- (1.) D. K. Seth, J. This is an application under Order XXII, Rule 10 C. P. C. by one Chandra Mohan Pathak and Smt. Saroj Devi to get themselves added as party in the array of respondents, in civil revision preferred by Satyadeo Tiwari being the present revision. The applicants claimed that the interest of the opposite parties No. 1 to 3 who are parties to the Revision have devolved upon them by reason of their pur chase of the suit property through a registered sale-deed dated 1st March, 1989 (Annexure-1 to the application ). Mr. Ajai Kumar Singh learned counsel for the revisionist opposes the said application on the ground that one Nirmal Kumar claiming to be the attorney of the respondents No. 1 to 3 he had referred to an agreement for sale and that the applicants have been set up by the said Nirmal Kumar purporting to defraud the court. The application is an abuse of process of law and, therefore, should not be allowed. He contends that the revision was preferred some time in the year 1990. The purchase having been made on 1st March, 1989 namely a date before to the revision was filed, the applicant had an op portunity to apply for addition of themsel ves as party in the proceedings before the court below. Since they have not done so they cannot obtain the benefit of Order XXII, Rule 10 C. P. C. According to him by reason of the Order XXII, Rule 10 C. P. C. a person whose interest is devolved he may continue with the suit if he has not done so in that event he cannot apply for being so added in the appeal or revision arising sub sequent to the devolution of the interest. In support of his contention he relied on a decision in the case of Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi AIR 1958 SC 394 and Anilkumarsinghv. Shivnathmishra (1995) Vol. (I) Alld. C J 105, JCLR 1995 (1) (SC) 178.
(2.) AFTER having heard Mr. Ajai Kumar Singh counsel for the revisionist and Mr. Girish Kumar Gupta, learned counsel for the applicant it appears that the applicant had claimed devolution of the property by reason of their purchase on 1st March 1989. But they did not apply for getting themsel ves added as party in the court below. By means of the present revision the order dated 10th December, 1990 has been chal lenged. By reason of Section 146 of the Code of Civil Procedure a proceeding may be taken on the application, may be made by or against a person claiming under a person litigating. By reason of the said provision, if the person litigating had a right to prefer a revision or appeal, a person claiming under him has also got a right to prefer an appeal or move a revision. The right to prefer ap peal or move a revision includes the right to continue with the appeal or revision. The same cannot be differentiated so as to preclude one from the other. Section 146 is a substantive provision relating to the pro cedure which is being specifically laid down in Order XXII, Rule 10 of the Code of Civil Procedure. Under Order XXII, Rule 10 of the Code of Civil Procedure on the creation of interest or in case of assignment creation or devolution of interest in favour of a person during the pendency of a suit enables such person to continue the same with the leave of the court. The right to continue with the suit by such person is provided in Rule 10 is not circumscribed by any conditions to the extent that in case he does not do so in the suit then he will not be entitled to do it in the appeal, or revision, if the appeal or revision arises subsequent to the creation, assign ment or devolution. Admittedly the appeal and revision are continuation of the suit or of the same proceeding. It is the question of representation of interest. Even if the inter est is transferred the person from or by whom the assignment, creation or devolu tion is brought into being, may continue with the proceeding and represent the inter est of the assignee, transferee. The assignee or transferee represent the same interest. There is ad-idem of interest. It can be repre sented by one or the other as well as by both. A reconciled interpretation of both the provisions does not appear to preclude a person who has not got himself added in the court below to seek addition in an appeal or revision in order to continue in or with the same proceeding. The said provisions of Section 146 read with Order XXII, Rule 10 of the Code of Civil Procedure has been so interpreted in the case of Smt. Saila Bala Dassi (supra) by the Apex Court referred to above where in it has been held: "section 146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It has been held in Sitharamaswami v. Lakshmi Narasimha ILR 41 Mad. 510 : AIR 1919 Mad 755 (2), (C) that an appeal is a proceeding for the purpose of this section and that further the expression "claiming under" is wide enough to include cases of devolu tion in Order XXII, Rjle 10. This decision was quoted with approval by this court in Jugal kishore Saraf v. Raw Cotton Co. Ltd. , 1955-1 SCR 1369: (SC) AIR 1955 SC 376 (D), wherein it was held that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein, under Section 146 of the Civil Procedure Code as a person claim ing under the decree-holder even though an ap plication for execution by him would not lie under Order XXII, Rule 16, and it was further observed that the words "save as otherwise provided" only barred proceedings which would be obnoxious to some provision of the Code. It would follow from the above authorities that whoever is entitled to be but has not been brought on record under Order XXII, 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 and that accord ingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji J. (8) It is next contended that Section 146 authorises only the initiation of any proceeding and that though it would have been competent to the appellant to have preferred an appeal against the judgment of P. B. Mukherji Ji. she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe Section 146 narrowly in the manner con tended for by counsel for the first respondent. That section 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 as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthi cab Chettiar v. Govinddoss (Krishnadoss, ILR 44 Mad 919: AIR 1921 Mad 599 (E) that the assignee of a part of a decree is entitled to continue an execution application filed by the transferor decree-holder Vide also Moidin Kutty v. Doraiswami, ILR (1952) Mad 622 : AIR 1952 Mad 51 (F ). The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in appeal No. 152 of 1955 must be held to be maintainable under Section 146. " The ratio decided in the case of Anil Kumar Singh (supra) is not attracted in the facts and circumstances of the present case, inasmuch as, in the said case it was held that the same was not a case falling within the ambit of Order XXII, Rule 10, therefore, no help could be availed from the said ratio so far as the present case is concerned.
(3.) IN view aforesaid the application for addition of the parties is allowed. Let the applicants be added as respondent opposite parties No. 4 and 5 respectively. Since the said applicants are already represented, no notices is required to be served. This addi tion of the applicants as added respondents shall not preclude the revisionist from chal lenging the right of the respondents added hereby and devolution of the interest upon them either in this revision or in the court below as the case may be or as and when occasion may arise. The contention of Mr. Singh that so far as the scope of this revision is concerned, in no way the added respon dent can oppose the same. The said point shall also remain open at the time of hearing of the revision, and if raised, the points shall be taken into consideration and be decided accordingly. Revision allowed. .;