- (1.) THE sole appellant in the second appeal died on 18/7/2010. THE petitioners herein, claiming to be holders of agreement of sale from the deceased-appellant, filed these applications, with a prayer to condone the delay of 231 days in filing the implead petition; to set aside the abatement and to bring them as successors-in-interest of the deceased-appellant. THE petitioners contend that during his lifetime, the appellant executed a memorandum-cum-agreement of sale, dated 16.08.2005 in their favour. THEy plead that valuable rights have accrued to them under the agreement. THE petitioners further contend that the appellant was a bachelor and he did not have any legal representatives.
(2.) ON behalf of the respondents, a counter-affidavit is filed, opposing the applications. It is stated that the applications are not maintainable in law, since the petitioners are not the legal descendants. The respondents further plead that assuming that there exists an agreement of sale in favour of the petitioners, that does not constitute an assignment within the meaning of Rule 10 of Order XXII C.P.C. Heard Sri V. Rama Krishna Reddy, learned counsel for the petitioners, and Sri K. Raghava Charyulu, learned standing counsel for the respondents. The deceased-appellant filed O.S.No.6580 of 2001 in the Court of IV Junior Civil Judge, City Civil Court, Hyderabad, against the respondents, for the relief of specific performance of an agreement of sale, dated 24.06.1981. The suit was presented on 05.11.2001. The trial Court has examined the question of limitation. On receipt of notice, the 1st respondent (3rd defendant in the suit) filed I.A.No.107 of 2003 under Rule 11 of Order VII C.P.C. with a prayer to reject the plaint, on the ground that it was barred by limitation. The application was opposed by the appellant. The trial Court allowed the I.A., through order, dated 03.03.2003 and rejected the plaint. Aggrieved thereby, the appellant filed A.S.No.443 of 2006 in the Court of Chief Judge, City Civil Court, Hyderabad. The appeal was dismissed on 16.10.2007. The present second appeal is filed against the said judgment and decree. The petitioners herein filed a death certificate issued by the Municipal Corporation of Hyderabad to the effect that the appellant died on 18.07.2010. There is no reason to disbelieve the same. The whole controversy is as to whether the petitioners can be brought on record as the legal representatives of the deceased-appellant.
(3.) ORDER XXII C.P.C., which deals with the steps that are to be taken on the death, marriage and insolvency of parties, stipulates the parameters that are to be taken into account, to bring the legal representatives of deceased parties on record. Not only the legal descendants of a deceased party, but assignees of interest were also permitted to come on record. Rule 10 of ORDER XXII C.P.C. reads: 10. Procedure in case of assignment before final order in suit: (1) 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. (2) The attachment of la decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule(1). The provision is clear to the effect that a person in whose favour the rights of a person are assigned or his rights have devolved during the pendncy of the suit, can continue the proceedings as to the extent of the interest so assigned or devolved. The only basis pleaded by the petitioners to claim right is the alleged agreement of sale. A Division Bench of this Court in Koganty Venkata Rangarao v. Atlur Naghabushanam (1959 ALT 83 (DB))held that an agreement of sale cannot result in assignment or devolution of interests of an individual, who is a party to the proceedings. The same view was affirmed by the Supreme Court in Bhanu Kumar Jain v. Archana Kumar ((2005) 1 SCC 787.;