Subramonian Poti, J.
1. The question for decision in this appeal is whether the assignee from an appellant could seek to get impleaded in the appeal under Order 22, Rule 10, Civil P. C. after the death of the appellant and after the period within which the appeal would abate under Rule 3 (2) of Order XXII by reason of the failure to implead legal representatives of the deceased appellant. This question arises under the following circumstances.
2. In execution of the decree in Order Section 922 of 1963 of the 1st Additional Munsiff's Court, Trivandrum, the decree-schedule property was sold and that was purchased by a stranger in court auction. The auction-purchaser, in whose favour the sale was confirmed, sought to take delivery. This was objected to by the vendee of the property from the defendant in the suit. Such vendee made an application to set aside the sale and that application was ultimately allowed by the execution court. Against that order the auction purchaser filed a Civil Miscellaneous Appeal in the court below. Subsequent to the filing of this appeal he executed a deed in favour of the respondent here purporting to transfer his rights in the property purchased by him in the court-auction. That was on 11-7-1972. The transferee did not come on record at that time. The appellant died on 25-8-1972. There was a controversy in the court below as to the date of death, the respondent contending that the death was only on 3-5-1973. But that case was found against. The legal representative of the deceased appellant did not seek to come on record in the appeal and the appeal abated. Subsequently, on 23-7-1973, the respondent moved an application under Order XXII, Rule 10 of the Code of Civil Procedure to implead him on the strength of the assignment obtained by him from the auction-purchaser.
This application was objected to on the ground that the appeal having abated there were no proceedings subsisting in which the assignee could seek to get himself impleaded. The Court below evidently took the view that there was no time limit within which the application had to be made by an assignee under the provisions of Order XXII of the Code of Civil Procedure, and therefore it was open to him to move the court even after the abatement of the appeal. In this view the application was allowed. The court below further found that there was sufficient reason to grant the leave contemplated by the Rule. It is thereupon that the respondent in the court below has come up in appeal to this court challenging the order of the court below impleading the respondent as party to the appeal. The contention of the appellant here is that there was no appeal pending at the time so as to enable the respondent to come on record and therefore the motion for that purpose ought to have been dismissed.
3. The question therefore is, whether, despite the failure of the legal representative to seek to come on record on the death of the appellant an assignee from such appellant could move for being impleaded under Order XXII, Rule 10 of the C. P. C. at a time when the proceedings must be taken to have abated under Order XXII rule 3 (2) of the C. P. C. against the legal representative.
4. An assignee from a party to a suit is not a legal representative within the meaning of that term as defined in Section 2(11) of the C. P. C. That term as defined: 'Legal representative' means a person who in law represents the estate of a deceased person.' It would only be a person on whom the interest of the deceased devolves by reason of the death, that would fall within the ambit of the term 'Legal representative. The assignee derives his interest by reason of the assignment and that is not related to the death of the assignor. On this there is no controversy.
5. Order XXII, Rule 1 of the Civil P. C. provides for non-abatement of an action on the death of a plaintiff or defendant if the right to sue survives. There are certain classes of suits where the right to sue is personal to the plaintiff and in such cases the right to sue does not survive to the legal representatives, as for instance in a suit for damages for defamation. In other suits the right to sue survives and there is no abatement merely by the death of the plaintiff or the defendant. The legal representatives are consequently permitted to continue the suit or proceedings in case they move to come in as such legal representatives within the time limited by law. Rule 3 (1) of Order XXII provides that where one or two more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. If no application is made within the time provided for making such an application under law the suit shall abate in so far as the deceased plaintiff is concerned.
This is the provision in Rule 3 (2), Order XXII of the Civil P. C. Similarly there is provision as to abatement in the case of death of a defendant and failure to seek to implead the legal representative so as to continue the proceedings. Apart from the provisions for impleading parties by reason of the right to sue surviving on the death of parties provision is made in Order XXII, Rule 10 to cover cases of devolution of any interest during the pendency of a suit. That rule provides 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. The provision indicates that the right of the assignee to seek to continue the suit is not absolute as it is for the court to consider whether leave is to be granted. In appropriate cases the court may grant leave to continue the suit. Such an assignee is bound by the previous proceedings in the suit and his right is only one of further prosecution of the suit.
