http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11

CASE NO.:

Appeal (civil) 4481 of 2001

PETITIONER:

DHURANDHAR PRASAD SINGH

Vs.

RESPONDENT:

JAI PRAKASH UNIVERSITY AND ORS.

DATE OF JUDGMENT: 24/07/2001

BENCH:

G.B. Pattanaik & B.N. Agrawal

JUDGMENT:

B.N.AGRAWAL, J.

Leave granted.

In this appeal decree holder-appellant has challenged the

judgment rendered by Patna High Court whereby revision application

has been allowed, order passed by the executing Court, rejecting

objection under Section 47 of the Code of Civil Procedure

(hereinafter referred to as the Code) to the executability of decree

passed in title suit No. 115 of 1977, set aside and objection allowed.

Plaintiff-appellant filed suit for a declaration that order dated

11th October, 1977, passed by defendant No. 2 (respondent No.3)

who was Secretary of Governing Body, Ganga Singh College,

terminating the services of plaintiff, was illegal. According to the case

of the plaintiff disclosed in the plaint, he was appointed as Routine-

cum-Examination Clerk in the said college, which was affiliated to

Bihar University, by Principal of the College on 8.1.1977 which was

subsequently approved by the ad hoc Governing Body. After

constitution of the regular Governing Body, defendant No.2 passed

an order terminating the services of plaintiff in contravention of

Statutes of Bihar University which necessitated filing of the present

suit. In the said suit, the Governing Body of the College in question

which was defendant No. 1 entered appearance but no written

statement was filed and the defendant absented itself and the suit

was fixed for exparte hearing which was decreed exparte and the

defendants were permanently restrained from giving effect to the

order of termination. As the judgment debtors refused to comply the

directions contained in the decree, the appellant levied execution. In

the said execution case, an objection under Section 47 of the Code

was filed on behalf of Principal of the College as well as the Bihar

University objecting to the executability of the decree on grounds,

inter alia, that during the pendency of the suit on Ist October, 1980,

the College in question became the constituent unit of the Bihar

University and the erstwhile Governing Body ceased to exist but the

University was not impleaded party in the suit and consequently the

decree was not executable against it inasmuch as the exparte decree

was obtained against the erstwhile management by suppressing this

fact. As subsequently during the pendency of the execution case, Jai

Prakash University was formed and the college in question thereupon

became a constituent unit of the said University, the same also filed

similar objection to the executability of the decree.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11

The executing court allowed the objection and thereafter when

the matter was taken to the High Court in revision, the case was

remanded to the executing Court to dispose of the objection afresh

after giving opportunity of adducing evidence to the parties. After

remand the parties adduced evidence in support of their respective

cases and the executing Court by its order dated 22nd September,

1997 rejected objection under Section 47 of the Code, against which

order when a revision was preferred before the High Court, the same

was allowed, order passed by the executing Court was set aside and

objection under Section 47 of the Code was allowed. Hence, this

appeal by Special Leave.

Mr. Prabha Shanker Mishra, learned Senior Counsel appearing

on behalf of the appellant in support of the appeal submitted that

although the college in question was taken over by the Bihar

University as its constituent unit with all its assets and liabilities and

thereby it was a case of devolution of interest during the pendency of

the suit within the meaning of Order 22 Rule 10 of the Code, the High

Court was not justified in holding that the decree cannot be executed

against the University on the ground that it was not made party in the

suit inasmuch the decree could have been passed against the

erstwhile management and the University was bound by it as no step

whatsoever was taken by the University to intervene in the matter by

seeking leave to continue which alone was entitled for the same.

Learned counsel for the Respondent-University, on the other hand,

submitted that under Order 22 Rule 10 of the Code, it was duty of the

plaintiff who was prosecuting the suit to ensure by seeking leave of

the Court, that effective relief is granted to him by bringing the

University on record which was a necessary party. It has been

further submitted that decree passed against the previous

management which has ceased to exist is akin to a decree passed

against a dead person without bringing his legal representatives on

the record, which is a nullity. Thus, in view of the rival submissions,

the following questions arise for our consideration:-

1. Whether in a case of devolution of interest during

the pendency of a suit as postulated under Order 22

Rule 10 of the Code, decree passed against the

predecessor-in-interest without bringing the

successor-in-interest on the record would make the

decree nullity and the same can be executed

against such a person who was not impleaded as

party?

