M M S INVESTMENT Vs. L VENKATCSAN

JUDGEMENT

(1.) L.P.A.No.113 of 1990 arises against the order passed in C.M.P.No.3707 of 1989 while C.M.P.No.9570 of 1990 is a petition to grant leave to file an appeal against the order passed in C.M.P.No.4388 of 1990, dated 28.6.1990. Both L.P. A.No. 113 of 1990 and C.M.P.No.9570 of 1990 arise out of a common order passed in C.M.P.Nos.3707 of 1989 and 4388 of 1990 in A.S.No.796 of 1987 by a learned single Judge of this Courts Notice of motion was ordered in L.P.A.No.113 of 1990 and the respondents appeared through counsel. In the meantime, C.M.P.No.9570 of 1990, in an unnumbered appeal, was also filed and as per order of the First Bench consisting of Nainar Sundaram and So-masundaram, JJ., dated 1.8.1990, it was posted before this Court on the ground that the same has some bearing with L.P.A.No.113 of 1990. By consent of both parties, they were heard together and disposed of on merits.

(2.) THE facts which are necessary for the disposal of both the matters can be briefly stated as follows: THE property in question bearing door No.82, Town Hall Road, Madurai, originally belonged to respondents, 1 to 5 herein. THE sixth respondent filed a suit against respondents 1 to 5 in O.S.No.247 of 1981 on the file of the Sub Court, Madurai, for specific performance of an alleged agreement of sale said to have been executed by respondents 1 to 5 in respect of a portion of the property, namely, three shops. When the suit was pending, respondents 1 to 5 executed an irrevocable power of attorney dated 16.8.19S2 in favour of one K.Chakrapani and K.SethuramaIingam who are the brothers-in-law of the second appellant herein empowering the said Power of Attorney to manage and dispose of the suit property by executing sale deed in favour of the wife of the second appellant and clear the debts due by them including the amount borrowed by the said Power of Attorney. THE suit filed by the sixth respondent in O.S.No.247 of 1981 was resisted by respondents 1 to 5 themselves on the ground that the alleged agreement in favour of the sixth respondent is a nominal one and it is not valid and no decree can be passed. On 30.4.1986 the said suit was decreed. THEreupon the two Power of Attorney Agents filed an appeal against the said judgment in O.S.No.247 of 1981, in their capacity as Power of Attorney Agents of respondents 1 to 5 and the said appeal was numbered as A.S.No.796of 1987. THEy also executed various sale deeds from 7. 4.1987 to 17. 4.1987 in respect of the entire building in favour of the appellants in pursuance of the agreements dated 16.8.1982 executed by respondents 1 to 5 in favour of the wife of the second appellant. According to the appellants, in 1988 respondents 1 to 5 who have no further interest in the suit property, started colluding with the sixth respondent, and anticipating trouble, they filed C.M.P.No.3707 of 1989 in A.S.No.796 of 1987, to implead the appellants, namely, M.M.S. Investments through its Managing Director, P.Sethurajan, Minor Sukanya and Minor Manigandan represented by their father and guardian P.Sethurajan, as party-appellants in the appeal, alleging that pending the proceedings, they purchased the entire properly described in B Schedule properties which include the disputed property, forming part of A Schedule property, apart from other properties, and having regard to the facts and circumstances of the case, it has become necessary for the appellants to implead themselves as appellants in the appeal; otherwise, they would be put to irreparable hardship. When the matter was pending, respondents 1 to 5 filed C.M.P.No.4388 of 1990 to revoke the vakalat given by the Power of Attorney Agents in the appeal, so as to enable them to prosecute the appeal by themselves. THE Power of Attorneys Agents, who have sold the property to the appellants have filed a counter-affidavit contending that it is an irrevocable power of attorney and that they had parted with some property to the appellants. THE learned single Judge of this Court (Srinivasan, J.) allowed the application C.M.P.No.4388 of 1990 holding that there can be no objection whatever for grant of the prayer as the parties to the appeal can always claim that they should be permitted to conduct the appeal by themselves instead of through the Power of Attorney Agents who originally filed the appeal. THE learned single Judge dismissed C.M.P.No.3707 of 1989 holding that the appellants herein have purchased the property after the decree of the trial Court and in view of the close relationship between the purchasers and the vendors who are the power of attorney agents,prima facie suspicion surrounds the purchase made by the appellants herein and on the strength of the said purchase, the appellants cannot seek to implead themselves as parties to the appeal. It was also observed that whatever rights they may have, they will have to work out as against respondents 1 to 5 herein or their power of Attorney Agents in independent proceedings. Hence, the learned single Judge dismissed the application, C.M.P.No.3707 of 1989. Aggrieved by the same, L.P.A.No.113 of 1990 was filed. As against the order in C.M.P.No.4388 of 1990, C.M.P.No.9570 of 1990 is filed to grant leave to file an appeal against the order in C.M.P.No.4388 of 1990 as already stated above.

(3.) . On the other hand, the learned counsel appearing for respondents 1 to 5, Mr.K.T.Paul Pandian submitted that the L.P.A. itself is not maintainable as, subsequent to the impugned order which was passed on 28.6.1990 the appeal itself was dismissed on 3.7. 1990 as with drawn and no appeal is pending. According to the learned counsel, any order passed in the ancillary proceedings will merge with the main proceedings and in the instant case, since the appeal itself was disposed of on 3.7. 1990, the impugned order has merged with the same and hence no order can be appealed against. He would further submit that order passed in the petition for impleading under O.1, Rule 10, C.P.C. is not appealable order and even though the present appeal is filed under Clause 15 of the Letters Patent, in view of the Code of Civil Procedure, the said order is not an appealable one and as such it will merge with the order of appeal. According to the learned counsel, except the order passed under O.37, C.P.C., the rest will only merge with the final orders. In this regard the learned counsel placed reliance on the decision of the Division Bench reported in Madhu Sudan Sen v. Kamini Kanta Sen, I.L.R. 32 Cat 1023 and we will deal with same at the time of discussion of the points. Next it was contended by the learned counsel that the suit was decreed on 30.4.1986 and all the sale deeds, namely, 33 sale deeds, came into existence between 9.4.1987 and 17. 4.1987 in respect of the very same building and they did not take any action immediately after purchase. Further, the petition has been filed only on the ground that they got interest in the property and that none of the ingredients which the required under O.1, Rule 10(2), C.P.C. have been made out. He would also submit that their purchase is affected by lis pendens. He would submit that the alleged collusion between respondents 1 to 5 and the sixth respondent was long after the impugned order passed and that cannot now be taken into consideration for deciding this appeal. It is submitted that the remedy of the appellants is only to proceed against respondents 1 to 5 as per terms of the agreement of sale and not to ask for impleading themselves as parties in the appeal.