6. Rule 3 of Order XXII operates when there is death of a party and the consequences of failure to move for impleading legal representatives is the termination of the proceedings by reason of the abatement of the suit as contemplated under Rule 3 (2) of Order XXII of the Civil P. C. Thereafter there is no subsisting suit. The position in regard to failure to implead the sole defendant would be abatement of the suit as against the defendant. In the case of sole plaintiff of sole defendant the suit abates as against the sole plaintiff or the sole defendant and if the abatement is in regard to one of the plaintiffs or one of the defendants to that extent the suit would abate. Provision is made to bring back the suit to life by setting aside the abatement if proper cause is shown.
7. It seems to us to be plain from the scheme of Order XXII that an assignee can make an application for leave to continue the suit so long as there is a suit, so far it concerns the assignee, on the file of the court. In a suit which is not subsisting there is no scope for seeking continuance. It is only logical that in a case where the suit has abated the assignee cannot thereafter seek to be added as a party to the action. That this is the scheme is evident from an examination of the Order XXII of the Code of Civil Procedure. If the assignee seeks to be implead-ed in the proceedings before the suit abates and the legal representatives also seek to be impleaded whether the court would allow the assignee to come on record is a different question. That will depend upon consideration of many matters. But the assignee cannot claim to come on record as a matter of right since leave is not to be granted as a matter of course. We are not concerned with such a situation here and we need not go into this question further for the purpose of this appeal.
8. The case of the respondent before us is that the right to sue on the death of the assignor is not affected by the failure of the legal representatives to move to come on record as such and there is no law of limitation prescribing a period within which an application has to be made by an assignee under Order XXII, Rule 10, Civil P. C. That meant that the respondent could seek to be impleaded in the suit at any time within three yean of the death of the deceased, that being the period prescribed for a residuary application under the Limitation Act. There is a further plea that the order of abatement under Rule 3 (2) of Order XXII would only operate as against the legal representatives, that the suit willabate only so far as the legal representative are concerned and therefore there would be no bar to an assignee seeking to be impleaded so as to continue the proceedings.
9. Order XXII, Rule 1 about which reference has already been made by us is not to be understood as meaning that in every case of the death of the plaintiff or defendant there will he no abatement at any time, if the right to sue does survive. Except in cases where the right to sue is personal such right survives normally. There is no abatement in such cases by death. It is in such cases that Rules 3 (2) and 4 (3) of Order XXII provide for abatement later. Such abatement will not be by reason of the death of the plaintiff or defendant but by reason of the failure to make application to implead the legal representatives within the time specified by law.
10. Rule 3 (1) as also Rule 4 (1) of Order XXII contemplate also cases of the death of one or two or more plaintiffs or defendants and it is in that context that the rules specify that the suit shall abate as against the deceased plaintiff or the defendant, as the case may be. This does not mean that the suit nevertheless survives in regard to the interest of the deceased so as to enable the assignee to seek to be impleaded.
11. Rule 10 begins with the words 'in other cases'. The reference is to cases other than those mentioned in Rules 2, 3, 4, 7 and 8 of Order XXII of the Civil P. C, as observed in Baijnath v. Mt, Tunkowati, AIR 1962 Pat 285. The provision, as we have said earlier, enables only continuance and that by leave of the court. There would be no scope for continuance where by reason of the operation of Rule 3 or Rule 4 as the case may be, there is abatement and consequently termination of the proceedings. In such a situation there is no scope for the assignee to make application under Order XXII, Rule 10, Civil P. C. In other words it means that no motion will succeed under Rule 10 when once there is abatement of the suit as against the party as whose assignee motion is made under Order XXII, Rule 10. A learned Judge of this Court in the decision in Jameela Beevi v. Antony Netto, 1965 Ker LT 43 had occasion to consider the right of an assignee to seek to be impleaded in an appeal filed by his assignor in a case where the appeal had abated by reason of the failure of the legal representatives to seek to be impleaded in the appeal. In that connection the learned Judge said:
'In the case before me, the appeal was filed by the assignor; and if the appeal werestill effective at the time of the application by the assignee, the application has to be allowed also. But in this case, the appeal has abated; so that, there is nothing further which the assignor herself could have done in the appeal.'
