IMPORTANT POINT
Merely by assignment or release of the rights during the pendency of the appeal, one does not lose right to continue the appeal.

JUDGMENT

ARUN MISHRA, J.

1. Heard learned counsel for the parties.

2. Leave granted.

3. This is an appeal against the judgment and order dated 24.9.2013 passed by the High Court of Karnataka at Bangalore in Regular First Appeal No.1735 of 2011, dismissing the appeal filed by the plaintiff-appellant on the ground that she had released her interest in the suit property in favour of her daughter Smt. Padmavathi on 11.4.2011 and said Padmavathi, in turn, had transferred the property in favour of Mr. G.R. Ramesh vide sale deed dated 20.4.2011. Consequently, she had lost her right to continue the appeal preferred as against dismissal of the suit vide judgment and order dated 16.6.1990.

4. The facts, in brief, indicate that Sharadamma, plaintiff-appellant had filed Original Suit No.6020 of 1998 on 5.8.1998 for the purposes of declaration of title and for restoration of possession on the strength of registered sale deed dated 10.11.1965. The plaintiff had also claimed a sum of Rs.3,000/-towards past damages and a further sum of Rs.20/-per day as continuing damages. The suit was dismissed by the trial court against which the plaintiff had preferred regular first appeal before the High Court. The same has been dismissed on the aforesaid ground by the impugned judgment and order.

5. We have heard learned counsel for the parties and opine that the impugned judgment is patently illegal. Merely due to the assignment or release of the rights during the pendency of the appeal, the appellant did not in any manner lose the right to continue the appeal. Merely by transfer of the property during the pendency of the suit or the appeal, plaintiff or appellant, as the case may be, ordinarily has a right to continue the appeal. It is at the option of the assignee to move an application for impleadment. Considering the provisions contained in Order 22 Rule 10 and Order 22 Rule 11 of the Code of Civil Procedure, the impugned judgment and order of the High Court cannot be allowed to be sustained.

Order 22 Rule 10 and Order 22 Rule 11CPC are extracted hereunder :

ORDER XXII, RULES 10 AND 11. “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).

x x x x x

11. Application of Order to appeals.-In the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.”

6. A bare reading of the provisions of Order XXII Rule 10 makes it clear that the legislature has not envisaged the penalty of dismissal of the suit or appeal on account of failure of the assignee to move an application for impleadment and to continue the proceedings. Thus, there cannot be dismissal of the suit or appeal, as the case may be, on account of failure of assignee to file an application to continue the proceedings. It would be open to the assignor to continue the proceedings notwithstanding the fact that he ceased to have any interest in the subject-matter of dispute. He can continue the proceedings for the benefit of assignee. The question is no more res integra. This Court in Dhurandhar Prasad Singh v. Jai Prakash University & Ors. [2001 (6) SCC 534] has laid down thus :

“6. 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