Karnataka High Court
Sarojeeni vs Nagendrappa And Ors on 28 February, 2024
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MFA No. 200365 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.200365 OF 2024 (CPC)
BETWEEN:
SMT. SAROJEENI W/O MALLIKARJUN TELKAR
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O AMBEDKAR NAGAR, SHARANASIRASAGI,
TQ. AND DIST. KALABURAGI-585102.
...APPELLANT
(BY SRI B. BHIMASHANKAR, ADVOCATE)
AND:
Digitally signed 1. SRI. NAGENDRAPPA
by KHAJAAMEEN
L MALAGHAN S/O TIPPANNA NADAGIRI
Location: HIGH AGE: 75 YEARS, OCC: AGRICULTURE,
COURT OF
KARNATAKA R/O HIRAPUR,
TQ. AND DIST. KALABURAGI-585104.
2. SMT. BHAGYASRI
D/O MALLIKARJUN GATHARAGI
AGE: 41 YEARS, OCC: HOUSEHOLD AND
AGRICULTURE,
R/O HUVINAHALLI,
TQ. AFZALPUR, DIST. KALABURAGI,
AND ALSO NEAR MILIND SCHOOL,
VIDYA NAGAR-585104.
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MFA No. 200365 of 2024
3. SRI. YELLALINGA
S/O DEVIDAS KOTHI
AGE: 28 YEARS, OCC: PRIVATE SERVICE,
R/O VILLAGE HUVINAHALLI,
TQ. AFZALPUR, DIST. KALABURAGI-585104.
...RESPONDENTS
(BY SRI RAVINDRA H. BABALESHWAR, ADVOCATE FOR C/R2;
R1 AND R3 ARE DISPENED WITH)
THIS MFA IS FILED U/O. 43 RULE I OF CPC, PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE IMPUGNED ORDER
DATED 18.01.2024 ON I.A NO. VII FILED UNDER ORDER 22
RULE 10 THE CODE OF CIVIL PROCEDURE 1908 PASSED BY
THE LEARNED I ADDITIONAL DISTRICT AND SESSION JUDGE
KALABURAGI IN R.A NO.02/2023, CONSEQUENTLY ALLOW THE
I.A VII. PASS ANY OTHER ORDER WHICHEVER DEEMED FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 200365 of 2024
JUDGMENT
Heard the learned counsel for the appellant and
respondent No.2.
2. The notice to the respondent Nos.1 and 3 is
dispensed with since the appellant is claiming under the
rights of respondent Nos.1 and 3.
3. The short point that arise for consideration in
this appeal is whether the appellant who was the applicant
U/o 22 Rule 10 of CPC before the first appellate Court
could have maintained such application or not.
4. The factual matrix that is germane for the
purpose of this appeal is that the respondent No.2/plaintiff
filed a suit for declaration and partition that the adoption
of defendant No.2/respondent No.3- Yellalinga was invalid
and therefore the plaintiff being the daughter of
Mallikarjun, she is entitle for the estate of a Mallikarjun to
the extent of her share. During the pendency, the said
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suit, O.S.No.3/2016, was dismissed for non prosecution
and before it was being restored to the file, the defendant
No.2/respondent No.3- Yellalinga had sold the property to
the defendant No.3 Nagendrappa. Therefore, the said
Nagendrappa was impleaded in the suit after restoration of
the suit. Thereafter, the suit came to be decreed in favour
of the plaintiff granting her share and also declaring that
the adoption of Yellalinga by Mallikarjun was invalid. An
appeal came to be filed by the said Nagendrappa before
the first appellate Court in R.A.No.2/2023. In the
meanwhile, the said Nagendrappa sold his right, title and
interest in favour of the appellant herein Sarojeeni under a
sale deed dated 04.01.2023. Obviously it was subsequent
to the filing of the appeal in R.A.No.2/2023.
5. The applicant Sarojeeni approached the first
appellate Court with an application U/o 22 Rule 10 of CPC
contending that Nagendrappa has assigned all his right,
title and interest in the property under the sale deed dated
4.1.2023 and therefore she is a necessary party who can
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prosecute the appeal by stepping into the shoes of
Nagendrappa. The said application filed by Sarojeeni came
to be dismissed by the first appellate Court by the
impugned order dated 18.01.2024.
6. The learned counsel appearing for the appellant
submits that though the appellant in R.A.No.2/2023
Nagendrappa had suffered the decree, his sale deed
executed in favour of Sarojeeni, the appellant herein, can
be construed to be an assignment of his rights and nothing
more. By way of the said sale deed, Sarojeeni had
entered into the shoes of Nagendrappa and she is entitled
to prosecute the appeal in the capacity of the
Nagendrappa only. It is submitted that the Trial Court
erred in dismissing the application and therefore the
impugned order passed by the first appellate Court is not
sustainable in law. In this regard, he relied on the
judgment of the Apex Court in case of Raj Kumar V/s
Sardari Lal and others1 rendered by the Apex Court.