We may refer, in this context, to a passage in the Judgment of the High Court of Patna in Baijnath v. Mt. Tunkowati, AIR 1962 Pat 285 (FB). At para 13 of the judgment dealing with this question the court said:
'If the person, on whom the interest of the plaintiff or respondent had so devolved, does not obtain the leave of the Court under Rule 10 for the continuance of the suit or appeal by or against him, the suit or appeal may be continued by the original party, but he would still be bound by the result of the litigation, whether for or against him. When the devolution takes place by reason of death, for the application of Rule 3, Rule 4 or Rule 10 it becomes essential to determine whether the death took place before or after judgment or before appeal was filed, or after the preliminary decree or final decree. It is, however, noteworthy, that if the matter falls under Rules 3 and 4, application of Rule 10 is ousted and resort cannot be had to it to circumvent the mandatory provisions of Rules 3 and 4.'
12. When this case came up before a Division Bench of this Court the learned Judges referred the case, evidently feeling that there was some conflict between the decision of the High Court of Calcutta in Kedarnath Kanoria v. Khaltan Sons and Co., AIR 1959 Cal 368 and the High Court of Madras in Ellappan v. T. R. Sitaramiah, AIR 1965 Mad 180. It was contended in the Calcutta case that the right of the assignee to seek to implead under Order XXII, Rule 10 of the Code of Civil Procedure subsisted notwithstanding the death of the assignor-plaintiff and the abatement of the suit. Answering this contention the learned Judges said in paras 25 and 26 of the decision in Kedarnath Kanoria v. Khaitan Sons and Co. thus:
'(25) It is true that the death of the assignor plaintiff simpliciter does not take away the right of the assignee to apply under Order XXII, Rule 10 of the Code of Civil Procedure. By Order XXII, Rule 1 the death of the plaintiff of itself does not cause the suit to abate. Before the suit has abated the assignee may apply for and obtain leave to continue the suit. He may also, if he chooses, apply for substitution of the legal representative of the deceased plaintiff. In a proper case the order for leave to continue the suit may be dated nunc pro tune as of the date when the application was made. If necessary,the application for leave to continue the suit may be treated as being in substance a composite application for substitution of the legal representatives of the deceased plaintiff and thereafter of the application. On obtaining the necessary leave the assignee becomes the new plaintiff and the suit cannot thereafter abate on account of the death of the original plaintiff.
(26) But the assignee can obtain leave only to continue a suit. If the suit has already abated, there is no suit which may be continued. The abatement terminates the suit and disposes of the plaintiff's claim as if the suit has been dismissed without a hearing. Leave to continue a suit cannot be given after the suit has terminated. It cannot be given if the suit has already been decreed or dismissed for default of appearance of the plaintiff. Similarly, leave cannot be given if the suit has already abated. The suit abates automatically in the absence of any application under Order XXII, Rule 3 within ninety days and a further order declaring that the suit has abated is not necessary. The assignee is bound by the abatement and by proceedings had in the suit before his intervention.'
The Madras decision in Ellappan Sitaramiah, AIR 1965 Mad 180 was one where the question was different. A Hindu widow filed a suit for recovery of possession of properties to which her right was only that of a widow's estate. During the pendency of the suit she effected a surrender of her estate by means of a registered document in favour of the immediate reversioner, one Ragupathi Iyer. The surrender was complete and was to the nearest reversioner who would be succeeding to the estate of the last male owner. But Ragupathi Iyer did not seek to come on record in the suit filed by the widow. He independently filed another suit. The widow's suit was dismissed for non-prosecution. It was on account of this that it was contended that the suit by the reversioner was barred by the provisions of Order XXII, Rule 9 (1), Civil P. C. inasmuch as there was a previous suit and it was dismissed for non-prosecution. In the appeal a learned single Judge of the Court held that the provisions of Order XXII, Rule 3 would apply only to cases of death of the plaintiff and not to case of surrender which amounted only to civil death and therefore the provisions of Order XXII, Rule 9 (1) would not be attracted.
