Dirghayu Pande vs Shrimati Kishori Kuer

Manohar Lall, J.—This is an application for substitution by Mahanth Ramdhan Puri who claims to be substituted after setting aside the order of abatement of the appeal in place of the sole appellant Dirghayu Pande in the following circumstances. Dirghayu Pande sued to recover possession of four annas of the property in suit, described in the plaint, before the Munsif, third Court, Gaya, from defendant 2 and his transferees, defendants 3 and 4. That property had been sold in a certificate sale for recovery of arrears of cess on 3rd April 1934, by the Collector; and therefore the Secretary of State for India in Council was impleaded as defendant 1. During the pendency of the suit there was a compromise between defendant 4 and the plaintiff so that the suit of the plaintiff then remained for deciding the rights as to the remaining half share in the property in suit.

The suit was ultimately decreed ex parte against defendant 3 only and dismissed against the Secretary of State on 10th December 1936. Defendant 3 preferred an appeal to the District Judge of Gaya. That appeal was heard by the learned Subordinate Judge who allowed the appeal and dismissed the suit so far as it concerned defendants 2 and 3 with respect to the subject-matter of the appeal. That decision was given on 7th December 1937. During the pendency of the appeal in the Court below the petitioner before me, Ramdhan Puri, obtained a sale deed from the plaintiff on 4th January 1937. That sale deed has been produced before me and I am informed that by the terms thereof the petitioner undertook to finance and carry on the litigation both in the Court below and also in. the High Court, if, necessary. But the petitioner, notwithstanding the devolution of the interest pendente lite, did not avail himself of the provisions of Order 22, Civil P.C., and did not get, himself substituted or brought on the record of the appeal while it was pending in the Court below.

Against the decree of the learned Subordinate Judge dated 7th December 1937, allowing the appeal of the defendants, a second appeal was brought in this Court by the sole plaintiff; the memorandum of appeal was filed on 7th March 1938. The appeal was admitted by the Registrar on 4th May 1938 and after notice to the respondents it was placed in the ordinary course for hearing before the learned Single Judge of this Court who took up the case on 9th February 1939, when the learned advocate for the respondents informed the Court that the sole appellant had died. The learned advocate for the sole appellant then took time to ascertain the fact and date of death of his client and to make the necessary substitution. On 23rd February 1939, it having been discovered that the sole appellant had died on 25th August 1938, and therefore the appeal had abated, an application was filed before this Court asking that the abatement may be set aside and that the petitioner may be substituted in place of the. deceased sole appellant.

Notice was issued on 22nd March 1939, on this application and the matter was placed before me for orders on 25th September 1939. I then directed that the petitioner should produce before me the sale deed already referred to. The sale deed was produced on 29th September 1939 and arguments were then heard. The respondents objected on that date that the petitioner in the circumstances narrated above had no right to get himself substituted or get the abatement set aside. The petitioner, on the other hand, contended that as the sole appellant was dead it was but just and proper that the name of the petitioner, who relied upon the sale deed of 4th January 1937, should be substituted so that he may carry on the litigation.

I am of opinion that I have no power to make any substitution as prayed for by the petitioner under the provisions of Order 22, Civil P.C. In the present case it will be noticed that the devolution of interest took place during the pendency of the appeal before the learned District Judge. No devolution of interest took place in August 1938 when the sole appellant died, while the appeal was pending in this Court. By the death the petitioner has not derived any right; the right under which the petitioner claims to be substituted was always with him since 4th January 1937 when he professed to purchase the property in dispute from the then living plaintiff. In these circumstances I do not see how the provisions of Order 22, Civil P.C., can come to the aid of the petitioner.

The matter appears to be concluded by authority also. In Kanti Chander v. Pirbhu Dayal AIR (1985) Lah 119 Iqbal Ahmed J. in delivering the judgment of that Court observed that:

Where the assignment in favour of the applicant has been made during the pendency of the suit in the Court below and not during the pendency of the appeal, the Appellate Court has no jurisdiction under Rule 10 to implead the applicant as a party to the appeal

and he repelled the prayer of the applicant that under the provisions of Section 151, Civil P.C., he should be ordered to be brought upon the record--the reason given for the refusal was that where the applicant has a remedy provided elsewhere in the Code and has neglected to avail himself of it he is not permitted to invoke the inherent jurisdiction of the High Court. In Kanti Chander v. Pirbhu Dayal AIR (1985) Lah 119 a Single Judge of the Lahore High Court took a similar view and held that where a person against whom a suit is dismissed in the trial Court assigns his interest to a third party during the period intervening between the passing of the decree and the institution of the appeal, the assignor has no subsisting interest which would entitle him to prefer an appeal, and that

to such a case Section 146 (Civil P.C.), is of no assistance and the Appellate Court could not make assignee appellant at the time of hearing the appeal.

