BUGATA APPALA NAIDU Vs. CHENGALVALA JOGIRAJU

JUDGEMENT

(1.) IT is the practice in this and other Courts to allow a claim for possession to be included in a claim for specific performance of a contract for the sale of immoveable property, and we are not prepared to question it. But in the present case the plaintiff has gone further and has impleaded the vendor s mortgagees who are in possession under a usufructuary mortgage. We have not been referred to any authority in this Court for joining such a claim against the vendor s mortgagees with a claim against the vendor and in Tasker v. Small 3 My. & Cr. 63; 6 Sim. 625; 5 L.J. Ch. (N.S.) 321; 40 E.R. 848; 45 R.R. 212 it was expressly decided that this cannot, be done. In Krishnasami v. Sundarappayyur 18 M. 415; 15 M.L.J. 164 a subsequent vendee was joined under Section 27(6) of the Specific Relief Act and the case is distinguishable. This misjoinder was not in our opinion a sufficient reason for dismissing so much of the suit as asks for specific performance against the 1st defendant, and the decree will be modified accordingly. Further, as the 1st defendant now disputes the validity of the mortgage the amount due thereunder will be paid into Court by the plaintiff under Section 83 of the. Transfer of Property Act; if within three months the 1st defendant has not taken proceedings to set aside the mortgage and to establish his right to the money, it will be paid over to the mortgagees. The 1st defendant must pay the plaintiff s costs in both Courts. Defendants Nos. 2 and 3 will be exonerated without prejudice to the plaintiff s right to proceed against them in future.