Dhurandhar
Prasad Singh Vs. Jai Prakash University & Ors [2001] Insc 333 (24 July 2001)
G.B.
Pattanaik & B.N. Agrawal 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.
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 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 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 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 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 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 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 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).
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
] DATED: July 24, 2001.
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