Facts leading to filing of this appeal is a glaring example of how litigants can be successful in taking undue advantage of beneficial procedural laws. The reasons that follow in this judgment would act as mirror to unravel this factual matrix.

2. This appeal is directed against judgment and decree passed by the Prl. District Judge, Shimoga in R.A.No.2/2005 dated 31.10.2009 whereunder appeal has been allowed and partial judgment and decree dated 29.09.1995 passed in O.S.No.219/1994 by the Prl. Munsiff, Shimoga decreeing the suit for specific performance against defendants 1, 2, 3, 5 & 6 has been set aside and suit itself has been dismissed.

3. This Court, by order dated 19.01.2010 has admitted the appeal for adjudication of the following substantial questions of law:

(1) “Whether the first respondent was competent to challenge the partial decree ranted in favour of the appellant, when the said partial decree did not apply to the first respondent? And

(2) Whether the first respondent not having contested the suit was in a position to challenge the final decree as well?”

4. In order to answer the above substantial questions of law, it would be necessary to state the history leading to filing of this appeal.

5. Parties are referred to as per their rank in the trial Court.

BRIEF BACKGROUND

6. Plaintiff filed a suit for grant of decree of specific performance of agreement of sale dated 13.03.1981 contending interalia that one Sri Nyamti Mohammed Imam Saheb had agreed to sell suit schedule property in his favour for a total consideration of Rs.13,975/-and registration expenses to be shared equally. The gist of the averments made in the plaint are as under:

(i) Suit schedule property exclusively belonged to Sri Nyamti Mohammed Imam Saheb and he entered into an agreement of sale with plaintiff at Shimoga on 13.03.1981 agreeing to convey the same for sale consideration fixed at Rs.2,150/- per acre and registration expenses will have to be equally shared. It was agreed to between the parties that sale deed has to be executed after litigation in respect of the suit schedule property was concluded; no specific time was fixed for performance of the contract; vendor had received a sum of Rs.7,000/-on the date of agreement; possession was delivered to the plaintiff; a sum of Rs.5,800/-was paid to the defendant on 25.06.1987 which is duly endorsed in the agreement of sale in the presence of witnesses; thus, plaintiff , in al, had made payment of Rs.12,801/ -as against total consideration of Rs.13,975/-; plaintiff has been always ready and willing to perform his part of the contract; litigation before Land Tribunal concluded in the later part of 1987; aggrieved party namely Sri Amanulla Khan had informed the defendant that he would pursue the matter before High Court against decision of the Land Tribunal and as such, both plaintiff and his vendor considered it would be prudent to wait for another six months to finalise the sale agreement; and after six months, plaintiff made enquiries and came to know that no appeal or revision has been filed and by that time, the vendor Sri Nyamti Mohammed Imam Saheb i.e., father of defendants had fallen sick and was bed ridden; though he assured the plaintiff that sale transaction would be completed after he recovered, sale was not completed on account of his ill health and in the said situation, plaintiff did not pursue the matter and said Sri Nyamti Mohammed Imam Saheb expired in the year 1988.

(ii) On account of defendants-1,2,3,5 & 6 having agreed to execute the sale deed, matter was not pursued; thereafter one of the sons of Sri. Nyamti Mohammed Imam Saheb filed a suit in O.S.No.128/1988 and same came to be decreed on 16.02.1994; application filed by plaintiff for getting himself impleaded was rejected and subsequent to dismissal of the suit, suit in question namely, O.S.No.219/1994 was filed on 20.04.1994 seeking relief of specific performance of agreement of sale deed 13.03.1981.

(iii)