Judgment:
ORDER
Ajit J. Gunjal, J.
1. The petitioner is the applicant in I.A. No. III in Execution Case No. 39/96 on the file of the Additional civil Judge (junior Division), Madikeri. The said application is filed under Order I Rule 10 and Order XXII Rule 10 read with Section 151 of the Code of Civil Procedure. The executing Court after hearing the objections of respondents has rejected the said application on the ground that the claim of the petitioner to come on record in the said execution proceedings is barred by statute. The impugned Order is at Annexure-C.
2. Few facts are necessary to be stated to appreciate the controversy in question.
3. One Smt. Neelamma had filed a suit in O.S. No. 436/1961 on the file of the Munsiff, Marcara, against one Mr. M.R. Balliappa and Mr. M.R. Subbanna for declaration and possession of the suit schedule properties. After contest, the suit was decreed on 30.09.1964 with a direction to deliver the possession of the properties mentioned in 'A, B, c, D' schedule in the plaint. As against the said Judgment and Decree dated 30.09.1964, one Smt. Seethamma, wife of second defendant (Subbanna) and her children filed an appeal in R.A. No. 22/1971 on the file of Civil Judge, Mercara, questioning the decree in O.S. 436/1961. The said appeal was dismissed on 18.04.1975. As against the dismissal of the said appeal, the legal representatives of second, defendant preferred a regular second appeal in RSA.234/1976 before this Court. This Court, by its Judgment and Decree dated 28/29.08.1984, confirmed the Judgment and Decree passed in O.S. No. 436/1961. Consequently, the decree has become final. The original decree holder, i.e., Suit. M.K. Neelamma having died, her four daughters, i.e., respondents 11 to 14 filed Execution Petition No. 39/1996 for delivery of possession of the suit schedule properties. The said execution proceedings, according to the petitioner was well within time.
4. At this stage, Smt. Vasudha, learned Counsel appearing for the petitioner would submit that during the pendency of the appeal in R.A. No. 22/71, and R.S.A. 234/1976, the Judgment and Decree of the learned Trial Judge in O.S. No. 436/1961 was stayed. The execution proceedings are filed within twelve years from the date of disposal of the second appeal in the year 1984.
5. The petitioner purchased the property which is the subject matter of the Execution Proceedings, from Rule 11 to Rule 14, i.e, successors in interest of Neelamma, and filed an application under order I Rule 10 and order XXII Rule '10 read with Section 151 of the Code of civil Procedure, to come on record as one of the decree-holders and to proceed with the said execution. The said application was seriously objected to by the judgment-debtors 7 and 8 in fact, according to the petitioner, the decree-holders have supported the case of the petitioner in their objections dated 19.12.2001. The Executing Court having considered the material on record, was of the opinion that notwithstanding the fact that the petitioner had succeeded to the interest of the original decree-holder, i.e., Neelamma, through her children, is not entitled to come on record and proceed with the execution proceedings on the ground that said claim is barred by limitation.
6. Smt. Vasudha, learned Counsel appearing for the petitioner -impleading applicant, submits that the petitioner has succeeded to the interests of original Decree Holder, i.e., Neelamma. According to her, after the conclusion of the proceedings in R.S.A., the execution proceedings are initiated well within twelve years from the date of Judgment and Decree. She would also submit that under Section 21(2) of the Limitation Act, the petitioner having succeeded to the interest of the original Decree Holder, he is entitled to come on record, she has relied on the judgment of Khemchand Shankar Choudrari and Anr. v. Vishnu Hari Patil and Ors. (1983)1 Supreme Court Cases 18. In so far as decision in the case of Akka Bai and Anr. v. Gowrawwa AIR 1990 Karnataka 276 is concerned, she would submit that the said decision has no application or bearing on the present case. She would also submit that under Order XXII Rule 10 of the Code of Civil procedure, the petitioner having succeeded to the interest of Naelamma, is entitled to come on record as the interest has devolved on the applicant.
