KARUPPIAH Vs. KARUPPIAH SERVAI

JUDGEMENT

(1.) THE plaintiff who lost before both the Courts below is the appellant. THE facts leading to the present Second Appeal are as follows: (THE parties will be referred to as per their ranks in the suit or by their names.) One Subbiah Servai whose legal representatives are defendants 3 to 7 entered into an agreement for sale of an extent of 2 acres in Lembalakudi Village, Thirumayam Taluk, with the first defendant on 25.2.1965. He filed suit O.S. No. 368/65 before the District Munsif, Pudukkottai, against the first defendant for specific performance of the agreement for sale. THE suit was decreed on 11.10.1966. However, the appeal filed by the first defendant in A.S. No. 9/67 was allowed on 19.4.1968. On 31.7.1968 defendants 1 and 2 executed a sale deed in respect of plaint "A" schedule properties to the plaintiff. Again, on 19.2.1969 under Ex.A-1 they executed a sale deed in respect of plaint "B" schedule properties to the plaintiff. On 28.10.1971 the Second Appeal filed by the said Subbiah Servai was allowed. Subbiah Servai filed an execution petition in E.P. No. 792/73 for a direction to the first defendant to execute a sale deed in his favour. THEre were several objections raised by the first defendant with regard to the identity of the properties contending that no survey number or subdivision number had been given in the decree for Specific Performance. THE matter went to the District Court in C.M.A. No. 42/74 and ultimately this Court in C.R.P. No. 2558/75. In the meantime, Subbiah Servai died and his legal representatives - defendants 3 to 7 - pursued the matter. In C.R.P. No. 2558/75 this Court observed that even without praying for an amendment of decree in respect of the description or the extent in survey number, the decree holder could execute the decree and that there would be a sale deed in respect of the lands comprised within the four boundaries described in the decree itself. THE present suit came to be filed on the basis of the sale deeds Ex.A-2 and A-1. THEreafter, O.S. No. 148/79 came to be filed by the present appellant before the District Munsif's Court, Pudukkottai, on the basis of Exs.A-1 and A-2 seeking declaration, permanent injunction and mandatory injunction.

(2.) THE trial Court framed the necessary issues on the basis of the pleadings and by its judgment and decree dated 19.9.1981 dismissed the suit holding as follows: "THE plaintiff would not derive any title under Exs.A-1 and A-2, that the present suit was hit by the doctrine of lis pendens, that the decree obtained by Subbiah Servai was executable and therefore he was not entitled to any relief." This was confirmed in the appeal in A.S. No. 25/82 by the learned Subordinate Judge. Pudukkottai, by his judgment and decree dated 9.8.1982.

(3.) THE learned Counsel then relied on the judgment of the Supreme Court in Dwarka Prasad Singh and others v. Harikant Prasad Singh and others (AIR 1973 SC 655). In that case the suit was filed against the vendor and the subsequent purchaser for Specific Performance or in the alternative for recovery of possession. Pending appeal the vendor died and his legal representatives were not brought on record. It was held by the Supreme Court that abatement of appeal against the vendor was fatal to the entire appeal. I fail to see as to how this case will help the appellant. In that case which was a suit for Specific Performance against the purchaser with notice of a prior agreement of sale the question was whether the vendor was a necessary party or not. It was argued that the vendor was not a necessary party. It was held by the Supreme Court with reference to the facts of that case that there was also a prayer for refund of money and no relief could be granted in the absence of the vendor or his legal representatives. THE Supreme Court referred to its own earlier decision in R.C. Chandiok v. Chuni Lal Sabharwal (1971 2 SCR 573 = AIR 1971 SC 1238) which in its turn while passing a decree for Specific Performance of a contract gave a direction that the decree should be in the same form as in Lala Durga Prasad's case (1954 SCR 360 = AIR 1954 SC 75 = 67 L.W. 945).