Assignor does not lose right to continue appeal because of assignment during the pendency of appeal #indianlaws

Merely by transfer of the property during the pendency of the suit or the appeal, plaintiff or appellant, as the case may be, ordinarily has a right to continue the appeal. It is, at the option of the assignee to move an application for impleadment.

Whether one loses right to continue the appeal merely because of the assignment or release of the rights during the pendency of the appeal? Supreme Court replied in negative.

In the instant matter, Regular First Appeal filed by the Appellant  in High Court was dismissed on the ground that she had released her interest in the suit property in favour of her daughter who further in turn, had transferred the property in favour of ‘X’ by way of sale. Consequently it was held vide impugned finding she had lost her right to continue the appeal.

Supreme Court held that the impugned judgment passed was patently illegal as merely due to the assignment or release of the rights during the pendency of the appeal, the appellant does not in any manner lose the right to continue the appeal. Merely by transfer of the property during the pendency of the suit or the appeal, plaintiff or appellant, as the case may be, ordinarily has a right to continue the appeal. It is, at the option of the assignee to move an application for impleadment.

Order XXII Rule 10 of the Code of Civil Procedure (CPC) clarifies that the legislature has not envisaged the penalty of dismissal of the suit or appeal on account of failure of the assignee to move an application for impleadment and to continue the proceedings. Thus, there cannot be dismissal of the suit or appeal, as the case may be, on account of failure of assignee to file an application to continue the proceedings. It would be open to the assignor to continue the proceedings notwithstanding the fact that he ceased to have any interest in the subject-matter of dispute. He can continue the proceedings for the benefit of assignee.

When there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record.

In view of the above position, the Supreme Court remanded the instant appeal before the High Court for deciding the issue afresh.

[Sharadamma vs. Mohammed Pyrejan (D) through LRs. & Anr.]

(SC, 23.09.2015)

Civil Appeal No. 7889 of 2015