Madras High Court: In a second appeal filed under Section 100 of the Civil Procedure Code, 1908 (‘CPC’), challenging the concurrent judgments of the Trial and Appellate Courts, the Single Judge Bench of Dr. A.D. Maria Clete, J., held that a single appeal was maintainable against a common judgment in a suit and counter-claim, provided proper court fee was paid. The Court clarified that a prior purchaser not impleaded in a suit for specific performance is entitled only to a declaration that the decree is not binding on him, and not to cancellation of the decree itself. It was further observed that a bare suit for injunction is not maintainable where the plaintiff is not in possession of the property, and the second appeal was accordingly dismissed with costs.
Background:
An agreement of sale was executed in 1997 for a consideration of Rs 60,000, out of which Rs 30,000 was paid as advance. The time for completion of the transaction was extended on multiple occasions, with further advances being paid in 2000 and 2003. When reluctance was shown to complete the transaction, a suit for specific performance was instituted and decreed ex parte in 2005. Pursuant to the decree, an execution petition was filed to obtain the sale deed through Court.
While the execution proceedings were pending, attempts were allegedly made to trespass into the property, which led to the filing of a suit for permanent injunction. In that suit, the first defendant was set ex parte, while the third defendant, adopting the written statement of the second defendant, filed a counter-claim. It was contended in the counter-claim that the property had already been sold under a registered sale deed in 1998 for Rs 1,00,000 with mutation effected in the revenue records, construction of a house completed, and electricity connection obtained. The decree in the earlier suit was alleged to have been collusively obtained without impleading the true owner, and the counter-claim therefore sought cancellation of the decree and injunction against interference.
The Trial Court, upon consideration, dismissed the suit for injunction and allowed the counter-claim, cancelling the decree and granting injunction. The Appellate Court confirmed the findings of the trial court, thereby sustaining the relief granted in the counter-claim.
Analysis and Decision:
The Court emphasised that a single appeal was maintainable against a common judgment in a suit and counter-claim, provided proper court fee was paid. The Court observed that a prior purchaser not impleaded in a suit for specific performance cannot seek cancellation of the decree, but is entitled to a declaration that such decree is not binding on him, along with the consequential relief of injunction.
It was noted that the Trial Court’s cancellation of the decree was legally incorrect, and therefore modified the relief to declare that the decree dated 17-03-2005 was not binding on the subsequent purchasers.
The Court further highlighted that the suit for bare injunction was founded on the decree for specific performance, which did not direct delivery of possession. Since no possession was obtained, and there was no evidence of possession, the Court held that a person not in possession is not entitled to injunction to protect possession.
Finally, the Court observed that the Trial Court’s findings of collusion and fraud were concurrent findings of fact, and that no substantial question of law as contemplated under Section 100 CPC arose for consideration. It was concluded that the appeal essentially seeks a reappreciation of evidence, which is impermissible in exercise of jurisdiction under Section 100 CPC.
Accordingly, the second appeal was dismissed with costs.
[K. Kandasamy v. P. Natarajan, S.A. No. 789 of 2014, decided on 02-01-2026]
Advocates who appeared in this case:
For Appellant: M/s. C.B. Geeth Sanchitra for M. Guruprasad
For Respondents: Dinesh