”The wording of the law is exactly what is meant by the first two provisions of section 27 of the Specific Remedies Act. It is not necessary to refer to English cases in which decrees have been issued against both the contracting party and the subsequent buyer. Suffice it to mention a few: Daniels v. Davison (2), Potters vs. Sanders (3), Lightfoot vs. Heron (4). The issue has not arisen in any case reported in India; However, decrees in the case of a specific performance of the contract have been issued in different forms in several cases. In Chunder Kanta Roy v. Krishna Sundar Roy (5), the decree issued only against the contracting party was confirmed. This was also the case in Kannan v.
Krishan (6). In Himmatlal Motilal v. Basudeb (7), the decree against the counterparty and the subsequent purchaser was adopted. In Gangaram v. Laxman(9) the action was brought by the subsequent purchaser and the order was that he transfer ownership to the person holding the prior agreement to sell. It appears that the procedure used for the adoption of decrees in such cases is not uniform. It is true that the English procedure supported by the Specific Relief Act is adopted. The obvious reasoning is that unless the party and the subsequent buyer participate in the transfer, it is possible that difficulties may arise later with respect to the applicant`s title. 33. As already mentioned, at the instigation of the applicant, a public advertisement was published in a newspaper `The Hindustan Times` of 12.02.1990 (Delhi Edn.) in which the public was generally informed of the agreement with the applicants. In response to that communication, the appellant`s sister company M/s Living Media India Limited served on the defendants a legal decision dated 24.06.1990 in which it transmitted the ”contract of sale” concluded between the plaintiffs and the defendants – Sawhneys.
6. The learned single judge of the Delhi High Court, after hearing the parties, dismissed the application on the ground that there was already an injunction in the special benefits action of 04.11.1991 which prevented the defendant-Sawhneys from transferring or selling the plaintiff`s property, the alleged deeds of sale executed by the defendants in favour of the appellant, breached the respondents` undertaking, which is of the nature of the injunction. Saddened by the above-mentioned decision, the complainant appealed against the FAO number. 295 of 2008, which was heard by a departmental court. The Judicial Division upheld the Single Judge`s decision and noted that, given the injunction issued by the respondents – Sawhneys – and recorded in the proceedings in the form of an undertaking as to how the property could be acquired by the appellants in 2008. The complainant, aggrieved by the above-mentioned orders, made this request for special leave. Referring to the facts of this case, the Supreme Court concluded that a contract of sale had been concluded between the plaintiffs and the respondent`s father on 2 June 1999. The consideration agreed between the parties was one lakh and sixty thousand rupees, of which an amount of sixty thousand rupees was paid at the time of performance of the contract of sale. The sale transaction is expected to be completed within three years against payment of the balance of Rupees One Lakh.
On 7 May 2002, the defendant published a legal opinion on the performance of the contract of sale. In response to the legal opinion, the applicant replied, inter alia, that the contract of sale had been executed only as security for a loan transaction, since the applicants` father was a lender of money (which was a recognised fact). The Supreme Court concluded that there had been no error in the determination of the facts by the three courts and that, therefore, the judgment could not be set aside on the merits. However, the applicants drew the attention of the Supreme Court to a subsidiary argument that the property in the action was the plaintiffs` only property and had an extremely high value. The plaintiffs further stated that they were willing to pay a sum of ten lakhs or even more rupees to retain ownership of the lawsuit. The Supreme Court took this limited issue or other line of reasoning into account in its decision. ”Equity specifically enforces the contract of sale against the seller himself and all persons who claim under his authority a title created under the contract, with the exception of the buyer in return for valuable consideration who has paid his money and made a transfer without notice of the original contract.” 16. In Surjit Singh (loc.
cit.), a similar question arises before the Court. In this case, after the death of a Janak Singh at the head of the family, a lawsuit was filed for the division and separation of property by and between the parties. An interim decree was issued and, while the final decision procedure was ongoing, the contested court issued an order prohibiting all parties from selling or transferring in any way any part of the assets involved in the action. Despite this decision, one of the parties transferred the right provided for in the provisional decree to the wife of his lawyer. On the basis of the assigned document, the assignee filed an application for enforcement as a party to the proceedings in accordance with Rule 10 of Ordinance 22 CPC. The application was upheld by the contested court and upheld on appeal by the additional district judge and then on appeal by the Supreme Court. The case was brought before this court by allowing the appeal and setting aside the orders made by the courts listed below. The Court ruled:- 43. Before separating from the order, it is clarified that, according to the defendant, the plaintiff has the right to make any objection to the disposition of the seller of Sawhneys as a plaintiff, any derivative title of the seller on the basis of the purchase of the real estate after the agreement with the plaintiff and while waiting for the action. 28. It is apparent from a simple reading of the above-mentioned provision that Article 10, Article 2, confers on the Court a greater discretion to hear any case or irregularity of a party and to act with a person who is either a necessary party or an appropriate party whose presence at the Court is essential for the effective resolution of the questions relating to the appeal.
15. In Anil Kumar Singh v. Shivnath Mishra alias Gadasa Guru (1995) 3 SCC 147 in a specific application for performance of the contract, an application under Order 6 Rule 17 CPC was filed to allow the action to be varied by filing the defendant as the defendant in the action. The applicant alleged that the seller had worked with his sons and his wife and had received a collusive decree in a legal action brought under the U.P. Zamindari Abolition and Agrarian Reform Act. It was argued that, as of right, they had become co-owners of the property to be transferred under the Agreement and were therefore a necessary party. The Trial Court rejected the petition and the Allahabad Supreme Court upheld the order. In an appeal, this court refused to interfere with the order and observed. `The doctrine of lis pendens was intended to satisfy the attempts of the parties to a dispute to circumvent the jurisdiction of a court before which a dispute relating to rights or interests in immovable property is pending by means of private transactions capable of removing the subject-matter of the dispute from the power of the court to rule on a dispute pending or to thwart its decree. Foreigners who acquire immovable property in the course of a dispute over such property are considered bound by the decree taken in the action by the application of the doctrine, even if they have not been involved in it. The purpose of lis pendens is to subject the parties to the dispute, as well as other persons who wish to acquire rights in immovable property in dispute, to the jurisdiction of the Court of Justice in order to prevent the subject-matter of a pending action from being dismissed.
”The Court of First Instance therefore held that the applicants are neither necessary nor appropriate parties to the action. On appeal, the High Court upheld the same thing. Shri Sanyal, the applicants` learned lawyer, claimed that his father had not signed the waiver and that the signatures accompanying it were not his own. The waiver, which was allegedly signed by the applicants` father, was not genuine. These issues are issues to be taken into account in the action before the waiver and the memorandum of compromise between the other disputing defendants have been implemented and cannot be conducted in the absence of the petitioners. The petitioners` share will be affected and will therefore affect their right, title and interest in the property. We cannot address these issues at this stage. The Court of First Instance correctly pointed out that the applicants were necessary and appropriate parties as long as the alleged act of renunciation, which was allegedly signed by the applicants` late father, was placed on the file. It may not be binding on the applicants, but whether it is true, valid or binding on them are all issues that cannot be addressed in the present action.
In these circumstances, the following courts have rightly held that the applicants are not necessary and appropriate parties, but that the remedy is elsewhere. If the applicants have remedied the situation, they are free to make use of it in accordance with the law. 5. . . .
