Patel Vinodbhai Khodidas vs Patel Pravinbhai Kacharabhai
2021 Latest Caselaw 4762 Guj

        C/CA/2545/2020                                         CAV JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CIVIL APPLICATION NO. 2545 of 2020
                     In F/FIRST APPEAL NO. 21382 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the judgment ? No

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any No order made thereunder ?

========================================================== PATEL VINODBHAI KHODIDAS Versus PATEL PRAVINBHAI KACHARABHAI ========================================================== Appearance:

MR RASESH H PARIKH(3862) for the Applicant(s) No. 1,2,3,4 MR.HEMANG H PARIKH(2628) for the Applicant(s) No. 1,2,3,4 for the Respondent(s) No. 2,3 MR HRIDAY BUCH(2372) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

Date : 26/03/2021

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

What the applicants in this Civil Application seek is leave to appeal against judgment

and decree dated 29th July, 2020 passed by learned 2nd Additional Senior Civil Judge, Patan in Special Civil Suit No.31 of 2012. The said suit was for specific performance instituted by the plaintiff Patel Pravinbhai Kachrabhai - respondent No.1 herein against Patel Vasantkumar and Patel Jyotsnaben Vasantkumar - respondent Nos.2 and 3. It ended up with a settlement between the parties, on the basis of which Purshis Exh.116 was tendered, whereupon the compromise decree between the parties to the suit came to be passed by the court.

2. The precise question that falls for consideration is whether in the facts of the case the applicants herein, who were not party to the suit which resulted into compromise decree between the parties to the suit, could be said to be 'aggrieved person' to be entitled to be conferred right to appeal and to be consequentially granted leave to appeal.

3. The basic facts may be set out. The Special Civil Suit of the plaintiff for specific performance was based on agreement to sell dated 29th June, 2008 read with supplementary agreement dated 27th September, 2011 executed by the defendants in relation to land survey No.800/1 situated at Village Gungadipati, Taluka Patan. As per the compromise Purshis, the defendants admitted the said agreements to sell for the agreed consideration of Rs.48,42,062/-, out of which Rs.21,064/- was paid as earnest money. The balance amount was paid by the

plaintiff to the defendants, and in turn, the defendants handed over the possession of the subject matter land to the plaintiff. The court passed decree in terms of the compromise as per the Purshis Exh.116.

3.1 The applicants herein stand dissatisfied with the said compromise decree. It is their case that the plaintiff had executed on 05th August, 2008, an agreement to sell in favour of one Patel Bharatkumar Narandas, Patel Mukeshkumar Kantilal, Patel Sanjaykumar Chimanlal and Patel Rakeshkumar Ishwarlal. Said Patel Bharatkumar Narandas and others thereafter executed agreement to sell in favour of the applicants and that the amount of consideration was paid. The applicants claimed that they had acquired interest in the subject matter property, and filed application Exh.112 in the Special Civil Suit to get impleaded as party plaintiffs. It appears that application Exh.112 was rejected along with the passing of compromise decree. There is no further challenge thereto.

3.2 The assertion of the applicants in this Civil Application in support of their prayer to grant leave to appeal against the aforementioned compromise decree, is that because of the said compromise decree dated 29th July, 2020, a serious prejudice has occurred to them. It is the case that the applicants are vitally interested in adjudication of the said suit which was compromised. It is also the contention that application Exh.112 came to be rejected without

affording proper opportunity to them.

4. Heard learned senior advocate Mr.H.M. Parikh for the applicants and learned advocate Mr.Hriday Buch for respondent No.1, at length.

4.1 Learned advocate for the applicants heavily relied on the decision of the Full Bench of this Court in Shakina Sultanali Sundesara (Momin) v. Shia Imam Ismaili Momin Jamat Samaj [2020 (1) GLR 586] to submit that the applicants are entitled to maintain appeal against the compromise decree, since the applicants are 'aggrieved party'. It was submitted that in the aforesaid decision, the Court considered as to what remedy the aggrieved party has against the consent decree. Learned advocate for the applicants reiterated on the basis of the decision of the Full Bench that the applicants who are the third party in Special Civil Suit No.31 of 2012 have interest in the subject matter property in view of the agreement to sell standing in their favour, therefore though they are not party, they are required to be permitted to prefer First Appeal against the compromise decree as aggrieved persons. Within the meaning of Section 96(1) of the Code of Civil Procedure, 1908 the appeal could be preferred by them, it was submitted, for, according to the submission of learned advocate, the applicants have 'interest' as aggrieved third party, and that bar under Section 96(3), CPC would not apply.

