Case Note & Summary
The petitioner, Smt. Sonabai Sahebrao Pathrud, filed a suit for perpetual injunction against respondent no.1, Bhausaheb Ganpati Gaikwad, on 14 February 2000. The defendant filed a counterclaim seeking specific performance of an agreement to sell dated 28 February 1992 for five acres of land for Rs.22,000, claiming possession was handed over. The trial court dismissed both the suit and counterclaim, directing the plaintiff to repay Rs.22,000 as earnest money. During the pendency of the appeal filed by the defendant (Regular Civil Appeal No.88 of 2000), the plaintiff sold the suit land to respondents 2 to 4 by registered sale deed dated 15 February 2010. There was no restraint order against the plaintiff. The appellate court, taking cognizance of the alienation, impleaded respondents 2 to 4 as parties to the appeal under Order 1 Rule 10 CPC. The petitioner challenged this impleadment order in the present writ petition. The High Court held that the purchasers (respondents 2 to 4) are not necessary parties to the appeal for specific performance because no relief is sought against them and they claim through the plaintiff. Under the doctrine of lis pendens (Section 52 of the Transfer of Property Act), any purchaser during pendency of litigation is bound by the decree. The court also noted that the purchasers are not proper parties as their presence is not required for complete adjudication of the dispute between the plaintiff and defendant. The High Court allowed the writ petition, set aside the impugned order, and directed the appellate court to decide the appeal without impleading respondents 2 to 4.
Headnote
A) Civil Procedure Code, 1908 - Order 1 Rule 10 - Necessary and Proper Party - Impleadment - In a suit for specific performance of agreement to sell, the purchaser of suit land during pendency of appeal is not a necessary party as no relief is sought against him and he claims through the plaintiff-vendor. The appellate court erred in impleading such purchasers under Order 1 Rule 10 CPC. (Paras 6-8) B) Specific Relief Act, 1963 - Section 19(b) - Lis Pendens - Purchaser pendente lite - A purchaser of property during pendency of litigation is bound by the decree under the doctrine of lis pendens (Section 52 Transfer of Property Act) and need not be impleaded as a party to protect his interests. (Para 7) C) Civil Procedure Code, 1908 - Order 1 Rule 10 - Proper Party - Impleadment - A person may be added as a proper party if his presence is necessary for complete and effective adjudication. However, purchasers claiming through the plaintiff are not necessary for deciding the issue of specific performance between plaintiff and defendant. (Para 8)
Issue of Consideration
Whether the purchasers of suit land during pendency of appeal are necessary or proper parties to the appeal for specific performance of agreement to sell, and whether the appellate court erred in impleading them under Order 1 Rule 10 CPC.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 5th August 2019 passed by the District Judge-2, Barshi in Regular Civil Appeal No.88 of 2000, and directed the appellate court to decide the appeal without impleading respondents 2 to 4.
Law Points
- Necessary party
- proper party
- Order 1 Rule 10 CPC
- specific performance
- lis pendens
- alienation pendente lite
- impleadment
- transfer of property
