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4. The Court below after considering the respective pleadings of the parties and the submissions made on behalf of them allowed the application by observing that the exparte decree passed was not against the petitioner herein and he was not a party in the above suit and as such he has no right to file application under Section 5 the Limitation Act. Aggrieved against the said order, the petitioner is before this Court.
5. Learned counsel appearing for the petitioner submitted that when the petitioner had purchased the suit property from the first defendant during the pendency of the proceedings, all the rights available to the vendor of the petitioner, are also available to the petitioner as the purchaser pendente lite . Section 146 of the Civil Procedure Code permits the proceedings to be continued by the representative of the original parties and therefore, the petitioner is entitled to conduct the proceedings before the Court below. He further submitted that Order 22 Rule 10 CPC, which deals with procedure in case of assignment before final order in suit, permits continuation of the proceedings by the person upon whom such interest has come or devolved. Thus, the learned counsel, relying upon those two provisions of the Code of Civil Procedure submitted that the petitioner's application in I.A.No. 471 of 2009 is maintainable. The learned counsel also submitted that even without seeking leave of the Court, the petitioner is entitled to maintain an application under Section 5 of the Limitation Act. He also submitted that under Order 14 Rule 2 CPC consideration of preliminary issue would arise only in the main suit proceedings and not in I.A. and therefore the Court below ought not to have allowed the application to take up the preliminary issue. He also brought to the notice of this Court that the Court below has not simply allowed the application to consider the maintainability issue as preliminary issue but also gone one step further by specifically holding that the application filed by the petitioner under Section 5 of the Limitation Act in I.A.No. 471 of 2009 is not maintainable. Thus, the learned counsel submitted that the finding of the Court below in effect tantamount in rejecting I.A.No. 471 of 2009. In support of his above submissions, the learned counsel relied on the following decisions :-
12. At this juncture, it is useful to refer to Order 22 Rule 10 CPC, which reads as follows:-
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 there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
12. Under Order XXII, Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit. (emphasis supplied)
20. In Dhurandhar Prasad Singh Vs. Jai Prakash University and others ( 2001 (6) SCC 534) the Hon'ble Supreme Court has considered once again the scope of Order 22 Rule 10 and observed at paragraph 26 as follows:-
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 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 plaintiff has devolved. Likewise, in a case where interest of defendant has devolved, the 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.