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Uchhab Patra Vs. Brundaban Mallik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 135 of 1967
Judge
Reported inAIR1969Ori142; 35(1969)CLT86
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(3) - Order 21, Rule 10 - Order 22, Rule 10 and 10(1); Transfer of Property Act, 1882 - Sections 6 and 52
AppellantUchhab Patra
RespondentBrundaban Mallik
Advocates:Salil Kumar Dey, Adv.
DispositionAppeal allowed
Cases ReferredMayatti Abdul Kadir v. Mayarti Ahmad Taranganar. The Cuttack
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 2. two questions arise for consideration--(i) whether the transferee can proceed with the execution once he failed to get himself substituted in the suit itself before the decree was passed......as otherwise provided by this act or by any other law for the time being in force.* * * * *(e) a mere right to sue cannot be transferred.it was contended in the courts below that the transfer of the claim for damages which was the subject-matter of the money suit was a mere right to sue and as such it was not transferable. this contention prevailed with both the courts below. the expression 'a mere right to sue' means a right to sue unconnected with the ownership of any property. mere right to sue is not property but is merely a title to get1 future property, where the right to recover damages in respect of a property is transferred with the property itself, the transfer! does not consist of a mere right to sue. the transfer of a right to sue for damages is in such a case incidental to.....
Judgment:

G.K. Misra, J.

1. 0.37 acre of land of plot No. 298 appertaining to Khata No. 63 in village Nuagada in the district of Puri belonged to one Brundaban Padhan. The respondent, Brunduban Malik trespassed upon this land and forcibly possessed 0.31 acre out of it. Brundaban Padhan filed Money Suit No. 330 of 1960 in the Court of Munsiff Puri for recovery of damages of Rupees 219 from the respondent. During the pendency of the suit, Brundaban Padhan transferred the land along with the right of realisation of Rs. 219 representing the claim for damages by a registered sale deed dated 27-5-61 in favour of Uehhab Patra (appellant). The appellant did not get himself substituted in place of Brunda-ban Fadhan in the suit under Order 22, Rule 10 of the Civil P. C. The suit was accordingly decreed in favour of Brundaban Padhan on 12-10-61. The appellant-transferee filed Execution Case No. 43 of 1966 for realisation of the decretal dues against the respondent who filed an objection under Section 47 of the Civil P. C. that the decree was not executable by the transferee and that, the subject-matter of the decree was not transferable under Section 6(a) of the Transfer of Property Act. The objection was accepted by the Courts below. Against the confirming appellate decree this appeal has been filed by the transferee.

2. Two questions arise for consideration--

(i) Whether the transferee can proceed with the execution once he failed to get himself substituted in the suit itself before the decree was passed.

(ii) Is the claim for damages transferable?

3. Order 22, Rule 10 (1) of the Civil P. C. lays down that 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 thus enables the transferee with the leave of the Court to continue the suit, The appellant could have made an application in the suit itself to be impleaded as a plaintiff in place of Brundaban Padhan. In fact, he did not do so. The question is whether he is precluded from continuing the execution after the decree was passed in favour of the plaintiff despite the transfer during the pendency of the suit.

Though the aforesaid rule enables the transferee to continue the suit, it is no bar to the transferor continuing the suit for the benefit of his successor. The position of law was settled in AIR 1915 Cal 103, Rai Charan Mandal v. Biswanath Mandal, Their Lordships observed that the plaintiff who has instituted a litigation may prosecute it to its conclusion notwithstanding a devolution of his interest in the property. The litigation will continue in his name for the benefit of his successor. Order 22, Rule 10 of the Civil P. C. is an alternative procedure which guards against the danger that the original plaintiff being no longer interested in the proceedings may not vigorously prosecute them or may even collude with the adversary. The same view was taken in AIR 1936 Pat 420, Joti Lal Sah v. Sheo-dhayan Prashad Sah. On the aforesaid analysis the execution by the appellant Is maintainable.

4. The more important question, however, is whether the claim for damages which was the subject-matter of the Money Suit is not transferable. Section 6 of the Transfer of Property Act so far it is relevant runs thus--

Section 6--Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

* * * * *(e) A mere right to sue cannot be transferred.

It was contended in the Courts below that the transfer of the claim for damages which was the subject-matter of the Money Suit was a mere right to sue and as such it was not transferable. This contention prevailed with both the Courts below. The expression 'a mere right to sue' means a right to sue unconnected with the ownership of any property. Mere right to sue is not property but is merely a title to get1 future property, where the right to recover damages in respect of a property is transferred with the property itself, the transfer! does not consist of a mere right to sue. The transfer of a right to sue for damages is in such a case incidental to the property itself, it is intimately connected with the enjoyment of the property, Authorities on this point are unanimous and there is no divergence of opinion. (See AIR 1929 Pat 245, Jagannath Marwari v. Kalidas Raha, AIR 1929 Cal 719. Manmatha Nath Dutta v. Matilal Mitra, AIR 1953 Cal 321. Muruli-dhar Agarwal v. Rupendra Nath Mitter and AIR 1959 Cal 352, New Central Jute Mills Co. Ltd. v. Rivers Steam Navigation Co. Ltd.).

5. In this case the land itself was transferred and along with it the right to claim damages in respect of which the Money Suit was pending was also transferred. So there was no transfer of a mere right to sue. The learned Courts below fell into an error in thinking that there was transfer of a mere right to sue.

6. The learned Courts below placed reliance on (1967) 33 Cut LT 155, Sri Krishna Chandra Gajapati Narayan Deo v. Atreyaparuppa Apparao and AIR 1956 Mad 681. Mayatti Abdul Kadir v. Mayarti Ahmad Taranganar. The Cuttack case has no application. By the time of the transfer the vendor had no title to the property which was the subject-matter of a proceeding under Section 9 (2) of the Orissa Estates Abolition Act. In the Madras case only the right to return maintenance was transferred,

7. For reasons already given the Judgments of the Courts below are set aside and the objection under Section 47 of the Civil P. C. is overruled. The execution case most proceed.

In the result, the judgments of the Courtsbelow are set aside and the appeal is allowed with costs throughout.


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