R.K.MERATHIA, J. - (1.) MRS . Jaya Roy, relying on the judgment of this Court in 2003(2) JLJR 71 (Jagendra Kaur V/s. Kali Prasad @ Kalu Prasad), submitted that the Second Appeal is maintainable against the impugned judgment. Mr. B.V. Kumar, appearing for the respondents does not dispute this position. Accordingly, it is held that the Second Appeal is maintainable.
(2.) APPELLANTS have preferred this appeal against the order dated 21.5.2007 passed in Misc. Appeal No. 30 of 2006, affirming the judgment dated 27.9.2006 passed in Misc. Case No. 1 of 2006 and rejecting the petition filed by the appellants under Order XXI Rule 97/101 read with Sec. 151 of the C.P.C. (hereinafter to be referred as Misc. Case). A suit for specific performance of the agreement for sale dated 11.1.1980, was filed by the father of the respondent herein - B. Laxmayya, being Title Suit No. 5 of 1983 against one B. Narsingh Rao s/o B. Appal Swami, the defendant, who admitted execution of the said agreement, but pleaded ignorance about the contents thereof. He also took a plea that the suit was bad for non -joinder of parties as his brothers and sisters were necessary parties in the suit who inherited the property in question after death of his father B. Appal Swami. The suit was decreed on contest. The defendant B. Narsingh Rao filed an appeal being F.A. No. 119 of 1985(R) in the High Court. The appellants filed a petition under Order 1 Rule 10 C.P.C. in the said First Appeal, contending that the defendant, alone was not entitled to enter into the said agreement, as the appellants were also the co -sharers. But the appellants did not pursue the said petition, filed under Order 1 Rule 10 C.P.C. The said First Appeal was dismissed by judgment dated 24.6.2002, the relevant portion of which reads as follows: 12. Now it is relevant to consider whether defendant was the absolute owner of the suit property or he was only a co -sharer along with his brothers and sisters and defendant alone was competent to enter into agreement for sale in question. 13. It is not in dispute that defendant had two more brothers, B. Laxmipati Naidu and B. Appa Rao and two sisters, R. Balamain and Y. Pushpa Veni, but the suit property stood recorded exclusively in the name of defendant and according to plaintiff, it was acquired by him alone during life time of his father, B. Appalswami. 14. In this regard, defendant brought on record, Exhibit C, a deed of relinquishment dated 14.12.1982 whereby his both brothers, B. Appa Rao and B.L.P. Naidu released their right, title, interest and claim over the property in question and declared that they or their heirs have no interest therein and present defendant is absolute owner thereof. In view of the fact that property in question was acquired in the name of defendant, B. Nageshwar Rao alone, there was no question of mutation of his name in records of Tata Iron and Steel Company Limited, after death of his father B. Appal Swamy. It was never standing in the name of B. Appal Swamy. Exhibit C was prepared, during pendency of the present suit by defendant in league with his bothers to create evidence that he was not exclusive owner of the property under agreement rather his brothers were also co - sharers therein. Not only this, at his instance, his brothers and sisters also filed application under Order 1 Rule 10 of the Code of Civil Procedure in the present Appeal to be added as parties, to support the appellant, after the suit was decreed. 15. I, therefore, find no reason to interfere with the impugned judgment and decree. There is no merit in this Appeal. It is dismissed accordingly but without costs.
(3.) THEN the appellants filed the said Misc. Case praying for dismissal of the Execution Case No. 5 of 1985, filed by the plaintiff, for executing the decree passed in the said Title Suit No. 5 of 1983 raising similar contentions raised in the said petition under Order 1 Rule 10 C.P.C.;