1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR APPEAL AGAINST ORDER NO. 8 /2009 (Manohar Khushal Nakashe & 2 ors Vs. Sou. Usha Keshavrao Deshpande & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. M.P. Lana, Adv. for the appellants. CORAM : Smt. Vasanti A. Naik, J. DATED : 17 th JANUARY, 2009. Heard Shri Lala for the appellants. The order passed by the 2nd Joint Civil Judge, Senior Division, Akola, on 4/11/2008, allowing the application filed by the respondent no.68 under the provisions of Order XXII Rule 10 of the Code of Civil Procedure, has been challenged in the instant appeal. Vimal Yeshwant Mehunkar, Pramila Yeshwant Mehunkar and Usha Keshavrao Deshpande had filed a suit against the defendants, for a declaration that they were the joint owners of the suit property. The plaintiffs also sought permanent injunction and possession of the suit property. During the pendency of the suit, plaintiff Vimal expired. The respondent no.68 filed an application before the Court under the provisions of Order XXII Rule 10 of the Code of Civil Procedure 2 for leave to continue the suit and for bringing his name on record as plaintiff. It was the case of the respondent no. 68 that Ku. Vimal, the plaintiff, had expired on 12/1/2007 and during her life time, had executed a Will making a bequest of the suit property in his favour. It was stated that the Will was executed on 11/11/2005. On the basis of the bequest made in his favour, the respondent no.68 sought permission for substituting his name on record and for leave to continue the suit. The prayer made in the application filed by the respondent no.68 was seriously opposed by the other defendants. The trial Court, however, by an order dated 4/11/2008, partly allowed the application by granting the respondent no.68 leave to continue the suit in place of deceased plaintiff no.1. It is submitted on behalf of the appellants that the trial Court was not justified in granting leave to continue the suit against the other defendants by circumventing the provisions of Order XXII Rule 4 of the Code of Civil Procedure. It is submitted on behalf of the appellants that the Will executed by plaintiff-Vimal in favour of respondent no.68 on 11/11/2005 is bogus and is fraudulently obtained by the respondent no.68. The learned counsel for the appellants, therefore, sought for 3 setting aside of the order dated 4/11/2008 and for the dismissal of the application filed by the respondent no.68 under the provisions of Order XXII Rule 10 of the Code of Civil Procedure. The submissions made on behalf of the appellants are not well founded as it can, by no stretch of imagination, be said that the application was filed by the respondent no.68 under the provisions of Order XXII Rule 10 of the Code of Civil Procedure, to circumvent the provisions of Order XXII Rule 4 of the Code of Civil Procedure. Under the provisions of Order XXII Rule 10 of the Code of Civil Procedure, when there is an assignment, creation or devolution of any interest during the pendency of a suit, by leave of the Court, the suit could be continued by the person to whom such interest has come or devolved. In this case, the respondent no.68 had claimed to have secured the interest in the suit property in view of the Will dated 11/11/2005. The trial Court rightly held that the question of validity of the Will could be determined on full fledged hearing of the suit. Even otherwise that could be a subject matter of challenge in an appropriate proceedings. The Court rightly held that prima faice, it was clear that the respondent no.68 was claiming title to the suit property on the basis of a 4 Will executed by the plaintiff no.1 in his favour. The other plaintiffs had no objection for grant of the prayer made in the application. No fault whatsoever can be found with the order passed by the 2nd Joint Civil Judge, Senior Division, Akola, on 4/11/2008. The appeal is, therefore, dismissed with no order as to costs. JUDGE RMP