The main legal point established in the judgment is that the legal representatives of the vendor-principal defendant are necessary parties in a suit or appeal for specific performance of a contract, and failure to substitute them would result in the abatement of the appeal and the finality of the Trial Court's judgment and decree.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This second appeal preferred under section 100 of the C.P.C. by defendant No. 3/appellant herein (subsequent purchaser) has been admitted for final hearing on 14.8.2020 by formulating the following substantial questions of law:

"1. Whether the first Appellate Court was justified in holding that the suit, as framed and filed on 24.11.1997, was within the period of limitation prescribed under Article 54 of the Indian Limitation Act, 1963?

2. Whether the appeal, as framed and filed before the first Appellate Court, had abated by the reason of the death of defendant No. 1 Devki Bai on 7.11.2007?"

[For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the Trial Court.]

2. The dispute in the second appeal is confined to the property situated, at Village Haidalkodo, Jahsil and Distt. Rajnandgaon, bearing Khasra No. 308, area 9 decimal. Original plaintiff Ahilya Bai filed suit for specific performance of contract against original defendant No. 1 Devki Bai stating inter alia that she has purchased the suit land from defendant No. 1 on 15.1.1984 by making payment of cash consideration of Rs. 4,000/- and remaining amount has also been paid on 8.6.1984, but the Sale-Deed was not executed and on 6.10.1997, defendant No. 2 with the consent of defendant No. 1 sold the suit property in favour of defendant No. 3 which gave rise to the cause of action to her for filing instant suit, as the suit was filed ultimately on 24.11.1997 for specific performance of contract against the defendants including subsequent purchaser-defendant No. 3 claiming a decree for specific performance of contract.

3. No written statement was filed by the defendants controverting the averments made in the plaint.

4. The Trial Court upon appreciation of oral and documentary evidence available on record, dismissed the suit finding that though agreement has been entered into between the plaintiff and defendant No. 1, but the plaintiff has not paid Rs. 1,000/- and she is not ready and willing to perform her part of contract and the suit is barred by limitation as such, the plaintiff is not entitled to decree for specific performance of contract. The plaintiff preferred first appeal before the first Appellate Court on 16.9.2003. During the pendency of first appeal, plaintiff Ahilya Bai died on 10.11.2003 and her legal representative was brought on record on 2.5.2006. Thereafter, the original vendor/defendant No. 1 Devki Bai also died during the pendency of first appeal, but her legal representatives were not brought on record, yet the first Appellate Court proceeded to decide the appeal and ultimately, on 26.4.2008, the appeal was allowed and the plaintiffs suit for specific performance of contract was decreed against which this second appeal has been preferred only by defendant No. 3 i.e., Bhuneshwar (subsequent purchaser) in which two substantial questions of law have been formulated which have been set out in the opening paragraph of this judgment for the sake of completeness.

5. Mr. Gyan Prakash Shukla, learned Counsel appearing for the appellant herein/defendant No. 3, would submit that in the first appeal preferred by the plaintiff, the legal representatives of defendant No. 1 ought to have been brought on record as they were necessary party by virtue of section 37 of the Indian Contract Act, 1872 read with section 19(b) of the Specific Relief Act, 1963 and unless the legal representatives were brought on record, no effective decree could have been passed by the first Appellate Court granting decree for specific performance of contract in favour of the plaintiff and as such, the appeal had abated. He would rely upon the decision of the Supreme Court in the matter of Durga Prasad and another v. Deep Chand and others, AIR 1954 SC 75 and the decisions of the Calcutta High Court in the matters of Kafiladdin and others v. Samiraddin and others, AIR 1931 Cal 67 and Chhotal