Or.1 rule 10 - impleading petition based on attachment before judgement order - in a suit for specific performaance - Admittedly, there is an attachment of the property involved in the suit in another suit filed by the petitioner. The petitioner is claiming under the vendor but not making any claim independent or adverse to the title of the vendor. His defence will be limited only to the extent of bringing to the knowledge of the Court below about the attachment of the property obtained by him, since he is alleging that it is a collusive suit among the respondents filed for specific performance of contract by creating the unregistered agreement of sale and parties are not seriously contesting the suit. Therefore, this Court is of the opinion that the petitioner herein is a proper party whose presence is necessary with a view to fully adjudicate upon the matters involved in the suit. In the facts of the present case, presence of the petitioner would be of much help in adjudicating the suit filed for specific performance effectively upon all the points in dispute relating to the subject property. However, the defences of the petitioner will be limited only to the extent of bringing to the knowledge of the Court about the attachment of the property obtained by him and other consequential matters.

Or.1 rule 10 - impleading petition based on attachment before judgement order - in a suit for specific performaance - Admittedly, there is an attachment of the property involved in the suit in another suit filed by the petitioner. The petitioner is claiming under the vendor but not making any claim independent or adverse to the title of the vendor. His defence will be limited only to the extent of bringing to the knowledge of the Court below about the attachment of the property obtained by him, since he is alleging that it is a collusive suit among the respondents filed for specific performance of contract by creating the unregistered agreement of sale and parties are not seriously contesting the suit. Therefore, this Court is of the opinion that the petitioner herein is a proper party whose presence is necessary with a view to fully adjudicate upon the matters involved in the suit. In the facts of the present case, presence of the petitioner would be of much help in adjudicating the suit filed for specific performance effectively upon all the points in dispute relating to the subject property. However, the defences of the petitioner will be limited only to the extent of bringing to the knowledge of the Court  about the attachment of the property obtained by him and other consequential matters.

HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE NINETEENTH DAY OF DECEMBER

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

CIVIL REVISION PETITION NO: 2276 OF 2022

Between:

1. MARAM DATTU s/o. Suryanarayana,

78 years, hindu, cultivation,

r/o. D.No.14-10-4/3, Royapeta,

Narsapuram, West Godavari district

3. Jakkam Venkayya, s/o. Surya Rao, Aged 52 years, r/o. D.No.14-3-16,

Jakkamvari street, 19th Ward, Narsapur, West Godavari district

...PETITIONER(S)

AND:

1. MANEPALLI MOHAN RAO s/o. Krishna Rao, Aged 46 years, business,

r/o. D.No.10-3-22, West Marredpally, Secunderabad.

2. Jakkam Sunitha, w/o. Venkayya, Aged 45 years, r/o. D.No.14-3-16,

Jakkamvari street, 19th Ward, Narsapur, West Godavari district

4. M/s. Sriram City Union Finance Limited,

Razole, rep. by its Branch Manager, Razole Mandal, East Godavari

district

...RESPONDENTS

Counsel for the Petitioner(s): P L NARASIMHA RAO

Counsel for the Respondents: P RAJESH BABU

The Court made the following: ORDER

2023:APHC:49661

*HON’BLE SRI JUSTICE K.SREENIVASA REDDY

+ Civil Revision Petition No.2276 of 2022

% 19th day of December, 2023

C.R.P.No.2276 of 2022:

# Maram Dattu

… Petitioner

AND

$ Manepalli Mohan Rao & others

 … Respondents.

! Counsel for the Petitioner :Mr. Akula Sri Krishna Sai Bhargav, for

Sri P.L.Narasimha Rao

^ Counsel for the respondent No.1: Sri P.Rajesh Babu

 Counsel for the respondents 2 and 3: Mr. Dasari S.V.V.S.V.Prasad

 Counsel for the respondents 2 and 3: Mr.Maheshwara Rao Kunchem

< Gist:

> Head Note:

? Cases referred:

1

(2013) 5 SCC 397

2

(2005) 6 SCC 733

3

(2019) 12 SCC 412

4 Decision of the Hon’ble Apex Court in Baluram v. P.Chellathangam & others

5 Decision of the Bombay High Court in Shri Swastik Developers & others v. Saket Kumar Jain

& another,

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THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY

CIVIL REVISION PETITION Nos.2276 OF 2022

ORDER :

The Civil Revision Petition has been filed aggrieved by the

Order dated 06.09.2022 in I.A.No.779 of 2019 in O.S.No.13 of

2014 on the file of the X Additional District Judge, West Godavari

at Narsapur, whereby the petition filed by the petitioner, under

Order I Rule 10 of the Code of Civil Procedure, 1908 (for short,

‘CPC’) seeking to implead him as 4th defendant in the aforesaid

suit, was dismissed by the Court below.

