P L D 1962 Dacca 600 (PLP)

7. On 8‑8‑58, the date fixed for substitution of the heirs of appellant No, 1 or in default for passing the order of abatement of the appeal Abdur Rahman Molla, the constituted attorney of the appellant filed a petition praying for leave under Order XXII, rule 10 (1) of the Civil Procedure Code to continue with the appeal on the ground that the plaintiff‑appellants had transferred their interest in the suit lands to him on 27‑8‑58 i.e., during the pendency of the original suit. The learned lower appellate Court heard the lawyers of both the parties on this application for substitution of Abdur Rahman Molla in place of the plaintiff‑appellants and passed the following order: "One Abdul Rahman Molla filing a petition this day prays for leave under Order XXII, rule 10 C. P. C. to continue with the appeal, Heard the learned lawyers of both the parties. The petitioner is an assignee from the appellant. The original suit was instituted on 18‑5‑56 and the petitioner alleges to have purchased the property on 27‑8‑56, i.e. during the pendency of the original suit. In this connection it may further be noted that the plaintiffs were represented before the lower Court by the present petitioner Abdur Rahman as their consti tuted attorney and the plaintiffs being so represented by the said Abdur Rahman filed the present appeal. In the ordinary circumstances, the petitioner being an assignee during the pendency of the suit could have applied for leave of the Court to continue with the appeal under the provisions of Order XXII, rule 10 (1) C. P. C. provided the appeal was alive. The present appeal arose out of a suit for declaration of title to and recovery of khan possession of the suit land with mesne profit and was preferred by all the four plaintiffs as appellants represented by the present petitioner as their con stituted attorney, on behalf of the respondents death of appel lant No. 1 Aswini was reported and in its support an affidavit was sworn on 12‑5‑

58. By order No. 12 dated 24‑5‑58, the attorney of the appellants, viz., the present petitioner was directed to take steps for substitution. On 30‑5‑58 this petitioner as attorney of the appellants filed a petition for exemption from swearing any counter affidavit and took no step for substitution. Another petition was filed for permission for withdrawal of the original suit. Both the petitions were rejected vide order 14 dated 5‑6‑

58. The death of Aswini was reported on 7‑5‑

58. He must have died at least before that date. Consequently the appeal has automatically abated as a whole at least before 7‑8‑58 if not earlier. This petition under Order XXII, rule 10 (1)C. P. C. is filed after the appeal has automatically abated as a whole. There after the question of granting permission to the petitioner under Order XXII, rule 10 (1) C. P. C. does not arise on account of the abatement of the appeal. The petition so filed is a miscon ceived one. The petitioner ought to have come under Order XXII, rule 9(2) C. P. C. also for order setting aside the abatement first on sufficient cause being shown and proved for not con tinuing with the appeal. This the petitioner has not done obviously because of his having no sufficient cause. In the facts and circumstances the petition filed under Order XXII, rule 10 (1), C. P. C. be and is rejected. The appeal be and is also dismissed on account of abatement. The con testing respondents do get cost."

3. It appears from the above order of the learned lower appellate Court that he formulated the principle that in the ordinary circumstances the petitioner being an assignee during the pendency of the suit could have applied for leave of the Court to continue with the appeal under the Provisions of Order XXII, rule 10 (1) of the Code of Civil Procedure provided the appeal was alive. He further rejected the application of the petitioner Abdur Rahman Molla for leave to continue with the appeal being substituted in place of the plaintiff‑appellants on the ground that the legal representatives, i.e., the heirs of Aswini appellant No. 1 having not been substituted within 90 days as prescribed by la , the appeal had automatically abated as a whole at least before 7‑8‑58, if not earlier, the death of Aswini having been reported on 7‑5‑58 and he having died at least before that date, the petitioner cannot invoke the aid of Order XXII, rule 10 (1) of the Code of Civil Procedure as it was filed after the appeal had automatically abated and that his remedy lay invoking the aid of Order XXII, rule 9 (2) of the Code of Civil Procedure for setting aside the abatement order first on sufficient ground being shown and this was not done by the petitioner. In this view the learned Appellate Court also dismissed the appeal on account of abatement. Hence this appeal.

9. Mr. Md. Jani Alam, learned Advocate, appearing on behalf of the appellants has contended that the learned lower appellate Court erred in holding that the application under Order XXII, rule 10 (1) of the Code of Civil Procedure was filed after the appeal had already abated and as such no relief could be granted to the petitioner. He has further contended that Order XXII, rule 9 (2) of the Code of Civil Procedure applies to cases of devolution of interest by death or rights of assignees in insolvency proceedings and rule 19 of Order XXII, of the Code of Civil Procedure applies to other cases of assignment, creation or devolution of any interest during the pendency of a suit.

