JUDGMENT
A.M. Bhattacharjee, J.
1. If a
party to a suit transfers his interest in the subject-matter of the suit to one and that one in his turn transfers the same to another, can that other, i.e. the second transferee get himself substituted in place of the party to
proceed with the suit where the first transferee was not brought on record ? This is the short question that has arisen for our consideration in this revision and we have no doubt that the question cannot but be answered in the affirmative. It is true that even after transfer of interest of a party to the suit in the subject-matter of the suit, the suit may still effecfively proceed with the transferor as the party without the transferee being brought on record because of the doctrine of lis pendens. But, as pointed out by Vivian Bose. J., in the decision of the Supreme Court in Sangram Singh v. Election Tribunal, , “our laws of procedure are grounded on principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them” and that “our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle”. Therefore, a transferee of the interest of a party to the suit being a person whose property is being or likely to be affected by the suit should be allowed to participate in the proceeding, whether or not he is the direct transferee, unless the statutory provisions of the Code of Civil Procedure debar such participation. We are satisfied that the relevant provisions of the Code of Civil Procedure, far from prohibiting such participation, clearly provide for the same.
2. Order 22 of the Code deals, with assignment or devolution of any interest of a party during the pendency of a suit and after dealing with cases of devolution of interest as a result of death, marriage and insolvency in the preceding Rules. Rule 10(1) provided that “in other cases of 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”. We have not been able to find anything in the relevant text or context of Rule 10(1) to confine the expression “person” to such person only who has acquired the interest by direct assignment or direct devolution from the party to the suit and to exclude persons who have acquired such
interest of a party to the suit, not from the party direct but from a successor-in-interest of such party. We would like to think that all that is necessary to enable a person to come or to be brought on record under Rule 10(1) is that the interest of a party to the suit “has come or devolved” to or upon him, whether directly or otherwise.
3. Mr. S. K. Biswas, the leamed Advocate for the petitioner has, however, drawn our attention to the decision of the Privy Council in Manindra Chandra v. Ram Kumar, AIR 1922 PC 304 where the Privy Council observed (at p. 306) with reference to Order 22 of the Code of Civil Procedure that “the Order, contemplates cases of devolution of interest from some original party to the suit, whether plaintiff or defendant, upon some one else”. In Krishna Behari v. Raj Mangal, , to which our attention has been drawn by Mr. G. C. Mookerjee, the learned Advocate for the opposite parties, it has been pointed out by a learned single Judge of the Allahabad High Court that in the said Privy Council case it was held that there was no assignment at all within the meaning of Rule 10 and, therefore, the question whether Rule 10 applies to an assignment by the original party only or would also apply to an assignment by his assignee or legal representative not on record did not arise in that case and, therefore, the Privy Council could not be taken to have ruled that Rule 10 applies only to a direct assignee from a party to the suit and not to an assignee from such party’s assignee or legal representative not on record. We would have gone the Allahabad way in reading and distinguishing the Privy Council decision in Manindra Chandra (AIR 1922 PC 304) (supra) and in holding that Rule 10 of Order 22 would apply even when the assignment or devolution is not from the party direct. But the Division Bench decision of this Court in Anil Chandra v. Gopinath, would stand in the way where the Division Bench decision of the Patna High Court in Gobardhan v. Saligram, AIR 1936 Pat 123 to the effect that the transferee from the legal representative of a deceased party had no right to come under Rule 10, has been fully approved and followed. The Calcutta Division Bench has, however, simply referred to and endorsed the Patna view on Rule 10 as the right one without any discussion
whatsoever on the legal question. The observations in the Patna decision in Gobardhan v. Saligram (supra, at p. 125) to the effect that “Rule 10 empowers the Court to give leave to a person who has taken an assignment from the party to continue the suit” and that “the ‘party’ there obviously refers to a party already on record”, would give rise to the impression that the expression “party” has been used in Rule 10; but the Rule nowhere uses that expression.
4. Be that as it may, the Division Bench decision of this Court in Anil Chandra v. Gopinath (supra) has nevertheless held that though an assignee from the legal representative of a party cannot come under Rule 10 of Order 22 if the assignor legal representative was not on record, such an assignee would ‘nevertheless be entitled to ask for substitution under the provisions of Section 146 of the Code to the same extent as has assignor could ask for it. In other words, though a transferee from a transferee of a party to the suit cannot apply for substitution under Rule 10 of Order 22 unless the first transferee is already on record, such a transferee may claim substitution by invoking the provisions of Section 146 whereunder application or proceeding of a like nature can be taken by the transferee as could have been taken by his transferror. As already indicated, our view is slightly different. Firstly, our view is that there is nothing in Order 22, Rule 10 to confine its application only to a direct transferee or a direct successor from the party to the suit. And secondly, our view is that, even assuming that Rule 10 contemplates only cases of direct assignment or devolution, if the first transferee can apply for substitution under Rule 10 of Order 22, the second transferee can also do so under Rule 10 of Order 22 read with Section 146, as the latter section clothes the successor with all the rights of the predecessor. But even then, we would have to govern ourselves by the Division Bench decision in Anil Chandra v. Gopinath, (supra) unless we proceed to get the matter referred to a larger Bench. But we are satisfied that we need not adopt such a course for the purpose of this case. Let us not enter into unnecessary legalese. If a party is entitled to and granted a relief, it matters not to him whether such relief has been awarded to him under one or the other provisions of the law.
The contents would matter to him, not the container. Even according to Anil Chandra v. Gopinath (supra), a transferee from the transferee from the party is entitled to claim substitution under Section 146, though not under Rule 10 of Order 22. So, at any rate, a transferee, even though he is not a direct transferee, is entitled to substitution and that is good enough for our present purpose to hold that the learned Assistant District Judge was right in aliowing the transferees to come on the record.
5. We are, however, afraid that while allowing the prayer of the transferees the learned Judge jumped too far in directing the amendment of the preliminary decree also. The learned Judge ought to have realised that though the final decree to be passed in the suit would have to take care of the transferees brought on record by his order, the preliminary decree shall stand as it stood. The direction for the amendment of the preliminary decree is, therefore, struck down; but subject to this modification of the impugned order, the revision stands dismissed. No order as to cost.
Sukumar Chakravarty, J.
6. I agree.