Legal Analysis of Order 22, Rule 10 of the Code of Civil Procedure, 1908

Devolution of Interest in Pending Litigation: A Critical Analysis of Order 22, Rule 10 of the Code of Civil Procedure, 1908

Introduction

The Code of Civil Procedure, 1908 (CPC) provides a comprehensive framework for the conduct of civil litigation in India, ensuring that procedural norms facilitate, rather than hinder, the administration of substantive justice. A pivotal provision within this framework is Order 22, Rule 10, which addresses the continuation of suits in cases of assignment, creation, or devolution of interest during their pendency. Unlike the rules governing the consequences of a party's death (Rules 3 and 4), Rule 10 is an enabling provision designed to prevent litigation from being frustrated by transfers of interest in the subject matter of the suit. It ensures that the person who has acquired the interest can, with the court's permission, continue the proceedings, thereby safeguarding their rights and ensuring a conclusive adjudication.

This article provides a scholarly analysis of Order 22, Rule 10 of the CPC, examining its scope, judicial interpretation, and its intricate relationship with other key legal principles. Drawing upon a corpus of landmark judgments from the Supreme Court of India and various High Courts, this analysis will explore the discretionary nature of the rule, the consequences of non-impleadment, and its interplay with corollary provisions such as Section 146 of the CPC and the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882. The objective is to delineate the jurisprudential contours of Rule 10 and its role in balancing procedural propriety with the imperatives of equity and justice.

The Statutory Framework: Order 22, Rule 10 and Its Corollaries

Order 22, Rule 10(1) of the CPC states:

"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."

The provision is fundamentally distinct from Rules 3 and 4 of Order 22, which mandate the substitution of legal representatives upon the death of a plaintiff or defendant, failing which the suit abates. The use of the word "may" in Rule 10 signifies that the power conferred upon the court is discretionary. Furthermore, there is no penalty of abatement or dismissal for failure to implead a successor-in-interest under this rule. This distinction was emphatically clarified by the Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University And Others (2001), where it was held that the legislature consciously omitted any provision for automatic abatement under Rule 10, intending for the proceeding to continue by or against the original party who would be deemed to represent the successor's interest.

The operation of Rule 10 is intrinsically linked to several other statutory provisions:

  • Section 52, Transfer of Property Act, 1882 (Doctrine of Lis Pendens): This doctrine stipulates that property which is the subject of a contentious suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party thereto under any decree which may be made therein, except under the authority of the Court. As affirmed in Amit Kumar Shaw And Another v. Farida Khatoon And Another (2005), a transferee pendente lite is bound by the final decree in the suit. Rule 10 provides the procedural mechanism for such a transferee to be brought on record to protect their interest, although their absence does not invalidate the decree against them.
  • Section 146, Code of Civil Procedure, 1908: This section provides a general power for proceedings to be taken by or against the representatives of a party. It states that where any proceeding may be taken or application made by or against any person, it may be taken or made by or against any person claiming under him. The Supreme Court, in Smt Saila Bala Dassi v. Smt Nirmala Sundari Dassi And Another (1958) and later in Raj Kumar v. Sardari Lal And Others (2004), has established that Section 146 is a remedial provision with a scope wider than Order 22, Rule 10. It can be invoked to permit a transferee to continue proceedings, including appeals, even where Rule 10 may not be strictly applicable.
  • Order 1, Rule 10, Code of Civil Procedure, 1908: This rule grants the court broad powers to add or strike out parties at any stage of the proceedings. While distinct from Order 22, Rule 10, it is often invoked in conjunction, particularly in partition suits where the presence of all interested parties is necessary for effective adjudication. However, as held by the Andhra Pradesh High Court in Morasa Anjaiah v. Kondragunte Venkateswarlu (1992), Order 1, Rule 10 cannot be used to circumvent the specific consequences of abatement prescribed under Order 22, Rules 3 and 4.

Judicial Interpretation and Application of Order 22, Rule 10

Scope of "Interest" and the Discretion to Grant Leave

The term "interest" in Rule 10 has been interpreted broadly by the courts to include any substantial stake in the subject matter of the litigation that is created or devolved during its pendency. This encompasses not only outright sales but also agreements to sell, as noted by the Madras High Court in Mrs. Saradambal Ammal v. E.R Kandaswami Goundar And Others (1947), and institutional restructuring leading to devolution of liabilities, as seen in Dhurandhar Prasad Singh. The grant of leave to continue the suit is discretionary, but this discretion must be exercised judicially. The Supreme Court in Amit Kumar Shaw clarified that for granting leave, the court only needs to be prima facie satisfied that an interest has devolved. A detailed or conclusive inquiry into the validity of the transfer is not required at this interlocutory stage; such questions are to be decided at the final hearing.

