Dismissed

A.P.Velayudhan v. Akbar Ali

Kerala HC15 Mar 2017CRP/43/2016

Case brief

AI extract

What is this about?

This civil revision petition challenged a lower court order dismissing an application to implead a third-party claimant (pendente lite purchaser) in a suit for specific performance. The High Court upheld the dismissal, ruling that a non-party purchaser is not a necessary party unless they claim under a litigating party.

What did the court decide?

Application for impleading third party claimed as necessary party dismissed.

A.P.Velayudhan Vs Akbar Ali — Service and Employment | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 15TH DAY OF MARCH 2017/24TH PHALGUNA, 1938

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CRP.No. 43 of 2016 ()

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AGAINST THE ORDER IN I.A.NOS.1409/2015 & 1410/2015 OM OS.NO.368/2011 OF THE SUB COURT, OTTAPALAM DATED 16.12.2015

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REVISION PETITIONER:PETITIONER: PLAINTIFF:

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A.P.VELAYUDHAN, AGED 69 YEAS, S/O.KRISHNAN, ASARIPARAMBIL HOUSE, PERINALLUR, VETTAM PALLIPPURAM, OTTAPPALAM TALUK.

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BY ADV. DR.GEORGE ABRAHAM

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RESPONDENT:RESPONDENT:DEFENDANT:

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AKBAR ALI, AGED 34 YEARS, S/O.MOOCHIKKAL ABOOBACKER, VARODE AMSOM, OTTAPPALAM TALUK- 679 101.

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BY ADV. SRI.R.SREEHARI

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.03.2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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I.A.NO.211/2016 IN C.R.P.NO.43/2016

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CLOSED

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15/03/2017 SD/- P.SOMARAJAN, JUDGE

//TRUE COPY//

AHZ/

P.Somarajan, J.

C.R.P. No.43 of 2016 (E)

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Dated this the 15^th day of March, 2017

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O R D E R

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The suit in O.S.No.368 of 2011 was filed by the petitioner/ plaintiff for specific performance of a contract for sale alleged to have

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been entered into between the plaintiff and the defendant on 4.3.2009. The suit was instituted in the year 2011. An application for attachment of the immovable property, the subject matter of the contract, was also moved by the plaintiff. It was initially allowed by the lower court by passing a conditional order of attachment and calling upon the respondent to furnish security or to show cause.

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The defendant/respondent entered appearance and filed objections. In the meanwhile, a claimant came up with an application stating that he had purchased the property on 24.3.2010, prior to the institution of the suit, and sought for lifting the attachment over his property. That application was allowed by the lower court by lifting the attachment. It was challenged before the District Court,

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C.R.P. No.43 of 2016 (E)

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:: 2 ::

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Palakkad in A.S.No.164 of 2015 and it is pending consideration. It is thereafter, the original plaintiff filed an application for impleading the abovesaid claimant as a party to the suit in I.A.No.1409 of 2015. It was also dismissed by the lower court by its order dated 16.12.2015. Aggrieved by the said order, the present revision is filed by the petitioner/plaintiff.

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The suit is one for specific performance of a contract for sale. It is not at all necessary to implead a third person who is not a party to the contract as a necessary party to the suit. There is no previty of contract or any binding nature to a third person unless the third person is a pendente lite purchaser or a person litigating under any of the parties to the suit as on the date of the suit. The property which is the subject matter of the suit for specific performance was sold to the claimant as early as on 24.3.2010, much prior to the institution of the suit. The claim petition preferred by the claimant was also upheld by the trial court, but it is now pending consideration by the first appellate court. The settled legal position is that the claimant, who is not a party to the contract and not bound by the contract, cannot be made as a party to the suit unless he is a

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C.R.P. No.43 of 2016 (E)

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:: 3 ::

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pendente lite transferee or a person claiming under the plaintiff or the defendant as on the date of the suit. The claimant herein is not a person claiming under the defendant as on the date of the suit as the sale was took place as early as on 24.3.2010. So, he is not at all a necessary party to the suit. Further, it is not at all permissible to implead him as a party to the suit. As such, I could not find any merits in the present revision.

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It is not at all necessary to state that in the event of allowing the appeal by upholding the order of attachment, the effect is that the attachment would continue over the property. That does not mean that the claimant should be made as a party to the suit.

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The revision hence fails and it deserves only dismissal but without any costs and I do so.

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P. Somarajan Judge

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ahz/

A.P.Velayudhan v. Akbar Ali

Case brief

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A.P.Velayudhan v. Akbar Ali

Case brief

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