JUDGMENT
Devinder Gupta, C.J.
1. This is an appeal arising out of the order dated 23rd January, 1998 passed by the learned Single Judge dismissing C.M.P. No. 11445 of 1996, filed under Order 1 Rule 10 of the Code of Civil Procedure, in A.S. No. 3326 of 1982.
2. Facts, in brief, are that an agreement was entered into, between Jeenu Viswanadham (hereinafter referred to as the ‘plaintiff) and the five defendants-respondents, for sale of agricultural land, on 10th April, 1974 after receiving a sum of Rs. 1,500/- as advance. Original Suit No. 137 of 1979 was filed by the said plaintiff seeking decree for specific performance of agreement of sale. It was contested by the defendants. The said suit O.S.No. 137 of 1979 was decreed with costs on 18th March, 1982 by the I Additional Subordinate Judge, Kakinada, for specific performance directing the defendants to execute a registered sale deed conveying the plaint schedule property to the plaintiff at plaintiff’s expense pursuant to the agreement of sale. Balance sale consideration payable by the plaintiff to the defendants was directed to be deposited in Court within two weeks.
3. Aggrieved by the judgment and decree of the I Additional Subordinate Judge, Kakinada, appeal (A.S. No. 3326 of 1982) was preferred by the defendants to this Court. During pendency of the said appeal, the sole plaintiff expired on 2nd September, 1990. Defendants/appellants filed C.M.P. No. 15640 of 1990 under Order XXII Rule 4 of the Code of Civil Procedure seeking to bring Smt. Jeenu Raghavamma, the widow of deceased-plaintiff, on record as the sole legal representative of the sole deceased-plaintiff-Jeenu Viswanadham. That application was filed within the period of limitation. While the said application was pending, the three brothers of the deceased-plaintiff Jeenu Viswanadham, who are the appellants before us sought their impleadment in the appeal by filing separate application (C.M.P. No. 11445 of 1996) under Order 1 Rule 10 of the Code of Civil Procedure on the ground that they had a right to be brought on record being the brothers of deceased-plaintiff and members of the coparcenary. They alleged that the agreement of sale, specific performance of which was sought in the suit, had been entered into by the deceased-plaintiff Jeenu Viswanatham in the capacity as a coparcener and for the benefit of the coparcenary. They also contested the application filed under Order XXII Rule 4 C.P.C by filing their reply/objection. They alleged that the proposed legal representative was divorced many years ago and the sole plaintiff thereafter had no concern with her as he did not remarry and died issueless. They thus wanted that they be brought on record as legal representatives of the deceased sole plaintiff.
4. Since there was a dispute before the Court as to who should be brought on record as the legal representative of the deceased-plaintiff Jeenu Viswanadham, a report was called from the Trial Court. The I Additional Subordinate Judge, Kakinada, after affording opportunity to the parties to lead evidence, submitted his report to the effect that Smt. Jeenu Raghavamma is the sole surviving legal heir of Jeenu Viswanatham. The depositions of P.W.I and R.W.1 were also sent with the report. On 27th November 1996, the learned Single Judge proceeded to pass an order in C.M.P. No. 15640 of 1990 thereby bringing Smt. Jeenu Raghavamma as the sole legal representative of the deceased-plaintiff, on record. Needless to add that this order was not challenged by the appellants in appeal and it became final. By that time, no separate orders were passed on C.M.P. No. 11445 of 1996.
