- (1.) THE above civil revision petition is filed under Section 1 15 of Civil Procedure Code against the order and decretal order of the IV Additional Subordinate Judge, Coimbatore dated 10.7.2000 made in I. A. No. 21 of 2000 in O.S.No.470 of 1996.
(2.) THE brief facts of the case are as follows: - THE petitioner herein as plaintiff filed a suit in O.S.No.470 of 1996 on the file of IV Additional Subordinate Judge, Coimbatore for specific performance of the agreement of sale dated 27.11.1994. Along with the suit, an application in I.A.No.488 of 1996 was filed seeking for the relief of interim injunction restraining the respondent from making alienation or creating encumbrance over the property, which is the subject matter of the suit. It seems that no injunction was granted as prayed for, obviously,on the ground of lis pendens. THE suit was taken up for trial. During the cross examination of the respondent/defendant, it was elicited from him that subsequent to the filing of the suit, the property in dispute was sold to one Jegannathan during July, 1992, Hence, the petitioner herein filed an application in I.A.No.21 of 2000 to implead the said Jegannathan as a party/defendant to the suit under Order 1, Rule 10(2) of the Civil Procedure Code. THE said application was dismissed by the trial court. THE correctness of the same is now questioned in the present civil revision petition. The learned counsel appearing for the petitioner Mr. Srinivasan has submitted that the fact of subsequent sale of the disputed property was not mentioned in the written statement filed in the suit or in the counter filed in the injunction application. Though the sale is invalid and void and it would not affect the petitioner's right in the suit property, the said Jegannathan is a necessary party. Without impleading the subsequent purchaser to the suit, even if a decree is obtained in favour of the petit ioner, that cannot be executed and the non-impleadment of the subsequent purchaser would create unnecessary complication and multiplicity of proceedings. In order to sustain his case, the learned Counsel relied on the decisions in Savitri Devi v. District Judge, Gorakhpur , AIR 1999 SC 976, Vellaya Gounder and another v. A.P. Ramalingam , 1998 (1) L.W. 219 and Sengamalam v. The Idol of Arulmighu Ranganaha Swami, Srirangam , 1999 (3) L.W. 888. On the other hand, the learned counsel appearing for the respondents has submitted that the proposed respondent - the subsequent purchaser is not a necessary party to resolve the issue in the suit. The suit itself is for a specific performance of an alleged agreement of sale entered into between the petitioner and respondent/defendant. It is the contention of the learned counsel for the respondent herein that in the written statement, the execution of the agreement itself is disputed by the respondent. Even assuming that the petitioner would get a decree in his favour, any sale during the pendency of the specific performance suit hit by the principle of lis pendens under Section 52 of the Transfer of Property Act. The decree that would be passed in the suit would definitely bind not only the parties to the suit, but also the transferee-pendente lite purchaser. The trial court has exercised the jurisdiction vested on it based on the principle of settled law and that the order cannot be characterised as exercise of Jurisdiction illegally or with material irregularity. In order to sustain his case, the learned counsel appearing for the respondent has sought the support of the decisions in Anil Kumar Singh v. Shivnath Mishra , 1995 (3) SCC 147 and Bakthavatsalam v. Anjapuli and others , 2001 (1)MLJ101. I heard the learned counsel appearing on either side. Mr.Srinivasan, learned counsel appearing for the petitioner has submitted that Order 1, Rule 10(2) of the Civil Procedure Code clearly states that the Court at any stage of the proceedings, either on application or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any person, who ought to have been joined as a defendant or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit be added. For the purpose of complete adjudication as to the right of the petitioner over the property in dispute, the presence of the subsequent purchaser, Jaganathan, is necessary. He further contended that under Order 22, Rule 10 of the Civil Procedure Code, in 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. Since the disputed property was purchased by the proposed respondent, he is a necessary party to the suit.
