Supreme Court Allows Transferee to Continue Appeal Under Section 146 CPC Despite Dismissal Under Order 22 Rule 10. Assignee of Mortgaged Property Held Entitled to Be Added as Appellant in Pending Appeal Against Execution Order Based on Transfer Deed Free from Encumbrances.

Civil appeal against a High Court order rejecting an application to be brought on record as appellant in a pending appeal.

The appellant sought substitution in place of the second respondent or, in the alternative, addition as a co-appellant in Appeal No. 152 of 1955 pending before the Calcutta High Court, to protect her interest in the mortgaged properties.

The appellant purchased the properties free of all encumbrances and feared that the second respondent had entered into a collusive arrangement with the first respondent to defeat her rights; she therefore sought to be brought on record to continue the appeal against the execution order.

A Single Judge of the Calcutta High Court (P.B. Mukharji J.) held that execution of the mortgage decree was not barred by limitation. A Division Bench (Chakravarti C.J. and Lahiri J.) dismissed the appellant's application under Order 22 Rule 10 CPC on August 6, 1956. Leave to appeal under Article 133 was refused, but special leave was granted under Article 136.

Whether the appellant's application to be brought on record as appellant in the pending appeal is maintainable under Order 22 Rule 10 CPC when the transfer of property occurred before the filing of the appeal. Whether Section 146 CPC enables a transferee pendente lite to continue an appeal filed by the transferor even if the transfer occurred prior to the filing of the appeal.

The appellant contended that Suit No. 158 of 1935 must be considered pending until the decree was drawn up in 1954, and since the transfer was made before that date, her application was maintainable under Order 22 Rule 10 CPC. The first respondent argued that even if the suit was pending when the transfer was made, no application was made to the original court during pendency, and the application to the appellate court could not be sustained under Order 22 Rule 10 because the transfer was prior to the filing of the appeal. The appellant further contended that Section 146 CPC applies and that the right to file an appeal includes the right to continue an appeal filed by the assignor. The respondents opposed the application, stating they had entered into a bona fide settlement of the amount due at Rs. 17,670, which was binding on the appellant, and that the application was not maintainable.

Section 146 CPC is a beneficent provision intended to facilitate the exercise of rights by persons in whom they vest by devolution or assignment, and must be construed liberally. An appeal is a proceeding within the meaning of Section 146. The expression 'claiming under' is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. The right to file an appeal carries with it the right to continue an appeal which had been filed by the person under whom the applicant claims. Since there is no prohibition in the Code against a transferee pendente lite continuing an appeal filed by the transferor, the application is maintainable under Section 146.

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. 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 devolution and assignment mentioned in O.22, r.10. 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. 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.

Suit No. 158 of 1935 was instituted by the first respondent on a mortgage; a preliminary decree was passed on March 8, 1935, and a final decree on April 20, 1936. The decree was not drawn up for nearly 18 years due to non-compliance with the Calcutta High Court Original Side Rules. On May 12, 1952, the second respondent sold the mortgaged properties to the appellant free of all encumbrances. On February 17, 1954, the first respondent obtained an ex parte order to draw up the decree, filed the final decree on April 29, 1954, and commenced execution proceedings. The second respondent raised a limitation objection; the Registrar made a special report, and P.B. Mukharji J. held that execution was not barred. Against that order, the second respondent filed Appeal No. 152 of 1955. On July 25, 1956, the appellant applied to be brought on record as appellant in that appeal, but the application was dismissed by a Division Bench on August 6, 1956. The appellant's application for leave to appeal under Article 133 was refused, but special leave was granted under Article 136, leading to the present appeal.

• Code of Civil Procedure, 1908: Section 146, Order 22 Rule 10, Order 21 Rule 16
• Constitution of India: Article 133, Article 136