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Enday Ali Howladar and ors. Vs. Benodini Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.233
AppellantEnday Ali Howladar and ors.
RespondentBenodini Dutt and ors.
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 10 - assignment of interest during pendency of suit--substitution of assignee's name--assignment disputed court, power of, to decide dispute. - .....connection with an order of the subordinate judge of barisal granting an application under order xxii, rule 10, civil procedure code.2. the petitioner brought certain rent suits and pending these rent suits, he executed a conveyance in favour of the opposite parties in respect of certain properties. the opposite parties applied for substitution of their names in the place of the petitioner in the rent suits, on the ground that the petitioner had sold his interest in the tenure which included the land in respect of which the rent suits were instituted, the application was opposed by the petitioner on the ground that the kobala had been tampered with and that he had not sold the properties in suit to the opposite parties.3. the court of first instance held that it could not rely on the.....
Judgment:

1. These Rules were granted in connection with an order of the Subordinate Judge of Barisal granting an application under Order XXII, Rule 10, Civil Procedure Code.

2. The petitioner brought certain rent suits and pending these rent suits, he executed a conveyance in favour of the opposite parties in respect of certain properties. The opposite parties applied for substitution of their names in the place of the petitioner in the rent suits, on the ground that the petitioner had sold his interest in the tenure which included the land in respect of which the rent suits were instituted, The application was opposed by the petitioner on the ground that the Kobala had been tampered with and that he had not sold the properties in suit to the opposite parties.

3. The Court of first instance held that it could not rely on the Kobala as purporting to convey the interest of the petitioner in the suit to the opposite parties and accordingly dismissed the application for substitution on the 28th May 1917. The rent suits were then tried and decreed in favour of the petitioner on the 18th June 1917. The opposite parties in the meantime appealed against the order of the Munsif, dated the 28th May 1917 and on appeal the learned Subordinate Judge held that the tenure in question was sold to the opposite parties and ordered them to be substituted in place of the petitioner.

4. The petitioner thereupon obtained this rule and it is contended on his behalf that the provision of Order XXII, Rule 10, applies only to cases where an assignment, creation or devolution of any interest is admitted.

5. There is, however, nothing in the Code to indicate that the rule is applicable only to cases of admitted assignment, creation or devolution of interest. On the contrary the fact that an appeal is allowed against an order under Rule 10, Order XXII, giving or refusing to give leave, indicates that the primary Court has the power to inquire into the question of the assignment, creation or devolution. An appeal against an order under Order XXII, Rule 10, would be meaningless if the order under that rule could be made only in cases where the assignment, etc., was admitted.

6. It is contended that the provision for an appeal is necessary for cases where the other party to the original suit (for instance, the contending defendants in the present case), disputed the right of the persons setting up the assignment, creation or devolution of interest; but in such cases also the question of the assignment, creation or devolution may have to be gone into if the other party raises it, and we do not see sufficient reason for holding that the inquiry as to the assignment, creation or devolution is restricted only to cases between the assignee and the other parties to the suit,

7. Reliance is placed upon the omission of the words given either with the consent of all parties or after service of notice in writing upon them and hearing their objections if any' from Order XXII, Rule 10, of the present Code as indicating that the rule applies only when the assignment etc., is admitted.

8. But if that is so, there does not seem to be any reason for omitting the words 'with the consent of the parties.' It seems to us that the words were omitted because they were thought to be unnecessary.

9. It is pointed out that Order XXII, Rule 5, expressly gives power to the Court to decide the question as to whether a person is or is not the legal representative of a deceased party, whereas no such power is given to the Court under Order XXII, Rule 10.

10. Section 366 of the old Code directed that the question as to who is the legal representative of a deceased plaintiff should be decided by the Court at or before the hearing of the suit, or the Court may stay the suit until the fact has been determined in another suit. In the present Code the provision for having such dispute determined in another suit has been omitted.

11. But there was nothing in the old Code, nor is there anything in the present, to prevent the Court from deciding the question of assignment, creation or devolution of interest under Order XXII, Rule 10, if any such assignment, etc., is disputed. If a party applies to be substituted or added on such a ground, and it is disputed, we think, in the absence of a provision to the contrary, the Court has the power to decide such dispute.

12. The assignment may be of the whole subject-matter of the suit. In such cases the assignor has no further interest in the litigation, the assignee being the only person interested in the result: and the assignee is bound by the result of the litigation. If the contention of the petitioner be upheld, the assignee cannot come in to protect his interest in the suit and is out of Court as soon as the assignment is denied by the assignor. Having regard to the provision of the section and to the considerations mentioned, we are of opinion that the Court has the power to decide the question of assignment, creation or devolution of interest under Order XXII, Rule 10.

13. The next question is, whether the lower Appellate Court was wrong in setting aside the order of the Munsif as the tenants-defendants had not been made parties to the appeal.

14. It appears that the tenants-defendants did not oppose the application in the Court of first instance, the petitioner being the only person who opposed it. In these circumstances it was unnecessary to make the tenants defendants parties to the appeal. It is true that the opposite party did not get the trial of the suits stayed pending the hearing of the appeals. But they had applied to the Munsif to stay the trial of these suits on the ground that they were going to appeal. That application was rejected by the Munsif, presumably at the instance of the petitioner.

15. Then it is contended that the Court of first instance having refused leave in the exercise of its discretion, the learned Subordinate Judge ought not to have interfered in the matter. But the Munsif refused leave, not in the exercise of his discretion in the matter, but because he could not rely upon the Kobala as purporting to convey to the applicants for substitution the interest of the petitioner in these suits. That finding was reversed on appeal upon the evidence. The opposite parties had one month allowed by law to appeal and they had asked the Mnnsif to stay the hearing of the suit, but the Munsif as stated above rejected the application upon the objection of the petitioner. But if the learned Subordinate Judge has not properly exercised his discretion in the matter, we cannot interfere with his order in revision on that ground.

16. In these circumstances we think that we should not interfere with the order of the learned Subordinate Judge passed on appeal, and these rules are accordingly discharged with costs-two gold mohurs in all.


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