1. In a suit brought under Rule 63 of Order XXI of the Code of Civil Procedure, by the decree-holder for the establishment of the title of his judgment-debtor, the judgment-debtor during the pendency of the suit very unwisely paid the decree-holder and satisfied his debt, and, after having done so, he asked the Court to transpose him as a co-plaintiff so that he might continue the suit which the decree-holder could no longer continue.
This transposition having been permitted by the Court below, the successful claimant against whom the suit was instituted questions the correctness of the order of transportation.
2. After the decree was made against the defendant 1 in a suit brought by the plaintiff in the suit out of which this revision petition arises, he got certain properties attached on November 4, 1957, stating that those properties belonged to defendant 1. Defendant 2 presented a claim under Rule 58 of Order XXI of the code of Civil Procedure on June 7, 1958, and his allegation was that the property had been sold to him by defendant 1 and his father, as long ago as on May 8, 1935. On september 30, 1961, that claim was allowed.
3. On November 23, 1961, the plaintiff brought his suit under Rule 63 of Order XXI of the Code of Civil Procedure. Defendant 1 in that suit was the judgment-debtor and defendant 2 was the successful claimant.
4. Sometime during the pendency of this suit, defendant 1 paid to the decree-holder the amount due to him under his decree, and, having done that, he asked the Munsiff in whose Court the suit was pending, for his transposition as co-plaintiff. The Munsiff permitted transposition and defendant 2 questions it.
5. Mr. Venkatanarasimiah the learned Advocate for defendant 2 asks me to say that once the plaintiff's decree was satisfied by the payment of the amount of the decree by defendant 1 to him, the suit could no longer be continued either by the plaintiff or by anyone else. Defendant 1 who, according to Mr. Venkatanarasimiah, in order to overcome the effect of the order made in the claim case, should have brought his own suit under rule 63 of Order XXI of the Code of Civil procedure but did not, could not continue the suit brought by the decree-holder whose only purpose was the establishment of his own right or proceed against the property as the property of the judgment-debtor. If by reason of his decree having been satisfied by payment it was no longer necessary for the plaintiff to establish the judgment-debtor's title to the property attached for that purpose, it was urged that defendant 1 against whom the order in the claim case had become conclusive by reason of his not having instituted a suit within the statutory period, could not continue the suit brought by the plaintiff.
6. Now, it is, I think, perfectly plain that if an order is made under Rule 60 of Order XXI of the Code of Civil Procedure and that order is one by which the claim is allowed, the meaning of that order is that the property could not be attached or proceeded against as the property of the judgment-debtor. It is this adjudication which becomes conclusive unless a suit is brought under Rule 63 or Order XXI of the Code of Civil Procedure within the statutory period. That suit, it is obvious, could be brought not only by the decree-holder who wished to realise his decree by the sale of the attached property, but also by the judgment-debtor if he was a party to the proceedings in which the adjudication was made.
Mr. Venkatanarasimiah does not dispute that if the judgment-debtor was a party to the proceedings relating to the claim and an order was made that the property was the property of the claimant, the judgment-debtor is as much affected by the adjudication as the decree-holder and that, if the judgment-debtor did not bring a suit in spite of his having been a party to the claim proceedings the adjudication in the claim case would be conclusive even as against him.
7. Now, in this case, it is not-disputed that defendant 1 who was the judgment-debtor was also a party to the proceedings relating to the claim petition. if in those proceedings it was held that the property was the property of defendant 2 and not the property of defendant 1, if defendant 1 did not bring a suit within the statutory period under Rule 63 of Order XXI of the code, he would be precluded from contending that the order made in the claim case does not bind him. But the plaintiff who had obtained the attachment of the property felt as much dissatisfied with the order made allowing the claim as the judgment-debtor was since the effect of the order allowing the claim was to realise the property from attachment. So it was that he brought his suit for the establishment of his right to proceed against the attached property which he could do only on the hypothesis that the property belonged to the judgment-debtor and not to the claimant.
8. So, in the situation, the decree-holder and the judgment-debtor could have both instituted independent suits. But if only one of them instituted a suit as in the present case and the other did not, could it be said that if for some reason the person who instituted the suit cannot continue it, the other, although he is a party to the suit, cannot take charge of the suit from the stage at which it was interrupted and continue it? Now the reason why the plaintiff in this case cannot continue his suit is that there is no longer any reason for him to pursue his endeavour for the establishment of the judgment-debtor's title to the attached property.
