Full Judgment Text
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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
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similar objection to the executability of the decree.
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
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and is based on the principle that the trial of a suit cannot be brought
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.
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In the case of Rikhu Dev, Chela Bawa Harjug Dass v. Som
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
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wrong, the decrees rendered by them cannot be treated
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
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the decree being wrong. His objection is based on the
effect of the provisions of the Act which has deprived the
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
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jurisdiction because, its jurisdiction being limited to
members of the Kings household, it entertained a suit
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
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remains good until it is set aside.
De Smith, Woolf and Jowell in their treatise Judicial Review of
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
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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
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
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therefrom shall be deemed to be an interest entitling the
person who procured such attachment to the benefit of
sub-rule (1).
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 ]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
..J.
[B.N.AGRAWAL ]
DATED: July 24, 2001.
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