LexDWARKA PRASAD SINGH & OTHERS versus HARIKANT PRASAD SINGH & OTHERS
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1064 DW ARKA PRASAD SINGH & OTHERS v. HARIKANT PRASAD SINGH & OTHERS November 29, 1972 A ' [A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.J . B Appeal-Supreme Court-Abatement-Death of one of respondent>' -Legal representatives 1Wt impleaded in time-Appeal whether abutes as a whole-Considerations-Order 41 Rule 4 ·Code of Civil· frocedure, applicability of. G (defendant First Party) sold a house to the pfaintiff in 1931 for a consideration of Rs. 99,995, out of which Rs. 23,000 were paid to G. C Subsequently G sold the house to· the defendants Second Party. The plaintiffs prayed in the s.uit for (1) a decree for specific performance. in favour of the plaintiffs against defendants, and (2) in the alternative a decree ag&inst defendant First Party for a sum of Rs. 44,688 with interest. The trial Court held that the defendant First Party had broken the contract with the Plaintiffs and that defendants Second Party had failed to prove that they had p&id the consideratfon money .in good faith and without notice o'f the contract. In the result the trial court passed I> a decree for specific performance of contract of sale regarding the disputed property for a sum of Rs. 1,00,000, and the defendants were directed to execute and register a deed of saJe for the sale in favour of the plair.tiffs on payment of the balance of the price. The court further obser\'ed that if it had refused the main relief claimed by the plaintiffs it would have allowed the alternative plea. The appe~l df the defendants Second Party in the High Court abated as a result of the non-implead- ment of the legal representatives of one of the appellants who died. The E defendants Second P~rty filed an appeal in this Court by special leave .. During the pendency of the appeal G who was impleaded as respondent No. 3 died. The advocate of respondent No:· J to the appeal filed an application for dismissal of the appeal for non-prosecution as the legaJ representatives of deceased respondent No. 3 had not been brought on record. The appellants then moved an application for substitution of the legal representatives of G deceased a.nd subsequently moved another F application for condonation of delay. The Court dismissed the applica- · tion for substitution. It Was urged on behal'f of the respondents that the appeal had abated .&S a whole. The appellants on the other hand con- tended that (i) the appeal could continue against the remaining n;spon- dents as G was not a necessary party, and (ii) the decree of the triaJ court could be set aside on the basis of the provision in order 41 Rule 4 Code of Civil Procedure. Dismissing the appeal, G HELD : (i) It is difficult to sustain the argument that the vendor is not a necessary party when, according to the view accepted by this Court, the conveyance has to be executed by him although the subsequent pur- chaser has also to join so as to pass on the title which resides in him, to the plaintiffs. If there are any special covenants aod conditions agreed upon in the contract for sale between the original . purchaser and the vendor those have to be incorporated in the sale between the original purchaser and the vendor although it is only the vendor who will enter into H ¥' them and the subsequent purchaser will not join in those special covenants. But without the vendor joining in the execution of the sale deed special IJ A B c D E F • G H DWARKA PRASAD y, HARIKANT (Grover, J.) 106 5 covenants, if any, between him and the original purchaser cannot be incor- porated in the sale deed. The whole idea and the purpose underlying a decree for specific per- formance is that if a decree for shch a relief is granted the person who has agreed to purchase the property, should be put in the same position which \vould have obtained in case the contracting parties, i.e., vendor :i.nd purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every '¥ay. Therefore it is essential that the vendor must join in the execution of the sale deed. If that be so, it is not possible to comprehend how he is not a necessary party. At any rate, in the presence o'f the relief for a decree for refund of the amount paid hy way oi part consideration in the present case, the vendor would be a necessary party, No such relief could be granted in his absence nor could it be granted even if the appeal succeeded and the decree for spe· cif
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