4.2 Learned advocate for respondent No.1,

countering the submissions made on behalf of the applicants, relied on the decision of the Supreme Court in Triloki Nath Sing v. Anirudh Sing [2020 SCC Online 444]. Based on this judgment, it was submitted that in view of the provision of Section 96(3) read with Order XXIII, Rule 3, 3A of the Code of Civil Procedure, 1908, a bar is created against entitling a party to file appeal against the compromise decree.

4.3 In addition to and without prejudice to the aforesaid submission, it was further contended that the applicants have no locus standi to maintain the appeal, as the decree has not been drawn against the applicants, that the rights of the applicants have not been prejudiced by the consent decree and further that the applicants are not aggrieved party to be entitled to present appeal so as to get the leave to appeal.

4.4 Respondent No.1 filed his affidavit-in- reply, to further contend through learned advocate that the case of the applicants that Exh.112 was decided without hearing them was a false statement. Application Exh.112, it was stated, was filed on 24th December, 2019, which was fixed for hearing on 04th February, 2020 and kept for orders, but due to the lockdown period the order could not be pronounced. On 29th July, 2020 the order was pronounced and the application Exh.112 came to be rejected which order recorded that the arguments were heard by the court, it was stated annexing copy of the order. Be that as it may.

4.5 Yet another factual aspect was mentioned in the affidavit-in-reply that the applicants have instituted Special Civil Suit No.3 of 2020 against the present respondents and others seeking specific performance of the agreement to sell dated 09th December, 2008, which has been made basis for claiming interest in the property, and the aggrieved status qua the compromise decree.

4.6 Learned advocate for respondent No.1 also raised factual contention that in the agreements dated 05th August, 2008 and 09th December, 2008, any witness had not put their signatures, that first agreement was not notarised and that they were unregistered agreements. The second agreement was not even placed on record which, it was submitted, was with a view to suppress the mode of interest acquired by the applicants.

5. The relevant provisions of the Code of Civil Procedure which are relied on by learned advocate for the respective parties while addressing the controversy, may be referred to, to be noticed.

5.1 Section 96 in Part VII, CPC titled as 'Appeals' read as under.

96. Appeal from original decree. - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court,

(2) An appeal may lie form an original decree passed ex parte,

(3) No appeal shall lie from a decree passed by the Court with the consent of parties,

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Court of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed (ten) thousand rupees.

5.1.1 Order XXIII, Rule 3 is extracted.

3. Compromise of suit. - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith so far as it relates to the parties to the suit, whether or not the subject- matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit.

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

5.1.2 Rule 3A of Order XXIII mentions about bar to suit to provide that no suit shall lie to set aside decree on the ground that the compromise on which the decree is based was not lawful. Rule 3A and 3B which provide that no agreement or compromise could be entered in a representative suit without leave of court, were inserted in the Code of Civil Procedure by Act No.104 of 1976 with effect from 01 st February, 1977 along with other amendments in the Order.

5.2 The decision of the Supreme Court in Triloki Nath (supra), which was extensively relied on, on

behalf of respondent No.1, may be noticed at this stage itself to endeavour to find therefrom the context of instant controversy. The question which was considered by the Apex Court was whether a compromise decree can be challenged by the stranger to the proceedings in a separate suit. The appellant Troliki Nath had instituted suit for declaration that the compromise decree passed in Second Appeal by the High Court was illegal and obtained by fraud. The subject matter land originally belong to one Lakhansinh, who died leaving three sons and two daughters Sampatiya and Sonia. One of the sons died issueless but prior to his death, he gave land of his share to Sampatiya on the basis of the gift deed. One Salehari claiming to be daughter of that son, filed partition suit and for setting aside the above gift deed. The said suit was contested by Sampatiya, which came to be dismissed and it was held that plaintiff Sahelari was not the daughter as claimed by her. It appears that land portion came to be sold by Sampatiya to the appellant-plaintiff by registered sale deed dated 06th January, 1984 and the appellant was put in possession. In July, 1995, respondent- defendant started to interfere with possession of the appellant.