10. Mr. Jani Alam has further contended that the question of substitution of the legal heirs of the appellant No. 1 does not at all arise in this case inasmuch as neither their predecessor Aswini Kumar nor they themselves had any subsisting interest in the disputed properties after the transfer of the same to Abdur Rahman Molla during the pendency of the suit and as such the limitation of 90 days prescribed for substitution of the heirs of the deceased plaintiff‑appellant No. 1 will not apply to the case of an assignee as contemplated by Order XXII, rule 10 (1) of the Code of Civil Procedure.

11. Mr. A. M. Sayem, learned Advocate, appearing on behalf of the respondents has frankly conceded that an assignee, such as, the petitioner in this case, can pray for leave of the Court to continue with the suit on appeal under Order XXII, rule 10 (1) of the Code of Civil Procedure before any final order is passed in the suit or appeal ; but he contends that in this case the appeal having automatically abated the final order must be deemed to have been passed on the date when it automatically abated and not on the date when the final order dated 8‑8‑58 was passed by the lower appellate Court on which date the application under rule 10 (1) of Order XXII of the Code of Civil Procedure was final.

12. He has further contended that the petitioner having all along prosecuted the suit and the appeal on behalf of the plaintiff- appellants as their constituted attorney was guilty of laches and delay in filing the application for substitution, although he got the disputed land by assignment so far back as on 27‑8‑

56. He has also urged that the respondents had no opportunity to challenge the validity or otherwise of the alleged assignment as the application for substitution was disposed of on the very date it was filed.

13. As regards Mr. Sayem's contention that the application under rule 10 (1) of Order XXII of the Code of Civil Procedure having been filed after the appeal had automatically abated or in other words, after the final order in the appeal having been passed, there was no scope for granting leave to the petitioner to continue with appeal being substituted in place of the plaintiffs, I may at once state that this contention is without any substance.

14. I have already stated that the learned lower appellate Court fixed 8‑8‑58 for passing. tote order of abatement of the appeal on the failure of the petitioner Abdul Rahman Molla to take steps for substitution of the heirs of the appellant and the petitioner, it appears, filed the application under rule 10 (1) of Order XXII of the Code of Civil Procedure on that very date. So, it cannot be said that the application was not filed before the appeal was finally disposed of. Furthermore, no question of abatement arises at all as the petitioner Abdur Rahman Moll did not make his application on 8‑8‑58 as legal representative of the plaintiff‑appellants but as their assignee during the pendency of the suit. The learned District Judge, therefore, in my opinion, committed an error in holding that the appeal had automatically abated for non‑substitution of the heirs of Aswini plaintiff‑appel lant No.

1. A consideration of the scheme of Order XXII leaves no doubt on this point. This order is headed "Death, marriage and insolvency of the parties." Rule 1 of this Order provides that the death of plaintiff shall not cause the suit to abate if the "right to sue survives". In this case there can be no doubt that the petitioner had a right to sue surviving to him unless that right was barred by limitation, he being an assignee of the plaintiffs, including the deceased plaintiff No. 1, in respect of the suit land. It is apparent therefore, that the death of plaintiff No. 1 was not in itself sufficient to cause the appeal to abate. Rules 2 to 6 deal with the consequences of the death of one or other of the parties. In this case rule 2 is not applicable. Rule 3 concerns what is to happen in regard to legal representative of the deceased plaintiff and by sub‑rule (2) it is clear that if no application is made by, the legal representative within the time allowed by law the suit or appeal shall abate. It may, however, be noted that suit or appeal shall abate, It may, however, be noted that the words have been added. "So far as the deceased plaintiff is concerned." Rules 4 and 5 concern the effect of the death on the rights of the legal representatives. Rule 6 is irrelevant to this matter. Rules 7 and 8 deal with marriage and insolvency referred to in the title of the Order. Rule 9 deals with the effect of abatement or orders of dismissal passed against legal representatives of parties or against assignees or receivers in insolvency proceed ings. Next comes, rule 10, which is the rule really applicable to the present case. The heading of this rule runs thus.: "Pro cedure in case of assignment before final order in suit" and sub- rule (1) of this rule reads as follows :‑ "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." This rule, therefore, refers to "other cases" of assignment, etc. In this rule we are not concerned with the effect of death of a party on the rights of the legal representative of that party or on the rights of the assignees or receivers in insolvency proceedings. Thus, there is no justification for applying rules governing abate ment to a person who does not claim to come in as a legal representative. So, the foregoing rules, including 9 (2) o Order XXII of the Code of Civil Procedure do not at all apply to the case of the petitioner Abdur Rahman Molla, who has not come as an heir of the deceased plaintiff, but as his assignee. That being the position, 90 days' limitation for substitution of the legal representatives of the deceased plaintiffs or the appellant as the case may be, will not apply to the case of the petitioner Abdur Rahman Molla. This view is supported by the decision in the case of Mithan Lal v. Maya Devi and others (A I R 1929 All. 444). In that case it has been held that "cases of assignment, i.e., cases which are not concerned with the effect of the death of a party on the rights of the legal representatives of that party or on rights of assignees or receivers in insolvency proceedings, come within the purview of Rule 10.". It has further been held that "the rules governing abatement occur only in those rules, which deal with the rights of the legal representatives and have no application to the case of the assignee who is not affected by those rules". And that "an application made by an assignee of the preliminary) decree for the preparation of the final decree is not governed by'' Articles 171 and 176." It has also been held that "the rules governing abatement did not apply to a person who did not claim to come in as legal representative but claimed only as an assignee."