5. After Smt. Jeenu Raghavamma was brought on record as the sole legal representative of the deceased-plaintiff the application (C.M.P.No. 11445 of 1996), on the basis of which the three brothers of deceased-plaintiff are seeking their addition as parties to the proceedings, came up for consideration. The defendants contested it and in reply pleaded that the appellants herein had no right to be impleaded as parties in the proceedings arising out of a suit for specific performance of an agreement of sale. The agreement of sale was entered into with Jeenu Viswanatham. On his death, his widow had already been brought on record, who alone has got right to continue the proceedings. A reply-affidavit was filed by the appellants wherein they alleged that though Smt. Jeenu Raghavamma had been recognised as the sole legal representative of the deceased-plaintiff thereby denying their right to come on record in place of Jeenu Viswanadham as legal representatives, they had independent right as members of coparcenary which right to come on record cannot be refused. They further alleged that during the pendency of the suit the question as to whether the agreement was entered into by the deceased-plaintiff for the benefit of the coparcenary or not did not arise for consideration. They also alleged that the deceased-plaintiff Jeenu Viswanatham was acting as manager of the joint Hindu family and had filed the suit for specific performance in the capacity as manager of the joint Hindu family and was prosecuting the suit in that capacity and, therefore, it was necessary for the three brothers of the deceased-plaintiff to be brought on record during pendency of suit. After the death of Jeenu Viswanatham, one of his three brothers had become manager of joint family properties and since the agreement of sale was entered into for the benefit of joint family, it was necessary to implead the brothers of the deceased-plaintiff Jeenu Viswanadham as parties. This application was dismissed by the learned Single Judge by a separate order dated 23rd January 1998, which is the subject-matter of the present appeal instituted on 24th September, 1998 and it was registered as Letters Patent Appeal No. 2 of 1999. Before the present appeal was instituted, the learned Single Judge also decided the main appeal (A.S. No. 3326 of 1982) itself on 2nd February, 1998. The said appeal (A.S. No. 3326 of 1982) was partly allowed and the suit for specific performance of agreement of sale was dismissed with costs. However, a decree was granted in favour of the plaintiff/ respondent for refund of an amount of Rs. 10,364/- from the defendants.
6. Appellants herein also filed another appeal (L.P.A. No. 103 of 1999) against the judgment and decree passed by the learned Single Judge in A.S. No. 3326 of 1982 along with an application seeking leave to prefer the appeal. The said appeal was registered and was posted along with application seeking leave. The appeal (L.P.A. No. 103 of 1999) was dismissed by a Division Bench of this Court by a separate judgment dated 13th July, 1999 with the observation that the said appeal (L.P.A. No. 103 of 1999) will not be maintainable unless L.P.A. No. 2 of 1999 is allowed as the very issue with regard to the entitlement of the appellants to be brought on record as the legal representatives of the deceased-plaintiff/respondent has to be decided in L.P.A. No. 2 of 1999. That is how the present appeal has come up before us now.
7. We have heard learned Counsel for parties and gone through the record.
8. Learned Single Judge dismissed the application (C.M.P. No. 11445 of 1996 in A.S. No. 3326 of 1982) on the ground that the sole plaintiff expired on 2nd September, 1990 and his brothers had chosen to file the application seeking their impleadment only in the year 1996. They had made no effort to be brought on record earlier. The estate of deceased-plaintiff was represented by his legal heir, viz., his wife-Smt. Jeenu Raghavamma. The brothers of the deceased-plaintiff had sought their impleadment under Order 1 Rule 10 C.P.C as necessary parties to the suit, but in such like suits they were not necessary parties. There was no issue raised in the suit as to whether the agreement was for the benefit of the joint family or not. No evidence was got recorded on this aspect. No clause or condition in the agreement disclosed that the agreement was for the benefit of the joint family. In these circumstances, the learned Single Judge came to the conclusion that it was not possible to hold that the brothers of the deceased-plaintiff had got any right or interest in the agreement of sale or in the decree passed by the Trial Court.
9. At the very outset, an objection was raised by the learned Counsel appearing on behalf of the respondents about the very maintainability of this appeal after the main appeal (A.S. No. 3326 of 1982) in which the appellants had sought to implead themselves as parties had been dismissed. It was urged that not only the appeal (A.S. No. 3326 of 1982) had been dismissed but the appeal (L.P.A. No. 103 of 1999), against the judgment of the learned Single Judge rendered in A.S. No. 3326 of 1982, filed by the appellants herein along with the application seeking leave to prefer the said appeal, had also been dismissed.
