SHARADAMMAversusMOHAMMED PYREJAN (D) THROUGH LRS. &ANR.

                        [2015] 9 S.C.R. 352


A                         SHARADAMMA
                                 v.
       MOHAMMED PYREJAN (D) THROUGH LRS. &ANR.
                  (Civil Appeal No.7889 of2015)
B                     SEPTEMBER 23, 2015
          [KURIAN JOSEPH AND ARUN MISHRA, JJ.]

       Code of Civil Procedure, 1908 - Or. •22 r. 10, 11 -
  Assignment/release of rights during pendency of appeal -
C Suit for declaration of title and for restoration of possession
  by appellant- Dismissed by trial court-Appeal thereagainst
  dismissed by the High Court on the ground that appellant
  had released her interest in the suit property in favour of her
  daughter- Sustainability of- Held: Not sustainable - Merely
0
  due to the assignment or release of the rights during the
  pendency of the appeal, appellant did not lose the right to
  continue the appeal- Merely by transfer of the property during
  the pendency of the suit or the appeal, plaintiff or appellant,
E as the case may be, ordinarily has a right to continue the
  appeal- Thus, there cannot be dismissal of the suit or appeal
  on account of failure of assignee to fife an application to
  continue the proceedings - It is at the option of the assignee
  to move an application for impleadment - It would be open
F to the assignor to continue the proceedings notwithstanding
  the fact that he ceased to have any interest in the subject-
  matter of dispute - Matter remitted back to .the High Court for
  deciding afresh.

G        Dhurandhar Prasad Singh v. Jai Prakash University &
    Ors. 2001 (3) S<;:R 1129: 2001 (6) SCC 534; Jaskirat Datwani
    v. Vidyavati & Ors. 2002 (5) SCC 647 - referred to.
                      Case Law Reference
        2001 (3) SCR 1129        referred to.       Para 6
H
                                352
 SHARADAMMA v. MOHAMMED PYREJAN (D) THROUGH 353
                    LRS

    2002 (5) sec 647           referred to.       Para 7          A

   CIVIL APPELLATE JURISDICTION: Civil Appeal No.
7889 of2015.

    From the Judgment and Order dated 24.09.2013 of the               .
                                                                  8
High Court of Karnataka at Bangalore in Regular First Appeal
No.1735of2011.

    S. N. BhatfortheAppellant.

      Kiran Suri, S. J. Amith, Gautam Kumar, Dr. Vipin Gupta      C
for the Respondents.

    The Judgment of the Court was delivered by

     ARUN MISHRA, J. 1. Heard learned counsel for the
                                                                  D
parties.
    2. Leave granted.

     3. This is an appeal against the judgment and order dated
24.9.2013 passed by the High Court of Karnataka at Bangalore      E
in Regular First Appeal No.1735 of 2011, dismissing the
appeal filed by the plaintiff-appellant on the ground that she
had released her interest in the suit property in favour of her
daughter Smt. Padmavathi on 11.4.2011 and said Padmavathi,
in turn, had tran.sferred the property in favour of Mr. G.R.      F
Ramesh vide sale deed dated 20.4.2011. Consequ~ntly, she
had lost her right to continue the appeal preferred as against
dismissal of the suit vide judgment and order dated 16.6.1990.

     4. The facts, in brief, indicate that Sharadamma, plaintiff- G
appellant had filed Original Suit No.6020of1998 on 5.8.1998
for the purposes of declaration of title and for restoration of
possession on the strength of registered sale deed dated
10.11.1965. The plaintiff had also claimed a sum of Rs.3,000/
- towards past damages and a further sum of Rs.20/- per day H
354         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A     as continuing damages. The suit was dismissed by the trial
      court against wh.ich the plaintiff had preferred regular first
      appeal before the High Court. The same has been dismissed
      on the aforesaid ground by the impugned judgment and order.

B      5. We have heard learned counsel for the parties and
  opine that the impugned judgment is patently illegal. Merely
  due to the assignment or release of the rights during the
  pendency of the appeal, the appellant did not in any manner
  lose the right to continue the appeal. Merely by transfer of the
C property during the pendency of the suit or the appeal, plaintiff
  or appellant, as the case may be, ordinarily has a right to
  continue the appeal. It is at the option of the assignee to move
  an application for impleadment. Considering the provisions
  contained in Order 22 Rule 10 and Order 22 Rule 11 of the
D Code of Civil Procedure, the impugned judgment and order of
  the High Court cannot be allowed to be sustained. Order 22
  Rule 1Oand Order 22 Rule 11 CPC are extracted hereunder:

          ORDER XXll, RULES 10 AND 11.
E
          "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 a suit, the suit may, by leave of the Court, be continued
F         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
G         person who procured such attachment to the benefit of
          sub-rule (1 ).