5.2.1 Upon inquiry, it was revealed that it was claimed on the strength of a compromise decree between Sampatiya and Sahelari which was filed in the Second Appeal before the High Court of Patna. The suit was thereupon instituted by the appellant to set aside the said compromise decree and that in such

context the question fell for consideration whether the suit filed by the appellant in seeking a declaration against the decree of compromise was maintainable in view of provisions of Order XXIII, Rule 3 and Rule 3A, CPC. The Supreme Court referred to the decision in Pushpa Devi Bhagat v. Rajinder Sinh [(2006) 5 SCC 566] and also the decision in R. Rajanna v. S.R. Venkataswamy [(2014) 15 SCC 471] for highlighting the scope, import and purport of Order XXIII, Rule 3 and Rule 3A interacting with Section 96(3), CPC.

5.2.2 The conclusions recorded in Pushpa Devi Bhagat (supra) in paragraph No.17 were reiterated in Triloki Nath (supra) by the Supreme Court stating,

(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC, (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43, (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A, (iv) A consent decree operate as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.

5.2.3 As per the facts before the Supreme Court that the appellant was not party to the stated

compromise decree. The appellant was claiming right, title and interest over the land on the basis of the sale deed dated 06th January, 1984 executed in the appellant's favour by Sampatiya - the judgment debtor. As sought to be highlighted by learned advocate for respondent No.1, the Supreme Court then observed to state the position of law,

"In the suit now instituted by the appellant, at the best, he could seek relief against sampatiya, but cannot be allowed to question the compromise decree passed by the High Court in partition suit. In other words, the appellant could file a suit for protection of his right, title or interest devolved on the basis of the stated sale deed dated 6th January, 1984, allegedly executed by one of the party (Sampatiya) to the proceedings in the partition suit, which could be examined independently by the Court on its own merits in accordance with law. The trial Court in any case would not be competent to adjudicate the grievance of the appellant herein in respect of the validity of compromise decree dated 15th September, 1994 passed by the High Court in the partition suit." (Para 21) (Emphasis supplied)

5.3 While on one hand learned advocate of the applicants took the shield of the decision of Full Bench in Shakina Sultanali (supra) to submit that the applicants are entitled to prefer appeal as aggrieved party, on the other hand, learned advocate for respondent No.1 analysed the decision of the Supreme Court in Triloki Nath (supra) to bring home his point. Attention was further drawn to the decision of the Karnataka High Court in Shaik Sharaff Uddin v. Abdul Karim since deceased by LRs [2011(4) Kar L.J. = 2011 Law Suit (Kar) 394] and decision of the Rajasthan High Court in Shakuntala v. Kamal Singh being S.B. Civil First Appeal No.746 of 2012 decided

on 26th March, 2014, to buttress his submissions in respect of the bar under the aforesaid provisions of the Code of Civil Procedure, 1908.

5.4 Since both the learned advocates devoted their lengthy arguments in respect of the working of the provisions of Sections 96(3), Order XXIII, Rule 3 and Rule 3A read with Order XLIII, Rule 1A, they have been noted hereinabove, however we need not record any finding in that regard in the present controversy.

6. The real issue involved in the present case could be dealt with outweingly and emphatically with reference to the crux aspect in law which may entitle the stranger to the decree or order to prefer appeal.

6.1 It is the 'aggrieved' status of a party seeking leave to appeal, which is the ultimate criteria to be applied in law to answer the question whether right to appeal could be conferred or leave to appeal could be granted to a person not party to the suit which may have resulted into decree.

6.1.1 The above decisive aspect is well acknowledged in the Full Bench decision of this Court in Shakina Sultanali (supra), that the party must satisfy the status of being 'aggrieved person' before appeal at his instance could be allowed.

