P.V. Rajamannar, C.J.
1. This is an application made under Order XXII, Rule 10 of the Civil Procedure Code to bring the petitioner on record as a party respondent in S.A. No. 724 of 1948, The second appeal arises out of a suit, O. S. No. 347 of 1943, on the file of the District Munsiff's Court, Palghat. It was a suit for recovery of possession of certain property and for other reliefs. The trial Court decreed the suit. The first defendant filed A. S. No. 46 of 1945 in the Court of the Subordinate Judge, Palghat. Pending the appeal, the plaintiff, who was the 1st respondent therein, died, and his legal representatives were brought on record as respondents 2 and 3. They assigned their rights in the suit property to one Allu Achan Menon, who was impleaded in the appeal as the 4th respondent. He, in his turn, transferred his rights in the property to the petitioner herein, by a deed dated 30th May, 1947. The appeal was disposed of on 28th June, 1947, without the petitioner being impleaded as a party respondent. The appeal was dismissed, and the 1st defendant has filed the above second appeal. The petitioner has now made this application, because he is the person now interested in the property as the owner, and his transferor does not propose to defend the appeal. This application is opposed by the appellant in the second appeal, merely on the ground that as the assignment was during the pendency of the first appeal the petitioner is not entitled to the benefit of the provisions of Order XXII, Rule 10, read with Rule 11. The contention, shortly, is that as the petitioner did not bring himself on record in the lower appellate Court, he is precluded from applying to be brought on record in the second appeal. The application originally came on for hearing before Rajagopalan, J., who found a conflict between the decision of Stodart, J., in Alagar Raja v. Narayana Raja : AIR1938Mad757 . and that of Patanjali Sastri, J., in Ratnasabapathi Pillai v. Gopala Ayyar : AIR1940Mad876 . The petition was therefore posted before a Division Bench.
2. The question which arises in this petition is of some procedural importance,and there has been a divergence of opinion not only in this Court, but in decisions of other Courts as well. We, therefore, propose to first examine the language of the relevant provisions, before discussing the case-law.
The substantive provision is Order XXII, Rule 10, which runs as follows:
(1) 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.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1).
Rule 11 is a general supplemental provision for the application of this order to. appeals and says that,
so far as may be, the word 'plaintiff' shall be held to include an 'appellant' the word' 'defendant' a respondent and the word 'suit' an appeal.
3. Reading these two rules together, the result appears to be this: If there is an assignment, creation or devolution of an interest during the pendency of a suit an application may be made under Order XXII, Rule 10, for a continuation of the suit by or against the person to or upon whom such interest has come or devolved If such assignment, creation or devolution of interest takes place during the pendency of an appeal, the appeal may be in the same manner continued by or against such person. So far, it is common ground. It has also been decided by this Court that if the assignment, creation or devolution of interest is after the decree in a suit the person to whom such interest has come or devolved can file an appeal from the decree. An appeal may be filed by or against the person to or upon whom such interest has come or devolved not by virtue of Order XXII, Rule 10, but on account of another provision, namely, Section 146 of the Code. Vide Sitaramaswami v. Lakshmi Narasimha I.L.R. (1917) Mad. 510. and Subba Pillai v. Rangasami 40 IND.CAS. 846.
