THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR A.S.No.737 of 2010 JUDGMENT: (per the Hon’ble Sri Justice V. Eswaraiah) The appellant, who is the plaintiff, filed the suit in O.S.No.19 of 2006 on the file of the Family Court-cum-Additional District and Sessions Judge, Guntur, for specific performance of contract, basing on Ex.A-1- contract of sale agreement, dated 24-02-2003, executed by the 1st defendant in favour of the plaintiff in respect of the suit schedule property. The respondents herein are the defendants. The court below vide its judgment, dated 18-08-2010, dismissed the suit with costs. Aggrieved thereby, the present appeal is filed. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the court below. It is the case of the plaintiff that the 1st defendant and the 2nd defendant are husband and wife and the 3rd defendant is the Guntur Co- operative Urban Bank Limited, Guntur. It is stated that the father of the 1st defendant was the owner and possessor of the said property, pursuant to the compromise decree, dated 09-03-1977, in O.S.No.41 of 1974 on the file of the Principal Subordinate Judge, Guntur. The father of the 1st defendant died intestate on 22-05-1979 living behind his wife, Annapurna Devi and his daughter, the 1st defendant. Since then, the 1st defendant and her mother enjoyed the suit schedule property. The 1st defendant and her mother mortgaged the suit schedule property in favour of the 3rd defendant on 02-08-2000 and obtained loan. Thereafter, the mother of the 1st defendant passed away. The 1st defendant, being the absolute owner, again mortgaged the said property in favour of the 4th defendant on 13-09- 2002. Knowing all these facts, the plaintiff agreed to purchase the same for a consideration of Rs.10,29,000/- and entered into Ex.A-1-agreement, dated 24-02-2003 by paying advance amount of Rs.3,50,000/-. The plaintiff is also said to have paid a sum of Rs.2,00,000/- to the 1st defendant and obtained an endorsement on the back of Ex.A-1 and it was scribed by the 2nd defendant. In fact, the 1st defendant permitted the plaintiff to occupy the plaint schedule property. The 1st defendant sought time for discharging the debts of defendants 3 and 4. Though the plaintiff is ready and willing to perform his part of contract by paying balance sale consideration, the 1st defendant is not co-operating for execution of the sale deed and, therefore, the plaintiff filed the suit. The 1st and 2nd defendants were remained ex-parte. Defendants 3 to 5 have filed separate written statements. The 3rd defendant stated that the suit is barred by limitation and therefore, it is not maintainable. The 3rd defendant is not aware about the alleged compromise decree. After the death of Jangalapalli Padmanabha Rao, who is the father of the 1st defendant, his wife Annapurna Devi and the 1st defendant inherited the suit schedule property by succession. Both of them jointly obtained loan from the 3rd defendant on 02-08-2000 by mortgaging the suit schedule property. Later, the mother of the 1st defendant died and the 1st defendant became the absolute owner of the suit schedule property. The 4th defendant stated that the 1st defendant and her three daughters jointly borrowed a sum of Rs.3,00,000/- by mortgaging the suit schedule property and again they borrowed a sum of Rs.2,00,000/- on 26- 03-2003. Subsequently, the 1st defendant paid a sum of Rs.1,34,500/- on different dates and she has not paid the balance amount. The 5th defendant stated that the 2nd defendant has availed loan of Rs.8,00,000/- by mortgaging the property covered under gift deed executed by the 1st defendant in his favour. In spite of repeated demands, defendants 1 and 2 have not discharged the debt. Therefore, the 5th respondent Bank issued notices U/s.13 (2) of the Securitization and reconstruction of Financial Assets and Enforcement of Security Interest (Second) Ordinance, 2002, to defendants 1 and 2. Thus, it is the case of the 5th defendant that it has every right to sell away the suit schedule property to recover the dues. On the aforesaid pleadings, the court below framed the following issues:- 1. Whether the suit contract of sale is brought into existence by colluding with D1 and D2 ?` 2. Whether this Court has no jurisdiction to try the suit ? 3. Whether D5 is not necessary party to the suit ? 4. Whether the plaintiff is not in physical possession and enjoyment of the plaint schedule at any point of times ? 5. Whether the suit agreement is not admissible for want of property stamp and registration ? 6. To what relief ? The court below, after considering the matter in detail, dismissed the suit with costs. Aggrieved thereby, the present appeal is filed. Both the learned counsel appearing for the plaintiff and the 3rd defendant would submit that whatever amount is due and payable by the 1st and 2nd defendants to the 3rd defendant will be paid by the plaintiff and therefore, the suit may be decreed in favour of the plaintiff, for which, the learned counsel appearing for defendants 1 and 2 says no objection. We are of the opinion that the plaintiff is not entitled to get any relief against defendants 4 and 5, as they have independently made a claim about mortgaging the suit property in their favour. However, in a suit for specific performance, proper and necessary parties will be the parties to the agreement alone. The parties to the agreement are only the plaintiff and the 1st defendant alone. Therefore, the other defendants are not proper and necessary parties. But, however, as there is settlement between the plaintiff and defendants 1 to 3, the plaintiff has undertaken to discharge the entire loan due and payable in favour of the 3rd defendant in four monthly equal instalments along with interest. But, however, the settlement arrived between the plaintiff and defendants 1 to 3 would not bind on defendants 4 and 5 in whose favour the said property was also mortgaged, as they have independent right to proceed against the mortgaged property irrespective of the settlement between the plaintiff and defendants 1 to 3. Accordingly, the appeal is allowed in part. Consequently, the suit is decreed in favour of the plaintiff and against defendants 1 and 2 subject to the condition of the plaintiff pays the entire due amount along with interest, which was payable by defendants 1 and 2, to the 3rd defendant in four monthly equal instalments and the 1st instalment shall be commenced by the end of August, 2011. The suit stands dismissed against defendants 4 and 5 and this decree would not bind on them as they have independent right to proceed against the mortgaged property. There shall be no order as to costs. ________________ V.ESWARAIAH, J _____________________ B.CHANDRA KUMAR, J Date: 27-07-2011 Prv