Case Note & Summary
The appeal arises from a suit for specific performance of an agreement of sale dated 23.06.1983 filed by the 1st respondent/plaintiff against defendants 1 to 3. The suit property was a flat allotted to the 1st defendant by the Tamil Nadu Housing Board. The plaintiff agreed to pay the amount already paid by the 1st defendant to the Housing Board and to pay the balance instalments directly to the Board. The 1st defendant died during the pendency of the suit, and his legal representatives were not impleaded. The trial court decreed the suit granting specific performance. The defendants 4 and 5, daughter and son-in-law of the 1st defendant, appealed. The High Court held that the suit is maintainable despite non-joinder of legal representatives of deceased defendant 1, as defendants 2 and 3 (wife and son) sufficiently represent the estate. The appeal was dismissed, confirming the decree for specific performance.
Headnote
A) Civil Procedure Code - Specific Performance - Non-joinder of parties - Suit for specific performance of sale agreement filed against defendants 1 to 3 - Defendant 1 died during pendency of suit, legal representatives not impleaded - Held that the suit is maintainable as the agreement was executed by defendants 1 to 3 jointly, and the estate of deceased defendant 1 is sufficiently represented by defendants 2 and 3 who are his wife and son (Paras 10-15).
B) Civil Procedure Code - Abatement of Appeal - Legal Representatives - Appeal filed by defendants 4 and 5 - Respondent 1 died, legal representatives brought on record - Respondent 3 died, legal representatives brought on record - Held that the appeal does not abate as the legal representatives of deceased respondents have been duly brought on record (Paras 16-20).
Issue of Consideration
Whether the suit for specific performance is maintainable without impleading the legal representatives of the deceased defendant 1, and whether the appeal abates due to non-impleadment of legal representatives of deceased respondents.
Final Decision
The appeal is dismissed. The judgment and decree of the trial court dated 10.06.2003 in O.S.No.2673 of 1997 are confirmed.
Law Points
- Specific performance
- Sale agreement
- Housing Board allotment
- Non-joinder of parties
- Abatement of appeal
- Legal representatives
- Section 96 CPC
Case Details
Mr.S.Parthasarathy, Senior Advocate for M/s.P.Dinesh Kumar, Mr.M.Kamalanathan
A.L.Geetha Narayanan, A.L.Narayanan (Died), A.L.Rajesh
S.Sriraman (Died), S.Ramesh, V.S.Bala (Died), V.S.Ramsundar, V.S.Sridhar, R.Vijayaprashant (Died), R.Ajay Karthik, Hemalatha, Adhithya (minor)
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Nature of Litigation
First appeal against decree for specific performance of sale agreement.
Remedy Sought
Appellants (defendants 4 and 5) sought to set aside the judgment and decree passed in O.S.No.2673 of 1997 dated 10.06.2003 by the Additional District and Sessions Judge, Fast Track No.1, Chennai.
Filing Reason
The appellants were aggrieved by the decree of specific performance granted in favor of the plaintiff/1st respondent.
Previous Decisions
The trial court decreed the suit granting specific performance of the agreement of sale dated 23.06.1983.
Issues
Whether the suit for specific performance is maintainable without impleading the legal representatives of the deceased defendant 1?
Whether the appeal abates due to non-impleadment of legal representatives of deceased respondents?
Submissions/Arguments
Appellants argued that the suit is not maintainable as the legal representatives of deceased defendant 1 were not impleaded.
Respondents argued that the estate of deceased defendant 1 is sufficiently represented by defendants 2 and 3, who are his wife and son.
Ratio Decidendi
A suit for specific performance is maintainable even if the legal representatives of a deceased defendant are not impleaded, provided the estate of the deceased is sufficiently represented by other defendants who are parties to the agreement.
Judgment Excerpts
The unsuccessful defendants 4 and 5 are the appellants herein.
The 1st respondent herein filed a suit for specific performance of the agreement of sale dated 23.06.1983 with alternative prayer for recovery of damages.
The said suit was decreed by granting primary relief of specific performance.
Procedural History
The plaintiff filed O.S.No.2673 of 1997 for specific performance. The trial court decreed the suit on 10.06.2003. Defendants 4 and 5 filed the present appeal under Section 96 CPC. During the pendency of the appeal, several parties died and their legal representatives were brought on record.
Acts & Sections
- Code of Civil Procedure, 1908: Section 96
