1. This is an application by Rajaram Ramkrishna' praying that his name may be substituted for that of Krishnarav Anandrav, deceased, as respondent in Second Appeal No. 445 of 1883.
2. Section 372 of the Code of Civil Procedure provides that 'in other cases of assignment, creation and devolution of any interest pending the suit, the suit may' on terms be continued; but it has been contended that, where the respondent has died, the provision for the case of the death of a defendant in Section 368 prevents the application of Section 372 to the case. No doubt, as said in Lakshmibai v. Balkrishna I.L.R. 4 Bom. 654 the analogy of Section 368 is to be extended generally to appeals, and the party appealing may choose his own respondent as representative of one deceased. The more specific rule prescribed in Section 368 must, therefore, prevail in the cases to which it is exactly applicable over what from that point of view is the more general or residual rule in Section 372. But then the rule in Section 368 may well be intended for the case in which the death, and the death only, of the defendant constitutes the change of circumstances for which it -was thought necessary to provide; while in the case before us there has not only been a death of the respondent, but an alleged prior conveyance by him to the present applicant of the house and land awarded to the respondent by the decree now appealed against. The case being one of an assignment or creation of an interest pending the appeal plus the death of the assignor, is one embracing a fact more than that contemplated by Section 368,, The rule in Section 372, on the other hand, must be admitted to apply to it and being alone sufficiently inclusive, if net the more specific, as dealing with 'other cases' than the ones previously provided for, must prevail over those rules. The double event of a transfer of the decree-holder's title and,, of his death was probably not distinctly conceived by the draftsman of the Code; but we can give effect to the apparent intention not only in a literal application of the words to the cases exactly provided for, but also by a logical extension of them to the composite cases involving circumstances that fall separately under distinct rules, and yet must have been meant to be dealt with in a consistent and uniform manner.
3. Generally it is the plaintiff who is dominus litis in a suit. In is he who chooses his form of complaint, and the persons whom he desires to make responsible. Accordingly, Sections 368, 369 are so worded as to show that the Legislature looked on the plaintiff as the person to take the requisite steps for continuing the suit against those who bad newly become responsible. In an appeal the same reasons would apply, but not without some qualifications. An appellant may determine who shall be a respondent, but not that any particular person shall not be a respondent. The choice of respondents made by the appellant may be erroneous or defective through ignorance or fraud, and the real representative of the decree-holder cannot justly be refused an opportunity of maintaining the decision which it is sought to upset. It is true, no doubt, that the decree of the Appellate Court cannot directly affect this real representative who has not been made a respondent, but still he may be embarrassed and put to expense in asserting the right which he could easily and cheaply defend, in the appeal. A reversal of the judgment in favour of his assignor, through the connivance of the assignor's sons as respondents will obviously in many cases put him into a much ess advantageous position than if he were a respondent himself. It is reasonable to suppose that the person to whom a decree-holder's estate has come by assignment should not have been prevented from defending the decree notwithstanding the indifference or the hostility of the decree-holder himself, and if this is so, it seems equally reasonable that he should have the same opportunity after the decree-holder's death. He ought not, it seems, to be shut out from it by the defeated party as appellant choosing as respondents, persons, who, in consequence of the assignment; have no longer any substantial interest in the object of the litigation.
4. Under the Code of 1859 it was ruled that a defeated litigant could not transfer to a stranger a right to appeals which could be exercised notwithstanding the assignor's death, but the litigant to whom property has been awarded stands on quite a different footing from one whose claim has been rejected. Ownership is generally transferable; while the right to sue a third party, or to challenge an adjudication in his favour, can become transferable only by express provisions of the law, growing naturally more liberal as the Courts grow more capable of preventing abuses. Thus the recognition of an accessory right to defend a property taken by transfer against attack might well consist with a denial of transferable quality in the mere right to challenge an unfavourable judgment. The new Code of Civil Procedure, however, is plainly meant to be more indulgent-or at least more distinctly indulgent-to the passing of,, contentious capacities along with the ownership than was its predecessor of 1859. It seems that, subject to the control of the Court, the successors to litigated rights or acquirers of interests in them were intended in all ordinary cases to be at liberty to carry on an existing suit or appeal rather than to be reduced to the necessity of engaging in a new one. The rules under the English Judicature Act, Order L (now reproduced as Order XVII in the edition of 1883), were before the Indian Legislature when it framed the new Codes of 1877, 1882. These provide that in any 'case of assignment creation or devolution of an estate or title pendente life, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved.' No leave of the Court is required. The difference in the Code is that this leave is required except in the cases as of death, marriage and insolvency spec fically provided for. It is plainly intended that the leave which the Court may give, it should give in the proper cases, and that seems to us to be, a proper case in which there has been a transfer of the property adjudged to a plaintiff, and an appeal may be pending against the adjudication which, not the formerly successful litigant, but his transferee is really interested in upholding, The decree-holder in the present case has died, and the appellant may, no doubt, make his sons respondents under Section 368 of the Code, but by doing this he cannot preclude the purchaser from defending the estate he has bought. It is one of the 'other cases' contemplated in Section 372; and as the purchaser might be made a respondent in addition to his vendor, so we think he may he made a respondent in addition to the general representative?,-that is the sons of the vendor,- should the appellant prefer this to the substitution of the purchaser for the sons. The sons may have or may set up a right as such which will equally entitle them, even against the will of the appellant, to be made respondents, but if the appeal can be honestly resisted, both they and the applicant have a common interest in resisting it, and may resist it in common without injustice to the applicant-see Bower v. Hartley L.R. 1 Q.B.D. 652; The Swansea S. Co. Ld. v. Duncan Fox and Co. Ib. 644
5. We give leave to the applicant, therefore, as purchaser by a registered conveyance of the house in dispute from the plaintiff, to whom it had been awarded, to be made a respondent in the appeal filed against the judgment which awarded it to his vendor.
6. Costs of this application to be borne by the opponent (appellant).