Cherukutty vs Velappu

M.M. Pareed Pillay, J.—O.S. No. 202 of 1975 was filed by Thomas as Plaintiff against the Defendant (Respondent herein) for realisation of money on the basis of a promissory note. By assignment deed, Ext. A-1 dated 7th September 1978 Thomas had assigned his rights to the Petitioner to realise the money under the promissory note. As per the said document Petitioner claims right to prosecute the suit. The assignment deed was registered on 28th September 1978. It is the case of the Petitioner that after obtaining the document he and the Plaintiff approached Plaintiffs lawyer and entrusted with him the assignment deed and gave instructions to implead the Petitioner, that Plaintiff''s lawyer assured the Petitioner that he would do the needful, that Plaintiff died in November 1979 and that the Petitioner realised later that he was not impleaded in the suit. Thereafter he filed I.A. No. 5 of 1980 to implead him as additional Plaintiff. I.A. No. 6 of 1980 was filed for consequential amendment. The Court dismissed both the petitions. After dismissing I.A. No. 5 of 1980 the Court held that the suit has abated as legal representatives did not come in time.

Learned Counsel for the Petitioner submitted that no time has been prescribed under the CPC for a person to get himself impleaded an additional Plaintiff pursuant to obtaining the rights of the original Plaintiff and therefore as Ext. A-1 confers right to the Petitioner to prosecute the suit in the place of the Plaintiff assignor the Court below ought to have allowed the petitions and should not have dismissed the suit as abated. It is pointed out that immediately after the death of Thomas the Petitioner had filed the petitions and therefore it can never be said that they were filed beyond time.

Order 22, Rule 3 of the CPC provides for the procedure in case of death of one of several Plaintiffs or of sole Plaintiff. Order 22, Rule 3(1) of the Code reads.

Where one of two or more Plaintiffs dies and the right to sue does not survive to the surviving Plaintiffs or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit.

Order 22, Rule 3(2) reads:

Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant, the Court may award to him the costs which he may have incurred in defending the Suit to be recovered from the estate of the deceased Plaintiff.

Order 22, Rule 4 enumerates the procedure in case of death of one or several Defendants or of the sole Defendant. Order 22, Rule 4(3) provides that when no application is made under Sub-rule (1) within the time limited by law the suit shall abate as against the deceased Defendant. Order 22, Rule 10 provides for the procedure in case of assignment before final order in the suit. Order 22, Rule 10(1) reads:

In other cases of an assignment, creation or devolution of any interest during the tendency 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.

Order 22, Rule 10(1) of the CPC allows an assignee to get himself impleaded in the suit with leave of the Court. Whereas Order 22, Rule 3(2) and Order 22, Rule 4(3) specify that application should be filed within time limited by law, Order 22, Rule 10(1) provides that the suit, may, by leave of Court, be continued by the person interested in the matter by virtue of assignment. No time limit is specified. But it is necessary that the petition should be filed during the tendency of the suit. As Order 22, Rule 10(1) does not specify any time limit by which an assignee could be impleaded as a party it would not be correct to reject the application for impleadment on the ground that the application was not filed immediately after the assignment. It is pertinent to note that there are recitals in Ext. A-1 entitling the Petitioner to get himself impleaded in the suit and to continue the proceedings in the place of the original Plaintiff. The original Plaintiff died in November 1979 and the petition was filed on 2nd January 1980. That would show that the petition was filed when the suit was pending. As the petition was filed before the suit has abated it is futile to contend that the petition is not maintainable.

In the petition it is stated that after assignment Plaintiff and Petitioner approached the Plaintiff''s counsel and made necessary arrangements for impleading the latter. Merely because the counsel failed to file the petition immediately the right accrued to the Petitioner consequent to the assignment cannot be frittered away. It is not absolutely necessary for the assignee to have his name brought on record in the place of the Plaintiff, if he is satisfied that his rights will be sufficiently protected by the assignor-Plaintiff. Order 22, Rule 10(1) is not mandatory that the assignee should substitute himself in the place of the assignor. If the assignee has confidence in the assignor he may remain in the background and allow the assignor to continue in the proceedings.

In Banke Behari Lal Vs. Raghubar Dayal it was held that assignment of decree pending appeal does not prevent the decree holder from prosecuting the proceedings to final conclusion. In the above decision it is held as follows:

After the interest of a decree-holder in a decree which is the subject-matter of an appeal has been assigned to a third party, it is not absolutely necessary for the assignee to have his name brought on the record in place of the decree-holder, if he is satisfied that his rights will be sufficiently protected by the assignor. In the absence of his name proceedings can be continued as before by the decree-holder in spite of the assignment and as the assignment of the decree really amounts to the assignment of the interest of the decree-holder in the decree as may be finally determined the assignment would not prevent the decree-holder from prosecuting the proceedings till its final conclusion.

Order 22, Rule 10(1) makes the position clear that the right of the assignee to seek to continue the suit is not absolute as it is for the Court to consider whether leave is to be granted or not. It is for the Court to grant leave or refuse it depending upon the facts and circumstances of each case.

In Goutami Devi Sitamony v. Madhavan Sivarajan 1976 KLT 263 it has been held that the assignee cannot claim to come on record as a matter of right since leave is not to be granted as a matter of course. In the above decision it is held as follows:

It seems to be plain from the scheme of Order 22 that an assignee can make an application for leave to continue the suit so long as there is a suit, so far as it concerns the assignee, on the file of the Court. In a suit which is not subsisting there is no scope for seeking continuance. It is only logical that in a case where the suit has abated the assignee cannot thereafter seek to be added as a party to the action.

Thus the position admit of no doubt that so long as the suit has not abated it is open to the assignee to seek to continue the suit. In a case where suit has abated and consequently there was termination of proceedings, the assignee cannot seek himself to be impleaded under Order 22, Rule 10(1). In the case in hand the application to implead the Petitioner was filed before the suit has abated as the petition was filed within three months from the date of death of the original Plaintiff. As the petition has been filed before the suit has abated it cannot be said that the assignee has no locus stand to get himself impleaded.

The Court has power to allow or reject a petition filed under Order 22, Rule 10(1) taking into consideration all relevant facts and circumstances of the case. Even in matters which are within the discretion of the Court, it has to be exercised judicially and not in an arbitrary manner. The doctrine of lis pendens can never be a bar to bringing on record of the assignee as special provision has been made under Order 22, Rule 10 of the CPC for this very contingency. The assignee even if he does not became a party to the suit is bound by the decision against the assignor who is a party to the suit. The option to get himself impleaded in the suit or to let the assignor carry on the litigation rests with the assignee. When the assignee chooses to file petition to get himself impleaded in the suit it should not be unreasonably refused especially when the assignee is the only person who is actually interested in the conduct of the suit.

Another contention of the Respondent is that the abatement of the suit could be avoided only by the legal representatives of the Plaintiff and as they have not taken any steps in that regard the petition filed by the assignee is not maintainable. There is no merit in the above contention as the legal representatives of Thomas ceased to have any interest in the subject-matter of the suit after Ext. A-1 assignment. As the Petitioner has filed the petition before the suit has abated the Court below ought to have allowed it especially in view of the fact that as per Ext. A-1 assignment deed Petitioner obtained the rights of the Plaintiff.

We hold that the Court below went wrong in rejecting the petitions. The Court erred in holding that the suit has abated. The orders of the Court are hereby set aside. The petitions stand allowed. C.M.A. and C.R.P. are allowed. The trial Court is directed to dispose of the suit as expeditiously as possible.