It may be that the judgment-debtor himself did not bring his own suit within the period of limitation but the obvious reason why he did not do so was that the plaintiff himself had brought the suit for the very same purpose for which he could have himself brought one. If by reason of a subsequent event, it was not necessary or possible for the plaintiff to continue his suit. I fail to understand why the judgment-debtor who is defendant 1 cannot ask for his own transposition as co-plaintiff so that he might continue the suit which for the technical reason that the decree has been satisfied cannot be continued by the plaintiff.
9. I am not impressed by the submission madeby Mr. Venkatanarasimhiah that the omission onthe part of the judgment-debtor to bring his ownsuit within the period of limitation precludes himfrom his transposition as co-plaintiff. The suitbrought by the plaintiff, it is clear, had for its purpose the establishment of the judgment-debtor'stitle and if the judgment-debtor found that theplaintiff had embarked upon that endeavour andtherefore did not bring his own suit, it would beextremely unreasonable for anyone to suggest thatthat endeavour which could not be continued bythe plaintiff should not be continued by thejudgment-debtor. IT should not, in my opinion, makeany difference that the judgment-debtor did notbring his own suit which was quite unnecessary inthe circumstances since the plaintiff's success in thesuit brought by him would also enure to him ownbenefit. That the plaintiff's suit was really a suitin the result of which both the plaintiff and defendantI were equally interested cannot be gainsaid.
If the suit had continued and it had ended inits dismissal, it is plaint that even if the plaintiffdid not appeal from that decree, defendant I couldhave preferred his own appeal and it would havebeen not possible for anyone to contend that defendant I could not appeal from that decree.Indeed, Mr. Venkatanarasimhiah himself did not contestthe correctness of the proposition that, in asituation like that he judgment-debtor would havebeen as much entitled to appeal as the plaintiffhimself. Then again, if the decree-holder and thejudgment-debtor had both brought independentsuits, and each of them was a defendant in theother suit, what is incontrovertible is that the decisionin one of those two suits would bring the barof res judicata to the trial of the same issues in theother suit. It is thus manifest that the propositionthat defendant I was an utter stranger to thesuit brought by the plaintiff but was only a proformadefendant and could not therefore seektransposition if the plaintiff cannot proceed with thesuit, should not commend itself to me.
10. Now, the very purpose of Rule 10(2) ofOrder I of the Code of Civil Procedure is to conferpower on the Court to make transpositions to enableadjudications in situations where by reason oftechnicalities such as the one which has sprung upin the case before me, they cannot be made in favourof the person who originally commenced thesuit. That is the correct way of understandingthat statutory provision was pointed out bytheir Lordships of the Privy Council in BhupendraNarayan Sinha v. Rajeswar Prosad Bhakat , where at p. 238of the report (Ind App) : (at p. 165 of AIR), SirGeorge Lowndes observed -
'The pro forma defendants asked that a decreeshould be passed in favour of the appellant. Ifthere was a technical objection to this, the Courtclearly had power at any stage of the proceedingsto remedy the defect under Order I Rule 10 ofthe Civil Procedure Code by adding the pro formadefendants as co-plaintiffs with the appellant. Sucha course should, in their Lordships. opinion, alwaysbe adopted where it is necessary for a completeadjudication upon the questions involved inthe suit and to avoid multiplicity of proceedings'.
11. The submission made by Mr. Venkatanarasimhiahthat the transposition would defeat avaluable right in defendant 2 against whom the suitwhich might now be instituted by defendant I hasbecome time barred does not appeal to me. Thedecision in Jarao Kunwar v. Bhagwan Kunwar,AIR 1921 All 184, on which Mr. Venkatanarasimiahplaced reliance was a case before me. That was acase in which a sued B to recover a sum of moneyand impleaded C who contended that he and notA was entitled to the money. C applied that heshould be allowed to continue the suit for plaintiffinstead of A. That application was refused on theground that the suit which C could have broughtagainst B had become time barred by the time Cmade his application. The principle underlying thedecision in that case can have no application tothe case before me since the decree sought by Ain the suit in the Allahabad decision, AIR 1921All 184 was a decree for his own benefit fromwhich C could have derived no benefit to himself,whereas in the present case, the decree which theplaintiff wished to obtain in his own favour wasa decree which had as much use to the plaintiffas it had for defendant (sic).
12. I see, therefore, no reason to disturb theorder made by the Court below and this revisionpetition is dismissed.
13. The costs of this revision petition will becosts in the cause and will abide the eventualresult.
14. Revision dismissed.