6.1.2 The ultimate and the decisive aspect in the entire controversy would be whether the applicants could be said to be 'aggrieved party' to be entitled

to seek leave to appeal. As is well settled, the person not a party to the proceedings can prefer appeal only when his legal and enforceable right stands infringed by the decree or order, in which circumstances, such person will be aggrieved party in eye of law.

7. Surveying the decisions explaining the concept of 'aggrieved party' and who may be said to be person aggrieved in respect of particular decree or order, the following statement of law by Lindley L.J. In Securities Insurance Company in Re. [(1894) 2 Ch 410] has been followed by the Indian courts also.

"I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal."

7.1 In The Province of Bombay v. Western India Automobile Association [AIR 1949 Bombay 141], the Bombay High Court stated that a person not a party but affected by the order of the court may obtain leave of the court and may prefer appeal. In Jatan Kanwar Golcha v. Golcha Properties Private Limited [(1970) 3 SCC 573] the Supreme Court stated the principle thus, "it is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially

affected by the judgment". The Madras High Court exhaustively examined the law on the point in Sm. K. Ponnalagu Ammal v. State of Madras [AIR 1953 Madras 485] to observe that right to appeal can be created by statute only, and further that "it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by decree or judgment.... ordinarily leave to appeal should be granted to person who, though not parties to the proceedings would be bound by the decree or judgment in that proceedings and who would be precluded from attacking its correctness in other proceedings.". (emphasis supplied)

7.2 In Baldev Singh v. Surender Mohan Sharma [(2003) 1 SCC 34] the Apex Court observed in paragraph No.15 that "... a person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned". In A. Subash Babu v. State of A.P. [(2011) 7 SCC 616], the concept of aggrieved person was explained by the highest court in following words.

"The expression "aggrieved person" denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which the contravention is alleged, the specific circumstances of the case, the nature and the extent of the complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant." (Para 25)

7.3 The English decision by James, L.J. In Re Sidebotham: Ex.p. Sidebotham [(1880) 14 Ch. D. 458]

claims to be well known in defining the phrase 'aggrieved person' in the context of such phrase occurring in Section 71 of the Bankruptcy Act of 1869, thus, "not really a person who is disappointed of a benefit which he might have received if some order had been made. A 'person aggrieved' must be a man who had suffered a legal grievance, a man against whom a decision has been pronounced which had wrongfully deprived him of something, or wrongfully refused him something or wrongfully affected his title of something." Also in Re Riviere's Trade Mark [(1884) 26 Ch. D. 48], Lord Selborne stated thus, "...... it must be a legal grievance, it must not be a stet pro ratione voluntas; the applicant must not come merely saying 'I do not like this thing to be done', it must be shown that it tends to his injury, or his damage, in the legal sense of the word."

7.4 Corpus Juris Secundum Volume IV, Page 356, I Edition, offered more succinct and exhaustive definition of this legal concept, "Broadly speaking, a party or person is aggrieved by a decision when, only when it operates directly and injuriously upon his personal, pecuniary or proprietary rights."

7.5 State of U.P. v. Smt. Ram Sri [AIR 1976 Allahabad 121], the Allahabad High Court said it with another valid perception.

"... ... ... A party, therefore, who would benefit from the change in the judgment has an appealable interest. This interest, of course, should not be contingent speculative or futuritive. It must be substantial, immediate and pecuniary. Such an interest must have invaded legal rights of the

person filing an appeal. It is, therefore, clear that an aggrieved party is one who is injuriously affected by the judgment or whose rights are directly affected by the operation of the same. ...

             ... ..."                                     (Para 8)

7.6          The       emphasis         is     that       the     person          filing
appeal      must       have       'legal       grievance'            against            the

decision which 'wrongfully deprives him of something' or 'affects his title to something'.

