BIMBADHAR KAR Vs. SK. ENAMUR RAHEMAN

JUDGEMENT

(1.) ONE Suka, Dibya obtained a preliminary decree for partition and asked for final decree in T.S. No. 362 of 1951 in the Court of the Second 'Munsif, Cuttack. The intervener opposite party alleged that on 1 -1 -1967 Suka Dibya transferred her undivided 8 annas interest by a registered sale deed to him. Suka Dibya, the sole Plaintiff died on 28 -1 -1967 leaving a daughter Prema Debi and the Defendant., her husband's brother. On 30 -1 -1967 the intervener filed an application for substitution under Order 22, Rule 10 Code of Civil Procedure. The Petitioner objected flaying that Suka's condition became serious on 21 -1 -1967 and she was removed to Cuttack General Hospital, and that the sale deed was a fraudulent transaction. The learned Munsif allowed the application of the intervener for substitution. The Petitioner's appeal to the District Judge failed. Against the appellate order, this Civil Revision has been filed.

(2.) THE only contention advanced by Mr. Mukherji is that without examining the validity of the assignment the application under Order 22, Rule 10 Code of Civil Procedure should not have been allowed. The contention requires careful examination. Order 22, Rule 10, Sub -rule (1) Code of Civil Procedure runs thus:

(3.) IN the result, the impugned order is set aside and the Civil Revision is allowed. The case must go back on remand to the trial Court who would, in the first instance, record evidence as to whether the assignment is genuine and valid. If the finding be in favour of the assignee, then the application for substitution under Order 22, Rule 10 Code of Civil Procedure must be allowed, otherwise not. In the circumstance parties to bear their own costs of this proceeding.