IMPORTANT POINT
No right is created under agreement for sale in respect of schedule property, except right to seek specific performance of contract.

ORDER

The petitioner being the plaintiff in OS.No.108/2010 on the file of Civil Judge and J.M.F.C., Kadur (hereinafter referred to as the ‘Trial Court’) is impugning the order dated 22.07.2015 allowing IA No.X filed under Order 1 Rule 10 r/w Section 151 of CPC.

2. Heard Sri.Madhukeshwara.P, learned counsel for Sri. Sachin B.S., learned counsel for the petitioners. The respondents have not represented inspite of service of notice.

3. Perused the material in the light of impugned order.

4. Learned counsel for the petitioners submits that the suit is for partition and separate possession and defendant No.4 filed application IA No.X under Order 1 Rule 10 r/w Section 151 of CPC seeking his impleadment and the same came to be allowed by the Trial Court without assigning any reasons. Therefore, he prays for allowing the petition.

5. Admitted facts of the case are that the plaintiff filed the suit for partition and separate possession of the schedule properties. During the pendency of the suit, defendant No.4 filed IA No.X under Order I Rule 10 r/w Section 151 of CPC seeking his impleadment and the same came to be allowed, which is being impugned herein.

6. It is the specific contention of defendant No.4 before the Trial Court that he had entered into an agreement for sale with defendant No.1 on 30.12.2011. Admittedly, the present suit OS.No.108/2010 was pending consideration as on the date of agreement for sale. It is also admitted that the sale agreement is not a registered agreement. Admittedly, no sale deed was executed by the defendant No.1 in favour of defendant No.4 to treat him as transferee of property during the pendency of suit.

7. From the records that are available, it could be made out that, defendant No.4 has already filed the suit OS.No.1/2015 against defendant No.1 seeking specific performance of contract on the basis of very same agreement for sale. Even if defendant No.4 is to succeed in the said suit OS.No.1/2015, his rights will be subject to the result of the present suit and determination of right of defendant No.1. He can not seek any independent right against plaintiff or against any other defendants. His remedy is only against defendant No.1. Therefore, I am of the opinion that defendant No.4, who is impleaded by virtue of impugned order was neither a necessary party nor property party to be impleaded. No right is created under agreement for sale in respect of schedule property, except the right to seek specific performance of contract against defendant No.1, which he has already done by filing suit OS.No.1/2015.

8. I have gone through the impugned order passed by the Trial Court. The Trial Court committed an error in forming an opinion that the presence of defendant No.4 is necessary for determination of dispute between the parties and the same cannot be accepted. Hence, I proceed to pass the following.

ORDER

(i) Writ petition is allowed.

(ii) Impugned order dated 22.07.2015 passed in OS.No.108/2010 on the file of Civil Judge at Kadur allowing IA No.X filed under Order 1 Rule 10 r/w Section 151 of CPC is set aside. Consequently, IA No.X is dismissed.