APPEAL BY THIRD PARTY WHO HAS GOT INTEREST OVER THE EXPARTE DECREE IS MAINTAINABLE AND HE CAN IMPLEAD IN THE SUIT AND CONTEST THE SAME = This appeal is filed with leave by the appellant, a third party. The appellant contends that having parted with the property, the 2nd respondent colluded with the 1st respondent and that the decree under appeal was brought into existence.= whether the decree passed by the trial Court deserves to be set aside. = However, by the time, the suit was filed, the property stood transferred in the name of the appellant and the 2nd respondent no longer holds title. The effect of the decree is to be felt not by the 2nd respondent but by the appellant. Even from the point of view the execution of the decree, the 1st respondent cannot be successful as the things stand now. whether the agreement said to have been executed by the 2nd respondent in favour of the 1st respondent or the one relied upon by the appellant are genuine can be considered, if only there is actual contest and trial. For that purpose, the evidence needs to be recorded and it would be possible, if only the matter is remanded to the trial Court. = Hence, the appeal is allowed and the judgment and decree passed by the trial Court in O.S.No.418 of 2010 is set aside. The matter is remanded to the trial Court for fresh consideration and disposal. The appellant shall be entitled to be impleaded as defendant No.2 in the suit.

AS 409 / 2013

ASSR 2736 / 2013

PETITIONER RESPONDENT KUMARA SWAMY   VS D. VENUGOPAL REDDY & ANOTHER PET.ADV. : RAJAGOPALLAVAN TAYI RESP.ADV. : RAJESH MADDY SUBJECT: SPECIFIC PERFORMANCE DISTRICT:  HYDERABAD

PUBISHED INhttp://hc.ap.nic.in/csis/MainInfo.jsp?mtype=AS&mno=409&year=2013

 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

AND

 THE HON’BLE SRI JUSTICE S.V.BHATT

A.S.No.409 of 2013

JUDGMENT : (Per LNR,J)

          The 1^st respondent filed O.S.No.418 of 2010 in the Court of II Additional Chief Judge, City Civil Court, Hyderabad, against the 2^nd respondent for specific performance of an agreement of sale, dated 08.02.2007. 

 It was stated that the suit schedule property was agreed to be sold in his favour for a consideration of Rs.40,00,000/- and a sum of Rs.20,15,000/- was paid before the agreement and Rs.15,92,000/-, after the agreement.  The 2^nd respondent remained ex parte.  

The trial Court decreed the suit on 30.05.2011 duly taking into account the deposition of P.W.1 and Exs.A.1 to A.18. 

          This appeal is filed with leave by the appellant, a third party.  

The appellant pleads that the 2^nd respondent executed an agreement of sale-cum-Irrevocable G.P.A., dated 30.10.2007 in his favour, as regards the very property and that the same was registered as document No.2170 of 2007.  

He further submits that the sale deed was executed on 18.03.2011 in respect of the property.  

The appellant contends that having parted with the property, the 2^nd respondent colluded with the 1^st respondent and that the decree under appeal was brought into existence.

          Heard Sri Raja Gopallavan Tayi, learned counsel for the appeallant and Sri Rajesh Reddy, learned counsel for the 1^strespondent. 

          The 2^nd respondent remained ex parte in the suit as well as before this Court.

          The 1^st respondent prayed for a decree for specific performance of an agreement of sale by pleading necessary facts. The only defendant in the suit i.e., 2^nd respondent herein remained ex parte.  Obviously because no written statement was filed, the trial Court did not frame any issue.  On the basis of the evidence of P.W.1 and Exs.A.1 to A.18, the suit was decreed.

          Therefore, the only point that arises for consideration in this appeal is as to whether the decree passed by the trial Court deserves to be set aside. 

          The agreement of sale relied upon by the 1^st respondent is dated 08.02.2007, whereas the one pleaded by the appellant herein is dated 30.10.2007.  From the point of view of timing, the 1^st respondent may stand to some advantage.  However, by the time, the suit was filed, the property stood transferred in the name of the appellant and the 2^nd respondent no longer holds title. 

The effect of the decree is to be felt not by the 2^nd respondent but by the appellant. 

Even from the point of view the execution of the decree, the 1^st respondent cannot be successful as the things stand now.  

The question as to 

whether the agreement said to have been executed by the 2^nd respondent in favour of the 1^st respondent or the one relied upon by the appellant are genuine can be considered, if only there is actual contest and trial.  

For that purpose, the evidence needs to be recorded and it would be possible, if only the matter is remanded to the trial Court. 

          The point is answered accordingly.

          Hence, the appeal is allowed and the judgment and decree passed by the trial Court in O.S.No.418 of 2010 is set aside.  The matter is remanded to the trial Court for fresh consideration and disposal.  

The appellant shall be entitled to be impleaded as defendant No.2 in the suit.  

The trial Court shall dispose of the suit as early as possible preferably within six months from the date of receipt of a copy of this order.

          The miscellaneous petition filed in this appeal shall also stand disposed of.  There shall be no order as to costs.

______________________

L.NARASIMHA REDDY, J

_________________

                                                                                            S.V.BHATT, J

Date: 22.04.2013

JSU

 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

AND

 THE HON’BLE SRI JUSTICE S.V.BHATT

 

 

 

 

 

 

 

 

 

 

 

A.S.(sr).No.2736 of 2013

Date: 22.04.2013

JSU