Back
2019 Supreme(Mad) 2652
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
Saraswathi & Others - Petitioners
Versus
Kanagaraj & Another - Respondents
Civil Revision Petition (NPD) No. 4188 of 2013 & M.P. No. 1 of 2013
Decided On : 10-12-2019
For the Petitioners:Sripriya, V. Raghavachari, Advocates
For the Respondents:S. Senthil, Advocate
Headnote:
Constitution of India, 1950 - Article 227 - Code of Civil Procedure Code, 1908 - Rule 10 - Order I - Specific Relief Act - Section 28 - Suit has not deposited balance of sale consideration - Purchaser of suit property – Earlier petitioner and her husband late filed suit as against one respondent relief of specific performance directing to execute sale deed in favour of plaintiffs within period of one month after receiving balance sale consideration suit was decreed in favour of plaintiffs viz petitioner and her husband viz – Thereafter plaintiffs in above referred suit has not deposited balance of sale consideration within date specified by Court below Only they filed an application before Court below and prayed to excuse delay of days in depositing balance of sale consideration – Held, Civil Revision Petition revision petitioners have challenged order in which respondent herein/subsequent purchaser was impleaded as party to proceedings - It is not necessary for this Court to decide whether application filed by revision petitioners is in accordance with law or not - In otherwise it is not in dispute that suit property is as of now with respondent/subsequent purchaser - Only in circumstances he has filed suit in on file of District as against revision petitioners relief of declaration declaring that respondent is absolute owner of suit property - In suit respondent herein claim that he is owner of suit scheduled property and also property is in possession of respondent herein - In this occasion though respondent is not necessary party to decide suit filed by revision petitioners which has already been disposed yet for reason that respondent herein is in possession of suit scheduled property he is party to decide issue involved - In general if person who is likely to suffer from order of the Court and has not been impleaded as party has a right to ignore order as it has been passed in violation of principles of natural justice - Petition closed
JUDGMENT :
(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order and Decreetal order dated 30.09.2013 made in I.A.----/2013 in I.A.No.494 of 2008 in OS No.18 of 2001, on the file of the Subordinate Court, Athur.)
1. Aggrieved over the order dated 30.09.2013, passed in unnumbered IA---/2013 in IA No.494 of 2008 in OS No.18 of 2001, on the file of the learned Subordinate Judge, Athur, the present petitioners who are the respondents in the above referred IA have preferred the Civil Revision Petition and prayed to set aside the order dated 30.09.2013, passed in unnumbered IA---/2013 in IA No.494 of 2008 in OS No.18 of 2001.
2. Earlier, the 1st petitioner, Saraswathi and her husband late Mohana Sundaram, filed a suit as against one Nallammal, the 2nd respondent, seeking the relief of specific performance, directing the said Nallammal to execute the sale deed in favour of the plaintiffs, within a period of one month after receiving the balance sale consideration of Rs.1,13,000/-. On 01.10.2004, the suit was decreed in favour of the plaintiffs viz., 1st petitioner Saraswathi and her husband viz., Mohanasundaram. Thereafter, the plaintiffs in the above referred suit has not deposited the balance of sale consideration of Rs.1,13,000/- within the date specified by the Court below. Only on 21.03.2008, they filed an application in IA No.494 of 2008, before the Court below and prayed to excuse the delay of 1388 days in depositing the balance of sale consideration.
3. During the pendency of the said application, the subsequent purchaser/1st respondent herein viz., Kanakaraj, a third party filed an interlocutory application under Order I Rule 10(2) of the Code of Civil Procedure and prayed to implead him as a party to the proceedings in IA No.494 of 2008. The learned Subordinate Judge, Athur, after affording an opportunity to the revision petitioners by order dated 30.09.2013, allowed the unnumbered IA---/2013 filed by the 1st respondent/subsequent purchaser and permitted him to be impleaded as party to the proceedings in IA No.494 of 2008 in OS No.18 of 2001. Aggrieved over the said finding, the petitioners are before this Court with the present Civil Revision Petition.
4. When the Civil Revision Petition came up for hearing, the learned counsel appearing for the revision petitioners contended that after passing the decree, no provision is available for impleading a third party, as a party to the proceedings. In the impugned order passed, the Court below, without mentioning any specific reasons, and merely stating that on considering the facts and circumstances, allowed the application and permitted the 1st respondent to be impleaded as a party to the proceedings in IA.No.494 of 2008 in OS No.18 of 2001.
5. Per contra, the learned counsel appearing for the 1st respondent/subsequent purchaser would contend that since the relief under Section 28 of the Specific Relief Act, is discretionary and being the subsequent purchaser of the suit property, the 1st respondent herein is entitled to the relief prayed in unnumbered IA--/2013 in IA No.494 of 2008. Only on considering the said circumstances, the Court below allowed the application filed by the 1st respondent herein, and the same does have any material irregularity.
6. Upon considering the arguments advanced by either side, before seeing the merits and demerits of the petition filed by the revision petitioners, it is necessary to see Section 28 of the Specific Relief Act, which reads as follows:
28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.- (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has
