S G KANNAPPAN Vs. S MURUGESAN

JUDGEMENT

(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.

(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.