Mariaprakasam vs Upakaramary and 5 others

A. Kulasekaran, J.—The Purchaser of the suit property, pending suit, filed an application under Order 22 Rule 10 CPC, which was dismissed, hence the present revision petition. One Arockiamariammal filed a suit OS. No. 125 of 1996 on the file of District Munsif Court, Virdachalam for declaration and injunction which was subsequently transferred to Judicial Magistrate-cum-District Munsif, Kattumannarkoil and re-numbered as OS. No. 207 of 2001. Pending suit, the said Arockiamariammal sold the suit property under a registered sale deed dated 18-06-1986 for a consideration of Rs.5,800/- to the petitioner herein. She passed away on 30-04-1988. After her death, her daughter Uthiriyamary filed I.A. No. 2128 of 1989 before District Munsif Court, Virdaehalam to implead herself as a party along with a petition to set aside the abatement and to condone the delay, which was renumbered as I.A. No. 377 of 2001 and I.A. No. 230 of 2001 respectively before the District Munsif-cum-Judicial Magistrate, Kattumannarkoil. It is stated that her '' daughter did not have any subsisting right in the suit property since the same was sold to the petitioner, he filed I.A. No. 2064 of 1988 on 27-09-1988 before the District Munsif Court, Virdachalam, which was re-numbered as I.A. No. 229 of 2001 after transfer before District Munsif-cum-Judicial Magistrate, Kattumannarkoil. It is also stated that the daughter, who sought to implead herself as a party also died. The first defendant also died on 30-06-2001. The petitioner has filed I.A. Nos. 654 of 2001 and 655 of 2001 which were allowed on 14-11-2002. The application filed by the petitioner herein to implead himself as second plaintiff in I.A. No. 229 of 2001 was opposed by the respondents on the ground that the same was not filed within 90 days from the date of death of plaintiff, hence, after expiry of 90 days, abatement is automatic and without filing an application to set aside the abatement, the application filed to implead is not at all maintainable.

The learned counsel for the revision petitioner Mr. Kannan advanced arguments that the application to implead filed by the daughter of the deceased plaintiff Uthiriyamary do not disentitle the petitioner from impleading him as a party; the suit property was sold in entirety to the petitioner by Arockiamariammal and he is the only person entitled to be impleaded as second plaintiff and not Uthiriyamary; the court below mis-interrepted the definition of legal representative, which term is wide enough to include the assignee also, who may not be even legal heir; that the petition filed to implead is maintainable in the absence of setting aside the abatement and prayed for setting aside the order passed by the court below.

The learned counsel appearing for the respondents submitted that the petitioner, without seeking the relief of setting aside of abatement is not entitled to file petition to implead and prayed for dismissal of the civil revision petition.

The issue involved in this revision is whether the order of dismissal of the implead petition filed by the petitioner is maintainable in the absence of setting aside the abatement or not.

It is submitted by the counsel for the petitioner that the petitioner has filed I.A. No. 229 of 2001 under Order I Rule 10, which provision was amended in I.A. No. 258 of 2001 on 23-07-2001 to Order 22 Rule 10 CPC, read with 151 CPC. Now, we look into the provisions of Order 22 Rule 10 CPC, which are extracted below.

"ORDER 22 RULE 10 - Procedure in case of assignment before final order in suit - (1) In other cases of an assignment, creation or devolution of any interest during the pendency of the 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)."

When we look into the provisions of Order 22 Rule 10 CPC, so long as no final decree has been passed, the assignee can carry on the suit and cannot in disregard thereof file a new suit for the same relief. While exercising the jurisdiction under this Rule, the Court must consider the prima-facie equities among other things. Devolution of interest by death is governed by Order 22 Rule 2 to 4. Order 22 Rule 10 applies to all other cases of devolution. Section 146 CPC governs the situation.

Order 22 Rule 10 is an enabling one and it must be considered liberally so as to advance justice. This rule is based on the principle that the trial of a suit cannot be arrested merely by reason of devolution of interest of a party in the subject matter of the suit; that the person acquiring the interest may continue the suit with the leave of the Court. It is well settled that party assigning whole or his or her interest pendente lite cannot ask for judgment in respect thereof but his or her assignee can. Alinees pendente lite can maintain application under Order 22 Rule 10 besides Order 10 (2) CPC.

It must be remembered that this Rule does not apply if the assignment, creation or devolution of interest takes place before the suit is instituted. The assignee made no application when the suit was pending will not however debar him from filing an appeal from the decree as a person and as a party within the meaning of Section 146.

In the decision reported in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, the Honourable Supreme Court held that an appeal is a proceeding for the purpose of Section 146 and further the expression "claiming under'' is valid only to include the case of devolution and assignment mentioned in Order 22 Rule 10 CPC. Whoever is entitled to be, but has not been brought on record under Order 22 Rule 10 CPC in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if the assignor could have filed such an appeal, there being no prohibition against it in the code.

It is evident from Order 22 Rule 10 CPC that the same can be applied to a facts of a particular case only where any of the previous Rules namely Order 22 Rules 3 and 4 not applicable. Mere death of the party concerned cannot take away the right of the assignee.

The Honourable Supreme Court in the decision reported in Ghafoor Ahmad Khan Vs. Bashir Ahmad Khan (Dead) by Lrs., held thus:-

"After hearing the counsel for the respondents, we are not satisfied with the High Court''s order directing that the appeal has abated and is, therefore, dismissed that order cannot be sustained. This is not a case where on the death of the sole respondent his heirs are sought to be brought on record. During the lifetime of the sole respondent there was a transfer of the property (subject matter of appeal) by way of a gift to his wife. In other words it is a case of devolution of interest and the case falls under Order 22 Rule 10 of CPC and there will be no question of abatement. We, therefore, direct that the transferee be brought on the record. The appeal is remitted to the High Court and the same be heard and disposed of in accordance with law."

Following the above said judgment, a Division Bench of this Court in the decision reported in Dasari Gowri Kumari V. Satyanarayana - (1985) 98 LW.739 held in para 9 as follows:-

"9. Mr. M. Srinivasan, learned counsel appearing for the appellants, contended that the petitioners in CMP No. 3339 of 1983 have to be transposed as appellants in the place of the deceased appellant by virtue of order 22. rule 10 of the Code of Civil Procedure. The learned counsel further contended that such an application can be filed at any time without any limitation and that limitations will apply only for petitions filed under Order 22, Rule 3 and 4 of the Code of Civil Procedure. As regards the merits of the case, Mr. M. Srinivasan contended that the appellant/ second defendant was kept in darkness by the counsel concerned and that is why she was not able to file the petition to set aside the exparte decree against her in time. According to him, the reasoning given by the appellant for the delay is sufficient and bonafide and as such, the learned judge ought to have condoned the delay in filing the petition to set aside the exparte order."

It is seen from the above judgment of the Division Bench that under Order 22 Rule 10, the purchaser of the property have to be transposed as plaintiff in the place of deceased by virtue of Order 22 Rule 10 but such an application can be filed at any time without any limitation and that limitation will apply only for petition filed under Order 22 Rule 3. In view of the above judgments and also the fact that the petitioner has acquired interest over the entire suit property by way of sale and that Order 22 Rule 10 CPC is an enabling one and it must be construed liberally so as to advance justice, even if there was some delay, in cases of this kind, no question of abatement arises, attempt should be made to avoid multiplicity of suits and the assignee should not be driven to file another round of suit, I allow this revision petition by setting aside the order of the trial court. No costs. The trial court is directed to dispose of the suit on merits and in accordance with law within a period of six months from the date of receipt of a copy of this order. Consequently, connected CMP is closed.