179 : 24 IA 170 : 1 CWN 639 (PC), he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath v. Rookea Begum, (1857-60) 7 MIA 323, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. (Emphasis supplied by me) 11. In the case of Government of Orissa v. M/s Ashok Transport Agency and others, AIR 2002 (9) SCC 28 , Hon’ble Supreme Court held as under: 8. Order 22 provides the procedure for bringing the legal representatives of parties on record in case of death, marriage or insolvency of parties. It also provides in which cases the proceeding would abate where legal representatives are not brought on record. 10. Order 22 provides the procedure for bringing the legal representatives of parties on record in case of death, marriage or insolvency of parties. It also provides in which cases the proceeding would abate where legal representatives are not brought on record. 10. The next question would be-whether a decree can be executed against a person in whom interest has devolved pending suit, if such person is not brought on record. 11. Section 47 inter alia provides that all questions arising between parties to the suit in which decree was passed or their representatives and relating to the execution are required to be determined by the Court executing the decree and not by a separate suit. Explanation I provides that who are considered to be parties to the suit. Therefore, whether decree is executable against the appellant is required to be decided in the execution application and not by the separate suit. Sections 50 and 52 deal with cases when the decree could be executed against legal representatives. The said sections read thus: “50. Legal Representative.—(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. (2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit. 52. Enforcement of decree against legal representative.—(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. 52. Enforcement of decree against legal representative.—(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. (2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.” 14. For our purpose, relevant Section 4 (5) of the Orissa Mining Corporation (Acquisition and Transfer of Charge Chrome Division) Ordinance, 1991 is as under : “4.(5) If, on the appointed day, any suit, appeal or other proceeding of whatever nature in relation to any property, which has vested in the State Government under Section 3 or instituted or preferred by or against the Charge Chrome Division is pending, the same shall not abate, be discontinued or be, in any way prejudicially affected by reason of the vesting and transfer of the Charge Chrome Division of the Company but the suit, appeal or other proceeding may be continued or enforced by or against the State Government or, where the Charge Chrome Division of the Company is vested under Section 6 in any other company, by or against the other company.” 12. From perusal of the aforenoted judgments of Hon’ble Supreme Court and the provisions of Order XXII Rule 10 C.P.C., it is clear that where there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has been devolved. This entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. This entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. 13. By the impugned order merely the matter has been remanded to the Court concerned to decide the aforesaid application being paper No. 54-c in accordance with the directions given in the order dated 30.11.2015. No illegality could not pointed out by the appellant in the directions given in the impugned judgment and order dated 30.11.2015. 14. Under the circumstances and in view of the above discussions, I do not find any error in the impugned order. 15. The appeal is wholly misconceived and, therefore, deserves to be dismissed. 16. In result, the appeal fails and is hereby dismissed.