Mrs. Saradambal Ammal vs E.R. Kandasamy Goundar and Others

Patanjali Sastri, J.—This appeal arises out of a suit for specific performance of a contract entered into by the Defendant to convey an estate known as the Kasolai estate to the first Plaintiff.

The contract is evidenced by a compromise decree, dated 8th April 1942, in Original Suit No. 67 of 1941 on the file of the Sub-Court, Nilgiris, whereby the first Plaintiff undertook, inter alia, to deposit Rs. 16,500 by 30th June 1943 and the Defendant on his part agreed to convey the estate. The first Plaintiff entered into an agreement on 17th June 1947 with the second Plaintiff purporting to sell the estate for Rs. 25,000 to the latter. Under this agreement, the first Plaintiff got Rs. 17,880 which she deposited in Court in pursuance of the compromise decree on 29th June 1943 and brought the present suit for specific performance of the compromise by the Defendant executing a conveyance either to her or to the second Plaintiff.

It would appear that the second Plaintiff in his turn purported to execute a sale for Rs. 30,000 of the estate in question to one Kandasawmi Goundan on 12th May 1946 who applied in Interlocutory Application No. 115 of 1946 in the lower Court to be impleaded as the third Plaintiff in the suit. This application having been allowed, the first Plaintiff who opposed the application has preferred this civil miscellaneous appeal attacking the order of the lower Court.

Learned Counsel for the Appellant argues that Order XXII, Rule 10, of the CPC does not apply to the case and the Court below had no power to allow Kandasawmi Goundan to come on record as the third Plaintiff as he has not acquired any "interest" in the estate which is the subject-matter of the suit. It is argued that the words "any interest" in Order XXII, Rule 10, of the Code refer to interest in property, and as the third Plaintiff has not acquired any interest in the Kasolai estate under the document of 12th May 1946, the provision does not entitle the third Plaintiff to come on record to continue the proceedings as he seeks to do. We are unable to accept this contention. Apart from the fact that the first Plaintiff herself impleaded the second Plaintiff in the suit although the latter had acquired no interest in the estate under the document, dated 17th June 1943, for the simple reason that the first Plaintiff herself who executed the document has not yet acquired any such interest, we are of opinion that the word "interest" is used in Rule 10 of Order XXII in a much wider sense. Learned Counsel concedes that, if in a suit for specific performance the original Plaintiff died, the person on whom the right devolved would be entitled to continue the suit for, the action is not personal and would not terminate with the death of the original Plaintiff. Similarly, if there is an assignment of the right by the original Plaintiff during the pendency of a suit for specific performance there is no obvious reason why the person to whom such right has passed should not be able to continue the suit under Rule 10 of the Order XXII. The words "any interest" in this rule include, in our opinion, any transferable "right to sue " spoken of in the earlier rules of the Order which provide for its devolution in cases of deaths The contention therefore that the "assignment, creation or devolution of any interest "referred to in Rule 10 mean an assignment, creation or devolution of an interest in tangible property cannot be accepted.

Reference was made to Basant Singh v. Mahabir Pershad (1913) 40 I.A. 86 as supporting the contention of the Appellant. That was a case where a person who had entered into a financing agreement with the original Plaintiffs in a suit for recovery of possession of immovable property sought to continue the suit after the original Plaintiffs compromised their claim, and the question arose whether such person was competent to continue the suit. Their Lordships held that the agreement in question did not confer a present right to the possession of the property which was the subject-matter of the suit, and that therefore the person who entered into such an agreement with the original Plaintiffs was not competent to continue the suit. That decision has no application to the present case which is a suit for specific performance in which the first Plaintiff''s right to relief is not based on any interest in the property. The other decision cited, viz., S.V.S. Nelliappa Pillai Vs. Sethuramalingam Pillai and Others, , merely follows the decision of the Privy Council referred to above and does not carry the matter any further.

The appeal fails and is dismissed with costs of the first Respondent.