Madras High Court
Vellaya Gounder And Anr. vs A.P. Ramalingam on 5 November, 1997
Equivalent citations: (1998)1MLJ49, 1998 A I H C 2998, (1998) 1 MAD LJ 49, (1998) 1 MAD LW 219, (1998) 2 ICC 537
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The petitioners herein are third parties to O.S. No. 69 of 1989 and they have filed this revision against the order made in I.A. No. 452 of 1994 in O.S. No. 69 of 1989, dated 27.11.1995, dismissing the said I.A. which was filed to implead themselves as petitioners in I.A. No. 504 of 1993.
2. The suit was filed by one A. P Ramalingam the respondent herein against one Ranga Gounder for specific performance viz., to direct the said Ranga Gounder to execute the sale with regard to the suit property in pursuance of the agreement dated 16.11.1987 and for delivery of possession of the suit property and for costs. The said suit was decreed and to set aside the ex parte decree, the defendant Ranga Gounder filed I.A. No. 504 of 1993 and during the pendency of the said application, he died on 25.8.1993. The legal heirs of the said Ranga Gounder did not take any steps to continue the proceedings. In the meanwhile the property which is the subject matter of the suit was sold by Ranga Gounder in favour of the present petitioner's Vellaya Gounder and Sevi Gounder who were third parties. On coming to know of the pendency of the suit they filed I.A. No. 452 of 1994 under Order 22, Rule 10, C.P.C. to implead them-selves as parties as petitioners 2 and 3 in the said I.A. No. 504 of 1993 and also to continue the proceedings, in the suit for specific performance. It is their case that the defendant Ranga Gounder had executed a sale deed in respect of the suit property on 9.6.1989 itself and the defendant received suit summons after the sale and appeared and contested the suit and there-upon filed I.A. No. 504 of 1993 to set aside the ex parte decree. The said application was resisted by the respondent and the lower court however, by its order dated 27.11.1995 dismissed the said I.A. and aggrieved by the said order, the above revision has been filed.
3. I have heard Mr. A.K. Kumaraswamy, learned Counsel for the petitioner and Mr. P.V. Ramachandran for the respondent/plaintiff.
4. Mr. A.K. Kumaraswamy submitted that the order of the lower court dismissing the application to implead the petitioners as petitioners 2 and 3 in I.A. No. 504 of 1993 is contrary to law and vitiated by material irregularity. It is contended that the petitioners being the purchasers of the property from the de-fendant for valuable consideration and in good faith without notice of the plaintiff's agreement of sale in his favour they are necessary parties to the proceedings. Since the relief claimed in the suit will directly affect the right of the petitioners who are in possession of the property, they are necessary and proper parties to the proceedings.
5. Per contra, Mr. P.V. Ramachandran contended that the application by the present petitioners who are third parties, under Order 22, Rule 10 is not maintainable and the application ought to have been filed under Order 22, Rule 3, C,P. C, and since such an application has not been filed by the legal representatives of the deceased defendant within the time stipulated by law, the suit will stand abated in so far as the deceased defendant is concerned. I am unable to agree with the said contentiqn. ; In the instant case, the application was filed by the subsequent purchasers under Order 22, Rule, 10, C.P.C. Because of the purchase of the property during the pendency of the suit, by the petitioners, by devolution of interest, the petitioners who are the subsequent purchasers upon whom such interest has come or devolved, may continue the suit by the leave of the court, In this, case, admittedly, the. petitioners have purchased, the property; after the filing of the suit. Therefore they are entitled to continue the suit proceedings as interest is devolved upon them. Therefore, in my opinion, the present petitioners are entitled to continue the suit in the place of the original defendant.
6. It is settled law that in a case of devolution of interest, no question of abatement arises, as contended by the learned Counsel for the, respondent. The Supreme Court in the decision reported in Ghafoor Ahmed Khan v. Bashir Ahmed Khanm held that in a case of devolution,,no question of abatement arises. That is. also a case of transfer in the property (subject matter of the suit) by way of gift to his wife. Since it is a case of devolution of interest and the case falls under Order 22, Rule 10, C.P.C., the Supreme Court held that there will be no question of abatement. The Supreme Court therefore directed that the transferee be brought on record and remitted the appeal to the High Court to be heard and disposed of in accordance with law. The above decision squarely applied to the facts and circumstances of the case on hand, which is also a case of specific performance. The suit property was admittedly sold by the defendant Ranga Gounder to the present petitioners after the suit. Therefore, during the pendency of the suit there was a transfer of the property (subject matter of the suit) by way of sale to the present petitioners. Since it is a case of devaluation of interest by the defendant, on the present petitioners, the case squarely falls under Order 22, Rule 10, C.P.C., and therefore, there will/be no question of abatement. Therefore, the petition filed by the present petitioners to implead themselves and to continue the proceedings is legal, sustainable and maintainable in law and they are entitled to be brought on record and accordingly they are brought on record as petitioners 2 and 3 in I.A. No. 504 of 1993 and also to continue the suit further.
7. Per contra, learned Counsel for the respondent cited a Full Bench decision of the Kerala High Court wherein the Full Bench of the said court has held that under Order 22, Rule 10, the right of the assignee to seek to continue the suit is not absolute and it is for the court to consider whether leave is to be granted and that the assignee is bound by the previous proceedings in, the suit and his right is only one o further prosecution of the suit. The Full Bench Goutani Devisitamony v. Madhavan Sivarajan has also held that in view of the scheme of Order 22, an assignee can make an application for leave to continue the suit so long as there is a suit, so far as it concerns the assignee on the file of the court, and in a suit which is not subsisting there is no scope where the suit has abated the assignee cannot thereafter seek to be added as a party to the action. The assignee cannot claim to come on record as a matter of right since leaye is not to be granted as a matter of course. With respect I am unable to subscribe to the views expressed by the Full Bench in view of the subse-quent pronouncement of law by the Apex Court in the decision reported in Ghafoor Ahmed Khan v. Bashir Ahmed Khan : , wherein the Supreme Court held that in case of devolution of interest, no question of abatement arises. I am also reminded of another case wherein pending a suit to enforce a mortgage, the mortgagor died and his interest devolved on his son, an undischarged insolvent. It was held that the mortgagee was entitled to continue the suit with the leave of the court against the receiver in the insolvency.
8. For all the reasons aforestated, the petitioners herein who are persons in possession of the property and on whom there is devolution of interest, are entitled to maintain the application under Order 22, Rule 10, C.P.C. and the order of the court below passed in I.A. No. 452 of 1994 dated 27.11.1995 is set aside and the C.P.R., stands allowed. No costs. Consequently C.M. P No. 36 of 1996 is dismissed. I.A. No. 504 of 1993 shall be disposed of by the lower court within, two. months from the date of receipt of copy of this order. The right of the respondent herein is reserved to raise the question of validity of sale in favour of the petitioners herein.