T K CHAKRAPANI IYER Vs. AMMALU AMMA

JUDGEMENT

(1.) This is an application made under Order XXII, Rule 10 of the Civil Procedure Code to bring the petitioner on record as a party respondent in S.A. No. 724 of 1948, The second appeal arises out of a suit, O. S. No. 347 of 1943, on the file of the District Munsiff's Court, Palghat. It was a suit for recovery of possession of certain property and for other reliefs. The trial Court decreed the suit. The first defendant filed A. S. No. 46 of 1945 in the Court of the Subordinate Judge, Palghat. Pending the appeal, the plaintiff, who was the 1 respondent therein, died, and his legal representatives were brought on record as respondents 2 and 3. They assigned their rights in the suit property to one Allu Achan Menon, who was impleaded in the appeal as the 4 respondent. He, in his turn, transferred his rights in the property to the petitioner herein, by a deed dated 30 May, 1947. The appeal was disposed of on 28 June, 1947, without the petitioner being impleaded as a party respondent. The appeal was dismissed, and the 1 defendant has filed the above second appeal. The petitioner has now made this application, because he is the person now interested in the property as the owner, and his transferor does not propose to defend the appeal. This application is opposed by the appellant in the second appeal, merely on the ground that as the assignment was during the pendency of the first appeal the petitioner is not entitled to the benefit of the provisions of Order XXII, Rule 10, read with Rule 11. The contention, shortly, is that as the petitioner did not bring himself on record in the lower appellate Court, he is precluded from applying to be brought on record in the second appeal. The application originally came on for hearing before Rajagopalan, J., who found a conflict between the decision of Stodart, J., in Alagar Raja V/s. Narayana Raja . and that of Patanjali Sastri, J., in Ratnasabapathi Pillai V/s. Gopala Ayyar . The petition was therefore posted before a Division Bench.

(2.) The question which arises in this petition is of some procedural importance, and there has been a divergence of opinion not only in this Court, but in decisions of other Courts as well. We, therefore, propose to first examine the language of the relevant provisions, before discussing the case-law. The substantive provision is Order XXII, Rule 10, which runs as follows: (1) In other cases of an 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. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1). Rule 11 is a general supplemental provision for the application of this order to. appeals and says that, so far as may be, the word plaintiff shall be held to include an appellant the word defendant a respondent and the word suit an appeal.

(3.) Reading these two rules together, the result appears to be this: If there is an assignment, creation or devolution of an interest during the pendency of a suit an application may be made under Order XXII, Rule 10, for a continuation of the suit by or against the person to or upon whom such interest has come or devolved If such assignment, creation or devolution of interest takes place during the pendency of an appeal, the appeal may be in the same manner continued by or against such person. So far, it is common ground. It has also been decided by this Court that if the assignment, creation or devolution of interest is after the decree in a suit the person to whom such interest has come or devolved can file an appeal from the decree. An appeal may be filed by or against the person to or upon whom such interest has come or devolved not by virtue of Order XXII, Rule 10, but on account of another provision, namely, Section 146 of the Code. Vide Sitaramaswami V/s. Lakshmi Narasimha (1917) I.L.R. 41 Mad. 510. and Subba Pillai V/s. Rangasami (1917) 40 I.C. 846.