A.A. Dave, J.
1. The facts giving rise to this revision application briefly stated are under:
The petitioner in the instant case is the original defendant while the opponents are the original plaintiffs. For the sake of convenience, therefore, I will refer to the parties as plaintiffs and defendant. The suit property consisting of three rooms, Osri, kitchen and bathroom were let to the defendant for his residence on a monthly rent of Rs. 15/-. He had shifted to Bombay with his family for service about 22 years prior to the institution of the suit. As he did not reside in the premises and did not use it for the purpose of residence, continuously for a period of six months or more, the plaintiffs brought a suit to recover vacant possession thereof under Section 13(1)(1) of the Bombay Rent Control Act. The defendant by his written statement Ex. 8 contested the suit and denied various averments made in the plaint. The learned trial Judge held that the plaintiffs had failed to prove non-user of the suit premises by the defendant for the purpose of residence without reasonable cause for a continuous period of six months immediately preceding the date of the suit. He, therefore, dismissed the suit for possession. Against the said judgment and decree, Civil Appeal No. 76 of 1967 was preferred in the court of the learned District Judge, Rajkot which was heard by the learned Assistant Judge, Rajkot at Gondal. The learned Judge after hearing both the parties, allowed the appeal and passed a decree for eviction holding that the suit property was not used continuously for a period of six months without any reasonable cause. Against the said order passed by the learned Assistant Judge, original defendant has preferred this revision application.
2. Mr. Suresh M. Shah, learned Advocate for the petitioner urged that in the instant case, before the suit was disposed of, the plaintiffs had already transferred their interest in the property by sale to Bai Savita and Bai Gunvanti Amrutlal by a sale deed dated 1-5-1967. He stated that the suit was dismissed by the court on 30-6-1967. Thus, when the appeal was preferred by the present opponents in the district court, they had no subsisting interest in the property. The assignee was not brought on record under order 22, Rule 10, C.P.C. Code. He, therefore, urged that in the absence of any assignee being brought on record as provided in order 22, Rule 10, C.P. Code, the whole appeal filed by the opponents (original plaintiffs) was incompetent. Therefore, the result would be that the original decree passed by the trial court dismissing the plaintiffs' suit would remain.
3. Mr. J.R. Nanavaty, learned Advocate for the opponents thereupon submitted an application signed by the purchasers for being brought on record under order 22, Rule 10, C.P. Code. The application is hotly contested by the learned Advocate for the petitioner.
4. Mr. Shah in support of his submissions referred to order 22, Rule 10, C.P. Code which says-
10. 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.
Rule 11 says:
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
The combined effect of Rules 10 and 11 would, therefore, be that if during the pendency of a suit or appeal, the plaintiff transfers his interest to some one else, the transferee would be entitled, by leave of the court, to continue the suit or appeal as the case may be. It is not disputed before me that the plaintiffs of this suit had transferred their interest the property on 1-5-1967 when the suit was not concluded. The suit was dismissed by the trial court on 30-6-1967. Thus, on the date of the decree of the trial court, the plaintiffs had no subsisting interest in the property and the assignee was not brought on record as provided in order 22, Rule 10, C.P. Code. The pertinent question, therefore, which would arise for my consideration is whether after transfer of interest, the original plaintiffs would be competent to file an appeal against the decree passed by the trial court dismissing their suit? In my opinion, the plaintiffs would have no subsisting interest in the suit property after assignment. They would, therefore, not be entitled to any decree in their favour. However, if there is an assignment or devolution of any interest during the pendency of the suit, the same may be continued by or against the person to or upon whom such interest has come or devolved. I am supported in my view by the following observations of the Privy Council in the case of Monghibai v. Cooverji Umersey :
But it was argued that even if this view be true seven of the original partners had by the transfer of 22nd August 1934, made pendente lite assigned all their rights and interest in the mortgaged houses and could not thereafter maintain an action for sale in respect of them. No doubt it is true that parties who have assigned the whole of their interest pendente lite cannot ask for judgment in respect of an interest which is no longer theirs. But it does not follow that their assignees are thereby precluded from recovering. If it were so, no assignments of property during the course of a trial would be possible.