15. In the case of Jitendra Nath Roy v. Harindra Nath Dutta and others (42 C W N 1183), it has been held "Order XXII, rule 10 of the Civil Procedure Code, can only apply before a final decree or order has been passed or made in the suit." It may be mentioned here, that suit includes appeal.

16. In the case of Lakshan Chunder Dey, Purchaser v. Sm. Nikunjamoni Dassi and others (27 C W N 755) it has been held "that an applicant who invokes the aid of rule 10, Order XXI1, C. P. C. is not entitled as a matter of right to an order in his favour, regardless of delay or laches and the Court has undoubtedly a discretion in the matter which must be judicially exercised."

17. Mr. Sayem has put much stress on this rule of law and has contended that the applicant, who prosecuted the suit or appeal all along, came with the application for substitution after much delay and he being guilty of laches and delay the District Judge rightly exercised his judicial discretion in refusing leave to him to continue with the appeal. I am, however, unable to accept this contention inasmuch as learned lower appellate Court did not reject the application on that ground. Mookherjee and Rankin, JJ., have observed in this case that "to avoid multiplicity of litigation the purchaser should be substituted as the plaintiff in the suit so that the bona fides of the settlement might be investigated."

18. In the case of Rajani Kanta Roy and others v. Raja Jyoti Prosad Singh Deo and others (27 C W N 710), it has been held : "An applica tion under Order XXII, rule 10 can be made in the Appellate Court, even though the devolution of interest occurred when the case was pending in the trial Court and that the three months' limitation does not apply to a case of assignment under Order XXII, rule 10 of the Cede of Civil Procedure."

19. In the case of Lakshmi Narain v. Babu and another (A I R 1946 Lah. 33), the question arose whether an appellate Court has jurisdiction to implead an assignee a party to the appeal when the assignment was made in his favour during the pendency of the suit. It was held in that case : "What rule 11, read with rule 10 means is that in making rule 10 applicable to appeals the word `suit' in rule 10 should be read as including an appeal and not that the word `suit' should be replaced by the word `appeal' that is to say the word suit should be read `as suit or appeal'. Hence the appellate Court has jurisdiction to implead an assignee as a party to the appeal even when the assignment was made in his favour during the pendency of the suit." It has further been held: "The provisions contained in Orders X and XI do not make it incumbent upon an assignee to make an application during the pendency of the suit or appeal. These provisions are of an enabling character and entitle the assignee to do so if he so desires. He may not, however, choose to apply if he finds that his interests are being well looked after by his assignor. So long as he is of that view, it is not neces sary for him to make an application for being brought on the record."

20. Similar view has been held in the case of C. Wright Neville v. S. E. H. Freser and another (A I R 1944 Nag. 137). In that case it has been held: "An assignee pendente lite is not bound to file an application during the pendency of the suit if his interest is protected. It is only when he finds that his interest is in jeopardy and not likely to be protected by the assignor that it is necessary for him to apply for leave to continue the suit by or against him."

21. It was further held in that case: "That appeal against the decree passed in the trial Court was a continuation of the ' suit and there was no reason why Order XXII, rule 10 should not apply even if no application was made that there was an assignment during the pendency of the suit and an applica tion was made after an appeal against the decree in that suit was filed". "An applicant who invokes the aid of Order XXII, rule 10 is not as a matter of right entitled to an order in his favour regardless of the delay or laches, and there can be no doubt that the Court has been given a discretion in the matter, but the discretion has to be judicially exercised, and an application which will avoid multiplicity of proceedings and injustice should be allowed rather than dismissed. " "The mere fact that the assignment is denied by the opposite‑party or even for the matter of that by the assignor, should not be sufficient to enable the Court to refuse leave. It may be that if this is coupled with some other circumstances such as abnormal laches or mala fides which are apparent on the face of record leave may be refused: but the mere fact that it is challenged cannot be a reason for refusing leave. The Court can hold enquiry into the factum and validity of the assign ment. The very fact that the Court is clothed with jurisdiction to grant or refuse leave gives that Court Jurisdiction to hold an inquiry if the assignment is challenged". "There is no limitation prescribed for such applications. All that the Court has therefore to see in granting leave is to find out circumstances wherefrom it could be inferred that the application has been made without unreasonable delay."

