GOUTAMI DEVI SITAMONY Vs. MADHAVAN SIVARAJAN

JUDGEMENT

(1.) The question for decision in this appeal is whether the assignee from an appellant could seek to get impleaded in the appeal under O.22 R.10 C. P. C. after the death of the appellant and after the period within which the appeal would abate under R.3(2) of O.22 by reason of the failure to implead legal representatives of the deceased appellant. This question arises under the following circumstances.

(2.) In execution of the decree in O. S. 922 of 1963 of the 1st Additional Munsiff's Court, Trivandrum, the decree-schedule property was sold and that was purchased by a stranger in court auction. The auction purchaser, in whose favour the sale was confirmed, sought to take delivery. This was objected to by the vendee of the property from the defendant in the suit. Such vendee made an application to set aside the sale and that application was ultimately allowed by the execution court. Against that order the auction purchaser filed a Civil Miscellaneous Appeal in the court below. Subsequent to the filing of this appeal he executed a deed in favour of the respondent here purporting to transfer his rights in the property purchased by him in the court auction. That was on 11-7-1972. The transferee did not come on record at that time. The appellant died on 25-8-1972. There was a controversy in the court below as to the date of death, the respondent contending that the death was only on 3 5 1973. But that case was found against. The legal representative of the deceased appellant did not seek to come on record in the appeal and the appeal abated. Subsequently, on 23-7-1973, the respondent moved an application under O.22 R.10 of the Code of Civil Procedure to implead him on the strength of the assignment obtained by him from the auction - purchaser. This application was objected to on the ground that the appeal having abated there were no proceedings subsisting in which the assignee could seek to get himself impleaded. The court below evidently took the view that there was no time limit within which the application had to be made by an assignee under the provisions of O.22 of the Code of Civil Procedure, and therefore it was open to him to move the court even after the abatement of the appeal. In this view the application was allowed. The court below further found that there was sufficient reason to grant the leave contemplated by the Rule. It is thereupon that the respondent in the court below has come up in appeal to this court challenging the order of the court below impleading the respondent as party to the appeal. The contention of the appellant here is that there was no appeal pending at the time so as to enable the respondent to come on record and therefore the motion for that purpose ought to have been dismissed.

(3.) The question therefore is, whether, despite the failure of the legal representative to seek to come on record on the death of the appellant an assignee from such appellant could move for being impleaded under O.22 R.10 of the C. P. C. at a time when the proceedings must be taken to have abated under O.22 R.3(2) of the C. P. C. against the legal representative.