                                    xxxxx

          11. Application of Order to appeals.- In the application
H         of this Order to appeals, so tar as may be, the word
 SHARADAMMA v. MOHAMMED PYREJAN (D) THROUGH 355
             LRS [ARUN MISHRA, J.]

    "plaintiff' shall be held to include an appellant, the word   A
    "defendant" a respondent, and the word "suit" an appeal."

      6. A bare reading of the provisions of Order XXll Rule 10
makes it clear that the legislature has not envisaged the penalty
of dismissal of the suit or appeal on account of failure of the B
assignee to move an application for impleadment and to
continue the proceedings. Thus, there cannot be dismissal of
the suit or appeal, as the case may be, on account of failure of
assignee to file an application to continue the proceedings. It
would be open to the assignor to continue the proceedings C
notwithstanding the fact that he ceased to have any interest in
the subject-matter of dispute. He can continue the proceedings
for the benefit of assignee. The question is no more res integra.
This Court in Dhurandhar Prasad Singh v. Jai Prakash
University & Ors. [2001 (6) SCC 534] has laid down thus:          D

    "6. In order to appreciate the points involved, it would be
    necessary to refer to the provisions of Order 22 of the
    Code, Rules 3 and 4 whereof prescribe procedure in case
    of devolution of interest on the death of a party to a suit. E
    Under these Rules, if a party dies and right to sue survives,
    the court on an application made in that behalf is required
    to substitute legal representatives of the deceased party
    for proceeding with a suit but if such an application is not
    filed within the time prescribed by law, the suit shall abate F
    so far as the deceased party is concerned. Rule 7 deals
    with the case of creation of an interest in a husband on
    marriage and Rule 8 deals with the case of assignment
    on the insolvency of a plaintiff. Rule 10 provides for cases
    of assignment, creation and devolution of interest during G
    the pendency of a suit other than those referred to in the
    foregoing Rules and is based on the principle that the trial
    of a suitcannot be brought to an end merely because the
    interest of a party in the subject-matter of the suit has H
356     SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A     devolved upon another during its pendency but such a suit
      may be continued with the leave of the court by or against
      the person upon whom such interest has devolved. But, if
      no such step is taken, the suit may be continued with the
      original party and the person upon whom the interest has
B     devolved will be bound by and can have the benefit of the
      decree, as the case may be, unless it is shown in a
      properly constituted proceeding that the original party
      being no longer interested in the proceeding did not
      vigorously prosecute or colluded with the adversary
c     resulting in decision ad-.1erse to the party upon whom the
      interest had devolved. The legislature while enacting Rules
      3, 4 and 10 has made a clear-cut distinction. In cases
      covered by Rules 3 and 4, if right to sue survives and no
      application for bringing the legal representatives of a
D
      deceased party is filed within the time prescribed, there
      is automatic abatement of the suit and procedure has
      been prescribed for setting aside abatement under Rule
      9 on the grounds postulated therein. In cases covered
E     by Rule 10, the legislature has not prescribed any
      such procedure in the event of failure to apply for
      leave of the court to continue the proceeding by or
      against the person upon whom interest has
      devolved during the pendency of a suit which shows
F     that the legislature was conscious of this eventuality
      and yet has not prescribed that failure would entail
      dismissal of the suit as it was intended that the
      proceeding would continue by or against the original
      party although he ceased to have any interest in the
G     subject of dispute in the event of failure to apply for
      leave to continue by or against the person upon
      whom the interest has devolved for bringing him on
      the record.