2. Whether application under Order 22 Rule 10

seeking leave of the Court is required under law to

be filed by that person alone upon whom interest

has devolved during the pendency of the suit and by

nobody else?

In order to appreciate the points involved, it would be

necessary to refer to the provisions of Order 22 of the Code, Rules 3

and 4 whereof prescribe procedure in case of devolution of interest

on the death of a party to a suit. Under these Rules, if a party dies

and right to sue survives, the Court on an application made in that

behalf is required to substitute legal representatives of the deceased

party for proceeding with a suit but if such an application is not filed

within the time prescribed by law, the suit shall abate so far as the

deceased party is concerned. Rule 7 deals with the case of creation

of an interest in a husband on marriage and Rule 8 deals with the

case of assignment on the insolvency of a plaintiff. Rule 10 provides

for cases of assignment, creation and devolution of interest during the

pendency of a suit other than those referred to in the foregoing Rules

and is based on the principle that the trial of a suit cannot be brought

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11

to an end merely because the interest of a party in the subject matter

of suit is devolved upon another during its pendency but such a suit

may be continued with the leave of the Court by or against the person

upon whom such interest has devolved. But, if no such a step is

taken, the suit may be continued with the original party and the

person upon whom the interest has devolved will be bound by and

can have the benefit of the decree, as the case may be, unless it is

shown in a properly constituted proceeding that the original party

being no longer interested in the proceeding did not vigorously

prosecute or colluded with the adversary resulting in decision adverse

to the party upon whom interest had devolved. The Legislature while

enacting Rules 3,4 and 10 has made clear-cut distinction. In cases

covered by Rules 3 and 4, if right to sue survives and no application

for bringing legal representatives of a deceased party is filed within

the time prescribed, there is automatic abatement of the suit and

procedure has been prescribed for setting aside abatement under

Rule 9 on the grounds postulated therein. In cases covered by Rule

10, the Legislature has not prescribed any such procedure in the

event of failure to apply for leave of the court to continue the

proceeding by or against the person upon whom interest has

devolved during the pendency of a suit which shows that the

Legislature was conscious of this eventuality and yet has not

prescribed that failure would entail dismissal of the suit as it was

intended that the proceeding would continue by or against the original

party although he ceased to have any interest in the subject of

dispute in the event of failure to apply for leave to continue by or

against the person upon whom the interest has devolved for bringing

him on the record.

Under Rule 10, Order 22 of the Code, when there has been a

devolution of interest during the pendency of a suit, the suit may, by

leave of the Court, be continued by or against persons upon whom

such interest has devolved and this entitles, the person who has

acquired an interest in the subject matter of the litigation by an

assignment or creation or devolution of interest pendente lite or suitor

or any other person interested, to apply to the Court for leave to

continue the suit. But it does not follow that it is obligatory upon

them to do so. If a party does not ask for leave, he takes the obvious

risk that the suit may not be properly conducted by the plaintiff on

record, and yet, as pointed out by their Lordships of the Judicial

Committee in Moti Lal v. Karab-ud-Din [1898] 25 Cal.179, he will be

bound by the result of the litigation even though he is not represented

at the hearing unless it is shown that the litigation was not properly

conducted by the original party or he colluded with the adversary. It

is also plain that if the person who has acquired an interest by

devolution, obtains leave to carry on the suit, the suit in his hands is

not a new suit, for, as Lord Kingsdown of the Judicial Committee said

in Prannath v. Rookea Begum [1851-59] 7 M.I.A. 323, a cause of

action is not prolonged by mere transfer of the title. It is the old suit

carried on at his instance and he is bound by all proceedings up to

the stage when he obtains leave to carry on the proceedings.