7.7 Hardevinder Singh v. Paramjit Singh [(2013) 9 SCC 261] is helpful in understanding who can be said to be a person aggrieved to maintain the appeal against the decree or order. In that case, the plaintiff claiming to be a co-sharer had filed a suit and had challenged the Will. Defendant No.5-the brother supported the case of the plaintiff. The trial court decreed the suit. Defendant Nos.1 to 4 preferred appeal in which the judgment and decree was overturned. The plaintiff entered into a settlement with the said contesting defendants who had preferred the appeal. It was held that defendant No.5 was prejudicially affected, who was benefited by the decree passed by the trial court and since the same having been upturned, the benefit accrued in favour of defendant No.5 became extinct. Defendant No.5 thus suffered a legal injury by virtue of overturning of the decree, his legal rights can be said to have been affected. The Apex Court observed that consequently the defendant No.5 was a person aggrieved and was prejudicially affected by the decree passed by the first appellate court. Therefore, second appeal at his instance could not have been thrown overborad.

7.8 In recent decision in V.N. Krishna Murthy v. Ravikumar [(2020) 9 SCC 501] the Supreme Court travelled through its own decisions in Jatan Kanwar Golcha (supra), Baldev Singh (supra), A. Subash Babu (supra) and Sm. K. Ponnalagu Ammal (supra) summarised thus,

"The expression "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised." (Para

19)

7.8.1 Highlighting the facts of V.N. Krishna Murthy (supra) would also help understand the ambit of expression "person aggrieved". Two registered agreements to sell were executed in favour of the defendant society in the suit concerned by the owner of the land. The owner of the land, side-by-side, executed also a general power of attorney in favour of the defendant-society conferring on them absolute rights to do all acts as were necessary for selling the property. The general power of attorney, thereupon, executed sale deeds on different dates in favour of the appellants before the Apex Court. The respondents-plaintiffs obtained a decree declaring that the aforementioned registered agreements to sell were barred by limitation. Injunctive relief was granted to the defendant in the suit and no one else. The agreements to sell were not relatable to sale deeds of the appellants and the said transactions of sale by power of attorney in favour of the appellants were not questioned in the suit, nor were subject

matter of suit, nor relief in that regard was claimed. The relief claimed in the suit was for cancellation of agreements to sell only.

7.8.2 The Supreme Court applied the different tests as to who is aggrieved person to be entitled to appeal to hold that there was no infirmity in the judgment of the High Court in dismissing the application filed by the appellants seeking leave to appeal against the decree. The Supreme Court stated thus,

"Applying the above tests, we are of the considered opinion that the appellants can neither be said to be aggrieved persons nor bound by the judgment and decree of the trial court in any manner. The relief claimed in the suit was cancellation of agreement to sell. On the other hand, the sale deeds which were the basis of the claim of the appellants were executed on the basis of general power of attorney, and had nothing to do with the agreement to sell which was subject-matter of the suit. The judgment and decree of the trial court is in no sense a judgment in rem and it is binding only as between the plaintiffs and the defendants of the suit, and not upon the appellants." (Para 21)

7.9 In Adi Pherozshah Gandhi v. H.M. Seervai [AIR 1971 SC 385], the Supreme Court expressed itself while dealing with the expression 'any person aggrieved' used in Section 37 of the Advocates' Act, 1981. In that case, the petitioner - Adi Pherozshah Gandhi was an advocate and was called upon by the Bar Council of State of Maharashtra to show cause in respect of alleged misconduct. The Disciplinary Committee of the State Bar Council was satisfied with the explanation tendered by the petitioner that he was not guilty of any professional misconduct,

pursuant to which it dropped the proceedings. The Advocate General of State of Maharashtra felt aggrieved by the decision of the Disciplinary Committee of the State Bar Council and appealed before the Bar Council of India. It was in such context the Supreme Court held that Advocate General could not be said to have grievance in legal sense in respect of the order of the Bar Council of Maharashtra.

7.9.1 It was observed by the Apex Court,

"From these cases it is apparent that any person who feels disappointed with the result of the case is not a 'person aggrieved'. He must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something. It is no doubt a legal grievance and not a grievance about material matters but his legal grievance must be a tendency of injure him. That the order is wrong or that it acquits someone who he thinks ought to be convicted does not by itself give rise to a legal grievance. These principles are gathered from the cases cited and do not, as I shall show later, do violence to the context in which the phrase occurs in the Advocates' Act."

