JUDGMENT :- This first appeal from order is directed against the order passed by the lower appellate court rejecting an application whereby the present appellant sought leave of the said court to be brought on record as appellant no. 2 in the appeal which was pending in the said court. The brief facts involved in the appeal are these:

One Bindeshwari Singh filed Suit No. 33 of 1968 in the Court of the Civil Judge. He was the sole plaintiff in the suit and it seems that he impugned certain gift deeds. The suit was dismissed and an appeal was filed in the lower appellate court. Bindeshweri Singh was the appellant and the defendants were impleaded as respondents. During the pendency of the said appeal, Bindeshwari Singh died and his son Musafir Singh moved an application for being substituted in the place of the deceased appellant. That application was allowed and Musafir Singh was brought on record in the place of the deceased appellant.

2. The present appellant before me, Amir Singh, applied in the lower appellate court for being impleaded as appellant No. 2. In support of his application which purposed to be under O. 22 R. 10 read with S. 151 C.P.C., he filed an affidavit. He relied on an agreement dated 23rd Aug. 1969 which was alleged to have been entered into between him and the deceased Bindeshwari Singh - the latter happened to be the uncle of Amir Singh. The other side filed objections. After hearing the parties, the lower appellate court rejected the application. One of the considerations which weighed with the said court was the fact that even though the agreement dated 23rd August, 1969 had been allegedly executed during the pendency of the suit, no application had been made by Amir Singh for being impleaded as a co-plaintiff in the said suit and the application was made in the lower appellate court some time in 1972 after Bindeshwari Singh had died. The Court was also of the opinion that the presence of Amir Singh was not necessary before the court in order to enable it to effectually and completely adjudicate upon and settle the questions involved in the suit. The court also observed that the son of the deceased respondent brought on record was prosecuting the appeal before the said court and lastly an observation was made that Amir Singh, if he had any interest in the subject-matter of the suit, could bring another suit. On the said grounds the application was rejected. Hence, he has come up in appeal to this court and in support thereof, I have heard Sri Laxmi Behari and in opposition Sri Prakash Gupta has made his submissions.

3. I have perused the agreement dated 23rd August, 1969 and it appears to me that it was an agreement intended to finance the litigation with stipulation that on success the property would be divided half and half between the parties concerned, namely, Bindeshwari Singh and Amir Singh. I am not saying anything on the question whether the agreement should be treated as a genuine one or not but as the agreement stands, even if it were to be treated as genuine, still, there is no assignment, creation or devolution, of any interest in praesenti. It seems to me that the Division Bench authority reported in S. V. S. N. Pillai v. S. Pillai (AIR 1940 Mad 918) is clearly applicable to the facts of the instant case. There also the agreement was of an identical nature and it was held that the party concerned who sought to be impleaded under O. 22 R. 10 C.P.C. could not be impleaded under the said provision. Reliance was placed on a Privy Council decision reported in (1913) ILR 35 All 273 (PC) (Basant Singh v. Mahabir Prasad). It seems to me therefore, clear that O. 22 R. 10 C.P.C. was not attracted to the facts of the instant case. Reference has also been made at the bar to another aspect of the matter, namely, whether if the assignment, creation or devolution of any interest took place during the pendency of the suit, then whether an assignee, or the person in whose favour such interest has been created

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