The effect of failure to seek leave or bring on record the person

upon whom the interest has devolved during the pendency of the suit

was subject matter of consideration before this Court in various

decisions. In the case of Sm.Saila Bala Dassi v. Sm. Nirmala

Sundari Dassi and another AIR 1958 Supreme Court 394,

T.L.Venkatarama Aiyar, J. speaking for himself and on behalf of

S.R.Das, C.J. and A.K.Sarkar and Vivian Bose, JJ. laid down the law

that if a suit is pending when the transfer in favour of a party was

made, that would not affect the result when no application had been

made to be brought on the record in the original court during the

pendency of the suit.

In the case of Rikhu Dev, Chela Bawa Harjug Dass v. Som

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11

Dass (deceased) through his Chela Shiama Dass, AIR 1975

Supreme Court 2159, while considering the effect of devolution of

interest within the meaning of Order 22 Rule 10 of the Code, on the

trial of a suit during its pendency, this Court has laid down the law at

page 2160 which runs thus:-

This rule is based on the principle that trial of a suit

cannot be brought to an end merely because the interest

of a party in the subject matter of the suit has devolved

upon another during the pendency of the suit but that suit

may be continued against the person acquiring the

interest with the leave of the Court. When a suit is

brought by or against a person in a representative

capacity and there is a devolution of the interest of the

representative, the rule that has to be applied is Order 22,

Rule 10 and not Rule 3 or 4, whether the devolution takes

place as a consequence of death or for any other reason.

Order 22, Rule 10, is not confined to devolution of interest

of a party by death; it also applies if the head of the mutt

or manager of the temple resigns his office or is removed

from office. In such a case the successor to the head of

the mutt or to the manager of the temple may be

substituted as a party under this rule.

In the case of Kiran Singh and others v. Chaman Paswan

and others AIR 1954 S.C.340, question was raised, when decree

passed by a Court is nullity and whether execution of such a decree

can be resisted at the execution stage which would obviously mean

by taking an objection under Section 47 of the Code. Venkatarama

Ayyar, J. speaking for himself and on behalf of B.K.Mukherjea, Vivian

Bose, Ghulam Hasan, JJ., observed at page 352 thus:

It is a fundamental principle well-established that a

decree passed by a Court without jurisdiction is a nullity,

& that its invalidity could be set up whenever and

wherever it is sought to be enforced or relied upon, even

at the stage of execution and even in collateral

proceedings.

In the case of Ittyavira Mathai v. Varkey Varkey and another

AIR 1964 S.C.907, the question which fell for consideration before

this Court was if a Court, having jurisdiction over the parties to the

suit and subject matter thereof passes a decree in a suit which was

barred by time, such a decree would come within the realm of nullity

and the Court answered the question in the negative holding that

such a decree cannot be treated to be nullity but at the highest be

treated to be an illegal decree. While laying down the law, the Court

stated at page 910 thus:-

If the suit was barred by time and yet, the court decreed

it, the court would be committing an illegality and

therefore the aggrieved party would be entitled to have

the decree set aside by preferring an appeal against it.

But it is well settled that a court having jurisdiction over

the subject matter of the suit and over the parties thereto,

though bound to decide right may decide wrong; and that

even though it decided wrong it would not be doing

something which it had no jurisdiction to do. It had the

jurisdiction over the subject matter and it had the

jurisdiction over the party and, therefore, merely because

it made an error in deciding a vital issue in the suit, it

cannot be said that it has acted beyond its jurisdiction. As

has often been said, courts have jurisdiction to decide

right or to decide wrong and even though they decide

wrong, the decrees rendered by them cannot be treated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11

as nullities.

Again, in the case of Vasudev Dhanjibhai Modi v. Rajabhai

Abdul Rehman and others AIR 1970 S.C.1475, the Court was

considering scope of objection under Section 47 of the Code in

relation to the executability of a decree and it was laid down that only

such a decree can be subject matter of objection which is nullity and

not a decree which is erroneous either in law or on facts. J.C.Shah,

J. speaking for himself and on behalf of K.S.Hegde and A.N.Grover,

JJ., laid down the law at pages 1476-77 which runs thus:-

A Court executing a decree cannot go behind the decree

between the parties or their representatives; it must take

the decree according to its tenor, and cannot entertain

any objection that the decree was incorrect in law or on

facts. Until it is set aside by an appropriate proceeding in

appeal or revision, a decree even if it be erroneous is still

binding between the parties.