7. Learned Counsel appearing for the respondent would support the impugned Order.
8. I have given my anxious consideration to the submissions made by the learned Counsel on either side.
9. Order XXII Rule 10 of Code of Civil Procedure provides for the procedure in cases of an assignment, creation or devolution of any interest during the pendency of a suit, it is to be noticed that in some cases where there is an assignment, creation or devolution of interest during the pendency of a proceedings, the person in whose favour such interest has created or devolved with the leave of the court may continue the said proceedings. It is no doubt true that the nomenclature used in Order XXII Rule 10 of the Code of Civil Procedure is that 'during the pendency of a suit'. But however, it- is to be noticed that any person who has purchased the property during the pendency of a proceedings, pendentelite is entitled to coma on record notwithstanding the fact that he was not a party in the earlier proceedings. But however, the present, petitioner is slightly on a better footing. Admittedly, the dates are not in dispute. The petitioner-applicant purchased the suit schedule properties from the respondents 11 to 14 to an extent of four acres on 14.07,1992, i.e., well after the Decree passed by this Court, in R.S.A. No. 234/1976. Admittedly, the Execution case is filed within 12 years from the date of disposal of R.S.A. No. 234/1976. It is also brought to my notice by the learned Counsel appearing for the petitioner that there was an interim Order suspending the execution of the judgment and Decree passed in O.S.436/61 till the disposal of the U.S.A. No. 234/1976. In the circumstances, it could not be said that execution proceedings, which was initiated for recovery of possession is barred by limitation. But, however, the executing Court has relied on Article 136 of the Limitation Act regarding execution of a decree and has held that the petitioner having purchased the property in the year 1992 and he having not initiated the proceedings to execute the decree within twelve years, he cannot toe permitted to come on record, apparently, to execute a decree. There is fallacy in the reasoning of the executing Court. What is significant is that the execution proceedings ware initiated within twelve years from the data of decree in the R.S.A. No. 234/1976, which was within time. The petitioner stepped into the shoes of the Decree Holder after he purchased the property. Order XXII Rule 10 of the Cods of civil Procedure is also to the same effect in as much as a person can be impleaded at any stage by the leave of the Court when there is an assignment, creation or devolution of the right during the pendency of the proceedings. This question in regard to Order XXII Rule 10 of Code of civil Procedure has come up for consideration in the case of Khemchamd Shakkar Choudhari and Anr. v. Vishnu Hari Patil and Ors. (1983)1 Supreme Court Cases 18 wherein the Apex Court has observed thus:
A transferee pendants lite of an interest in an immovable property which is the subject-matter of a suit is a representative in interest of the party from whom he has acquired that interest. The transferee has a right to be impleaded as a party to the proceedings and to be heard before any order is made by virtue of Rule of order 22, CPC. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. A person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding can participate in the execution proceedings even though his name may not have been shown in the decree, preliminary or final. The Collector may proceed to make allotment of properties in an equitable manner instead of rejecting his claim for such equitable partition on the ground that he has no locus standi. A transferee from a party of a property which is the subject-matter of partition can exercise all the rights of the transferor. Since a party can ask for an equitable partition, a transferee from him can also do so.
10. It is also to be noticed that Section 21 of the Limitation Act would deal with the effect of substituting a new plaintiff or defendant. Sub-section (1) of Section 21 would deal with a situation where the proceedings are deemed to have instituted when a person is made a party. But, however, Sub-section (2) of Section 21 would deal with a situation where the party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant, or a defendant is made a plaintiff.
11. Admittedly in the case on hand, it is to be noticed that Sub-section (2) of Section 21 of the Limitation Act is applicable. Apparently, the interest of the respondents 11 to 14 is devolved on the petitioner following the assignment of their rights to the petitioner. Consequently, Sub-section (1) of Section 21 of the Limitation Act will not come into force. Hence, I am of the view that the Executing court was clearly in error in rejecting the application under Order 1 Rule 10 of the Code of Civil Procedure holding that it is barred by time. In fact, the Executing Court at para 23 of its Order has recorded a finding that the petitioner having purchased the portion of the property from the Decree Holder he will definitely step into the shoes of Decree Holder and he will be entitled to come on record within twelve years from the date of decree in R.S.A. 234/1976. There is no justifiable ground for the Executing Court to reject the said application.
12. In so far as the decision in the case of Akka Bai and Anr. v. Gowarawwa AIR 1990 Karnataka 278 is concerned, it is to be noted that the facts are different. That was a case where the appeal was filed on the Compromise Petition, which was filed under Order XXIII Rule 4 of the Code of civil Procedure. But, however, after the decree was passed, the applicant filed an application under Order XXII Rule 10 read with Order I Rule 10 of the Code of Civil Procedure as wall as under Section 146 of the code of civil Procedure, to come on record as the respondent. This Court was of the opinion that the said application cannot be entertained in as much as after the purchase of the suit property there is an inordinate and unexplained delay of five years in filing the application. Consequently, this Court has declined to entertain the same, But, however, that is not the case here. The facts are entirely different. The execution proceedings are still pending and in the said proceedings an application is filed by the applicant to coma on record as a successor in interest in respect of a portion of the suit property. The Apex Court in Choudhary's case has laid down that a transferee pendents lite of an interest in an immovable property, which is the subject matter of a suit is a representative in interest and he has acquired the interest through the party, and hence, he shall be permitted to come on record under Order XXII Rule 10 of the Code of Civil Procedure, consequently, I am of the view that the Executing Court was clearly in error in rejecting the said application.
13. The Writ Petition stands allowed. The impugned order at Annexure-c passed in Execution Case No. 39/90 is quashed. The application I.A. No. III filed by the petitioner stands allowed.
Rule is issued and made absolute.