The person claiming as a legal representative or assignee must derive his right directly from the party to the suit or proceedings, as interpreted in Order XXII, rule 10 of the Civil Procedure Code.

Niyogi, J—This is an application to revise the order passed by the District Judge, Akola, in Miscellaneous Civil Appeal no. 1 of 1943, on the 23rd October 1943.

2. The facts are that one Chunnilal, who had filed an application for making a preliminary decree final on the 16th March 1936, died on the 9th June 1937 and none of his legal representatives applied for substitution under Order XXII, rule 3 of the Civil Procedure Code. The application was, however, made by the applicants Champalal and Guruprasad for being substituted in place of the deceased Chunnilal on the allegation that his (Chunnilal's) heir by name Baldeo assigned his interest in the mortgage decree to them on the 24th June 1941. The trial Court found, on contest, that Baldeo was not the next heir of Chunnilal and that the applicants were not entitled to be substituted under Order XXII, rule 10 in place of the deceased Chunnilal. The lower appellate Court differed from the trial Court in holding that Baldeo was the next heir of Chunnilal but agreed with that Court on the point that the applicants were not entitled to be substituted under Order XXII, rule 10 of the Civil Procedure Code. The lower appellate Court relied on Kutti Amma v. Karunawan, 1925 AIR(Mad) 1166 and Gobardhan Mukherjee v. Saligram Marwari,1935 ILR(Pat) 82 in support of its view.

3. A great deal of argument was addressed against the view taken by the lower appellate Court but I do not see my way to differ from the lower appellate Court. Rule 10 of Order XXII was interpreted by the Judicial Committee in Maharaja Sir Manindra Chandra Nandi v. Ram Lal Bhagat, 1922 1 ILR(PC) 581 in these terms :

The order contemplates cases of devolution of interest from some original party to the suit, whether plaintiff or defendant, upon someone else.

4. In Lakshmi Achi v. Subbarama Ayyar, 1915 ILR(Mad) 488 it was explained that the words ''assignment'' and ''creation'' indicate that it is the person suing that assigns and creates the interest which enables the assignee to continue the suit. That means that the person, who comes forward claiming as legal representative or assignee, must derive his right directly and not through an intermediary from the party to the suit or proceedings. That was the view taken in Kutti Amma v. Karunawan, 1925 AIR(Mad) 1166 which was followed in Gobardhan Mukherjee v. Saligram Marwari,1935 15 ILR(Pat) 82. I am not impressed by the attempt made on behalf of the applicants to distinguish that case on the ground that the assignee applicant in that case was a pauper. No doubt that circumstance is referred to in the judgment but it does not appear that it influenced the decision of the Court on the point of law that arose in the case involving interpretation of Order XXII, rule 10 of the Civil Procedure Code. Nor do I think section 146, Civil Procedure Code, can avail the applicants since it cannot be read divorced from Order XXII, rule 10. The consideration, which weighs with me strongly in agreeing with the view taken in the decisions referred to above, is that if such assignees are permitted to come in, it would be open to any legal representative, who does not apply to be substituted within time, to transfer his interest to somebody and defeat the law prescribing abatement of the suit.

5. The application for revision is dismissed with costs. Counsel's fees Rs. 25.

Final Result : Dismissed