When a decree which is a nullity, for instance, where it is

passed without bringing the legal representatives on the

record of a person who was dead at the date of the

decree, or against a ruling prince without a certificate, is

sought to be executed an objection in that behalf may be

raised in a proceeding for execution. Again, when the

decree is made by a Court which has no inherent

jurisdiction to make it, objection as to its validity may be

raised in an execution proceeding if the objection appears

on the face of the record: where the objection as to the

jurisdiction of the Court to pass the decree does not

appear on the face of the record and requires

examination of the questions raised and decided at the

trial or which could have been but have not been raised,

the executing Court will have no jurisdiction to entertain

an objection as to the validity of the decree even on the

ground of absence of jurisdiction.

In the case of Everest Coal Company (P) Ltd. v. State of

Bihar and others, (1978) 1 SCC 12, this Court held that leave for

suing the receiver can be granted even after filing of the suit and held

that the infirmity of not obtaining the leave does not bear upon the

jurisdiction of the trial court or the cause of action but it is peripheral.

It also held that if a suit prosecuted without such leave culminates in

a decree, the same is liable to be set aside. These observations do

not mean that the decree is nullity. On the other hand, the

observation of the Court at page 15 that any litigative disturbance of

the Courts possession without its permission amounts to contempt of

its authority; and the wages of contempt of Court in this jurisdiction

may well be voidability of the whole proceeding would lend support

to the view and such decree is voidable but not void.

In the case of Haji Sk.Subhan v. Madhorao, AIR 1962

S.C.1230, the question which fell for consideration of this Court was

as to whether an executing Court can refuse to execute a decree on

the ground that the same has become inexecutable on account of the

change in law in Madhya Pradesh by promulgation of M.P.Abolition of

Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 and

a decree was passed in ignorance of the same. While answering the

question in the affirmative, the Court observed at page 1287 thus:-

The contention that the Executing Court cannot question

the decree and has to execute it as it stands, is correct,

but this principle has no operation in the facts of the

present case. The objection of the appellant is not with

respect to the invalidity of the decree or with respect to

the decree being wrong. His objection is based on the

effect of the provisions of the Act which has deprived the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11

respondent of his proprietary rights, including the right to

recover possession over the land in suit and under whose

provisions the respondent has obtained the right to

remain in possession of it. In these circumstances, we

are of opinion that the executing Court can refuse to

execute the decree holding that it has become

inexecutable on account of the change in law and its

effect.

In the case of Vidya Sagar v. Smt. Sudesh Kumari and

others, AIR 1975 S.C.2295, an objection was taken under Section 47

of the Code to the effect that decree passed was incapable of

execution after passing of U.P.Zamindari Abolition and Land Reforms

Act, 1950 and the objection was allowed by the High Court and when

the matter was brought to this Court, the order was upheld holding

that decree was incapable of execution by subsequent promulgation

of legislation by State Legislature.

The expressions void and voidable have been subject matter

of consideration before English Courts times without number. In the

case of Durayappah v. Fernando and others [1967] 2 All England

Law Reports 152, the dissolution of municipal council by the minister

was challenged. Question had arisen before the Privy Council as to

whether a third party could challenge such a decision. It was held

that if the decision was complete nullity, it could be challenged by

anyone, anywhere. The Court observed at page 158 thus:-

The answer must depend essentially on whether the

order of the Minister was a complete nullity or whether it

was an order voidable only at the election of the council.

If the former, it must follow that the council is still in office

and that, if any councillor, ratepayer or other person

having a legitimate interest in the conduct of the council

likes to take the point, they are entitled to ask the court to

declare that the council is still the duly elected council

with all the powers and duties conferred on it by the

Municipal Ordinance.

