RAJAMANI Vs. SOMASUNDARAM

JUDGEMENT

(1.) THE substantial question of law that arose for consideration, while ordering notice of motion in this Second Appeal, was "Whether the Judgment and Decree in O.S.No.306 of 1986 is a nullity in so far as the plaintiff in the present action is concerned, in the absence of the present plaintiff having not sued for setting aside the decree in O.S.No.305 of 1986""

(2.) THE first respondent herein filed a suit in O.S.No.315 of 1986 against one M.Muthuswamy now deceased for specific performance of the agreement dated 14-3-1986 by directing the said M.Muthuswamy to execute the necessary sale deed in favour of the first respondent herein by accepting-the balance of sale consideration of Rs.35,000 and hand over vacant possession of the suit schedule property. According to the first respondent, the said M.Muthuswamy, was the sole defendant and after his death and after impleading of the present appellants, as well as respondents 2 to 4, was arrayed as first defendant, entered into the sale agreement dated 14-3-1986, in and by which, the first defendant agreed to sell the suit schedule property to the first respondent herein for a sale consideration of Rs.40,000 by, accepting a sum of Rs.5000 towards advance, that as per the agreement, the balance sum of Rs.35,000 had to be paid by the first respondent within a period of three months from the date of agreement, that the sale price was fixed taking into account the standing plantain crops and coconut trees as well, that though the first respondent was ready and willing to perform his part of the contract and get the sale deed executed, the first defendant was attempting to dispose of the property to some third parties, that therefore, the first respondent issued a legal notice dated 5-10-1985 inspite of which, the first defendant failed to execute the necessary sale deed, that on the date of execution of the agreement, the first defendant handed over the parent title deeds to the first respondent and therefore, the decree for specific performance should be granted.

(3.) ONLY factor which is put in the forefront by the appellants in this second appeal is that the preliminary decree in O.S.306 of 1986 would nullify any relief to be granted in favour of the first respondent based on Ex.Al, dated 14.3.1986. The whole claim of the appellants in this litigation depends upon the acceptance or otherwise of the preliminary decree granted in O.S.No..306 of 1986. It is relevant to note that the suit in O.S.306 of 1986 was filed by the appellants on 2.6.1986 i.e. nearly three months after the execution of Ex.Al dated 14.3.1986 and few days after the issuance of the legal notice Ex-A6 dated 21.5.1986. The present suit in O.S.No.315 of 1986 was filed by the first respondent on 16.6.1986. The preliminary decree in O.S.No.306 of 1986 came to be passed on 11.8.1986. It is relevant to note that the first defendant herein who was one of the defendants in the said suit was stated to have remained ex parte by the time, the preliminary decree came to be passed on 11.8.1986. The first defendant filed his written statement in O.S.No.315 of 1986 on 2l.7.1987 and subsequently, he died on 6.7.1994. After getting themselves impleaded, the appellants herein filed their written statement on 23.4.1996.