2. The facts, in brief, are as follows.

It is the case of the petitioner that he filed Original Suit

No.4 of 2014 before the Court below against 3rd respondent

herein for recovery of money basing on a promissory note dated

01.02.2013. In the said suit, the Court below granted

attachment before judgment in respect of the subject property viz.

land admeasuring Ac.1.36 cents in Old R.S.No.465/6 & New

R.S.No.465/6A situated in 26th Ward, Rustumbada village,

Narsapur mandal, West Godavari district. Vide judgment dated

28.06.2018, the Court below decreed the suit. Thereafter, he

filed E.P.No.7 of 2019 for realization of the decretal amount by

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way of attachment and sale of the aforesaid property and the

same is pending.

It is the further case of the petitioner that respondents 2

and 3 herein, who are wife and husband, entered into a collusive

unregistered agreement of sale dated 09.01.2012 with 1st

respondent and got filed O.S.No.13 of 2014 through 1st

respondent for specific performance of the said unregistered

agreement of sale and the same is pending. In the said suit, the

subject implead petition in I.A.No.779 of 2019 came to be filed by

the petitioner to permit him to implead as 4th defendant in the

said suit, but erroneously the said petition was dismissed by the

Court below.

3. Heard Sri Akula Sri Krishna Sai Bhargav, appearing for Sri

P.L.Narasimha Rao, learned counsel for petitioner; Sri P.Rajesh

Babu, learned counsel for 1st respondent; Sri Dasari S.V.V.S.V.

Prasad, learned counsel for respondents 2 and 3 and Sri

Maheshwara Rao Kunchem, learned counsel for 4th respondent.

4. It is submitted by the learned counsel for the petitioner that

the suit in O.S.No.13 of 2014 is a collusive suit between

respondent No.1 and other respondents, filed for specific

performance of an unregistered agreement of sale, only in order to

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defeat rights of the petitioner, who is attachment holder in

respect of the schedule property in the suit. He further submits

that the said unregistered agreement of sale dated 09.01.2012 is

a collusive one, brought into existence only to defeat the rights of

the petitioner. It is his further submission that the petitioner has

semblance of right over the schedule property and hence he is a

proper and necessary party to the suit in view of Section 19 of the

Specific Relief Act, 1963 and in order to bring to the notice of the

Court below regarding the attachment of the said property, as the

parties are not seriously contesting the suit, and in the absence

of the petitioner, no effective decree can be passed in the suit.

5. On the other hand, the learned counsel for respondents 1 to

3 submit that the petitioner is neither a proper nor a necessary

party to the suit which is filed for specific performance of the

agreement of sale, and only in order to create multiplicity of

litigation and delay the proceedings, the implead petition is filed,

which is rightly dismissed by the Court below, and there are no

grounds to interfere with the same.

6. Learned counsel for the petitioner relied on a decision in

Thomson Press (India) Limited v. Nanak Builders & Investors

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Private Limited & others1, wherein it is held thus: (para 24 &

conclusive portion)

“In Kasturi case [Kasturi v. Iyyamperumal, (2005) 6 SCC

733] a three-Judge Bench of this Court said that in a

suit for specific performance of contract for sale an

impleadment petition was filed for addition as partydefendant on the ground that the petitioners were

claiming not under the vendor but adverse to the title of

the vendor. In other words, on the basis of independent

title in the suit property the petitioner sought to be

added as a necessary party in the suit. ….

xxx

1) The appellant is not a bona fide purchaser and is,

therefore, not protected against specific performance of

the contract between the plaintiffs and the owner

defendants in the suit.

2) The transfer in favour of the appellant pendente lite is

effective in transferring title to the appellant but such

title shall remain subservient to the rights of the plaintiff

in the suit and subject to any direction which the Court

may eventually pass therein.

3) Since the appellant has purchased the entire

estate that forms the subject matter of the suit, the

appellant is entitled to be added as a party defendant to

the suit.

4) The appellant shall as a result of his addition

raise and pursue only such defences as were available

and taken by the original defendants and none other.”

He also relied on a decision of the Bombay High Court in

Shri Swastik Developers & others v. Saket Kumar Jain & another,

wherein it is held thus: (paragraph 6 & 8).

1

(2013) 5 SCC 397

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“In Kasturi v. Iyyamperumal, a Bench of three Learned

Judges of the Supreme Court held that under Order I

Rule 10 (2) of the Code of Civil Procedure, 1908, the

parties to a contract for sale were necessary parties in a

suit for specific performance as well as a person who

had purchased a contracted property from the vendor.