5. Mr. Nanavaty, however, referred to the subsequent observations of the Privy Council wherein at Page 174, it was stated that-
Such a contention is, on the face of it improbable, and it is now dealt with by Order 17, Rule 1 of the Rules of the Supreme Court, which states:
A cause or matter shall not become defective by the assignment of any estate or title pendente lite.
But apart from the rule the principle has long been established in English law, and examples will be found in such cases as (1880) 16 Ch.D. 121 and (1877) 7 Ch. D. 166. The same principle is applied in India and is now embodied in Order 22, Rule 10(1) and 11, which provide:
Relying on these observations, Mr. Nanavaty urged that merely because during the pendency of the suit, the plaintiffs have transferred their interest in the property, the cause or matter does not become defective by such assignment of any estate or title pendente lite. He, therefore, urged that even if the assignee did not choose to be joined as a party, it would be open to the original plaintiffs to continue the litigation for their benefit. I am unable to agree with the submission canvassed by Mr. Nanavaty. It is not spelt out from the observations of the Privy council referred to earlier wherein it is clearly stated that the parties who have assigned the whole of their interest pendente lite cannot ask for judgment in respect of an interest which is no longer theirs. A similar view has been taken by the Patna High Court in the case of Dirghayu Pande v. Shrimati Kishori Kuer A.I.R. 1940, Patna, 177, wherein at page 178 the following observations were made:
In the present case, it will be noticed that the devolution of interest took place during the pendency of the appeal before the learned district Judge. No devolution of interest took place in August 1938 when the sole appellant died, while the appeal was pending in this Court. By the death the petitioner has not derived any right; the right under which the petitioner claims to be substituted was always with him since 4th January 1937 when he professed to purchase the property in dispute from the then living plaintiff. In these circumstances I do not see how the provisions of Order 22, Civil P.C. can come to the aid of the petitioner. The matter appears to be concluded by authority also. In : AIR1934All442 , Iqbal Ahmed J. in delivering the judgment of that court observed that:
Where the assignment in favour of the applicant has been made during the pendency of the suit in the court below and not during the pendency of the appeal, the appellate court has no jurisdiction under Rule 10 to implead the applicant as a party to the appeal,and he repelled the prayer of the applicant that under the provisions of Section 151, Civil P.C. he should be ordered to be brought upon the record the reason given for the refusal was that where the applicant has a remedy provided elsewhere in the Code and has neglected to avail himself of it he is not permitted to invoke the inherent jurisdiction of the High Court. In A.I.R. 1935 Lahore 119 a Single Judge of the Lahore High Court took a similar view and held that
where a person against whom a suit is dismissed in the trial court assigns his interest to a third party during the period intervening between the passing of the decree and the institution of the appeal, the assignor has no subsisting interest which would entitle him to prefer an appeal, and that to such a case Section 146 (Civil P.C.) is of no assistance and the appellate court could not make assignee appellant at the time of hearing the appeal.This is exactly the situation in the present case and in my opinion as the assignment, relied upon by the petitioner was made before the appeal was filed in this Court, Dirghayu Pande had no right to prefer an appeal and in any case the petitioner ought to have preferred an appeal either in his own name or by joining the plaintiff as an appellant in the memorandum of appeal filed in this Court.
It will thus be clear from the observations made by the Patna High Court that once the plaintiff transferred his interest in the suit property, he has no subsisting interest in the property and he has no right to prefer an appeal against the decision given by the trial court. The same view has been taken by the Lahore High Court as well as Allahabad High Court referred to in the Patna High Court judgment. Mr. Nanavaty tried to distinguish these cases by saying that the view taken by these High Courts is not followed subsequently by other courts. He referred to the case of Uchchab Patra v. Brundaban Mallik : AIR1969Ori142 wherein it was held that-
While Rule 10(1) of Order 22 of Civil P.C. during the pendency of the suit enables the transferee to continue the proceeding with the leave of the court, it does not bar the transferor continuing the suit for the benefit of his successor. Order 22, Rule 10 of the Code of Civil Procedure is an alternative procedure which guards against the dangers that the original plaintiff being no longer interested in the proceedings may not vigorously prosecute them or may even collude with the adversary. Thereafter, the transferee U' could file the execution petition.