In the case of In re McC. (A minor) [ 1985 ] 1 Appeal Cases 528,

the House of Lords followed the dictum of Lord Coke in the

Marshalsea Case quoting a passage from the said judgment which

was rendered in 1613 where it was laid down that where the whole

proceeding is coram non judice which means void ab initio, the

action will lie without any regard to the precept or process. The

Court laid down at page 536 thus:-

Consider two extremes of a very wide spectrum.

Jurisdiction meant one thing to Lord Coke in 1613 when

he said in the Marshalsea Case (1613) 10 Co. Rep.68b,

at p.76a:

when a court has jurisdiction of the cause,

and, proceeds inverso ordine or erroneously,

there the party who sues, or the officer or

minister of the court who executes the precept

or process of the court, no action lies against

them. But when the court has not jurisdiction

of the cause, there the whole proceeding is

coram non judice, and actions will lie against

them without any regard of the precept or

process.

The Court of the Marshalsea in that case acted without

jurisdiction because, its jurisdiction being limited to

members of the Kings household, it entertained a suit

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11

between two citizens neither of whom was a member of

the Kings household. Arising out of those proceedings a

party arrested by process of the Marshalsea could

maintain an action for false imprisonment against, inter

alios, the Marshal who directed the execution of the

process. This is but an early and perhaps the most

quoted example of the application of a principle illustrated

by many later cases where the question whether a court

or other tribunal of limited jurisdiction has acted without

jurisdiction (coram non judice) can be determined by

considering whether at the outset of the proceedings that

court had jurisdiction to entertain the proceedings at all.

So much is implicit in the Lord Cokes phrase jurisdiction

of the cause.

In another decision, in the case of Director of Public

Prosecutions v. Head [1959] Appeal Cases 83, House of Lords was

considering validity of an order passed by Secretary of the State in

appeal preferred against judgment of acquittal passed in a criminal

case. The Court of Criminal Appeal quashed the conviction on the

ground that the aforesaid order of Secretary was null and void and

while upholding the decision of the Court of Criminal Appeal, the

House of Lords observed at page 111 thus:-

This contention seems to me to raise the whole question

of void or voidable: for if the original order was void, it

would in law be a nullity. There would be no need for an

order to quash it. It would be automatically null and void

without more ado. The continuation orders would be

nullities too, because you cannot continue a nullity. The

licence to Miss Henderson would be a nullity. So would

all the dealings with her property under Section 64 of the

Act of 1913. None of the orders would be admissible in

evidence. The Secretary of State would, I fancy, be liable

in damages for all of the 10 years during which she was

unlawfully detained, since it could all be said to flow from

his negligent act; see section 16 of the Mental Treatment

Act, 1930.

But if the original order was only voidable, then it

would not be automatically void. Something would have

to be done to avoid it. There would have to be an

application to the High Court for certiorari to quash it.

This question was examined by Court of Appeal in the case of

R. v. Paddington Valuation Officer and another, Exparte Peachey

Property Corporation, Ltd. [1965] 2 All England Law Reports 836

where the valuation list was challenged on the ground that the same

was void altogether. On these facts, Lord Denning, M.R. laid down

the law observing at page 841 thus:-

It is necessary to distinguish between two kinds of

invalidity. The one kind is where the invalidity is so grave

that the list is a nullity altogether. In which case there is

no need for an order to quash it. It is automatically null

and void without more ado. The other kind is when the

invalidity does not make the list void altogether, but only

voidable. In that case it stands unless and until it is set

aside. In the present case the valuation list is not, and

never has been, a nullity. At most the first respondent-

acting within his jurisdiction-exercised that jurisdiction

erroneously. That makes the list voidable and not void. It

remains good until it is set aside.