However, a person who claims adversely to the claim of

the vendor would not constitute a necessary party since

such a person who claims a title adverse to the vendor

does not fall within any of the categories mentioned in

Section 19 of the Specific Relief Act.

xxx

8) In the present case, the Third Appellant is a

necessary party to the suit for specific performance. The

Third Appellant claims under the First Appellant. The

Third Appellant does not set up a title adverse to that of

the First Appellant or an independent title. More over,

the agreement between the First and Third Appellants of

2 August 2008 is subsequent to the agreement dated 10

November 2005 that was entered into between the First

and Second Appellant and the Plaintiffs. Hence, the

application for amendment would not change the

character of the suit for specific performance.”

In Baluram v. P.Chellathangam & others, the Hon’ble Apex

Court held thus:

“In the present case, the appellant could not be held to

be a stranger being beneficiary of the Trust property.

The trial Court was justified in impleading him as a

party. The High Court erred in interfering with the order

of the trial Court.

Accordingly, we allow this appeal, set aside the

impugned order of the High Court and retore that of the

trial Court dated 10th August, 2010, impleading the

appellant as a party defendant in the suit.”

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7. The learned counsel for respondents relied on a decision in

Kasturi v. Iyyamperumal & others2, wherein it is held thus:

(paragraphs 16 and 22)

“16. That apart, from a plain reading of the expression

used in sub-rule (2) Order 1 Rule 10 CPC “all the

questions involved in the suit” it is abundantly clear that

the legislature clearly meant that the controversies

raised as between the parties to the litigation must be

gone into only, that is to say, controversies with regard

to the right which is set up and the relief claimed on one

side and denied on the other and not the controversies

which may arise between the plaintiff-appellant and the

defendants inter se or questions between the parties to

the suit and a third party. In our view, therefore, the

court cannot allow adjudication of collateral matters so

as to convert a suit for specific performance of contract

for sale into a complicated suit for title between the

plaintiff-appellant on one hand and Respondents 2 and

3 and Respondents 1 and 4 to 11 on the other. This

addition, if allowed, would lead to a complicated

litigation by which the trial and decision of serious

questions which are totally outside the scope of the suit

would have to be gone into. As the decree of a suit for

specific performance of the contract for sale, if passed,

cannot, at all, affect the right, title and interest of

Respondents 1 and 4 to 11 in respect of the contracted

property and in view of the detailed discussion made

hereinearlier, Respondents 1 and 4 to 11 would not, at

all, be necessary to be added in the instant suit for

specific performance of the contract for sale.

…

For the reasons aforesaid, in our view, the stranger to

the contract, namely, Respondents 1 and 4 to 11 making

claim independent and adverse to the title of

Respondents 2 and 3 are neither necessary nor proper

parties, and therefore, not entitled to join as party2

(2005) 6 SCC 733

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defendants in the suit for specific performance of

contract for sale.

In Hari Mohan Sharma & another v. Charanjeet Singh Rekhi

& others3, it is held thus:

“The case pleaded before us is that the persons

mentioned as Defendants 1 and 2 and Defendants 2 and

3 in the two suits are, in fact, the persons mentioned in

the two IAs. This being clear, the plaintiff in the specific

performance suit has no lis against such persons, and

has chosen to have a lis only against Defendants 1 and 2

and 2 and 3 (original). This being the case, it is clear

that the persons in the IAs are neither necessary nor

proper parties in the present adjudication.”

8. In the case on hand, the petitioner filed Original Suit No.4

of 2014 before the Court below against 3rd respondent herein for

recovery of money basing on a promissory note dated 01.02.2013,

and in the said suit, the Court below granted attachment before

judgment in respect of the subject property viz. land admeasuring

Ac.1.36 cents in Old R.S.No.465/6 & New R.S.No.465/6A

situated in 26th Ward, Rustumbada village, Narsapur mandal,

West Godavari district. After full-fledged trial, the said suit was

decreed by judgment dated 28.06.2018. Thereafter, the

petitioner filed Execution Petition in E.P.No.7 of 2019 for

realization of the decretal amount by way of attachment and sale

3

(2019) 12 SCC 412

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of the aforesaid property and the same is pending. It is his case

that respondents 2 and 3 herein, who are wife and husband,

entered into a collusive unregistered agreement of sale dated

09.01.2012 with 1st respondent and got filed O.S.No.13 of 2014

through 1st respondent for specific performance of the said

unregistered agreement of sale and the same is pending. It is the

case of the petitioner that the unregistered agreement of sale in

O.S.No.13 of 2014 is a collusive one between the respondents 1 to

4 herein and that the defendants in the said suit are not seriously

contesting the matter and it is only to defeat his rights and decree

passed in O.S.No.4 of 2014. It is his contention that the

petitioner has semblance of right over the subject property in

O.S.No.13 of 2014 claiming through the vendor in the said case,

and hence, he is a proper and necessary party to the said suit.

