Judgement

When Legal Representatives of defendants are not brought on record in first appeal despite being a necessary party, such appeal would stand abated

In this case, the principal plaintiff filed suit for specific performance of the contract against the principal defendant. The Trial Court dismissed the suit filed by the principal plaintiff. Being aggrieved by the order of the Trial Court, the principal plaintiff preferred the first appeal before the first appellate Court. During the pendency of the first appeal, the principal plaintiff died and her legal representative brought on record.

The principal defendant also died during the pendency of the first appeal. But her legal representatives (LR’s) were not brought on record. Yet the first appellate Court proceeded to decide the appeal and ultimately, appeal allowed and principal plaintiff’s suit for specific performance of contract decreed.

Section 37 of the Contract Act covers cases of partial performance and it obliges the party to contract to perform what has been stipulated in the contract to be performed. Whereas Section 19 of the Specific Relief Act recognises and follows the general rule that a stranger to contract is not a proper defendant in a suit for specific performance unless he falls within Clauses. (b) to (e) which gives an exception to this rule. This provision is exhaustive on point as to who are the parties against whom a contract for specific performance may be enforced.

In light of aforesaid statutory scheme, relief of specific performance of the contract is not wholly personal and obligation vests in LR’s of the vendor-principal defendant in the execution of the contract and therefore LR’s of the vendor-principal defendant is required to be substituted in a suit claiming specific performance of contract or appeal preferred, as the case may be; otherwise, suit or appeal cannot proceed and would abate.

LR's of the principal defendant are a necessary party in appeal and absence of LR's of the principal defendant, appeal preferred by the plaintiff would stand abated. Findings of First Appellate Court decreeing the suit for specific performance in favour of the plaintiff in absence of LR's of the principal defendant set aside. Judgment of Trial Court dismissing the suit for specific performance, upheld.

Appearing counsel/s: Mr. Gyan Prakash Shukla, Mr. Rakesh Kumar Thakur, Dr. Veena Nair

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