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CASE NO.: Appeal (civil)  854 of 2001

PETITIONER: Seenivasan

RESPONDENT: Peter Jebaraj & Anr

DATE OF JUDGMENT: 04/04/2008

BENCH: DR. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT

CIVIL  APPEAL NO. 854 OF 2001

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a learned  Single Judge of the Madras High Court in Second Appeal filed by  the respondent No.1.

2.      Background facts in a nutshell are as follows:

On 12.2.1978 an agreement for sale was entered into  between one Shahul Hameed and Arunchalam (father of the  appellant).  On 26.5.1978 Shahul Hameed sold the property to  one Saraswathi Ammal who was not a party to the proceedings.   On 3.2.1981 aforesaid Arunachalam instituted suit No.OS 528 of  1981 against Shahul Hameed for specific performance. Initially  Saraswathi Ammal was not a party. On 13.7.1983 an application  (I.A. No. 830 of 1983) was filed to implead Saraswathi Ammal as  defendant.  On 28.1.1984 Saraswathi Ammal sold the property to  Anna Pushpam Ammal and Lalitha Ammal under two sale deeds.   I.A. No. 830 of 1983 to implead Saraswathi Ammal was allowed  on 16.4.1984. On 17.9.1984 plaint was amended showing  Saraswathi Ammal as defendant.  An ex-party decree was passed  in OS No. 528 of 1981 on 11.7.1985. On 30.12.1985 Anna  Pushpam Ammal sold the property to the respondent No.1. On  8.8.1986 Lalitha Ammal sold the property to respondent No.2.   On 10.11.1987 Execution Petition was filed to execute the decree  in the aforesaid OS No. 528 of 1981.  On 11.1.1988, the  Executing Court executed sale deed in favour of Arunachalam.   On 23.3.1988 I.A. No. 640 of 1988 was filed by Saraswathi  Ammal to condone the delay in seeking to set aside ex parte  decree in the suit.  On 21.7.1989 the said I.A. was dismissed as  not pressed.  On 29.7.1989 a second application was filed i.e. I.A.  987 of 1989 to set aside the ex parte decree. On 20.6.1990, the  same was dismissed on merit.  On 12.10.1992 Appeal (CMA 3 of  1991) filed by Saraswathi Ammal was dismissed.  On 7.11.1994  Revision Petition i.e. CRP No. 3139 of 1994 was dismissed. On  12.12.1994 the suit O.S. No. 673 of 1994 was filed by the  respondents for declaration of title and injunction. The same was  decreed on 26.4.1996.  An appeal filed by the appellant (AS 23 of  1999) was allowed on 24.9.1999. By the impugned judgment  dated 3.1.2000 second appeal filed by the respondents was  allowed.  The High Court held that to a proceeding of this nature  Order I Rule 10 (4&5) applied and held that Saraswathi Ammal  had got absolute title when sale to Anna Pushpam Ammal was

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made to plaintiffs’ vendors under Exhibit A2 and A7 who in  terms sold the same to the plaintiffs.  The subsequent transferees  Anna Pushpam Ammal and Lalitha Ammal are not parties to the  suit and the title vests with them and the plaintiffs also got  absolute title. On the date when the ex-part decree was passed,    Saraswathi Ammal did not have any right to the property.  It was  also held that Exh. A2 & A7 were not hit by the principles of lis  pendens and Saraswathi Ammal was also able to convey the title  to the vendors of the plaintiffs.

3.      Learned counsel for the appellant submitted that once the  application for bringing Saraswathi Ammal  as party was allowed,  the same became operative from the date of its filing and  therefore, the sale by Saraswathi Ammal to Anna Pushpam  Ammal and Lalitha Ammal under Ex. A2 to A7 did not convey  any title. It was also submitted that the effect of Section 52 of the  Transfer of Property Act 1882, (in short the ’Act’) has also to be  noted.

