PROKASH CHANDRA DAS GUPTA Vs. SHAMA CHARAN DUTT

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Jessore, dated the 21st March, 1922, setting aside his previous order of the 7 November, 1921, and rejecting the appellant's application for substitution in place of the plaintiff in the suit. The facts are that, one Giridhari Lal Sarowgi brought the present suit on the allegation that the mortgage executed by defendant No. 2 in favour of defendant No. 1 was collusive, fraudulent and benami and could not affect the plaintiff's mortgage. He further prayed that it might be declared that the mortgage decree obtained by defendant No. 1 on the said mortgage against defendant No. 2 and him (plaintiff) was fraudulent and collusive and inoperative against him (plaintiff). In the said suit brought by defendant No. 1 he claimed to be the first mortgagee while Giridhari Lal was described as a puisne mortgagee. During the pendency of this suit on the 16 June, 1921, Giridhari Lal sold his interest in the mortgage and in other properties to the present plaintiff. On the 4 October, 1921, Giridhari died, on the 7 November, 1921, the appellant filed an application under Order 22, Rule 10 for substitution in place of Giridhari, Lal on the allegation that he had purchased his interest in the mortgage the subject-matter of the suit. It was not discovered on date that Giridhari was dead. On the other hand, the Pleader for Giridhari Lal in the suit consented to the appellant being substituted in place of his client and the petition was granted by the Court. Subsequently, the defendants made an application that on the 7 November, 1921-the date on which the plaintiff applied for substitution- Giridhari was dead, and, therefore, the order substituting the plaintiff in place of Giridhari passed under Order 22, Rule 10, should be set aside. The learned Subordinate Judge has given effect to this contention. He has held that where two devolutions take place, namely, where there has been an assignment by a party to the suit and before the assignee has been brought on the record the party dies the substitution of the legal representatives of the deceased party ought to be made. He formulates this view on the language of Order 22, Rule 3. Under that rule, according to the Judge, if the right to sue survives, as it does in the present case, the Court can only bring on the record the legal representatives of the plaintiff. The Court is, therefore, entitled to bring on the record only the legal representatives of the plaintiff; and, if there is an assignee of the plaintiff, he shall not be substituted in place of the deceased plaintiff. The provision of the law as contained in Order 22, Rule 3 should be given effect to whenever the contingency thus contemplated happens; and the assignee of the plaintiff should not be entitled to come in preference to the legal representatives of the deceased plaintiff. In this view of the law the learned Judge has vacated his order passed on the 7 November, 1922, and dismissed the plaintiff's application for substitution; and as within the time prescribed by law no application was made by the legal representatives of Giridhari Lal to cause substitution he ordered that the suit should abate. In our judgment the view taken by the lower Court is erroneous. It is not necessary to inter into the question whether the consent given by the Pleader on the 7 November, 1921, was given in ignorance of the fact of Giridbari's death or whether the appellant was aware that Giridhari was dead at the time a fact which he denies. The simple question of law that arises in this case irrespective of those facts, is whether when there are two devolutions-the death of a party and the transfer by him of his interest in the suit -the transferee has the right to be brought on the record in place of the deceased transferor. It seems to us on going through the several sections of the Code, dealing with this matter that the two devolutions which have occurred in this case are distinct and are governed by different considerations. The death of the plaintiff after the assignment of his interest should not take away the assignee's right to be substituted in the suit. If effect is given to the contrary contention the result will be that if a plaintiff after selling his interest in the subject-matter of the suit dies, before the assignee could make an application for substitution under Order 22, Rule 10, the assignee will have no right to be brought on the record and the legal representative of the deceased plaintiff having no interest in the subject-matter there will be no representation in the suit, and the assignee will be deprived of the benefit, of his purchase through no fault of his. The true view is what was taken in the case of Rajaravi Bhagwat V/s. Jibai (1885) 9 Bom. 151. West, J., has lucidly dealt with this point in the following passage: "The case being one of an assignment or creation of an interest pending the appeal plus the death of the assignor, is one embracing a fact more than that contemplated by Section 368." (Order 22, Rule 4, the case there being one of death of a respondent). "The rule in Section 372 (Order 22, Rule 10) on the other hand must be admitted to apply to it; and being alone sufficiently inclusive, if not the more specific; as dealing with other cases than the ones previously provided for, must prevail, over those rules. The double event of a transfer of the decree-holder's title and of his death was probably not distinctly conceived by the draftsman of the Code; but we can give effect to the apparent intention, not only in a literal application of the words to the cases exactly provided for but also by a logical extension of them to the composite cases involving circumstances that fall separately under distinct rules, and yet must have been meant to be dealt with in a consistent and uniform manner." We think that this is the correct view of the law. We must, therefore, set aside the order of the Court below, dated the 21 Match 1922. But the learned Judge has not inquired into the bona fides of the transfer to the plai ntiff-appellant and as the respondent wishes that the case should be sent back for an enquiry we think that this appeal should be sent back. In the case of Lakshan Chunder Dey V/s. Nikunji Money Dassi A.I.R. 1924 Cal. 188 it was held that an applicant who invokes the aid of Order 22, Rule 10 is not entitled for a matter of right to an order in his favour. This case will go back to the learned Subordinate Judge for a proper order of the appellant's application filed on the 7 November, 1921-the order passed by that Court on that date as also the order of the 21 March, 1922, being disallowed. As the case has taken a very long time we express a hope that the Court below will see to the expeditious termination of the suit.

(2.) Each party will bear his costs of this appeal.

(3.) Let the record be sent down as early as possible.