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Andhra Pradesh High Court
Judges : D.S.R.VERMA
Petakamsetty Ramaswamy Naidu - Appellant
Versus
Kandrupu Kondadu - Respondent
Decided On : 12-22-04
Transfer of Property Act – Section 52 – Code of Civil Procedure – Section 151, Order 1 Rule 10, Order 23 Rule 1, Order 22 rule 10 –Issue to withdraw an appeal, Jurisdiction –The learned Counsel appearing on behalf of the plaintiff submits that the alleged sale by the implead petitioners, with knowledge, during the pendency of the suit, is hit by Transfer of Property Act and therefore they are not entitled to be impleaded as party respondents to the present appeal –According to him, while exercising the jurisdiction under Code of Civil procedure, the Court if satisfied that a particular party is necessary or proper for the adjudication and arriving at a just conclusion, basing on the facts and circumstances of the case, be added as parties by the Court; that whereas while exercising the jurisdiction the scope and jurisdiction of the Court is restricted to the contingency mentioned in the said provision –However, in either case, since the alleged sale transaction between the proposed parties and the first defendant even during the subsistence of the suit is hit by the Transfer of Property act –Held, In any event, since the decree and judgment in the case on hand are binding on the parties, D. 1 alone cannot be permitted to withdraw the appeal –Furthermore, when it is the specific contention of D. 3 who preferred an independent appeal, and also when it is the specific contention of the implead party petitioners that there was fraud and collusion between D. 1 and the plaintiff and further that even prior to the sale deed executed in favour of the plaintiff D. 1, though pendente lite created an interest, of course is hit by the provisions of Section 52 of the Transfer of Property act, the appeal cannot be permitted to be withdrawn– To put it in other words, if a plaintiff, after instituting the suit for specific performance, withdraws the suit for any reason, such transaction which is otherwise hit by the provisions of Section 52 of the transfer of Property Act would become legal and operative –Order accordingly
( 1 ) HEARD both sides.
( 2 ) SINCE both the applications are inter-related and they have substantial bearing on the disposal of the main appeal, with the consent of both the parties, they are being disposed of by this common order.
( 3 ) A. S. M. P. No. 12019 of 2004 is filed under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure to bring the petitioners on record as Respondent Nos. 5 to 17 in the appeal.
( 4 ) A. S. M. P. No. 15768 of 2004 is filed under Order 23 Rule 1 of the Code of Civil procedure seeking permission of this Court to withdraw the appeal.
( 5 ) THE appellant is the first defendant, the first respondent is the plaintiff and the respondents 2 to 4 are the Defendants 2 to 4 respectively in the suit.
( 6 ) FOR the sake of convenience, the parties will be referred to as per their array in the suit.
( 7 ) FEW facts, which are necessary, to be mentioned for disposal of the present applications, are as under: the plaintiff filed the suit in O. S. No. 132 of 1995 for specific performance of an agreement of sale, dated 16-8-1993, said to have been entered into between himself, the first defendant and his predeceased son. Since the son of the first defendant died, his legal representatives i. e. , his wife and children were brought on record as defendant Nos. 2 to 4 in the suit. In the suit, the plaintiff avers that the first defendant and his late son executed an agreement of sale, dated 16-8-1993, which is marked as Ex. A-1, in favour of the plaintiff. Since that agreement of sale was not adhered to, the suit came to be filed and eventually the said suit was decreed by the Court below through judgment and decree, dated 12-2-2001. Hence, the present appeal is filed by Defendant No. 1.
( 8 ) IT is on record that, initially, in c. M. P. No. 5671 of 2001, by order, dated 21-3-2001, this Court granted interim stay of execution of the judgment and decree, dated 22-3-2001, in O. S. No. 132 of 1995, passed by the Court below. The said order of interim stay is still in force.
( 9 ) FURTHER, during the subsistence of the said order of interim stay, the petitioners in A. S. M. P. No. 12091 of 2004 have purchased the suit schedule property, covered by the agreement of sale, dated 16-8-1993, which is marked as Ex. A-1.
( 10 ) AT this point of time, the first defendant filed the present application in a. S. M. P. No. 15768 of 2004, under Order 23 rule 1 of the Code of Civil Procedure seeking permission of this Court to withdraw the present appeal on the ground that during the pendency of the present appeal and in obedience to the impugned judgment and decree of the Court below, a registered sale deed had been executed by him in favour of the plaintiff. This is being opposed not only by the Defendants 2 to 4, (who are Respondent Nos. 2 to 4 in the present appeal) but also by the petitioners in A. S. M. P. No. 12019 of 2004, who are seeking to implead themselves as Respondent nos. 5 to 17 in the present appeal.
( 11 ) THE grounds for filing the applications - the first one in A. S. M. P. No. 12019 of 2004 for impleadment of respondents and the second one in A. S. M. P. No. 15768 of 2004, filed by the Appellant/defendant No. 1 for withdrawal of the main appeal in A. S. No. 986 of 2001 and opposing the same by the other party are one and the same and they are inter related.
( 12 ) FURTHER, during the subsistence of the suit, a General Power of Attorney had been executed by the first defendant and his son in favour of third party (the first petitioner in A. S. M. P. No. 12019 of 2004 and proposed Respondent No. 5 in the present appeal) and in the capacity of general Power of Attorney Holder, the said third party had executed a registered sale deed in favour of the other petitioners i. e. , petitioner Nos. 2 to 13 in the said application in A. S. M. P. No. 12019 of 2004.
( 13 ) HENCE, the petitioners in the application in A. S. M. P. No. 12019 of 2004 are seeking their impleadment as Respondent nos
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