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1 - 5 of 5 (0.29 seconds)Article 227 in Constitution of India [Constitution]
Dhurandhar Prasad Singh vs Jai Prakash University And Ors on 24 July, 2001
05. The apex Court in the case of Dhurandhar Prasad Singh
(supra) held that Order XXII Rule 10 C.P.C. 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 is 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
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the original party being no longer interested in the proceeding did not
vigorously prosecute or collouded 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. 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.
Amit Kumar Shaw & Anr vs Farida Khatoon & Anr on 13 April, 2005
In Amit Kumar Shaw and another vs. Farida Khatoon and
another, AIR 2005 SC 2209, the apex Court held that the application
under Order XXII Rule 10 can be made to the appellate Court even though
the devolution of interest occurred when the case was pending in the trial
court. It further held that 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. An alienee pendente lite is bound by the final
decree that may be passed in the suit. Such an alienee can be brought on
record both under this rule as also under O 1 Rule 10. Since under the
doctrine of lis pendens a decree passed in the suit during the pendency of
which a transfer is made binds the transferee, his application to be
brought on record should ordinarily be allowed. The doctrine of lis pendens
applies only where the lis is pending before a Court. Further pending the
suit, the transferee is not entitled as of right to be made a party to the
suit, though the Court has a discretion to make him a party. But the
transferee pendente lite can be added as a proper party if his interest in
the subject matter of the suit is substantial and not just peripheral. A
transferee pendente lite to the extent he has acquired interest from the
defendant is vitally interested in the litigation, whether the transfer is of
the entire interest of the defendant; the latter having no more interest in
the property may not properly defend the suit. He may collude with the
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plaintiff. Though the plaintiff is under no obligation to make a lis pendens
transferee a party; under Order XXII Rule 10 an alienee pendente lite may
be joined as party. The Court has discretion in the matter which must be
judicially exercised and an alienee would ordinarily be joined as a party to
enable him to protect his interests. A transferee pendente lite of an
interest in immovable property is a representative-in-interest of the party
from whom he has acquired that interest. He is entitled to be impleaded in
the suit or other proceedings where the transferee pendente lite is made a
party to the litigation; he is entitled to be heard in the matter on the
merits of the case.
Section 5 in The Limitation Act, 1963 [Entire Act]
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