A plaintiff is not entitled to a decree for specific performance of contract in the absence of a necessary party to the suit.

Shib Chandra Prasad, J.

1. This is an appeal by defendant No. 2 against the concurrent judgments of the Courts below in a suit filed by the plaintiff for specific performance of contract in respect of plot No. 6563, which contains a house and which originally belonged to defendant No. 1 Bihar Mahton. He executed a kebala in favour of the plaintiff on 2-3-1953 but it was not registered. Then the plaintiff presented it before the Sub-Registrar for compulsory registration on 21st April, 1953. About a month before this date Bihari (defendant No. 1) sold this very property to one Amrit Lal Sahu by a registered kebala. In the proceeding before the Sub-Registrar for compulsory registration, the executant (defendant No. 1) did not appear and the registration was refused by the Sub-Registrar. Then there was an appeal before the District Sub-Registrar, Monghyr, who on 2-3-1954, dismissed the appeal because the lawyer of the plaintiff said that he had been instructed not to prosecute the appeal. On 16-12-1953, the plaintiff sold this very property by a registered deed of sale to defendant No. 2, the appellant, for Rs. 500/-, which was paid to him.

2. The plaintiffs case was that he was entitled to specific performance of contract from defendant No. 1, who should be asked to register the kebala in his favour. The plaintiffs case further was that there was an agreement between him and the appellant to the effect that the latter would conduct the appeal in the registration, case before the District Sub-Registrar, Monghyr, but in collusion with the other side he had got that appeal dismissed.

3. The defence was that there had been no such agreement and that this appellant had no hand in the dismissal of the appeal. It was further said that no decree for specific performance of contract could be passed in favour of the plaintiff because the suit property had been sold to Amrit Lal Sahu, who had not been made a party to the suit. It was also alleged that defendant No. 2 had filed a suit for refund of consideration on 14-7-1954 and it was as a counterblast to this suit that the plaintiff had filed his suit. The suit filed by this appellant for the refund of consideration money was said to be still pending.

4. It may be mentioned that this appellant had filed his written statement on 30-6-1955. Registration had been refused by the Sub-Registrar in February 1954. The present suit was filed on 20-1-1955. There were still about nine months or so left for the period of limitation to expire and within this period the plaintiff, if he so liked, could have impleaded Amrit Lal Sahu as a party to the suit but he did not do it in spite of the aforesaid objection having been raised by defendant No. 2.

5. The Courts below decreed the suit holding that the plaintiff was entitled to specific performance of contract because there was already a contract between the plaintiff and defendant No. 1 whereby the latter had purported to sell the property to the plaintiff but title had not been completed as the sale deed had not been registered. The Courts below believed the case of the plaintiff that there was an agreement between him and the appellant whereby the latter had undertaken to prosecute the appeal before the District Sub-Registrar, Monghyr, on behalf of the plaintiff.

6. In appeal before me it has been urged on behalf of the appellant that the Courts below have misdirected themselves in passing a decree for specific performance of contract in favour of the plaintiff. It is contended by Mr. Madan Mohan Prasad, learned counsel for the appellant, that the relief for specific performance of contract is an equitable relief and the Court should give full consideration to the facts involved in the case. The plaintiff in order to make his decree effective should have made Amrit Lal Sahu a party to the suit and that too when defendant No. 2 had raised his objection on this point within time. That not having been done, the plaintiff was not entitled to any r