Document Fragment View

Matching Fragments

15. It will be important to consider the provisions of Order XXII, Rule 10 of the CPC, which reads thus :-

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 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 person who procured such attachment to the benefit of sub-rule(1).

16. The said Rule 10 of Order XXII does not provide for rejection of the Plaint or for dismissal of the Suit. Only because the assignee did not file an Application seeking leave of the Court to continue with the Suit; the Suit is not supposed to be dismissed. This according to me cannot be the interpretation of the provisions of Order XXII, Rule 10 of the CPC.

Sunny Thote 5-WP-1725-2023.doc

17. The Supreme Court in the case of Dhurandhar Prasad Singh (supra), has held that the legislature has not prescribed in case where Rule 10 applies, any procedure; like Rules 3, 4 and 10 of Order XXII of the CPC, which prescribes that in the event of failure to apply for leave of the Court to continue the proceedings by or against the person upon whom interest has devolved during the pendency of a Suit, this shows that the legislature was conscious of this eventuality and has not prescribed that failure would entail dismissal of the Suit as it intended that the proceedings would continue by or against the original party although he ceased to have any interest. Paragraph No.6 of the said Judgment reads as under :-

"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 with the case of assignment on the insolvency of a plaintiff. Rule 10 Sunny Thote 5-WP-1725-2023.doc 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 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 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 Sunny Thote 5-WP-1725-2023.doc person upon whom the Interest has devolved for bringing him on the record."