GOURIKUTTY AMMA Vs. KALLIYANI AMMA

JUDGEMENT

(1.) The appellant in the Civil Miscellaneous Appeal died on 8th January, 1961. Her rights in the property involved in the appeal had already been released to the petitioner by a registered document on 15th January, 1959, that is, even before the appeal was filed in this court. After the death of the appellant the petitioner filed this petition on 4th April, 1961 to get herself impleaded as the assignee appellant in the appeal. The respondent in the appeal opposes the application:

(2.) The contention of the learned advocate of the respondent is that the appeal has already abated and therefore the present application by the assignee under O.22 R.3 and 10 of the Code of Civil Procedure has to be dismissed. The learned advocate of the petitioner, on the other hand, contends: (1) that in the present case there is no abatement, since 90 days had not passed after the death of the appellant, when the application for impleading was filed; (2) that there is no time limit fixed for an assignee, pendente lite, to get impleaded under O.22 R.10; and (3) that the present petition can be treated as a composite application under O.22 R.3 and 10 for the substitution of the legal representatives of the deceased appellant and thereafter of the applicant. In this connection, a Division Bench ruling of the Calcutta High Court in Kedarnath Kanoria v. Khaitan Sons & Co. ( AIR 1959 Cal. 368 ) has been brought to my notice. In that decision it was held:

(3.) In the present case 90 days had not yet elapsed after the death of the appellant, when the application by the assignee was filed and therefore, in one sense, there is no abatement at all in this case. An authority for this position is found in Prakash Chandra Das Gupta v. Shama Charan Dutt ( AIR 1925 Cal. 467 ), wherein it was held that in cases where there were two devolutions - the death of party and the transfer by him of his interest in the suit - the transferee had the right to be brought on record in the place of the deceased transferor and the death of the transferor should not take away the assignee's right to be substituted. Secondly the petition can be, construed as a composite petition for the substitution of the legal representatives of the deceased and thereafter of the applicant. In that view also there is no abatement since the application was filed before the appeal had abated. The other question, namely whether in an appeal which has abated, an assignee can be impleaded after such abatement, the application for impleadment itself having been brought after abatement of the appeal, does not arise in this case and therefore, I do not propose to express any opinion on that question. In the result I hold that there is no abatement in this case, since 90 days had not elapsed, when the application under O.22 R.10 was filed. In addition, the application filed before such abatement can be treated as a composite application as was done in the Calcutta decision referred to above in Kedarnath Kanoria's case. The petition is therefore allowed and the petitioner is allowed to continue the appeal.