(3.) IN the decision relied on by the learned counsel for the petitioner in Savitri Devi v. District Judge Gorkhapur , AIR 1999 S.C 976 the facts of the case were that the suit was filed by the appellant before the Supreme Court against her sons for decree for maintenance and creation of charge over ancestral properties. Pending suit, injunction was granted by the Court restraining the sons from alienating the property. However,the suit property was sold by one of the sons. The subsequent purchasers filed an application before the trial court under Order 1, Rule 10 for impleading them as parties to the suit. IN the application, the subsequent purchasers have stated that the first defendant had received sale consideration before executing the sale deeds and handed over possession of the subject matter of the sale deeds. It was also alleged that the plaintiff and the defendants had colluded together in order to cause loss to them. The application was opposed by the appellant on the ground that the sales were in breach, contempt and disregard of the order of injunction passed by the Court and the transferees under such sales got no title to the property in order to get impleaded as parties to the suit. The Supreme Court has held that "the plea raised by the subsequent purchasers that the first respondent had played fraud not only against him, but also on the Court would have to be decided before it can be said that the sales effected by the first defendant were in violation of the order of the Court, and the further plea of the subsequent purchaser that the purchase was bona fide transaction for value in good faith was also to be decided before it could be held that the sales in their favour created no interest in the property. Those questions have to be decided by the Court in the suit "and on that ground, the Supreme Court has held"...It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard..." The facts of the above said case, in my opinion, have no application to the present case. The present suit is for specific performance of agreement of sale dated 27.11.1994 between the petitioner and the respondent. Whether the petitioner is entitled to the relief of specific performance against the respondent is the only question to be resolved in this case. Admittedly, the subsequent purchaser-Jeganathan did not file an application to implead him. On the other hand,the learned counsel appearing for the subsequent purchaser-Jeganathan in this revision, has in all force, adopted the argument of the first respondent herein, against the impleadment. That would mean that he is ready to suffer by default on account of any order passed in the suit for specific performance. The other decision relied on by the learned counsel Mr.Srinivasan appearing for respondents is Vellaya Gounder and another v. A.P.Ramalingam,1998 (1) L.W 219. The said decision is with regard to Order 22, Rules 3 and 10 of C.P.C and that was a case in which the suit property was admittedly sold by the defendant to the petitioners, who sought to implead them as parties to the proceedings under Order 22, Rule 10 after an ex parte decree was passed in the suit. During the pendency of the suit there was a transfer of property by way of sale in favour of the petitioners. Since it was a case of devolution of interest by the defendant, on the petitioners, the case squarely falls under Order 22, Rule 10, CPC and there would not be a question of abatement and the petition filed by the petitioners to implead themselves to continue the proceedings was maintainable and legally sustainable and are entitled to be brought on record. The issue involved in the said case mainly was that the application by the petitioners, who are third parties under Order 22, Rule 10, C.P.C. is not maintainable and the application ought to have been filed under Order 22, Rule 3 of C.P.C. Since such an application has not been filed by the legal representatives of the deceased defendant within the time stipulated by law, the suit would stand abated in so far as the deceased defendants are concerned and the Court also decided only as to the issue in that case of devolution of interest, no question of abatement arises and on that ground, the persons, in whose favour, the interest involved were permitted to be impleaded as parties. As already stated, the facts of the present case are totally different than the one cited by the learned counsel. The next decision relied on by the learned counsel for the petitioner is S. Sengamalam v. The Idol of Arulmighu Ranganathasami, Srirangam , 1999 (3) L.W 888. This is also a case where an application filed by the purchaser of the property, which is the subject matter of the suit, to implead himself as a party as a bona fide purchaser for value was dismissed by the lower court on the ground that it is hit by the principle of lis pendens and the plaintiff is dominus litis. On a revision filed, this Court has held that the revision petitioner applied to the lower Court stating that the 7th defendant purchased the property under registered sale deed dated 4.7.1983 from its original owner (first defendant in the suit) and after purchase, petitioner herein had put up further constructions, and she being a bona fide purchaser for value without notice during the pendency of the suit, she should be impleaded in the suit. It is further held that "the transferee is a representative-in- interest of the party from whom he has acquired an interest and the right to get impleadment is only on the basis of an assignment. This is also a case wherein the s ubsequent purchaser of the property filed an application to implead as a party to the suit under Order 1, Rule 10 of CPC on the ground of bona fide purchaser for value. So, this is also a case considered wherein the application at the instance of the subsequent purchaser was dismissed by the trial court and allowed by the High Court. As already stated, it is the clear stand of the subsequent purchaser before this Court that he does not want to be a party to the proceedings. ;