This is exactly the situation in the present case and in my opinion as the assignment, relied upon by the petitioner, was made before the appeal was filed in this Court, Dirghayu Pande bad no right to prefer an appeal and in any case the petitioner ought to have preferred an appeal either in his own name or by joining the plaintiff as an appellant in the memorandum of appeal filed in this Court. In Gobardhan Mukharji Vs. Saligram Marwari and Others, Mohammad Noor J., in delivering the leading judgment of a Division Bench of this Court, observed that the provisions of Order 22 could not help the appellant in that case because the right which he claimed did not accrue to him on the death of the plaintiff but on a transfer made to him by the plaintiff while she was living.

He pointed out the distinction between Rule 3 and 10 of that Order and came to the conclusion that the appellant could not derive any assistance from either of these rules read with Section 146, Civil P.C. In the concluding paragraph of the judgment the question whether the appellant could get leave to continue the suit under Order 22, Rule 10 was also considered. The learned" Judge pointed out that Rule 10 empowers the Court to give leave to a person who has taken an assignment from a party to continue the suit and that the "party" obviously refers to a party already on the record.

Mr. Nawal Kishore Prasad No. 2 has placed reliance upon two decisions of the Calcutta High Court and one decision of this Court in support of his contention that he should be allowed to continue the appeal in his own right as transferee from Dirghayu Pande, and that in any case he, as the legal representative of Dirghayu Pande has a right to have the abatement set aside in order to allow him to prosecute the appeal. The first case relied upon is the case in Rajani Kanta Roy and Others Vs. Jyoti Prasad Singh Deo and Others, . In that case (which was a partition suit) what happened was that during the pendency of an appeal from a final decree one of the respondents, whose share in the property had been sold and which share had been subsequently reacquired by his heirs, the other parties to the suit, having died, the appellant applied for substitution of his heirs out of time.

The learned Judges held that, inasmuch as on the death of the said respondent, his interest was not in his heirs, but had devolved on a third party, who was made a party before the appeal came on for hearing, Order 22, Rule 10, Civil P.C. applied. The facts of that case are wholly different from the facts of the present case, where the petitioner was never on the record of the appeal. In the next case, Lakshan Chunder Dey Vs. Sm. Nikunjamoni Dassi and Others, , the facts were that during pendency of a suit the terms of settlement between the parties had been filed in Court; but before a decree had been actually drawn up in accordance with the terms of compromise, a stranger to the suit, who had purchased the interest of the plaintiff before the terms of settlement were filed in Court, applied to be substituted as the plaintiff in the suit. The learned Judges held that inasmuch as the decree had not been drawn up and the suit was still pending at the time the application was made, the stranger could be brought on the record.

It will be noticed that in this case the suit had not been disposed of and therefore the interest, which had devolved upon a third party, was allowed to be represented by bringing him upon the record of a suit which was then alive.

Reliance was also placed upon the case in Joti Lal Sah and Others Vs. Sheodhayan Prashad Sah and Others, . In that case the mortgagors had brought suits for redemption of their mortgages. The suits ended in a decree which fixed the amount to be paid by them within a stated time. The payment was not made within that particular time, and thereafter a suit for redemption was filed by their successors. It having been contended that the right of redemption was extinguished, the learned Judges held that inasmuch as the final decree had not been passed, the right of redemption was not extinguished.

Here again the distinction between the facts of that case and those of the present is that no final decree had been passed and the right of redemption had not been extinguished. There is no appeal pending in the present case by reason of the dismissal of the appeal by this Court for non-prosecution or for abatement, and the decision of the lower Court stands and has become final.

It was lastly contended that the petitioner in fairness ought to be allowed to have the abatement set aside.

In my opinion no right accrued to the petitioner afresh on the death of the person who, with the risk the petitioner took, was allowed to present and prosecute the appeal in all its stages before it terminated either by decision or by the death of the sole appellant. For all these reasons I would dismiss the application, but there will be no order for costs. Leave to appeal has been asked for, but I am unable to grant it if only for the reason that I am not dismissing the appeal but merely dismissing the application for setting aside the abatement and am not allowing the petitioner to be substituted in place of the deceased appellant at this stage.