H     7. Under Rule 10 Order 22 of the Code, when there has
SHARAOAMMA v. MOHAMMED PYREJAN (0) THROUGH 357
            LRS [ARUN MISHRA, J.]

  been a devolution of interest during the pendency of a suit, A
  the suit may, by leave of the court, be continued by or
  against persons upon whom such interest has devolved
  and this 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 or suitor or B
  any other person interested, to apply to the court for leave
  to continue the suit But it does not follow that it is obligatory
  upon them to do so. If a party 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, as pointed C
  out by Their Lordships of the Judicial Committee in Moti
  Lal v. Karrabuldin [ILR (1898) 25 Cal. 179] he will be bound
  by the result of the litigation even though he is not
  represented at the hearing unless it is shown that the
                                                                       0
  litigation was not properly conducted by the original party
  or he colluded with the adversary. 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, for, as Lord Kingsdown of the Judicial Committee E
  said in Prannath Roy Chowdry v. Rookea Begum [( 1857-
  60) 7 MIA 323], a cause of action is not prolonged by mere
  transfer of the title. 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.                        F

                              xxxxx
  26. The plain language of Rule 10 referred to above does
  not suggest that leave can be sought by that person alone
  upon whom the interest has devolved. It simply says that            G
  the suit may be continued by the person upon whom such
  an interest has devolved and this applies in a case where
  the interest of the plaintiff has devolved. Likewise, in a
  case where interest of the defendant has devolved, the              H
358     SUPREME COURT REPORTS                      [2015] 9 S.C.R.


A     suit may be continued against such a person upon whom
      interest has devolved, but in either eventuality, for
      continuance of the suit against the persons upon whom
      the interest has devolved during the pendency of the suit,
      leave of the court has to be obtained. If it is laid down that
B     leave can be obtained by that person alone upon whom
      interest of a party to the suit has devolved during its
      pendency, then there may be preposterous results as such
      a party might not be knowing about the litigation and
      consequently not feasible for him to apply for leave and if
c     a duty is cast upon him then in such an eventuality he would
      be bound by the decree even in cases of failure to apply
      for leave. As a rule of prudence, initial duty lies upon the
      plaintiff to apply for leave in case the factum of devolution
      was within his knowledge or with due diligence could have
D
      been known by him. The person upon whom the interest
      has devolved may also apply for such a leave. so that his
      interest may be properly represented as the original party,
      if it ceased to have an interest in the subject-matter of
E     dispute by virtue of devolution of interest upon another
      person, may not take interest therein, in ordinary course,
      which is but natural, or by colluding with the other side: If
      the submission of Shri Mishra is accepted, a party upon
      whom interest has devolved, upon his failure to apply for
F     leave, would be deprived from challenging correctness of
      the decree by filing a properly constituted suit on the ground
      that the original party having lost interest in the subject of
      dispute, did not properly prosecute or defend the litigation
      or, in doing so, colluded with the adversary. Any other party,
G     in our view, may also seek leave as, for example, where
      the plaintiff filed a suit for partition and during its pendency
      he gifted away his undivided interest in the Mitakshara
      coparcenary in favour of the contesting defendant, in that
      event the contesting defendant upon whom the interest of
H
 SHARADAMMA v. MOHAMMED PYREJAN (D) THROUGH 359
             LRS [ARUN MISHRA. J.]

     the original plaintiff has devolved has no cause of action A
     to prosecute the suit, but if there is any other co-sharer
     who is supporting the plaintiff, he may have a cause of
     action to continue with the suit by getting himself
     transposed to the category of plaintiff as it is well settled
     that in a partition suit every defendant is a plaintiff, provided B
   · he has cause of action for seeking partition. Thus, we do
     not find any substance in this submission of learned
    ·counsel appearing on behalfof the appellant and hold that
     prayer for leave can be made not only by the person upon
     whom interest has devolved, but also by the plaintiff or C
     any other party or person interested."

                                            (emphasis supplied)

     7. This Court in Jaskirat Datwani v. Vidyavati &Ors. [2002        o
(5) SCC 647], while relying upon Dhurandhar Prasad (supra),
has laid down that even if no step is taken by assignee, suit
may be continued by the original party and_ the person upon
whom the interest has devolved will be bound by the decree,
particularly when such party had the knowledge of the                  E
proceedings. Ordinarily, the person is bound by the decree
until and unless it is shown that the decree was based upon
fraud or collusion etc.

     8. Resultantly, we are of the opinion that the High Court         F
has gravely erred in law in dismissing the appeal on the
aforesaid ground. Thus, its judgment and order being
unsustainable, are hereby set aside. We remit the appeal to
the High Court for deciding the same afresh in accordance
with law after hearing the parties. The appeal is allowed. No          G
order as to costs.

NidhiJain                               Appeal allowed and matter
                                        remitted back to High Court.
                                                                       H