He also referred to the case of Lakhsmi Narain v. Babu and Anr. A.I.R. 1946, Lahore 33, wherein the case of Kanti Chander Mukerji anr. v. Pirbho Dayal reported in A.I.R. 1935 Lahore, 119 referred to by the Patna High Court was dissented from. In this case, the Lahore High Court observed-
The provisions contained in Pules 10 and 11 do not make it incumbent upon an assignee to make an application during the pendency of the suit or appeal. These provisions are of an enabling character and entitle the assignee to do so if he so desires. He may not, however, choose to apply if he finds that his interests are being well looked after by his assignor. So long as he is of that view, it is not necessary for him to make an application for being brought on the record.
With respect, I am unable to agree with the view taken by the Lahore High Court in the subsequent case. 1 would rather prefer the view taken by the Lahore High Court in the earlier case and also I agree with the view taken by the Patna High Court referred to earlier. In my opinion, once the plaintiffs transferred their total interest to the assignee, they ceased to have any interest in the suit property and would not be entitled to a judgment in their favour so far as the subject matter of the suit is concerned, once the suit is filed by the plaintiffs, they have got a vested interest to prosecute that litigation right upto the end and it does not matter if they had assigned it during the pendency of that litigation. In support of his submission, he referred to the case of Garikapati Veeraya v. N. Subbiah Choudhry and Ors. : [1957]1SCR488 , wherein it was observed:
The rights of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the Us commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
With respect, I am in entire agreement with the observations made therein. But I fail to understand how these observations would help the opponents. It is not disputed that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the Iis commences. But one has to read these observations in the light of the right which the litigant possessed to continue the proceeding. If the litigant did not have any interest during the pendency of the litigation, it is difficult to say that his right to continue litigation exists even after his interest no longer subsisted. Therefore, the observations of the Supreme Court would only be applicable to the case of a litigant who has subsisting interest in the subject matter of the suit. Similarly the observations made by the Supreme Court in the case of Smt. Saifa Bala Dassi v. Smt. Nirmala Sundari Dassi and Ors. : [1958]1SCR1287 would not help the opponents. In that case, it was observed as under:
Even if a suit is pending when the transfer in favour of the appellant was made, that would not affect the result when no application had been made by her to be brought on record in the original court during the pendency of the suit. The application made to the appellate court cannot be sustained under Order 22 Rule 10, when the transfer in favour of the appellant was made prior to the filing of that appeal and not during his pendency.
It was further observed:
An appeal is a proceeding for the purpose of Section 146 and further the expression 'claiming under' is wide enough to include cases of devolution and assignment mentioned in Order 22, Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code.
Section 146 was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so to advance justice and not in a restricted or technical sense.
6. It is clear from these observations that the application made to the appellate court under Order 22, Rule 10, C.P. Code cannot be sustained when the transfer in favour of the appellant was made prior to the filing of the appeal and not during its pendency. In this case, the plaintiff had transferred his interest during the pendency of the suit. A decree was passed in his favour. In that case, the Supreme Court observed that the decree which was obtained by the plaintiff could be considered for and on behalf of the assignee and therefore the assignee could execute that decree. But this case does not lay down a proposition of law as stated by Mr. Nanavaty that even if the assignor transferred his interest during the pendency of the suit, he would be entitled to continue the proceeding right upto the end. In the absence of the assignee being brought on record under Order 22, Rule 10, C.P.C. if the appeal was filed in the district court by the original plaintiffs, the proceedings before the district court could not be said to be according to law. The plaintiffs had no right to file the appeal in the district court as their interest was already transferred to the assignee. The assignee did not choose to be brought on record in the suit nor did he choose to file an appeal against the order passed by the trial court. Only in this revision application, when this point was taken by the learned Advocate for the petitioner, the assignee gave an application for being brought on record. In my opinion, it would not be proper to permit them to be brought on record at this stage as they had not chosen to be brought on record either in the suit or in the first appellate court. The application, therefore, given by the assignees for being brought on record is rejected. As the appeal before the district court was not filed by the assignees, the judgment and decree obtained in that appeal by the original plaintiffs would be of no avail to them. In fact, as the appeal was not competent, any order in favour of the plaintiffs would be a nullity, I, therefore, entirely agree with the submissions made by the learned Advocate for the petitioner.
7. In the result, this revision application succeeds. The judgment and decree 'passed by that learned Assistant Judge, Rajkot at Gondal are hereby set aside and the judgment and decree of the trial court are restored. In view of the facts of this case, there will be no order as to costs of this revision application.