De Smith, Woolf and Jowell in their treatise Judicial Review of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11

Administrative Action, Fifth Edition, paragraph 5-044, has

summarised the concept of void and voidable as follows:

Behind the simple dichotomy of void and voidable acts

(invalid and valid until declared to be invalid) lurk

terminological and conceptual problems of excruciating

complexity. The problems arose from the premise that if

an act, order or decision is ultra vires in the sense of

outside jurisdiction, it was said to be invalid, or null and

void. If it is intra vires it was, of course, valid. If it is

flawed by an error perpetrated within the area of authority

or jurisdiction, it was usually said to be voidable; that is,

valid till set aside on appeal or in the past quashed by

certiorari for error of law on the face of the record.

Clive Lewis in his works Judicial Remedies in Public Law at

page 131 has explained the expressions void and voidable as

follows:-

A challenge to the validity of an act may be by direct

action or by way of collateral or indirect challenge. A

direct action is one where the principal purpose of the

action is to establish the invalidity. This will usually be by

way of an application for judicial review or by use of any

statutory mechanism for appeal or review. Collateral

challenges arise when the invalidity is raised in the course

of some other proceedings, the purpose of which is not to

establish invalidity but where questions of validity become

relevant.

Thus the expressions void and voidable have been subject

matter of consideration on innumerable occasions by courts. The

expression void has several facets. One type of void acts,

transactions, decrees are those which are wholly without jurisdiction,

ab initio void and for avoiding the same no declaration is necessary,

law does not take any notice of the same and it can be disregarded

in collateral proceeding or otherwise. The other type of void act, e.g.,

may be transaction against a minor without being represented by a

next friend. Such a transaction is good transaction against the whole

world. So far the minor is concerned, if he decides to avoid the same

and succeeds in avoiding it by taking recourse to appropriate

proceeding the transaction becomes void from the very beginning.

Another type of void act may be which is not a nullity but for avoiding

the same a declaration has to be made. Voidable act is that which is

a good act unless avoided, e.g., if a suit is filed for a declaration that

a document is fraudulent and/or forged and fabricated, it is voidable

as apparent state of affairs is real state of affairs and a party who

alleges otherwise is obliged to prove it. If it is proved that the

document is forged and fabricated and a declaration to that effect is

given a transaction becomes void from the very beginning. There

may be a voidable transaction which is required to be set aside and

the same is avoided from the day it is so set aside and not any day

prior to it. In cases, where legal effect of a document cannot be taken

away without setting aside the same, it cannot be treated to be void

but would be obviously voidable.

Under Section 47 of the Code, all questions arising between the

parties to the suit in which the decree was passed or their

representatives relating to the execution, discharge or satisfaction of

decree have got to be determined by the court executing the decree

and not by a separate suit. The powers of Court under Section 47

are quite different and much narrower than its powers of appeal,

revision or review. A first appellate Court is not only entitled but

obliged under law to go into the questions of facts as well like trial

court apart from questions of law. Powers of second appellate Court

under different statutes like Section 100 of the Code, as it stood

before its amendment by Central Act 104 of 1976 with effect from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11

1.2.1977, could be exercised only on questions of law. Powers

under statutes which are akin to Section 100 of the Code, as

amended and substituted by the aforesaid Central Act, have been

further narrowed down as now in such an appeal only substantial

question of law can be considered. The powers of this Court under

Article 136 of the Constitution of India, should not be exercised

simply because substantial question of law arises in a case, but

there is further requirement that such question must be of general

public importance and it requires decision of this Court. Powers of

revision under Section 115 of the Code cannot be exercised merely

because the order suffers from legal infirmity or substantial question

of law arises, but such an error must suffer with the vice of error of

jurisdiction. Of course, the revisional powers exercisable under the

Code of Criminal Procedure and likewise in similar statutes stand on

entirely different footing and much wider as there the court can go

into correctness, legality or propriety of the order and regularity of

proceeding of inferior court. It does not mean that in each and every

case the revisional court is obliged to consider question of facts as

well like a first appellate Court, but the court has discretion to

consider the same in appropriate cases whenever it is found

expedient and not in each and every case. Discretion, undoubtedly,

means judicial discretion and not whim, caprice or fancy of a Judge.

Powers of review cannot be invoked unless it is shown that there is

error apparent on the face of the record in the order sought to be

reviewed.

