Suresh Kumar vs Gurdev Singh and Others

Permod Kohli, J.—This is an application filed under Order 22 Rule 10 of Code of Civil Procedure, for impleadment of applicants as

appellant Nos. 2 to 5 in this appeal.

Suresh Kumar, filed a suit for declaration seeking correction of the sale deed executed by one Jit Singh in this favour on June 05, 1987. The trial

Court decreed the suit vide its judgment and decree dated January 13, 2004. Suresh Kumar sold the suit property to the applicants, namely

Gurdev Singh, Sinhan Singh, Gurdeep Singh and Naib Singh, vide sale deed dated January 21, 2004. It is the admitted case of the parties that till

then, no appeal had been filed. However, the defendants/respondents filed an appeal against Suresh Kumar, before the lower Appellate Court on

January 22,2004. The appeal was contested by Suresh Kumar, the original plaintiff without informing the Court regarding transfer of interest in the

suit property. The lower Appellate Court, however, decided the appeal vide its judgment and decree dated March 24, 2006. Aggrieved of the

judgment passed by the lower Appellate Court, Suresh Kumar filed the present appeal before this Court on March 30, 2006.

During the pendency of this appeal, the respondent Nos.3 to 5 sought dismissal of the appeal on the ground that the appellant Suresh Kumar

has sold the property and has no right to prosecute the appeal, he having no interest in the suit property. It was after filing of this application that

the present application i.e. C.M. No. 8089-C of 2006 has been filed by these applicants for their impleadment as appellants Nos. 2 to 5 on the

ground that they have acquired interest in the suit property and are entitled to be impleaded as appellants under Order 22 Rule 10 of C.P.C.

This application is opposed by the other side by filing objections.

I have heard learned Counsel for the parties.

The only point in controversy is whether the applicants can be impleaded as appellants in this appeal in view of the fact that interest in the suit

property devolved upon them before filing of the present appeal or even before the appeal came to be preferred before the lower Appellate Court.

It has been vehemently argued on behalf of the respondents that the applicants cannot be shown any indulgence as they have, withheld the

necessary information from the Court and provisions of Order 22 Rule 10 of C.P.C. are attracted only when interest has devolved during the

pendency, of the lis. Learned Counsel has relied upon Lakshmi Narain v. Babu and Anr. AIR 1946 Lah 33, wherein it has been observed that the

assignee can make an application under any other provisions of law, but not under Rules 10 or 11 of Order 22 of C.P.C. From the observations

made, it appears that the Court has not given any positive opinion regarding the non-maintainability of an application under Order Rule 22 Rule 10

of C.P.C. The following observations of the Court are relevant.

I have refrained from discussing the question as to whether an application can be made by an assignee if the assignment is made in his favour after

the decision of a suit but before the filing of the appeal from that decision is neither during the pendency of the suit nor during the pendency of the

appeal.

Learned Counsel has further referred to Devisahai Premraj Mahajan Vs. Govindrao Balwantrao and Others, , wherein a Division Bench of the

Madhya Pradesh High Court has made the following observations:

The learned Counsel for Motilal invited our attention to the observation of Puranik J. in AIR 1944 137 (Nagpur) laying down that there being no

limitation prescribed for an application under Order 22 Rule 10 of the Code of Civil Procedure, a transferee pendente lite could be allowed to be

impleaded even at the appellate stage. It is true that as suggested by Mr. Puranik J. The discretion has to be exercised judicially and the fact that an

application is made at the appellate stage is no bar to the allowing of a party to be impleaded at the appellate stage. However.the question will be

one of due diligence. If a transferee is guilty of unreasonable delay and he waits and watches the proceedings without making an attempt to be

impleaded and later on he filed an application at a very late stage, unless he explains the delay or shows some justifiable reason for having remained

silent, his prayer to be impleaded at a late stage can evidently not be allowed.