Consequences of Non-Impleadment: The Doctrine of Representation

A cornerstone of the jurisprudence on Rule 10 is that the failure to implead a transferee pendente lite does not vitiate the proceedings. The original party on record continues to represent the estate or the interest that has devolved. The transferee is bound by the resulting decree under the doctrine of lis pendens. In Dhurandhar Prasad Singh, the Supreme Court held that a decree passed in a suit where a successor-in-interest was not impleaded is neither void nor a nullity and cannot be challenged as inexecutable in proceedings under Section 47 of the CPC. The Court reasoned that the transferee’s remedy is to seek leave to come on record; if they fail to do so, they are represented by their predecessor-in-interest. This principle ensures the finality of litigation and prevents decrees from being easily unsettled on procedural grounds.

The Remedial Power of Section 146 CPC

The Supreme Court’s decision in Smt Saila Bala Dassi is a locus classicus on the interplay between Order 22, Rule 10 and Section 146. In that case, the transfer occurred during the pendency of the suit but before the appeal was filed. The transferee’s application to be substituted in the appeal was held to be outside the scope of Rule 10, as the transfer did not occur "during the pendency" of the appeal. However, the Court invoked its powers under Section 146, holding that an appeal is a "proceeding" and the transferee, "claiming under" the original appellant, was entitled to be brought on record to continue it. This liberal interpretation prevents a party from being left without a remedy due to a procedural technicality. This principle was reaffirmed in Raj Kumar v. Sardari Lal, where a transferee pendente lite was permitted to apply for setting aside an ex-parte decree by taking recourse to Section 146, thereby expanding the rights of such transferees beyond merely continuing a suit.

Application in Specific Contexts: Partition and Execution Proceedings

Partition Suits

In partition suits, the position of the parties is unique, as each defendant is also in the position of a plaintiff with a right to claim their share. The Supreme Court in Khemchand Shankar Choudhari And Another v. Vishnu Hari Patil And Others (1982) held that a transferee pendente lite in a partition suit, even if not formally impleaded, has the locus standi to appear in the final decree or execution proceedings (before the Collector under Section 54 CPC) and request that the property purchased by them be allotted to the share of their vendor to work out equities. The Court reasoned that denying them this right would lead to multiplicity of litigation. This underscores the court's duty to ensure a complete and effective adjudication by allowing all persons with a vested interest to participate.

Execution Proceedings

Order 22, Rule 12 explicitly makes Rules 3, 4, and 8 of the Order inapplicable to execution proceedings. By necessary implication, Rule 10 is applicable. The Calcutta High Court in Midnapur Zemindary Co. Ld. v. Kumar Naresh Narain Roy (1911) affirmed this view. The seminal case on the rights of assignees in execution is Jugalkishore Saraf v. Raw Cotton Co., Ltd. (1955). The Supreme Court drew a fine distinction between Order 21, Rule 16 (Execution by transferee of decree) and Section 146. It held that an assignment of the subject-matter of the suit *before* the passing of the decree does not amount to an assignment of the decree itself. Therefore, the assignee cannot apply for execution under Order 21, Rule 16. However, such an assignee, being a person "claiming under" the decree-holder, is entitled to execute the decree under the broader provision of Section 146. This harmonious construction ensures that rights acquired through pre-decretal assignments are not rendered unenforceable.

Conclusion

Order 22, Rule 10 of the Code of Civil Procedure, 1908, is a vital provision that embodies the principle of procedural flexibility in the service of substantive justice. The Indian judiciary, through a series of purposive interpretations, has established it as an enabling rule that ensures the continuity of litigation in the face of transfers of interest. The key takeaways from the jurisprudence are clear: the rule is discretionary; its non-invocation does not lead to abatement or render a decree a nullity; and the original party continues to represent the devolved interest, with the decree being binding on the successor.

Crucially, the Supreme Court has fortified the rights of transferees by reading Order 22, Rule 10 in conjunction with the doctrine of lis pendens and the expansive remedial power of Section 146. This ensures that transferees have an opportunity to protect their interests while simultaneously upholding the finality and executability of decrees. By navigating the complexities of devolution in various contexts, from partition suits to execution proceedings, the courts have shaped Rule 10 into a pragmatic tool that balances the rights of all stakeholders and promotes the orderly administration of civil justice in India.