9911796707
TMI Blog1972 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... sale consideration was ₹ 99,995/-. Out of that sum, ₹ 23,000/- had already been paid to defendant first party. It was further stated that defendant second party in spite of full knowledge of the agreement between the plaintiffs and the defendant first party purchased the suit properties for ₹ 1,63,400/by means of a deed of sale dated December 11, 1942. Among the reliefs which were prayed for were for a decree for specific performance being passed in favour of the plaintiffs against the defendants on payment of a sum of ₹ 55,306.25 paise or such other amount as the court might determine and if, for any reason, such a decree be not granted a decree for a sum of ₹ 44,688/- with interest at 6% from the date of the suit till the date of the realisation be passed against defendant first party. A written statement was filed on behalf of the defendants first party. Therein he admitted receipt of a sum of ₹ 15,000/- only by way of payment as earnest money or part consideration. The defence of defendants second party was that being bona fide purchaser for value and having paid full consideration in good faith and without notice of the alleged contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendants first party prosecuted their appeals which were dismissed on the ground of non- prosecution. In the appeal filed by defendants second party one of the appellants Ambica Prasad Singh died in June 1956. On September 17, 1956 an application was filed by the other appellants for substitution of the legal representatives of the deceased in his place. The High Court, after having an inquiry on the questions in dispute with regard to the date of death of Ambica Prasad Singh and other matters, declined to condone the delay. On September 27, 1957 an order was made recording the fact that the appeal had abated so far as the appellant Ambica Prasad Singh was concerned. On April 8, 1958 the High Court held that the whole appeal failed as having become incompetent because of the said abatement. The appeal was consequently dismissed. The appeal which was brought to this Court was filed by defendant second party consisting of defendants 3 to 8 in the original suit. Special leave was granted on February 18, 1959. During the pendancy of that appeal in this Court Saroda Charan Guha original first party defendant who was impleaded as respondent No. 3 in the appeal to this Court died. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and set aside the decree for specific performance it would no longer be possible in the absence of legal representatives of deceased Guha to either set aside that part of the, joint decree which is in his favour but also the plaintiffs would be disabled from being granted any relief in the alternative for the amount paid by way of part consideration to the vendor Guha deceased. In these circumstances, it is contended, the present appeal must be held to. have become incompetent and it must fail on that ground. Counsel for the appellants has relied on two points in sup- port of the argument that the appeal cannot fail because of the non-impleadment of the legal representatives of Guha deceased. The first is that he was not a necessary party being the vendor and the second is that the case would be covered by the provisions of O.41, R.4 of the Civil Procedure Code. There appears to be some divergence between the High Courts on the question whether in a suit for specific performance against a purchaser with notice of a prior agreement of sale the vendor is a necessary party or not. In other words the conflict has arisen on the question whether the decree in a suit for specific perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout the vendor joining in the execution of the sale deed special covenants, if any, between him and the original purchaser cannot be incorporated in the sale deed. The whole idea and the purpose underlying a decree for specific performance is that if a decree for, such a relief is granted the person who has agreed to purchase the property should be put in the same position which would have obtained in case the contracting parties, i.e., vendor and the purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every way. Therefore, it is essential that the vendor 'Must join in the execution of the sale deed. If that be so, it is not possible to comprehend how he is not a necessary party. At any rate, in the presence of the relief for a decree for refund of the amount paid by way of part consideration the vendor would be a necessary party. No such relief could be granted in his absence nor can it be granted now even if the appeal succeeds and the decree for specific performance is set aside. The second limb of argument of the appellants is based on Order 41, Rule 5, Civil Procedure Code. According to that rule where there are more plaintiffs or mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent orders, or decrees would result the rule in Nathu Ram's case would be applicable. It may be mentioned that in that case an award had been made for payment of compensation in favour of two brothers L. N. The State appealed against the award to the High Court. During the pendency of the appeal respondent L died and no application was made for bringing on record his legal representatives within the, requisite period of limitation. The question was that since the appeal had abated against L what was its effect in appeal against N. It was ob. served that the consideration which would weigh with the court in deciding whether the entire appeal had abated or not would be whether the appeal between the appellants and the respondents other than the deceased respondent could be said to be properly constituted or could be said to have all the necessary parties for the decision of the controversy before the court. Another main test was whether the success of the appeal would lead to a decision which would be in conflict with the decision between the appellant and the deceased respondent. Thus the court will have, to pass a decree contradictory to the, one which had already beco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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