Himachal Pradesh High Court
Usha Devi vs . Panna Lal on 24 August, 2023
Author: Virender Singh
Bench: Virender Singh
RSA No.222 of 2015 24.08.2023 Present: Mr. Romesh Verma, Senior Advocate with Mr.Hitesh Thakur, Advocate for the appellant.
Mr. Karun Negi & Mr. Somesh Sharma, Advocate for respondent No.1.
CMP No.10032 of 2022 of The application has been filed under Order 22 Rule 10 CPC, read with Order 1 Rule 10 CPC, for seeking rt leave of this Court to continue the proceedings, on account of assignment, of the suit property, by respondent Panna Lal, by way of Gift Deed, dated 13.2.2021.
2. The application has been moved on the ground that on 13.4.2021, Panna Lal, has executed a Gift Deed, which was registered, in favour of the applicant, vide registration No.696/2021.
3. Mutation No.445, dated 27.7.2021, has also been attested, on the basis of the Gift Deed. Asserting herself to be the assignee, a prayer has been made to permit the applicant to contest the appeal.
4. This application has been contested by the non-applicant/appellant, on the ground that the application is not maintainable, as Panna Lal, during the pendency of the appeal, can not execute the Gift Deed. The application is also stated to be nothing, but, to create multiplicity of litigation and to avail unfair and undue advantage over the respondent.
::: Downloaded on - 24/08/2023 20:38:35 :::CIS5. On the basis of the above, a prayer has been .
made to dismiss the application.
6. The appeal, in this Court, is pending for the last more than eight years and during the pendency of the appeal, the respondent has executed a Gift Deed, in favour of of the applicant. It is not in dispute that the alienation/transfer will be governed by the provisions of Section 52-A of the rt Transfer of Property Act.
7. Hon'ble Apex Court in Shardamma versus Mohammed Pyrejan (Deceased) through LRs & Another, 2015 (4) Civil Court Cases 291 (S.C.), has held that the transferee/Assignee has right to continue the suit. Relevant para 6 of the judgment is reproduced as under:-
"6. A bare reading of the provisions of Order XXII 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 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 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(3) Civil Court Cases 205 (S.C.): 2001(2) Apex Court Journal 65 (S.C.): 2001(6) SCC 534 has laid down thus:
"6. In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, ::: Downloaded on - 24/08/2023 20:38:35 :::CIS Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the .
death of a party to a suit. 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 so of 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 rt for cases of assignment, creation and devolution of interest during 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 suit cannot be brought to an end merely because the interest of a party in the subject-matter of the suit has 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 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 resulting in decision adverse 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 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 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 ::: Downloaded on - 24/08/2023 20:38:35 :::CIS 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 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."
of
8. In view of the law laid down by the Hon'ble rt Apex Court, as reproduced above, this Court is of the view that the prayer of the applicant to allow him to contest the appeal, can be accepted, subject to all just exceptions.
9. Consequently, the application is allowed and the applicant is ordered to be arrayed, as respondent No.2, in the present case. Amended memo of parties be filed within two weeks.
The application is thus disposed of.
(Virender Singh) Judge August 24, 2023(ps) ::: Downloaded on - 24/08/2023 20:38:35 :::CIS