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Surendra NaraIn Deo Vs. Nityendra NaraIn and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal173
AppellantSurendra NaraIn Deo
RespondentNityendra NaraIn and ors.
Cases ReferredEnday Ali v. Binodini Dutt
Excerpt:
- .....relating to two applications made for substitution in place of the deceased plaintiff no. 2, kumar udai narain. the two applications were made by the only surviving son of kumar udai narain and by prince victor narain, who claims as an assignee of the interest of the deceased plaintiff, to be substituted in the suit in place of kumar udai narain. the suit relates to the bijni raj and it was commenced by two persons, the present plaintiff and by deceased plaintiff no. 2 on the 14th of february 1922. kumar udai narain who was then plaintiff no. 2 in the suit executed a deed of conveyance of his interest whatever he had in the raj to prince victor. subsequently a dispute arose between plaintiff no. 1 and plaintiff no. 2. by an order of the 19th september 1922, the conduct of the suit was.....
Judgment:

Greaves, J.

1. This appeal arises from an order of the 13th of May 1924 made in a suit 'by the Subordinate Judge and relating to two applications made for substitution in place of the deceased Plaintiff No. 2, Kumar Udai Narain. The two applications were made by the only surviving son of Kumar Udai Narain and by Prince Victor Narain, who claims as an assignee of the interest of the deceased plaintiff, to be substituted in the suit in place of Kumar Udai Narain. The suit relates to the Bijni Raj and it was commenced by two persons, the present plaintiff and by deceased Plaintiff No. 2 on the 14th of February 1922. Kumar Udai Narain who was then Plaintiff No. 2 in the suit executed a deed of conveyance of his interest whatever he had in the Raj to Prince Victor. Subsequently a dispute arose between Plaintiff No. 1 and Plaintiff No. 2. By an order of the 19th September 1922, the conduct of the suit was given to Plaintiff No. 1 and Plaintiff No. 2. Udai Narain was made a, defendant in the suit. There was some order made with regard to costs which is not material for the purposes of this appeal Prior to that order namely on the 10th March 1922, Prince Victor, applied for substitution of his name in the suit in place of Udai Narain by virtue of his purchase of the 14th February 1922. Udai Narain consented to the substitution asked for by Plaintiff No. 2 and the other defendants opposed it and on the 22nd April 1922 Prince Victor applied to the Court for leave to withdraw his application and this was allowed. The learned Subordinate Judge by his order of the 13th May 1924 allowed both the applications to which 1 have referred. He added Prince Victor as a defendant by virtue of the assignment and he added Kumar Surendra Narain by virtue of some small interest which remained vested in Udai Narain after his conveyance to Prince Victor which interest is now vested by reason of the death of Udai Narain in the present appellant Kumar Surendra Narain. The appeal is by Kumar Surendra Narain who objects to the substitution of Prince Victor by virtue of the conveyance and it was urged before us that under the provisions of Order 22, E. 10, the order for the adding of Prince Victor as a party should not have been made for it was suggested that Order 22, Rule 10 only applied to a case where the assignment or the devolution was not challenged and not to a case like the present where the assignment to Prince Victor was challenged on various grounds. It was sought to support this argument by a reference to Order 22, E. 5 which provides that where it is necessary to substitute a representative and question arises as to who is the legal representative the Court is bound to determine the question before effecting a substitution and it was suggested' that owing to the absence of these words from Order 22, Rule 10 and as there was no obligation on the Court so to decide Order 22, E. 10 must only apply to a case of assignment where the assignment was not disputed. A similar argument was raised in the case of Enday Ali v. Binodini Dutt [1919] 29 Cri.L.J. 362 and the Division Bench which decided the case were against the contention which I have indicated and came to the conclusion that under the provisions of G. 22, E. 10, the Court had a power to decide the question as to the validity or otherwise of the assignment when an application for substitution was made to the Court under Order 22, Rule 10. We agree with that decision and we do not think that it s possible to confine the provisions of Order 22, Rule 10 to a case where the assignment is not disputed. Then it was sought to urge that by reason of the previous withdrawal of the application for substitution Prince Victor is now debarred from making the application on which the order of the Subordinate Judge was made. We do not think, however, that this is so. At the time the withdrawal was made the interest of Udai Narain and Prince Victor was practically identical and they were friendly. Now Udai Narain is dead and Prince Victor Narain and the present appellant are at arms length and we do not think that Prince Victor can be debarred from making the application upon which the learned Judge passed the order complained of. We think, therefore, that the order was right and that the suit should proceed in the presence of both the added parties namely, Kumar Satyendra Narain and Prince. Victor. The order substituting Prince Victor does not decide the validity, of his assignment. This is a question that ultimately may have to be decided in other proceedings. On the other hand the question may never arise if the decision in the present suit goes on one way.... For the reasons we have indicated we think that the order was a correct one and that the learned Judge has rightly confined Prince Victor to the case of Udai Narain in whose stead he has been substituted. Under the circumstances of this case we think that the Court was justified' in adding Prince Victor without going, into the various allegations that are made with regard to the assignment to him.

2. The appeal accordingly fails and is dismissed with costs to be paid to Prince Victor Nityendra Narain represented by Mr. H.D. Bose. We assess the hearing-fee at three gold mohurs.

Cuming, J.

3. I agree.


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