Karnataka High Court
Akka Bai And Another vs Gowrawwa on 5 April, 1989
Equivalent citations: AIR1990KANT278, 1991(4)KARLJ756, AIR 1990 KARNATAKA 278
ORDER Chandrakantharaj Urs, J.
1. This appeal was originally listed for disposal on this day on account of the order made by us on 3rd March, 1989 recording a compromise under 0.23, R. 4 of the Code of Civil Procedure. On that day, the compromise was accepted in person by the parties concerned who were present in Court. By the detailed order made, which is part of the records now, we had even satisfied ourselves that the person in Court claiming to be the respondent was indeed the respondent That became necessary in the light of the conduct of the counsel who was appearing originally for the respondent to which also we have made a detailed reference in the order of March 3, 1989. In fact on that day, the learned Counsel chose to file a memo of retirement from the case for want of instructions and in the light of the fact that respondent-Gowrawwa had engaged another counsel who was present in Court along with the respondent when the petition for compromise under O. 23, R. 4 of the Code of Civil Procedure was filed.
2. It was thereafter on 7-3-1989 an impleading application was presented, which was numbered as I.A. 3, by one Malappa Banappa Hoonur, purporting to be made under O.22, R. 10 read with O. 1, R. 10 as well as under Sec. 146 of the Code of Civil Procedure. When that matter came up for consideration before this Court on 20-3-1989, we directed the matter to be posted for further orders inviting objections thereto from the other parties. To-day we have heard the learned Counsel Sri G. S. Visweshwara appearing for the impleading applicant as well as Sri K. Channabasappa for the appellants and Sri Gurumath for the respondent in this appeal.
3. The impleading applicant contends that the compromise petition is a fraudulent one made to defeat his legitimate rights acquired by him by a deed of assignment alleged to have been executed by the respondent on 24-4-1985 by which he had acquired all the right, title and interest of respondent Gowrawwa in the judgment and decree under appeal and therefore she had no right to continue to defend the appeal or enter into compromise which would prejudice his interest. In that circumstance he has prayed for being impleaded as the respondent in place of the plaintiff Gowrawwa and allowed to continue to defend that appeal.
4. On the other hand, Sri K. Channabasappa appearing for the appellant and Sri Gurumath for the respondent-plaintiff, contend that there has been no assignment which is valid in law; that the appellants in any way arc not aware of the deed of assignment. Gowrawwa, the respondent has filed an affidavit emphatically slating that the impleading applicant Hoonur had represented to her that he would do all that is necessary to defend the appeal in this Court by engaging lawyers known to him and in that behalf obtained signatures to several papers and using them, perhaps has created a deed of assignment unknown to her and therefore the Court should not act upon it. They have also raised other contentions in the counter affidavit filed to which we do not think it necessary to make any reference as they relate to pure questions of law in regard to scope of O.22 R. 10 of the Code of Civil Procedure.
5. Before us Sri Visweshwar, learned counsel for the impleading applicant, has contended placing reliance on some of the decided cases that he is a successor in interest and therefore under O. 22 R. 10 of the Code of Civil Procedure he is entitled to come on record and resist the compromise decree as he alone is the proper and necessary party to defend the appeal, the respondent-plaintiff having lost all right, title and interest by virtue of the deed of assignment dated 24-11-1985 executed by her in his favour. He drew our attention to the ruling of the Supreme Court in the case of Khcmchand Shankar v. Vishnu Hari Patil, . In the said case, the Supreme Court had the occasion to examine in detail not only the scope of O.22 R. 10 of the Code of Civil Procedure, but also the stage at which an application under that provision may be made by parties seeking to implead themselves. Sri Visweshwara, learned counsel drew our attention especially to what has been observed by their Lordships in paragraph 6 of the judgment as reported in the All India Reporter, and it is as follows -
"Rule 10 of Order 22 of the Civil P.C. clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made.....
The position of a person on whom any interest had devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the Court to be impleaded as parties they cannot be turned out."
It is not for this Court to overlook the principle laid down by the Supreme Court. The decided cases before the case of Khemchand Shankar Choudhary had tended towards a liberal construction of R. 10 of O. 22 of the Code of Civil Procedure. The question is whether on the facts of this case it is for this Court to allow the applicant to implead himself to prosecute the defence of the appeal in the light of the dispute raised by the respondent on record that she has not executed any deed of assignment i.e., when there is doubt cast on the locus-standi of the applicant to implead himself in this appeal in place of the respondent.
6. This was countered by the learned counsel for the applicant by placing reliance upon a decision of the Full Bench, of the Patna High Court in the case of Baijnath Ram v.
Mt. Kunkowati Kuer, . In the said case their Lordships having regard to the conflict of views between the two Division Bench rulings of the same High Court, on somewhat different facts, ruled that O.22 10 of the Code of Civil Procedure gives wide discretion to the Court to implead or not to implead a part claiming to be a successor in interest and that discretion should be exercised by the Court judicially. But those observations were made in a totally different context and on totally different set of facts. We cannot dispute the correctness of the decision of their Lordships who rendered the Full Bench decision in the aforesaid case that the expression 'other cases' used in R. 10 of O.22 would over a wide gamut of events under which a person may seek to implead himself in proceedings as successor in interest. But that does not really help the present applicant in our view for this reason. Admittedly the alleged assignment was made in the month of May 1985. It is part of the records that permission on behalf of the respondent was indeed prayed for by an application which was disposed of by this Court granting permission subject to the result of the appeal. He did nothing thereafter. It is only when the compromise petition was taken up for hearing, there was some resistance by the counsel who was then appearing for the respondent and thereafter the present application is filed in the light of the order made by us on 3rd March, 1989. In this connection, the Court drew attention of the counsel to Art. 137 of the Limitation Act of 1963 and asked him to justify how the application is maintainable in view of the fact that it is filed beyond the period of three years, the limitation prescribed for an application in the third division not otherwise provided for in the Schedule to the Limitation Act of 1963.