22. Authorities quoted above clearly show that the peti tioner, who was an assignee during the pendency of the suit, is entitled to apply under rule 10 (1) of Order XXII of the Civil Procedure Code during the pendency of the appeal, which has been filed against the decision of the suit and that no question of abatement of the appeal arises in this case. Facts and circum stances of the case clearly, show that the application has been made without any unreasonable' delay, although the petitioner prosecuted the suit as the constituted attorney of the appellants and preferred this appeal. So long as plaintiff‑appellant No. 1 was alive he had no apprehension that his interest would not be protected. It is only when the death of plaintiff‑appellant No. 1 was reported by the respondents, which fact the petitioner was not aware and which fact he did challenge, and ultimately accepted by the lower appellate Court, he thought that unless he would be substituted to place of the plaintiffs, including the deceased plaintiff, his interest in the suit might be jeopardized. It was not at all necessary for him to bring the heirs of the deceased plaintiff No. 1 on the record as they had no subsisting interest in the disputed properties after assignment to him by their predecessor appellant No.

1. In this view of the matter he was entitled to" apply for substitution under rule 10 (1) of Order XXII of the Civil Procedure Code and that his appli cation ought to have been decided on merits that is whether the alleged assignment in his favour was a valid one or a colour able transaction.

23. Mr. Jani Alam has contended that the assignment in question was not challenged by the respondents as the deed of assignment was filed in the Court in the suit itself and as such when the assignment has not been denied or challenged the lower appellate Court should have granted leave to the applicant to proceed with the appeal after being substituted in place of the plaintiffs, including the deceased plaintiff‑appellant No.

1. I am, however, unable to accept this contention. Before given leave to the petitioner to continue the suit or appeal under rule 10 (1) of Order XXI I of the Civil Procedure Code, the Court has a power to decide as to the validity or otherwise of the assignment. This view is supported by the decision in the case of Surendra Narain Deo v. Nityendra Narain and others (A I R 1926 Cal. 173) Graves, J., in delivering the judgment of the Division Bench has observed as follows: "The appeal is by Kumar Surendra Narain who objects to the substitution of Prince Victor by virtue of the conveyance and it was ‑ urged before us that under the provisions of Order XXII, rule 10, the order for the adding of Prince Victor as a party should not have been made for it was suggested that Order XXII, rule 10 only applied to a ease where the assignment or the devolution was not challenged and not to a case like the present where the assignment to Prince Victor was challenged on various grounds. It was sought to support this argument by a reference to Order XXII, rule 5 which provides that where it is necessary to substitute a representa tive and question arises as to who is the legal representative the Court is bound to determine the question before affecting a substitution and it was suggested that owing to the absence of these words from Order XXII, rule 10 and as there was no obligation on the Court so to decide, Order XXII, rule 10 must only apply to a case of assignment where the assignment was not disputed. A similar argument was raised in the case of Enday Ali v. Binodini Dutt (1919) 29 C L J 362 and the Division Bench which decided the case were against the con tention which I have indicated and came to the conclusion that under the provisions of Order XXII, rule 10, the Court had a power to decide the question as to the validity or otherwise of the assignment when an application for substi tution was made to the Court under Order XXII, rule

10. We agree with that decision and we do not think that it is possible to confine the provisions of Order XXII, rule 10 to a case where the assignment is not disputed."

24. Mr. Sayem has urged that they had no opportunity to challenge the validity or otherwise of this assignment when the application for substitution under rule 10 (1) of Order XXII of the Civil Procedure Code was filed as it was heard on the very day it was filed.

25. The result, therefore, is that the order passed by the lower appellate Court rejecting the application under rule 10 (1) of Order XXII of the Civil Procedure Code as also the order of dismissal of appeal must be set aside.

26. Accordingly, the appeal is allowed. The decision of the lower appellate Court rejecting the application filed by Abdur Rahman Molla under Order XXII, rule 10 (1) of the Civil Procedure Code and also dismissing the appeal on account of abatement are hereby set aside and the case is sent back to the lower appellate Court for re‑hearing of the application under Order XXII, rule 10 (1) of the Civil Procedure Code and to decide after considering the validity or otherwise of the alleged assignment made in favour of the petitioner Abdur Rahman Molla by the original plaintiffs, including the deceased plaintiff, if that is challenged, before granting or refusing leave under the said rule, as the case may be. If the leave is given to the petitioner to continue with the appeal under the aforesaid rule the appeal should be heard on merits and disposed of according to law.

27. Having regard to the peculiar facts and circumstances of the case, parties are to bear their own costs in this appeal and the costs of the appellate Court below will abide the result. S. B./A. H. Appeal allowed.