9. The power under Order I Rule 10 CPC to add parties can be

exercised by the Court at any stage of the proceedings either on

an application by any party or suo motu. The object of enacting

this provision is to bring before the Court, at one and the same

time, all the persons interested in the dispute so that all the

controversies in the suit may be finally determined once for all in

the presence of all the parties without any delay, inconvenience

and expenses of several actions, trials and inconclusive

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adjudication. The power to add a party under this provision can

be exercised on either of the following two grounds viz. a) such

person ought to have been joined, either as a plaintiff or as a

defendant, but is not so joined; or b)without his presence, the

question involved in the suit cannot be decided finally and

effectively. Avoidance of multiplicity of proceedings is also one of

the objects of the said provision. The question as to whether an

individual is a proper or necessary party to a suit, would depend

upon the nature of relief claimed in the suit and the right or

interest projected by the persons, who propose to get themselves

impleaded. No hard and fast rule can be weighed, that would

cover a possible situation in this regard.

A necessary party is one in the absence of whom relief

claimed in the suit cannot be granted. It means that for the grant

of relief claimed in a suit, a person who ought to have joined

must be added. Whereas, a proper party is one whose presence

may be necessary with a view to fully adjudicate upon the

matters involved in the suit.

10. A reading of second part of Order I Rule 10 (2) CPC would

clearly go to show that necessary parties in a suit for specific

performance of a contract for sale are the parties to the contract

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or if they are dead, their legal representatives as also a person

who had purchased the contracted property from the vendor. A

purchaser is a necessary party as he would be affected if he had

purchased with or without notice of the contract, but a person

who claims adversely to the claim of a vendor, is, however, not a

necessary party.

11. A reading of Section 19 of the Specific Relief Act, 1963

makes it clear that the persons seeking addition in the suit for

specific performance of the contract of sale who were not claiming

under the vendor but are claiming adverse to the title of the

vendor, do not fall in any of the categories mentioned in subsections (a) to (e) of Section 19 of the Act, 1963. It has to be seen

whether the person is claiming under the vendor of the plaintiff in

a suit for specific performance or he claims a title independent of

or adverse to the title of the vendor.

12. Two tests are to be satisfied for determining the question

who is a necessary party viz. there must a right to some relief

against such party in respect of the controversies involved in the

proceedings and no effective decree can be passed in the absence

of such party. In the case on hand, the petitioner intends to

come on record as a party to the suit O.S.No.13 of 2014 in order

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to bring to the notice of the Court below about the attachment of

the subject property covered by the said suit, by him and the

execution proceedings initiated against the said property by him

for realization of the decretal amount in O.S.No.4 of 2014.

Admittedly, there is an attachment of the property involved in the

suit in another suit filed by the petitioner. The petitioner is

claiming under the vendor but not making any claim independent

or adverse to the title of the vendor. His defence will be limited

only to the extent of bringing to the knowledge of the Court below

about the attachment of the property obtained by him, since he is

alleging that it is a collusive suit among the respondents filed for

specific performance of contract by creating the unregistered

agreement of sale and parties are not seriously contesting the

suit. Therefore, this Court is of the opinion that the petitioner

herein is a proper party whose presence is necessary with a view

to fully adjudicate upon the matters involved in the suit. In the

facts of the present case, presence of the petitioner would be of

much help in adjudicating the suit filed for specific performance

effectively upon all the points in dispute relating to the subject

property. However, the defences of the petitioner will be limited

only to the extent of bringing to the knowledge of the Court below

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about the attachment of the property obtained by him and other

consequential matters.

13. In view of the foregoing discussion, the Civil Revision

Petition is allowed. The Order dated 06.09.2022 in I.A.No.779 of

2019 in O.S.No.13 of 2014 on the file of the X Additional District

Judge, West Godavari at Narsapur is set aside, consequently,

I.A.No.779 of 2019 stands allowed, holding that the petitioner is a

‘proper party’ to the suit with limited defences as stated supra, to

enable the Court below to fully adjudicate upon the matters

involved in the suit.

As a sequel, pending miscellaneous petitions, if any, in

the C.R.P. shall stand closed. There shall be no order as to

costs of the C.R.P.

__________________________________

 JUSTICE K. SREENIVASA REDDY

19th.12.2023

DRK

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THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY

CIVIL REVISION PETITION Nos.2276 of 2022

19th.12.2023

DRK

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