4.      Learned counsel for the respondents on the other hand  supported the order of the High Court.

5.      The Order 1 Rule 10 (so far as relevant) and Section 52 of  the Act read as follows:

Order 1 Rule 10(4)/(5) (4)     Where defendant added, plaint to  be amended-When a defendant is  added, the plaint shall, unless  court otherwise directs, be  amended in such manner as may  be necessary and amended copies  of the summons and of the plaint  shall be served on the new  defendant and if the court thinks  fit, on the original defendant.   

(5)     Subject to the provisions of the  Indian Limitation Act, 1877 (15 of  1877).  Section 22, the proceedings  as against any person added as  defendant shall be deemed to have  begun only on the service of the  summons."

Section 52 of the Act

"Sec.52.  During the pendencey in any court  having authority within the limits of India  excluding the State of Jammu and Kashmir or  established beyond such limits by the central  Government, of any suit or proceedings which  is not collusive and in which any right of  immovable property is directly and specifically  in question, the property cannot be transferred  or otherwise dealt with by any party to the suit  or proceeding so as to affect the rights of any  other party thereto under any decree or orders  which may be made therein except under the  authority of the court and on such terms as it  may impose."

6.      The crucial expression in Order 1 Rule 10 is "only on the

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service of the summons".  It is abundantly clear that if any  dependant is impleaded subsequently proceedings as against  him shall be deemed to have begun only from the date of services  of summons.  Same of course is subject to the provisions of  Section 22 of the Indian Limitation Act, 1877 (in short ’Limitation  Act’).  

7.      In sub-rule (5), words "Indian Limitation Act, 1877" are  substituted by Legislature as "Limitation Act, 1963" and "Section  22" by "Section 21".  Said provision does not in any way dilute  the significance of the expression "shall be deemed to have begun  only on the service of the summons".

8.      In Durga Prasad & Anr. v. Deep Chand & Ors. (AIR 1954 SC  75) it was held as follows: "First, we reach the position that the title to the  property has validly passed from the vendor and  the resides in the subsequent transferee. The  sale to him is not void but only voidable at the  option of the earlier "contractor". As the title no  longer rests in the vendor it would be illogical  from a convincing point of view to compel him to  convey to the plaintiff unless steps are taken to  re vest the title in him either by cancellation of  the subsequent sale or by reconveyance from  the subsequent purchaser to him. We do not  know of any case in which a reconveyance to  the vendor was ordered but Sulaiman C.J.  adopted the other course in Kali Charan v.  Janak Deo (A.I.R. 1932 All. 694.). He directed  cancellation of the subsequent sale and  conveyance to the plaintiff by the vendor in  accordance with the contract of sale of which  the plaintiff sought specific performance. But  though this sounds logical the objection to it is  that it might bring in its train complication  between the vendor and the subsequent  purchaser. There may be covenants in the deed  between them which it would be inequitable to  disturb by cancellation of their deed.  Accordingly, we do not think that is a desirable  solution.  xxxxxx In our opinion, the proper form of decree is  to direct specific performance of the contract  between the vendor and the plaintiff and direct  the subsequent transferee to join in the  conveyance so as to pass on the title which  resides in him to the plaintiff. He does not join  in any special covenants made between the  plaintiff and his vendor; all he does is to pass on  his title to the plaintiff. This was the course  followed by the Calcutta High Court in  Kafiladdin v. Samiraddin (A.I.R. 1931 Cal. 67.),  and appears to be the English practice. See Fry  on Specific Performance, 6th edition, page 90,  paragraph 207; also Potter v. Sanders (67 E.R.  1057.). We direct accordingly."  

9.      Above being the position, the High Court was right in its  view. Though strong reliance was placed on a decision of this  Court in Ramprasad Dagaduram v. Vijaykumar Motilal  Hirakhanwala & Ors. [1967 (2) SCJ 805], the same has no  application because that related to a case of plaintiff. In the  instant case, it relates to the defendant and Order 1, Rule 10(5)

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statutorily specifies the date on which the impleadment takes  effect. Order 1 Rule 10(5) is a deeming provision.   

10.     That being so, the High Court’s impugned judgment suffers  from no infirmity to warrant interference.

11.     Appeal is dismissed with no order as to costs.