10. Learned Counsel for the appellants, in order to meet this objection, has placed reliance on the decision of the Supreme Court in G. Ramegowda v. Special Land Acquisition Officer, Bangalore, , urging that the mere fact that the appeal in A.S. No. 3326 of 1982 in which the appellants had sought their impleadment had been dismissed as also L.P.A. No. 103 of 1999 but that factor will not render the very appeal preferred against the order of rejection of their application (C.M.P. No. 11445 of 1996) infructuous. He urged that the order rejecting the application of the appellants can be called as a ‘dependent order’. In the event of the order of the learned Single Judge rejecting application filed under Order 1 Rule 10 C.P.C being set aside in this appeal, the further exercise made in the meanwhile by the learned Single Judge including the judgment and decree disposing of the appeal in A.S. No. 3326 of 1982 and consequently the judgment of the Division Bench dismissing the very appeal in L.P.A. No. 103 of 1999 would be rendered nugatory. The application of the appellants obviously will be allowed in case the appellants are held to be necessary parties to the litigation. The Division Bench had specifically remarked that the very appeal against the judgment and decree of learned Single Judge will become entertainable only in case L.P.A. No. 2 of 1999 is allowed.
11. Learned Counsel for appellants also referred to the decision of a learned Single Judge in V. Haritha and Anr. v. Kapil Chit Funds Private Limited, , holding that the orders or decrees which are passed consequent upon the earlier orders would remain in force so long as the former orders are in force and are not reversed or superseded. Once the former order is set aside the consequential order or decree will not survive and will fall through.
12. In view of the decision of the Supreme Court in G. Ramegowda ‘s case (supra), there is no manner of doubt that in case the order impugned in the appeal is set aside, which can only be set aside in case the appellants are found to be necessary parties, there might be necessity to set aside the judgment and decree rendered by the learned Single Judge thereby holding that the order disposing of A.S. No. 3326 of 1982 has been rendered non est, thereby necessitating fresh decision in A.S. No. 3326 of 1982. Therefore, we overrule the objection of the learned Counsel appearing on behalf of the respondents as regards maintainability of this appeal.
13. Learned Counsel appearing for the appellants submitted that the deceased-plaintiff was the manager of the joint family and after his death Jeenu Nookaraju, being the eldest brother of the deceased-plaintiff, had become manager of the joint family and, therefore, the agreement of sale having been obtained by late Jeenu Viswanadham for the benefit of coparcenary, the appellants were necessary parties to the litigation.
14. Except filing application (C.M.P. No. 11445 of 1996) supported with an affidavit, which is hotly contested by the defendants in their reply dated 8th July, 1997 to which appellants had also filed their further reply on the affidavit of Jeenu Nookaraju, no other material is placed on record on the basis of which it can even prima facie be concluded that the agreement for purchasing the property was entered into by the deceased-plaintiff with the defendants in the capacity of manager of the joint Hindu family or for the benefit of the coparcenary. No part of the agreement Ex.A.1 dated 10th April, 1974 would even indicate that the said agreement was entered into by the deceased-plaintiff in that capacity as alleged by the appellants. In the report submitted by the I Additional Subordinate Judge, Kakinada also, it is stated that no evidence to this effect was led and on that basis the claim of the appellants for being brought on record in place of deceased-plaintiff was turned down. The application of the defendants to bring on record the widow of the deceased-plaintiff as his legal representative was contested by the appellants on the ground that they alone were entitled to be brought on record and not the widow of late Jeenu Viswanadham. The issue was referred to the Trial Court on which findings were returned and on those findings the appellants herein were not brought on record as legal representatives. This order was passed in the year 1996 by the Trial Court against which no further appeal was preferred by the appellants. The said order was an appealable order. That fact alone would preclude the appellants from agitating thereafter the question that they have to be brought on record as the legal representatives of the deceased-plaintiff.
15. In a suit for specific performance only the persons who are parties to the agreement are necessary parties. Neither the plaintiff had alleged nor the defendants had pleaded that the agreement was not entered into by the deceased-plaintiff in his individual personal capacity but in the capacity as a member of the coparcenary or for the benefit of the coparcenary. In the Trial Court, this question was neither raised nor agitated. In the appeal the question was raised only in the year 1995 when C.M.P. No. 11445 of 1996 (CMP (SR) No. 40193 of 1995) was filed and also when objections to the report of the I Additional Subordinate Judge, Kakinada, were filed in the year 1996 in CMP No. 15640 of 1990, on behalf of the appellants. By no stretch of imagination, the appellants can be said to be necessary parties to the litigation arising out of a suit for specific performance of contract and for that reason the application was liable to be dismissed and it was rightly dismissed by the learned Single Judge.
16. There is no force in the appeal, which is hereby dismissed with no order as to costs.