4. What is contended, however, on behalf of the respondent in this application is that if the assignment, creation or devolution of interest, takes place during the pendency of a particular proceeding, that is, a suit or an appeal, an application for continuation of that proceeding can be made by or against the person concerned, but such an application cannot be made at a further stage of the same suit. For instance, if the assignment was made during the pendency of a suit, an application cannot be made under this rule in an appeal from the decree in the suit, and likewise, if the assignment took place during the pendency of a first appeal, an application cannot be made in second appeal. This result is said to follow from the language of Rule 11. No doubt, there are certain decisions which support this contention, of which two call for consideration. In Phul Chand v. Khwaja Tahir Hussain : AIR1934All442 there was an assignment in favour of the applicant during the pendency of the suit. The applicant filed an application in the trial Court for being added as a defendant, and the Court ordered the application on payment of Rs. 50 as costs of the day and half the total costs incurred by the plaintiff. The applicant deposited the sum of Rs. 50 but failed to deposit half the costs, and thereupon the Court dismissed his application. There was a decree in plaintiff's favour, and an appeal by the defendant to the High Court. The applicant filed an application in the appeal to be made a respondent. The learned Judges held that the application should not be granted. The decision was based on two grounds, one of which has no bearing on the present case, that is, that to grant the application would be to set aside the order of the trial Court dismissing the application of the applicant during the pendency of the suit. The other ground was that as the assignment in favour of the applicant was during the pendency of the suit and not during the pendency of the appeal in the High Court, the application was not maintainable under Order XXII, Rule 10 read with Rule 11. The learned Judges arrived at this conclusion by construing the language of rule n to mean that in the application to appeals, the word 'appeal' had to be substituted for the word 'suit' in Rule 10, and the rule should run as follows:
In other cases of an assignment, creation or devolution of any interest during the pendency of an appeal, the appeal may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
Patanjali Sastri, J., took the same view in the Ratnasabapathi Pillai v. Gopala Aiyar : AIR1940Mad876 . Several points were decided in that case by the learned Judge, and this point was briefly disposed of as follows:.reading that provision (Order XXII, Rule 10), in the light of Rule 11 of the same order, it is clear that unless the assignment, creation or devolution referred to in the provision occurred during the pendency of the appeal, this provision would not entitle the appellant to be impleaded in the appeal....
With great deference to the learned Judges of the Allahabad High Court and to Patanjali Sastri, J., we are of opinion that Rule 11 of Order XXII should not be construed in this manner, that is, that in the application of Rule 10 to appeals, there should be a substitution of the word 'appeal' for the word 'suit.' We consider that a proper construction would be to hold that the word 'suit' occurring in Rule 10 should, so far as may be, include 'appeal.' Reading Rules 10 and 11. together, a composite rule can be evolved as follows:
In other cases of an assignment, creation or devolution of any interest during the pendency of a suit or an appeal, the suit or appeal may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
It would follow that even if the assignment, creation or devolution of interest is during the pendency of a suit, an application for continuation of an appeal from a decree in the suit may be made by or against the person concerned. Such a construction finds support in the following decisions : Rajani Kanta v. Jyoti Prasad Singh : AIR1924Cal90 Alagar Raja v. Narayana Raja : AIR1938Mad757 Wright Neville v. Freser I.L.R. (1944) Nag. 520 and Lakshmi Narain v. Babu A.I.R. 1946 Lah. 33.
5. This construction follows from the language of the two rules. We are also of opinion that this construction is in accordance with justice and reason. Order XXII, Rule 10 differs from the other rules in that order in several important respects. In the case of Rules 2, 3 and 4, if the conditions laid down in the rules are satisfied, the Court is bound to grant the application made under the said rules. But, on the other hand, even if there has been assignment, creation or devolution of an interest, the Court is not bound to grant an application under Rule 10. Then, again, under the provisions of the Indian Limitation Act, there is a time limit for making applications under Rules 2, 3 and 4 of the Order. But there is no time limit for making an application under Order XXII, Rule 10. These two factors support our view according to which a restricted interpretation should not be placed on the provision of Rule 10. The reason is obvious. The person to or upon whom an interest has come or devolved during the pendency of a suit or appeal is bound by the decision in the suit or appeal, though eo nomine he is not added as party. But there is nothing to prevent a suit or appeal being continued without such person being brought on record. It is only when the presence of such person on record becomes necessary owing to special circumstances that the Court may be inclined to permit such person to be brought on record. It may be the person himself may apprehend that his interest may not be sufficiently safeguarded by the parties on record, or the other side may desire to obviate any trouble or obstruction in execution proceedings. What is really important is that mere omission to make an application under the rule will not by itself lead to any consequence, will not confer any right on parties or take away any rights from them. In which case we fail to see why a person in whose favour a transfer is made during the pendency of a suit should not choose to come on record only at the stage of an appeal or second appeal, if and when he considers that his presence has become necessary. We are in entire agreement with the reasoning of Abdul Rahman, J., who delivered the judgment of the Division Bench in Lakshmi Narain v. Babu A.I.R. 1946 Lah. 33. As the learned Judge points out, the provisions of Order XXII, Rules 10 and 11 are of an enabling character. There is nothing in them to compel any action at the risk of the loss of any right.
6. We, therefore, hold that this application is maintainable. On the merits, this appears to be eminently a case in which the application should be granted. The petitioner is directed to be impleaded as a party respondent in the second appeal. No order as to costs.