It is this view that was attacked in the appeal before the Division Bench of the Madras High Court. The Court took the view that a widow's suit with respect to her husband's estate, though filed by the widow as owner, can very well be deemed to have been instituted as a representative of the estate. Therefore when she died during the pendency of the suit the reversioner who succeeds to the property can step in and prosecute the suit as a person entitled to the estate which was till then represented by the widow. It would be Order XXII, Rule 10 of the Civil P. C. that would operate and not Rule 3 and it would be optional for the party seeking to continue the suit to come on record and prosecute the suit. It will be a matter of discretion for the court to permit him to come on record. Therefore the failure to come in under Order XXII, Rule 10 will not attract the consequences contemplated in Rule 9 (1) of Order XXII. We find no principle stated in this decision which goes against the view expressed by the Calcutta High Court in the decision in Kedarnath Kanoria v. Khaitan Sons & Co., AIR 1959 Cal 368.
13. Counsel for the respondent strongly relied on the decision of the High Court of Allahabad in Mithan Lal v. Maya Devi, AIR 1929 All 444. The question which arose there is more or less the same as has arisen in this case. The donees of the subject-matter of a suit pending suit sought to implead herself under Order XXII, Rule 10, Civil P. C. after the abatement of the suit by reason of the failure of the legal representatives to come on record as such legal representatives. In this context the Allahabad High Court examined the scope of Order XXII of the Code of Civil Procedure. Referring to Rule 1 the court seems to have taken the view that the said Rule declares that the death of a plaintiff shall not cause the suit to abate if the right to sue survives and this rule appears to have been understood to mean that in that case the donee had the right to sue surviving in her unless that right was barred by limitation. Therefore, according to that decision, the death of the assignor would not be sufficient to cause the suit to abate. Referring to Rule 3 it was said that the rule refers to abatement so far as the deceased plaintiff was concerned; and that would be sufficient to show that the abatement would operate only against such deceased plaintiff and the right to sue surviving to another such as the assignee would not be affected by reason of the abatement. That in turn, it was said, would be sufficient to entitle the assignee to move an application under Order XXII, Rule 10, Civil P. C. We have already indicated that this is not the position and the words 'so far as the plaintiff is concerned' in Order XXII, Rule 3 (1) indicate that the abatement will beonly as against one of the several plaintiffs who may die pending the suit. For the reasons we have already stated we cannot, with great respect, agree with the decision of the High Court of Allahabad.
14. We see no assistance to the respondent in the decision in Sivathanu v. Velayudha, AIR 1957 Trav-Co 212. That was a case of competing claims between the legal representatives of the deceased on the one hand and the assignee on the other to get themselves impleaded so as to continue the proceedings. But the parties moved within the time limited for taking application to implead legal representatives and there was hence no question of abatement. The question was one of preference between the legal representatives and assignee to come on record and therefore no question as in this case arose then.
15. Counsel Sri Kesavan Nair then relied on the decision in State of Uttar Pradesh v. Sheikh Asghar, AIR 1963 All 357 a case where, on the death of a plaintiff without any legal representatives resulting in escheat of the property to the State, the State sought to be impleaded. This was not within the period within which an application had to be made under Order XXII, Rule 3 (1) but within the period specified in the Limitation Act under the residuary Article 181. In that context it was said that the period would be that available to a person upon whom the interest of the plaintiff devolved under Order XXII, Rule 10, Civil P. C. and that is three years under the residuary article. That was a case where no question of abatement arose, and if there was no abatement as was held in that case the suit must necessarily be deemed to be pending. This decision also is therefore of no assistance to the respondents.
16. In the light of what we have discussed here we hold that the court below was wrong in allowing the application by the assignee to be impleaded in the appeal after the appeal had abated. The application should have been dismissed, We allow the appeal reversing the order of the court below. The application under Order XXII, Rule 10, Civil P. C. would stand dismissed.
17. An application to set aside abatement and a petition to excuse the delay in making that application have been made to this Court. We do not think it is for this Court to consider these applications. We direct that the applications be forwarded to the Court below and we do so without expressing on the maintainability or merits of the applications. The applications will be dealt with appropriately by the court below.
18. The appeal is allowed as above. The parties will suffer costs in the appeal.