2001 Supreme(SC) 959

2001(5) Supreme 278
SUPREME COURT OF INDIA
(From Patna High Court)
G.B. Pattanaik and B.N. Agrawal, JJ.
Dhurandhar Prasad Singh -Appellant/Decree Holder
versus
Jai Prakash University & Ors. -Respondents
Civil Appeal No.4481 of 2001
(Arising out of SLP (C) No. 19378/1999)
Decided on 24-7-2001
Counsel for the Parties :
For the Appellant : P.S. Misra, Sr. Advocate, S. Chandra Shekhar, Vishnu Sharma, and Rajesh Prasad Singh, Advocates.
For the Respondents : Raju Ramachandran, Sr. Advocate, Rudreshwar Singh, Tapesh Singh, Shishir Pinaki, R.P. Wadhwani, Advocates.

VERY IMPORTANT POINT
In a case of devolution of interest during the pendency of a suit as postulated under Order 22 Rule 10 CPC, application seeking leave to implead successor-in-interest can be filed by any person. But the decree passed against the predecessor-in-interest, without bringing the successor-in-interest on record would not make the decree a nullity and objection against its execution cannot be allowed u/s 47 of CPC.

Headnote:(i) Civil Procedure Code, 1908-Order 22 Rule 10 and Section 47-Appellant appointed as Routine-cum-examination clerk in Ganga Singh College affiliated to Bihar University- Principal of College terminated appellant s services-Suit for declaration that it was illegal-Decided ex-parte in favour of appellant-In the pendency of suit Ganga Singh College was affiliated to Jai Prakash University-It was not made a party-Objection in execution u/s 47 CPC -Whether in a case of devolution of interest during the pendency of a suit as postulated under Order 22 Rule 10 CPC, decree passed against the predecessor-in-interest without bringing the successor-in-interest on the record would make the decree nullity? (No)- Whether the same can be executed against such a person who was not impleaded as party? (Yes)-Case law discussed and Text Books referred-Proper remedy stated.

       Held : 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. (Para 24)

       (ii) Civil Procedure Code, 1908-Order 22 Rule 10 and Section 47-Devolution of interest from Bihar University to Jai Prakash University during the pendency of suit-The suit may, by leave of the Court be continued-Whether application under Order 22 Rule 10 CPC seeking leave of the Court is required under law to be filed by the person alone upon whom interest has devolved during the pendency of suit and by nobody else ? (No)-Whether High Court was justified in allowing objection u/s 47 CPC ? (No)-Result-Appeal allowed.

       Held : 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. (Paras 26 , 27 and 28)