Mahanth Harihar Gir vs Karu Lal and others

Fazl Ali, J.—It appears that in a suit brought by the respondent-decree-holders upon the basis of a mortgage bond a preliminary decree was passed on 29th January 1932 against the mortgagor and a number of other persons including one Mahant Krishna Dayal Gir who was one of the puisne mortgagees of the mortgaged properties. This decree was made final on 5th September 1932, but it is alleged that sometime before this date Mahant Krishna Dayal Gir had relinquished his right of mahantship and duly installed the appellant as his successor and gainsaying in respect of the Math presided over by him. According to the appellant the consequence of this transfer of interest is that the decree has become a nullity and incapable of execution against him and the property in which he is interested. This contention however has been negative by the learned Subordinate Judge and the appellant therefore appeals to this Court.

The principal question which was argued before us was whether under O. 22, R. 10 which is the provision applicable to cases where the interest of a party devolves on another person during the pendency of the suit, it was incumbent on the decree-holder to have made the appellant a party to the proceeding before the passing of the final decree. O. 22, R. 10 runs thus:

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.

This provision has been construed in Rai Charan Mandal v. Biawa Nath Mandal, 1915 Cal 103 = 26 IC 410 = 20 CLJ 107 wherein it was decided that the person on whom the interest of the plaintiff devolves while the suit is pending may, if he so chooses, obtain leave of the Court under O. 22, R. 10 to continue the suit: but if he does not do so, the original plaintiff may continue the suit and his successor will be bound by the result of the litigation. In that case Sir Ashutosh Mookerjee observes as follows:

This (R. 10) entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon Mm to do so. If he does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record and yet he will be bound by the result of the litigation even though he is not represented at the hearing. But the legislature has not further provided that in the event of devolution of interest during the pendency of a suit, if the person who has acquired title does not obtain leave of the Court to carry on the suit, the suit would stand dismissed. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings ... If this view were not maintained, what would be the result? The suit commenced by the plaintiff stands dismissed. The person who has acquired the right, title and interest of the plaintiff, commences a fresh suit. His cause of action is the original cause of action upon which the first plaintiff commenced his suit. It may consequently happen that while the plea of limitation would have been of no avail in answer to the claim of the original plaintiff, it may be very effective as an answer to the subsequent suit. It may also be asked if the contention of the appellants were to prevail, what would happen in the event of a devolution of the interest of the defendants ? Would the suit be heard ex parte, because the interest of the defendants had passed to a stranger to the litigation or would the suit stand dismissed because it was at that stage a suit against a person who had no interest in the litigation? If the contention of the appellant were upheld, there would obviously be endless litigation, and the substantial rights of litigants might be completely defeated.

It is conceded by the learned advocate for the appellant that this decision has not been dissented from so far and in my opinion its authority cannot be questioned. It is clear from the language used in O. 22, R. 10 that this provision is merely an enabling one and it is also to be noticed that no penalty is prescribed under this rule for failure to substitute the person upon whom the interest of a plaintiff or a defendant devolves while a suit is pending. This rule merely provides that should the interest of the plaintiff devolve upon another person by assignment or otherwise while the litigation is still proceeding such other person may obtain the permission of the Court to continue the litigation as if he were the plaintiff in the suit. It similarly provides that in those cases where the interest of the defendant devolves on another person during the pendency of the litigation, the litigation may be continued as against such other person with the permission of the Court. The language of this provision does not suggest that in the latter case the person upon whom, the interest of the defendant has devolved cannot himself come forward and ask the Court to allow the suit to be continued against him, nor does it suggest that if the plaintiff fails to substitute the assignee or the person upon whom the interest of the defendant of her wise devolves, such a person would not be bound by the decree passed against the original defendant. It is interesting to compare this provision with the provisions relating to abatement which are more or less of a mandatory character and which also state clearly that in case the legal representative of a deceased party is not substituted, the suit or appeal shall abate against the party who is dead and whose legal representative has not been substituted. Thus the intention of O. 22, R. 10 seems to be that though it is desirable that the party having a present interest in the litigation should be before the Court, yet the litigation is not to become in fructuous, if such a party is not brought before the Court. Indeed the provision that such a party can be brought before the Court only by the leave of the Court seems to suggest that there may be cases in which leave may be refused and the case allowed to proceed in the name of the original plaintiff or defendant. In the present case it is not denied that a preliminary decree had been passed against Mahant Krishna Dayal Gir by a Court of competent jurisdiction. I cannot conceive of any principle of law under which such a decree should be regarded, as a nullity merely because Mahant Krishna Dayal Gir chose to relinquish his rights in favour of the appellants without informing the Court or the decree-holder. In any view this appeal appears to me to be entirely without merit and I would dismiss it with costs.

Luby, J.

I agree.