2004(2) SCC 601
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7. Per contra, the learned counsel appearing for
the respondent No.2/plaintiff submits that the appellant in
R.A.No.2/2023 Nagendrappa had no right, title and
interest in the suit schedule property by virtue of the
decree passed by the Trial Court. Therefore, when
Nagendrappa has no right, title and interest, he could not
have executed any sale deed in favour of the appellant
Sarojeeni. He also submits that the appellant Sarojeeni
had the full knowledge of the litigation since she was
relative of Nagendrappa. Therefore, he terms filing of
such application by Sarojeeni as an act of dilatory tactics.
8. The provisions of Order 22 Rule 10 of CPC reads
as below:
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.
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(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).
9. It is evident that the provisions of Order 22
Rule 10 of CPC were subject matter of the detailed
discussion in the case of Saila Bala Dassi V/s Nirmala
Sundari Dassi and another2. The exposition of law in
respect of Order 22 Rule 10 of CPC, in the case of Saila
Bala Dassi was relied by the Apex Court in the case of Raj
Kumar V/s Sardari Lal and others. It is pertinent to
note that Order 22 Rule 10 of CPC takes into its fold all the
rights, title or interest an assignor had while transferring
the same to the assignee. If the assignor had no right,
title or interest, then virtually the assignee would not get
any right, title or interest in the property. However, the
right to sue that was available under the proceedings as
an assignee would continue. If the assignment is in
respect of the right to sue, which was the only right
AIR 1958 SC 394
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available to the assignee, only such right will have to be
accepted and he should be permitted to prosecute the lis.
Therefore, when Nagendrappa had executed the sale deed
in favour of Sarojeeni, she would get only such rights
possessed by Nagendrappa. In other words applicant
Sarojeeni is not entitled to raise any grounds afresh and
she can only prosecute the grounds which were raised by
Nagendrappa before the trial Court. The inter-se dispute
between Nagendrappa and Sarojeeni also cannot be raised
before the first appellate Court in any way. In other
words, applicant cannot take up any fresh ground which
were not taken by Nagendrappa during the lis.
10. In para 10 and 11 of the judgment in Raj
Kumar V/s Sardari Lal and others, it was held by the
Apex Court as below:
"10. The law laid down by a four-Judges bench
of this Court in Saila Bala Dassi Vs. Sm.
Nirmala Sundari Dassi and Another, is apt
for resolving the issue arising for decision
herein. A transferee of property from
defendant during the pendency of the suit
sought himself to be brought on record at
the stage of appeal. The High Court
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dismissed the application as it was pressed
only by reference to Order 22 Rule 10 of
the CPC and it was conceded by the
applicant that, not being a person who had
obtained a transfer pending appeal, he was
not covered within the scope of Order 22
Rule 10. In an appeal preferred by such
transferee this Court upheld the iew of the
High Court that a transferee prior to the
filing of the appeal could not be brought on
record in appeal by reference to Order 22
Rule 10 of the CPC. However, the Court
held that an appeal is a proceeding for the
purpose of Section 146 and further the
expression "claiming under" is wide
enough to include cases of devolution and
assignment mentioned in Order 22 Rule
10. Whoever is entitled to be but has nto
been brought on record under Order 22
Rule 10 in a pending suit or proceeding
would be entitled to prefer an appeal
against the decree or order passed therein
if his assignor could have filed such an
appeal, there being no prohibition against
it in the Code. A person having acquired
an interest in suit property during the
pendency of the suit and seeking to be
brought on record at the stage of the
appeal can do so by reference to Section
146 of the CPC which provision being a
beneficent provision should be construed
liberally and so as to advance justice and
not in a restricted or technical sense.
Their Lordships held that being a purchaser
pendent elite, a person will be bound by
the proceedings taken by the successful
party in execution of decree and justice
requires that such purchaser should be
given an opportunity to protect his rights.
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11. In Sm. Saila Bala Dassi's case (supra) an
earlier decision of this Court in
Jugalkishore Saraf Vs. Raw Cotton Co.
Ltd., was followed. It was a case where
during the pendency of a suit for recovery
of a debt from the defendant the plaintiff in
that suit had transferred to a third person
all the book and other debts. This Court
held that held that the position of the
transferor, vis-à-vis the transferee is
nothing more than that of a benamidar for
the latter and when the decree is passed
for the recovery of that debt it is the latter
who is the real owner of the decree, When
the transferee becomes the owner of the
decree immediately on its passing, he
must, in relation to the decree, be also
regarded as person claiming under the
transferor. The transferee is entitled u/s
146 to make an application for execution
which the original decree-holder could do.
The executing Court can apply its mind to
the simple equitable principle which
operates to transfer the beneficent interest
in the after-acquired decree u/s 146, As
the assignee from the plaintiff of the debt
which was the entire subject matter fo the
suit the transferee was entitled to be
brought on record under Order 22 Rule 10
and must, therefore, be also regarded as a
representative of the plaintiff within the
meaning of Section 47 of the CPC."
11. In the light of the above discussion and the law
laid down by the Apex Court, the appeal deserves to be
allowed. Hence, the following:
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ORDER
The appeal is allowed.
The impugned order passed by the first appellate
Court in dismissing the application filed U/o 22 Rule 10 of
CPC is hereby set aside.
The IA No.VII before the first appellate Court is
allowed.
The appellant is permitted to be impleaded U/o 22
Rule 10 of CPC with limited rights as discussed above and
prosecute the appeal as an assignee of Nagendrappa.
Sd/-
JUDGE
SMP
CT: PK