Learned Counsel appearing for the applicants however referred to and relied upon judgment of the Hon''ble Apex Court reported as Amteshwar

Anand v. Virender Mohan Singh 2006 (1) P.L.J. 102, wherein the Hon''ble Supreme Court made the following ob-servations:

The appellants made much of the fact that no leave was obtained from the Courts under Order 22, Rule 10 of the Code, to bring VMS on record

as an assignee of their rights. This was an argument which has been raised for the first time before us. The Rule gives an assignee or a party interest

during the pendency of the suit the option to apply for leave to continue the suit and is restored to by an assignee when the assignee is of the

opinion that his interest would be better preserved thereby. There is ho legal obligation on the assignee to come on record.

Another Division Bench of this Court in Sukhdip Singh Vs. Arjan Singh Mihan Singh and Another, , has observed that even after the transfer of the

property, the assignee is not incapacitated from continuing the proceedings and the assignee can enjoy the benefit of steps taken by the assignor.

In the present case, it is the admitted position that assignees acquired interest in the property during interregnums i.e. between the passing of the

decree by the trial Court and filing of appeal before the lower Appellate Court. The appellant has categorically stated in his application that there

was a clear stipulation in the sale deed that assigner will be responsible for any defect in the title of the land in question and will be liable to

reimburse the money if the decree of the trial Court is reversed. It is, accordingly, contended on behalf of the applicants that it was legal obligation

of the assignor i.e. Suresh Kumar to defend the litigation even after assignment of interest in favour of the applications as he was legally bound to

convey the charge-free property to them. It may be useful to examine requirement of Order 22 Rule 10 and 11 of Code of Civil Procedure, which

read as under:

(10) Procedure in case of assignment before final order in suit.

(1) In other cases of 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.

(2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment

to the benefit of Sub-rule (1).

Application of Order to appeals:- In the application of this Order to appeals, so far as may be, the word ""plaintiff'' shall be held to include an

appellant, the word ""defendant"" a respondent, and the word suit"" an appeal"".

This provision enables the assignee of interest in the property to continue the suit with the leave of the Court where interest in the property is

devolved upon him before final order in suit. Rule 11 of the Order 22 of the Code of Civil Procedures also entitles the assignee to continue the

appeal in the same manner as the suit. It is well settled law that an appeal is always an extension of the suit and there is always a period for filing the

appeal provided under the Statute. Whether the assignment is during the period of pendency of the suit or during the period prescribed for filing the

appeal, it does not make any difference. Thus, the assignment during the period of limitation prescribed under law for filing the first appeal will be

deemed to be assignment during the pendency of the lis. At least, one of the Rules i.e. Rule 10 or 11 of C.P.C. shall be applicable in such a

situation and, thus, the application cannot be said to be impermissible merely because it was not preferred before the first Appellate Court

immediately after the assignment. Apart from the above, the law gives a discretion to the assignee to come on record or not, particularly in the facts

and circumstances of the present case, where there is a sale instrument containing a stipulation, which casts an obligation upon the assignor to

convey clear interest in the property with a further covenant that the assignor will be liable to reimburse the amount in case the judgment of the trial

Court is reversed. It was the obligation of the assignor also to prosecute and defend the appeal. Even otherwise, the applicants have every right to

seek impleadment in terms of Order 1 Rule 10 of C.P.C. Once their right to joint litigation is accepted, whether under Order 1 Rule 10 or Order

22 Rule 10 of C.P.C, they cannot be prevented from seeking impleadment to the lis, where admittedly, they have interest by virtue of devolution of

property upon them.

For the reasons recorded above, the contention of learned Counsel for the respondents is not sustainable and is hereby rejected. C.M. No.

8089-C of 2006 for impleadment under Order 22 Rules 10 and 11 of C.P.C. is allowed, subject to payment of Rs. 2,000/- as costs, to be paid to

the opposite side within two weeks, while C.M. No. 7731-C of 2006, for dismissal of the appeal, is hereby rejected.

Consequently, the applicants are directed to be impleaded as appellant Nos. 2 to 5 in the appeal. The Registry to make necessary correction

in the cause title and index.

Ordered accordingly.

List the main appeal for consideration on November 22, 2007.