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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).

11 This is not a case where a person has died and the legal heirs are being brought on record to pursue the claim against the estate of the deceased. Here the suit is against the Trustees and the Trustees may come and Trustees may go. They do not have personal liability. The interest is Gauri Gaekwad 7/15 33.CHS-6-2015.doc only purged by devolution. The interest, which is the subject matter of the suit, devolved upon respondents, upon respondents being made Trustees of the two Trusts. Rule 10 under Order 22 is based on the principle that 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 the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the Court. 12 In Shri Rikhu Dev, Chela Bawa Harjug Dass vs. Som Dass (Deceased) Through His Chela Shiam Dass 1, the Apex Court has held that when a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is Order 22, Rule 10 and not Order 22, Rule 3 or Rule 4, whether the devolution takes place as a consequence of death or for any other reason. The Apex Court also held that Order 22, Rule 10, is not confined to devolution of interest of a party by death, it also applies if the head of the mutt or manager of the temple resigns his office or is removed from office. In such a case, the successor to the head of the mutt or to the manager of the temple may be substituted as a party under this rule. The Apex Court held that the word 'interest' which is mentioned in this rule means interest in the property, i.e., the subject matter of the suit and the interest is the interest of the person who was the party to the suit.

15. ..... Another thing to notice in connection with this rule is that a party on whom the interest of the deceased plaintiff or defendant devolves is not entitled to continue the suit or appeal as a matter of right, it is essential to obtain the leave of the Court. The granting of leave is within the discretion of the Court.

The Court, however, is to exercise its discretion judicially and according to well-established principles. "Further, unlike Rules 3 and 4, no limitation is prescribed for presentation of an application under this rule and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant has devolved. Therefore, the right to make an application under this rule is a right which accrues from day to day and can be made at any time during the pendency of a suit. There is no abatement under this rule." 16 Mr. Sancheti relying upon Order 31 Rule 2 of the Code of Civil Procedure read with Sections 47 and 48 of the Indian Trusts Act, 1882 submitted that all the Trustees have to be made a party and because plaintiffs did not make all the Trustees a party to the suit, the suit itself

5. 1948 (6) Delhi Reported Judgments 153

6. 1983 Mh. L.J. 248

7. (2014) 11 SCC 351

8. (2010) 8 SCC 685 Gauri Gaekwad 11/15 33.CHS-6-2015.doc this submission.

19 In my view, these two judgments, Brijesh Kumar (Supra) and Balwant Singh (Supra), do not really apply to the facts and circumstances of the present case because in both these judgments there was time limit prescribed for making the application with power to condone the delay. In our case, there is no time limit prescribed and infact in Chandra Bai (Supra) the Apex Court while relying upon Baijnath Ram vs. Tunkowati Kuer has emphasised that the right to make an application under this rule is a right which accrues "from day to day" and can be made at any time during the pendency of a suit. It is also emphasised that unlike Rules 3 and 4, no limitation is prescribed for presentation of an application under Rule 10 and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant has devolved. 20 At the same time, would that mean the applicant can, whenever they please, even after 10 years, take out an application to bring on record the Trustees, who are coming in the place of the earlier Trustees during the pendency of the suit?