The exercise of powers under Section 47 of the Code is

microscopic and lies in a very narrow inspection hole. Thus it is plain

that executing Court can allow objection under Section 47 of the

Code to the executability of the decree if it is found that the same is

void ab initio and nullity, apart from the ground that decree is not

capable of execution under law either because the same was passed

in ignorance of such a provision of law or the law was promulgated

making a decree inexecutable after its passing. In the case on hand,

the decree was passed against the governing body of the College

which was defendant without seeking leave of the Court to continue

the suit against the University upon whom the interest of the original

defendant devolved and impleading it . Such an omission would not

make the decree void ab initio so as to invoke application of Section

47 of the Code and entail dismissal of execution. The validity or

otherwise of a decree may be challenged by filing a properly

constituted suit or taking any other remedy available under law on

the ground that original defendant absented himself from the

proceeding of the suit after appearance as it had no longer any

interest in the subject of dispute or did not purposely take interest in

the proceeding or colluded with the adversary or any other ground

permissible under law.

Now we proceed to consider the second question posed, but

before doing so, for better appreciation of the point involved, it would

be appropriate to refer to the provisions of Order 22 Rule 10 of the

Code which runs thus:-

10. Procedure in case of assignment before final

order in suit.(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).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11

Plain language of Rule 10 referred to above does not suggest

that leave can be sought by that person alone upon whom the

interest has devolved. It simply says that the suit may be continued

by the person upon whom such an interest has devolved and this

applies in a case where the interest of plaintiff has devolved.

Likewise, in a case where interest of defendant has devolved, the suit

may be continued against such a person upon whom interest has

devolved, but in either eventuality, for continuance of the suit against

the persons upon whom the interest has devolved during the

pendency of the suit, leave of the court has to be obtained. If it is

laid down that leave can be obtained by that person alone upon

whom interest of party to the suit has devolved during its pendency,

then there may be preposterous results as such a party might not be

knowing about the litigation and consequently not feasible for him to

apply for leave and if a duty is cast upon him then in such an

eventuality he would be bound by the decree even in cases of failure

to apply for leave. As a rule of prudence, initial duty lies upon the

plaintiff to apply for leave in case the factum of devolution was within

his knowledge or with due diligence could have been known by him.

The person upon whom the interest has devolved may also apply for

such a leave so that his interest may be properly represented as the

original party, if it ceased to have an interest in the subject matter of

dispute by virtue of devolution of interest upon another person, may

not take interest therein, in ordinary course, which is but natural, or by

colluding with the other side. If the submission of Shri Mishra is

accepted, a party upon whom interest has devolved, upon his failure

to apply for leave, would be deprived from challenging correctness of

the decree by filing a properly constituted suit on the ground that the

original party having lost interest in the subject of dispute, did not

properly prosecute or defend the litigation or, in doing so, colluded

with the adversary. Any other party, in our view, may also seek leave

as, for example, where plaintiff filed a suit for partition and during its

pendency he gifted away his undivided interest in the Mitakshara

Coparcenary in favour of the contesting defendant, in that event the

contesting defendant upon whom the interest of the original plaintiff

has devolved has no cause of action to prosecute the suit, but if there

is any other co-sharer who is supporting the plaintiff, may have a

cause of action to continue with the suit by getting himself transposed

to the category of plaintiff as it is well settled that in a partition suit

every defendant is plaintiff, provided he has cause of action for

seeking partition. Thus, we do not find any substance in this

submission of learned counsel appearing on behalf of the appellant

and hold that prayer for leave can be made not only by the person

upon whom interest has devolved, but also by the plaintiff or any

other party or person interested.

Thus, in view of the foregoing discussions, we have no difficulty

in holding that the High Court was not justified in allowing objection

under Section 47 of the Code.

In the result, the appeal is allowed, impugned order passed by

the High Court is set aside and that by the executing Court restored.

In the circumstances of the case, we direct that the parties shall bear

their own costs.

..J.

[G.B.PATTANAIK ]

..J.

[B.N.AGRAWAL ]

NEW DELHI

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

DATED: July 24, 2001.

1

1

29