7. answer to that the learned counsel relied upon the observations of the learned Judges of the Patna High Court in the Full Bench decision to which we have already referred. In that decision, their Lordships have observed that the right to make an application under O.22 R. 10 is not inhibited by limitation prescribed as that right will continue as long as the matter is pending. We do not propose to express our final opinion on that question because the Patna High Court decision was rendered before the Limitation Act of 1963 was enacted and the earlier Act of 1908 was repealed.
8. Article 181 of the old Limitation Act corresponds to some extent with Art. 137 of the 1963 Limitation Act, but with this difference, it was not exactly a residuary article but another article to meet the contingencies of such applications which were not specifically provided for either in the Code of Civil Procedure or under the Limitation Act. The present Art. 137 in the Schedule to the 1963 Limitation Act specifically provides for all applications in that division, which has not been provided for specifically and the period to be reckoned is from the dale on which the right to make the application accrued in favour of the applicant. We do not say anything more or give other reasons for we are rejecting the application on other ground based on what the Courts have termed as judicial discretion. Judicial discretion must be exercised on consideration of material placed before the Court and with reference to such material and not dehors such material.
9. We have in this case already pointed out, there is a lapse of nearly four years before an application is made for impleading and that too at a stage when the appeal is being settled out of Court. In some what similar circumstance, a Division Bench of the High Court of Madhya Pradesh in the case of Devisahai Premraj v. Govindrao Balwantrao, , ruled as follows :
"(g) Civil P.C. (1908) O. 1 R. 10(2) O. 22 R. 10 and O. 41 R. 20 -- Addition of parties -- Discretion of Court -- Transferee, pendente lite Application for being added as a party at appellate stage -- If can be allowed.
So far as allowing a party to be implcaded under Order 1 Rule 10(2) or Order 22 Rule 10, or Order 41 Rule 20 is concerned the discretion has to be exercised by the court judicially.
There is no bar of the transferee pendente lite being impleaded as a party under O. 22, R. 10 at the appellate stage. However, the question will be one of due diligence. But if he is guilty of unreasonable delay and waits and watches the proceedings without making an attempt to be impleaded and later on files 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."
10. We also derive some support to reach the same conclusion as was reached by the learned Judges of the Madhya Pradesh High Court in the a fore-mentioned case, from the case decided by the High Court of Lahore in the case of Allah Jawaya v. Lajpat Rai, AIR 1925 Lah 574 in which it was held :
"Where the factum of the assignment was disputed and the application for substitution of assignee was made months after the assignment was alleged to have been made.
Held : that the Court should use its discretion which it has under the rule, properly to reject the application."
11. On the facts, we have already stated there is a delay of five years, which has not been explained. The stage at which it is made is almost at the very end of the litigation between the parties. Therefore, having regard to the observations made by the Supreme Court in the ease of Khemchand, it is only when the identity of the heir, legatee, transferee or the assignee is not in dispute that the question of permitting the transferee pendente lite to be impleaded under O. 22 R. 10 will arise. The implication of that observation by the Supreme Court is that when there is dispute then the Court has the right to reject such applications and allow the disputed question of fact or law to be decided elsewhere. To this the learned counsel for the applicant answered by stating that on the anology of a legatee's claim, which is investigated and the finding recorded by the Court in proceedings under O. 22 R. 10, the same be done in the case of the present applicant and the validity of the assignment challenged by the respondent-plaintiff be gone into by this Court. We do not think that would be proper though such a practice docs exist which will be exercised in favour of an investigation and a finding being recorded in an interlocutory proceeding only when the dispute is germane to the cause of action which has lead to the filing of the suit or the pendency of the appeal. 'If it is out side the cause of action, and unconnected therewith, then an enquiry of the right or dispute with reference to such right contemplated under O. 22 R. 10 cannot be gone into. In other words, explicitly what the applicant wants us to do is to find out as to whether he has acquired title to the suit property by virtue of the assignment, which was not the issue between the respondent-plaintiff and the appellants-defendants. The issue between them was as to which of them had the right in the matter of the suit property. That would be converting the appeal into a suit between the plaintiff and her assignee, which is extraneous to the issue to be decided in the appeal. Therefore, we cannot hut reject this argument leaving it open for the applicant to agitate his grievance and assert his rights, if any, in appropriate proceedings against the appellant-respondent. We must reject I. A. 3 on ground of delay, laches, as well as for the reason that investigation of his claim would result in deciding some other question than what, is germane to the appeal. We must observe, there are numerous other decisions (sic) before us, to which we have not made reference as they amount to repetition of what has been already said by the Supreme Court and the other High Courts, to which we have referred to. Accordingly. I.A. 3 is rejected.
12. In the light of the order made by us on 3rd March, 1989 and having regard to the order by which we have rejected I.A. 3, we must, in terms of the order of March 3, 1989, proceed to dispose of the appeal after ensuring that the respondent has received the balance of Rs. 25,000/- for which purpose the case was posted to-day.
13. Sri K. Channabasappa has paid today Rs. 15,000/- by demand draft and also cash of Rs. 10,000/-. which is handed over to the respondent-plaintiff thereby fulfilling the condition imposed by us.
14. In the result, the decree of the trial Court is set aside and it shall stand substituted as agreed to in this Court in accordance with the terms of compromise, details of which we have set out in our order of 3rd March, 1989.
15. Appeal is disposed of accordingly.
There will be no costs.
16. Order accordingly.