Suit - continue - assignment - assignee - assignor - Order 22

Sharadamma vs Mohammed Pyrejan(D) Tr.Lrs.& Anr on 23 September, 2015
Author: …………………………J.
Bench: Kurian Joseph, Arun Mishra
                                                                              Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.7889  OF 2015
                (Arising out of S.L.P. [C] No.36889 of 2013)


Sharadamma                              … Appellant


Vs.



Mohammed Pyrejan (D) through LRs. & Anr.     … Respondents

Is right to appeal lost if right transferred during pendency of appeal ?

3. This is an appeal against the judgment and order dated 24.9.2013 passed by the High Court of Karnataka at Bangalore in Regular First Appeal No.1735 of 2011, dismissing the appeal filed by the plaintiff-appellant on the ground that she had released her interest in the suit property in favour of her daughter Smt. Padmavathi on 11.4.2011 and said Padmavathi, in turn, had transferred the property in favour of Mr. G.R. Ramesh vide sale deed dated 20.4.2011. Consequently, she had lost her right to continue the appeal preferred as against dismissal of the suit vide judgment and order dated 16.6.1990.

5. We have heard learned counsel for the parties and opine that the impugned judgment is patently illegal. Merely due to the assignment or release of the rights during the pendency of the appeal, the appellant did not in any manner lose the right to continue the appeal. Merely by transfer of the property during the pendency of the suit or the appeal, plaintiff or appellant, as the case may be, ordinarily has a right to continue the appeal. It is at the option of the assignee to move an application for impleadment. Considering the provisions contained in Order 22 Rule 10 and Order 22 Rule 11 of the Code of Civil Procedure, the impugned judgment and order of the High Court cannot be allowed to be sustained.

6. A bare reading of the provisions of Order XXII Rule 10 makes it clear that the legislature has not envisaged the penalty of dismissal of the suit or appeal on account of failure of the assignee to move an application for impleadment and to continue the proceedings. Thus, there cannot be dismissal of the suit or appeal, as the case may be, on account of failure of assignee to file an application to continue the proceedings. It would be open to the assignor to continue the proceedings notwithstanding the fact that he ceased to have any interest in the subject-matter of dispute. He can continue the proceedings for the benefit of assignee. The question is no more res integra.

26. The plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of the plaintiff has devolved. Likewise, in a case where interest of the defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained.

7. This Court in Jaskirat Datwani v. Vidyavati & Ors. [2002 (5) SCC 647], while relying upon Dhurandhar Prasad (supra), has laid down that even if no step is taken by assignee, suit may be continued by the original party and the person upon whom the interest has devolved will be bound by the decree, particularly when such party had the knowledge of the proceedings. Ordinarily, the person is bound by the decree until and unless it is shown that the decree was based upon fraud or collusion etc.