Judgment

K. K. MATHEW, J. - This is an appeal by special leave against a decree passed by the High Court of Punjab and Haryana holding that the appeal filed by the plaintiff-appellant has abated and dismissing his suit.

2. The appellant brought the suit on the allegation that there was one Shiromani Nirankari Dera at Patiala, that this institution had two-branches and at Landeke in Moga Tehsil and the other at Nanga Kheri in the erstwhile Patiala State, and that he, as mahant-in-charge of the Shiromani Dera at Patiala had the right to manage the properties attached to the Dera at Landeke. The prayer in the plaint was for recovery of possession of the Dera and the properties attached to it.

3. Som Dass, the defendant, contended that the Dera at Landeke was an independent Dera and that he was in possession of the properties of the Dera as its lawfully appointed mahant.

4. The trial court decreed the suit. In appeal by the defendant the decree was reversed. Against that decree, an appeal was preferred by the appellant to the High Court. While the appeal was pending in the High Court, Som Dass, the defendant, died on 13-10-1970. No application was made by the appellant to bring on record his legal representatives within the period prescribed. An application was made on 1-2-1971 by the appellant stating that Som Dass died on 26-11-1970 leaving behind him Shiam Dass as his chela and for impleading him. The correctness of the date of death of Som Dass was contested by Shiam Dass. The High Court referred the question to the trial Court for enquiry and decision. The trial Court, after taking evidence, found that Som Dass died on 13-10-1970. Thereafter the appellant prayed before the High Court that his application dated 1-2-1971 might be treated as an application for setting aside abatement of the appeal and the ground for setting aside the abatement was that the appellant did not know about the death of Som Dass at the time he died. The High Court found no substance in the plea that the appellant had no knowledge about the date of the death of Som Dass and held that the appeal had abated and that there was no ground for setting aside the abatement.

5. The appellant had raised an alternative contention before the High Court that there was no abatement of the appeal even if Sam Dass was not impleaded within the period prescribed as he claimed to represent the dera as its duly elected chela. The High Court held that after the death of Sam Dass. Shiam Dass, as his chela "inherited the sum total of the rights which earlier vested in Som Dass and when a controversy is raised about such right then the appellant was bound to bring on record the legal representatives of the deceased within the time prescribed by law."

6. We do not think that the view of the High- Court was correct. The suit was filed on the basis that the appellant as the lawfully appointed mahant was entitled to manage the properties of the Dera at Landeke, that the defendant was unlawfully claiming to be the mahant of the Dera and entitled to manage the properties of the Dera and that the appellant was entitled to be in possession of the properties. As already stated the contention of the defendant was that though the properties belonged to the Dera, he was its lawfully appointed mahant and that the appellant had no right to recover possession of the property of the Dera. When Som Dass died, the interest which was the subject matter of the suit, devolved upon Shiam Dass as he was elected to be the Mahant of the Dera and the appeal could be continued under O.22, R. 10, of the Civil Procedure Code against the person upon whom the interest had devolved.

7. Order 22, Rule 10 reads :

"R. 10 (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 d