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(1) Dhurandhar Prasad Singh v. Jai Prakash University and Ors. .
(2) Sheela Wanti v. Kuldeep Singh and Anr. 2002(64) DRJ 635.

In Dhurandhar Prasad Singh (supra) the Supreme Court considered the provisions of Order 22 and in particular Rule 10 thereof in the following words:

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. 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 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 withe case of assignment on the insolvency of a plaintiff. Rule 10 provides 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 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 a 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 interest had devolved. The Legislature while enacting Rules 3, 4 and 10 has made clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing 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 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.
7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, 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 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 out by their Lordships of the Judicial Committee in Moti Lal v. Karab-ud-Din 2nd (1898) 25 Cal 179 : 24 IA 170 : 1 CWN 639 (PC), 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 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 said in Prannath 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.

From the above observations several things become clear. In the cases of assignment, creation or devolution of interest during the pendency of a suit referred to in Rule 10 of Order 22 CPC, the original party, that is, the assigner or the one who creates or from whom the interest devolves continues to exist (to be alive) even after such assignment, creation or devolution of interest. This is clear from the observation that if the person on whom the interest has been assigned or devolved upon, has the option of continuing the suit with the leave of the Court or of letting the original plaintiff continue the same. But in the latter eventuality, the person on whom the interest had devolved would be bound by and can have the benefit of the decree unless it is shown in a properly constituted proceeding that the original party did not vigorously prosecute or collude with the adversary resulting in a decision adverse to the party upon whom the interest had devolved. The Supreme Court also made it clear that in cases covered under Rules 3 and 4, if right to sue survives and no application for bringing the legal representatives of a deceased party was filed within the prescribed time, there is an automatic abatement of the suit and procedure for setting aside such abatement is provided under Rule 9 of Order 22 CPC on the grounds postulated therein. Therefore, there is a distinction between Rules 3 and 4 on the one hand and Rule 10 on the other. Rule 3 applies in a case where there is a death of a plaintiff. Rule 10, on the other hand, applies where in the "lifetime" of the plaintiff an assignment, creation or devolution of the plaintiff's interest on somebody else takes place during the pendency of a suit and the plaintiff continues to be alive and in existence even after such assignment, creation or devolution. However, the moment the recorded plaintiff dies, the clock for abatement starts ticking and can only be stopped by either moving an application for substituting the legal representatives in place of the deceased plaintiff or by resulting in abatement itself on the expiry of 90 days from the death of the plaintiff, in case no such application is made. Therefore, this decision of the Supreme Court in the case of Dhurandhar Prasad Singh (supra) does not in any way advance the case of the applicant (Yapi Kredi Bank AG).

8. The next case which was relied upon by the applicant was that of a learned Single Judge of this Court in the case of Sheela Wanti (supra). Reliance was placed on the observations contained in paragraph 5 thereof which reads as under:

5. Before adverting to the merits of the application under consideration this Court must make it clear that a substitution under Order 22 Rule 3 of the CPC and a substitution under Rule 10 of Order 22 CPC stand on altogether different footing and operate in different fields. A substitution under Order 22 Rule 3 of the CPC is to bring on record the LRs of a deceased plaintiff in whose favor the right to sue survives whereas Rule 10 covers the cases in which by way of assignment, creation or devolution of interest, during the pendency of the suit, a person has acquired a right in suit property and as such prays that he may be substituted in place of plaintiff. Rule 10 of Order 22 CPC does not prescribe any limitation for the impleadment of a person upon whom the interest in the property has devolved and as such at any time during the pendency of the suit he may be substituted. In Ghafoor Ahmad Khan v. Bashir Ahmad Khan , the Supreme Court set aside the orders upholding abatement of an appeal for the reason that during the life time of the sole respondent/ plaintiff, there was a transfer of the property by way of gift to his wife/applicant and the case being a case of devolution of interest was falling under Rule 10 of Order 22 of the CPC and as such there was no question of abatement. Rule 9 of Order 22 of CPC permits setting aside of abatement or dismissal upon an application of an assignor also who might have acquired interest as defined in Rule 10 Order 22 CPC. Therefore upon the application of an assignor even the abatement or dismissal can be set aside and the suit may be revived.