RAMAKANT SUBRAO SHETYE Vs. KALPA KASHINATH GADEKAR

JUDGEMENT

(1.) All three Miscellaneous Civil Applications, can be disposed of by common order.

(2.) The question for decision is, "whether assignee from an appellant could seek, to get impleaded in the appeal under Order 22 Rule 10 of the Code of Civil Procedure, 1908 ( 'CPC ' for short) after death of the appellants and after the period within which appeal would abate under the Order XXII Rule 3(2) of the CPC, by reason of failure to implead legal representatives of deceased appellants. "

(3.) Miss Kalpa Kashinath Gadekar, instituted Special Civil Suit No.26/1997/A in the Court of Civil Judge, Junior Division at Bicholim, Goa for specific performance of suit agreement dtd. 2/5/1994, against Ms. Tereza Fernandes and Shri Paul Inacio Fernandes. Suit was instituted on 17/4/1997. Pending suit, on 16/8/2006 defendants, Ms. Tereza Fernandes and Shri Paul Inacio Fernandes sold the Suit Property to Shri Ramakant Subrao Shetye by registered deed of sale. Whereafter, in Appeal From Order, this Court vide order dtd. 30/9/2007 injuncted Ms. Tereza Fernandes and Shri Paul Inacio Fernandes ( 'Defendants ' for short) from creating third party rights. Apparently, sale of Suit Property on 16/8/2006 was not brought to the notice of Court. In any case, suit was dismissed on 27/8/2010. Regular Civil Appeal No.429 of 2010 preferred by Kalpa Gadekar ( 'Plaintiff ' for short) was allowed by District Judge, Mapusa. Appellate Court vide judgment dtd. 25/5/2012, decreed the suit and directed the defendants to execute and register the sale deed, in terms of the agreement for sale upon defendants depositing balance consideration of Rs.7,75,000.00 in the Court within a period of two months from the date of decree. Ms. Tereza Fernandes and Shri Paul Inacio Fernandes (defendants) filed Second Appeal No.140 of 2012. The appeal by Ms. Tereza Fernandes, was filed through Shri Ramakant Subarao Shetye, her Power of Attorney holder-purchaser, who had purchased Suit Property pending suit; whereas Shri Paul Inacio Fernandes, filed the appeal himself. Pending Second Appeal, plaintiff, when came to know that Suit Property was to sold by the defendants to Mr. Ramakant Shetye, she instituted Regular Civil Suit No.98 of 2015 against Ms. Tereza Fernandes, Shri Paul Inacio Fernandes and Mr. Ramakant Subrao Shetye for setting aside the, sale deed dtd. 16/8/2006 executed by the Defendants in favour of Ramakant Subrao Shetye. The said suit for, easy understanding will be referred to as 'Second Suit '. Pending Second Appeal, Shri Paul Inacio Fernandes expired on 23/2/2015; whereas Ms. Tereza Fernandes (Appellant No.1) expired on 26/10/2019.