SHIVSHANKAREPPA MAHADEVAPPA PARAKANHATTI Vs. SHIVAPPA PARAPPA KUPATI

JUDGEMENT

(1.) THIS is a second appeal against a decree of the learned Assistant Judge of Belgaum. The suit was instituted to enforce specific performance of an agreement of sale dated November 23, 1935, whereunder defendant No.1, who was the only executant of the document, had agreed to sell the entire survey Nos. 19 and 20 of Yellimanoli in the Hukeri taluka to the plaintiff for Rs. 2,000. The agreement referred to certain transactions between the vendor and other persons which compelled him and his co-sharer; to file a suit in 1928 (suit No.521) against those opposing their peaceful possession of the property, and recited that the object of the sale was to provide the vendor with the means of meeting the cost of the litigation against the supposed trespassers. Those trespassers were defendants Nos. 3 to20. The co-sharer of the vendor was defendant No.

(2.) THE agreement further recited that the latter had agreed to transfer his interests in the lands to the vendor and therefore he was in a position to convey the entire survey numbers to the plaintiff. THE plaintiff not only made the vendor, who had contracted to sell the property to the plaintiff, as a party-defendant, but he also made defendants Nos. 2 to 20, who were strangers to the contract, as parties because defendant No.2 was interested in a portion of the property and the other defendants were in actual possession, although the latter by a decree passed in the suit referred to of 1928, which was confirmed in the High Court on August 27, 1936, were ordered to deliver possession of the property to the vendor defendant No.1 and his co-sharer defendant No.2 THE plaintiff, when he saw that defendant No.1 was unwilling to execute the sale-deed in terms of the agreement although he had received half of the consideration as earnest at the time of the contract filed this suit to enforce the agreement. 2. THE plaint was presented to the Court on September 2, 1936, and with the leave of the Court the plaintiff paid the deficit Court-fee thereon on September 28, 1936. At the time of the presentation of the plaint only defendants Nos. 1 to 20 were made parties. It was discovered upon the statement of defendant No.1 that one of his creditors had instituted a suit against him (suit No.260 of 1936) and had effected an attachment before judgment on September 22, 1936, of the property comprised in the agreement for sale. THErefore by an application on March 22, 1937, the plaintiff stated that such an attachment was not effective under Section 64 of the Civil Procedure Code to defeat his rights under a subsisting contract at the date of the attachment, and he consequently asked the Court on that ground to implead the attaching creditor of his vendor as a party-defendant. THE Court granted that application and allowed the amendment of the plaint and made the attaching creditor as an additional party, defendant No.21. THE newly added defendant No.21 contended that the agreement of sale was intended to defeat his claim and that his attachment was good. Ultimately the trial Court, after hearing the evidence and the arguments of defendant No.21, who did not claim any specific issue of fraud nor went into the witness-box to support his plea, held that his attachment was not effective, and that the plaintiff was entitled to the specific performance of the agreement of sale by defendant No.1 to the extent of the latter's half share in the property comprised in the agreement, and directed him to execute the sale-deed of that share. By mistake it appears that in the judgment instead of defendant No.21's attachment it was referred to as "the attachment of defendant No.1." THE decree further directed that the plaintiff was entitled to get possession of his half share by executing the decree in suit No.521 of 1928 which his vendor, defendant No.1, and defendant No.2 had obtained against the trespassers defendants Nos. 3 to 20 and which, as I have said, was confirmed in the High Court on August 27, 1936. Defendant No.2 acquiesced in that decree and so also defendant No. 1.

(3.) UNDOUBTEDLY the agreement, which was the foundation of the cause of action, expressly refers to a series of transactions between the vendor and defendants Nos. 2 to 20 and the common question of fact involved in the suit was whether defendant No.1 had the sole title to sell the property to the plaintiff and whether the contract of sale affected the interests of defendants Nos. 2 to21. It is indeed true that in a suit for specific performance the general rule is that a stranger to the contract cannot be sued upon it. Only the parties to the contract are, according to that rule, necessary and sufficient parties. But the general rule is subject to certain modifications (see Halsbury's Laws of England, 2nd edn. Vol. XXXI, para. 497, page 417, and the foot-notes thereunder. See also Fry's Specific Performance of Contracts, 6th edn., page 90, para. 205). For instance, strangers are made parties as an exception to the rule in cases of novatio; in cases of an interest arising under a prior contract; and in cases where it is desirable to avoid multiplicity of suits. That is exactly what Order I, Rule 1, of the Civil Procedure Code, contemplates. According to Fry (paras. 208 and 209):- ... a stranger to the contract may so mix himself up with it by setting up a claim to some benefit resulting from it, as to render himself liable to be made a party to proceedings for the enforcement of the contract.... In some cases where a. portion of the relief claimed might affect the person in actual possession of the property, that person may properly be made a party to an action for the specific performance of the contract....