SAGORA BIBI Vs. SK MANIK

JUDGEMENT

(1.) If a party to a suit transfers his interest in the subject-matter of the suit to one and that one in his turn transfers the same to another, can that other, i.e. the second transferee get himself substituted in place of the party to proceed with the suit where the first transferee was not brought on record ? This is the short question that has arisen for our consideration in this revision and we have no doubt that the question cannot but be answered in the affirmative. It is true that even after transfer of interest of a party to the suit in the subject-matter of the suit, the suit may still effectively proceed with the transferor as the party without the transferee being brought on record because of the doctrine of lis pendens. But, as pointed out by Vivian Bose, J., in the decision of the Supreme Court in Sangram Singh v. Election Tribunal (A.I.R. 1955 S.C. 425 at 429), "our laws of procedure are grounded on principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them" and that "our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle". Therefore, a transferee of the interest of a party to the suit being a person whose property is being or likely to be affected by the suit should be allowed to participate in the proceeding whether or not he is the direct transferee, unless the statutory provisions of the Code of Civil Procedure debar such participation. We are satisfied that the relevant provisions of the Code of Civil Procedure, far from prohibiting such participation, clearly provide for the same.

(2.) Order 22 of the Code deals with assignment or devolution of any interest of a party during the pendency of a suit and after dealing with cases of devolution of interest as a result of death, marriage and insolvency in the preceding Rules, Rule 10(1) provided that "in other cases of 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". We have not been able to find anything in the relevant text or context of Rule 10(1) to confine the expression "person" to such person only who has acquired the interest by direct assignment or direct devolution from the party to the suit and to exclude person who have acquired such interest of a party to the suit, not from the party direct but from a successor-in-interest of such party. We would like to think that all that is necessary to enable a person to come or to be brought on record under Rule 10(1) is that the interest of a party to the suit "has come or devolved" to or upon him, whether directly or otherwise.

(3.) Mr. S. K. Biswas, the Learned Advocate for the petitioner, has, however, drawn our attention to the decision of the Privy Council in Manindra Chandra v. Ram Kumar (A.I.R. 1922 Privy Council 304) where the Privy Council observed (at 306) with reference to Order 22 of the Code of Civil Procedure that "the Order contemplates cases of devolution of interest from some original party to the suit, whether plaintiff or defendant, upon some one else". In Krishna Behari v. Raj Mangal (A.I.R. 1954 Allahabad 182), to which our attention has been drawn by Mr. G.C. Mookherjee, the learned Advocate for the opposite parties, it has been pointed our by a learned Single Judge of the Allahabad High Court that in the said Privy Council case it was held that there was no assignment at all within the meaning of Rule 10, and, therefore, the question whether Rule 10 applies to an assignment by the original party only or would also apply to an assignment by his assignee or legal representative not on record did not arise in that case and, therefore, the Privy Council could not be taken to have ruled that Rule 10 applies only to a direct assignee from a party to the suit and not to an assignee from such party's assignee or legal representative not on record. We would have gone the Allahabad way in reading and distinguishing the Privy Council decision in Manindra Chandra (supra) and in holding that Rule 10 of Order 22 would apply even when the assignment or devolution is not from the party direct. But the Division Bench decision of this Court in Anil Chandra v. Gopinath (A.I.R. 1950 Calcutta 376) would stand in the way where the Division Bench decision of the Patna High Court in Gobardhan v. Saligram (A.I.R. 1936 Patna 123) to the effect that the transferee from the legal representative of a deceased party had no right to come under Rule 10, has been fully approved and followed. The Calcutta Division Bench has, however, simply referred to and endorsed the Patna view on Rule 10 as the right one without any discussion whatsoever on the legal question. The observation in the Patna decision in Gobardhan v. Saligram (supra, at 125) to the effect that "Rule 10 empowers the court to give leave to a person who has taken an assignment from the party to continue the suit" and that "the 'party' there obviously refers to a party already on record", would give rise to the impression that the expression "party" has been used in Rule 10; but the Rule nowhere uses that expression.