8. The entitlement to become party to the proceedings is another perceptive to determine whether a person could be granted leave to appeal, though otherwise not party to the proceedings in which the order is passed. When any dispute or controversy which has resulted into judgment, decree or order in absence of a particular party and such party or person is found to be necessary party in the proceedings, it could be concluded that such person is an aggrieved person prejudicially affected having appealable interest and that leave to appeal would

normally be granted.

8.1 The above dictum of law emanates from the decision of the Apex Court in Nookala Setharamaiah v. Kotaiah Naidu [AIR 1970 SC 1354]. It was stated thus,

"It was, however, said that the appellant was not impleaded as a party to Writ Petition No. 888 of 1957, and he could not seek redress in a superior court against the order of Basi Reddy, J. But it is settled by a long course of authorities that a person who has not been made a party to a proceeding may still appeal with leave of the appellate Court, provided he might have properly been made a party to the proceeding. ... ..."(Para 5)

8.2 In Ravi Yashwant Bhoir v. District Collector, Raigadh [(2012) 4 SCC 407], the Supreme Court, while underlining the principle with regard to impleadment as party into legal proceedings, highlighted in the lucid way that the party has to establish the deprivation of legal right.

"The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hand on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons."

(Para 59)

8.3 In Bharat Karsondas Thakkar v. Kiran Construction Company [(2008) 13 SCC 658], in consideration before the Supreme Court was whether in a suit for specific performance of an agreement for sale of immovable property instituted by the beneficiary of the agreement against the vendor, a

stranger or third party to the agreement who had acquired an interest in the same property is either a necessary or proper party to the suit. In that case, respondent No.1 had sought an amendment in the plaint in its suit for specific performance and the Supreme Court ruled to observe that it change the nature and character of the original suit. The question was could the appellant, who had acquired an independent right in the suit property by way of a separate decree but was not a party to the agreement between respondent No.1 and another, be added as party in the suit for specific performance filed by respondent No.1 and whether the decree passed in his favour could be assailed by respondent No.1 in the suit for specific performance. The Supreme Court held that the proper course of action for respondent No.1 could have been to challenge the consent decree not in its suit for specific performance but in a separate suit for declaration that the consent decree ought not to have been passed and the same was not binding to him.

8.4 In Patel Natvarlal Rupji v. Kondh Group Kheti Vishayak [(1996) 7 SCC 690] the Supreme Court held that the contract for sale of immovable property does not create any title except and covered under Section 54 of the Transfer of Property Act, 1882 and registered under Section 17 of the Registration Act.

8.5 The decision of this Court in Jayantilal Hansraj Shah v. Hemakuwarben Dolatraj Dave [1996 (1) GLH 893] may be referred to wherein also the third party had been seeking right to appeal in respect of

compromise decree. The Court held that in the facts of the case, the party concerned was not 'aggrieved person' and consequentially, the leave to appeal was refused. The petitioners in that case claimed that the consent decree dated 18th November, 1993 passed in Regular Civil Suit No.740 of 1986 would adversely affect their rights created in their favour under the agreement for sale dated 12th July, 1980 and therefore, leave to appeal should have been granted to them. The said agreement to sell dated 12th July, 1980 was executed by late Maharaja Shri Indravijaysinhji Dilawarsinhji Jadeja in favour of the proposed co-operative society. The Court, by observing that no legal right was created under the agreement to sell for the petitioners who were members of the proposed society and that their claim to seek leave to appeal was without substance.

8.5.1 The law was summarised by this Court in Jayantilal Hansraj Shah (supra) succinctly by setting out the following statements of law.

"7. ... No person unless he is a party to the suit is entitled to appeal under this Section. But, a person who is not a party to the suit may prefer appeal with leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment and if it would e binding on him as res judicata under Explanation 6 to Section 11 of the Code of Civil Procedure. A person who is not a party to the decree or order may with the leave of the Court prefer an appeal from such decree or order if he is either bound by the order of is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made ex nominee a party."

8.6 An incidental but relevant consideration

would be whether the applicants herein could have been joined as party to the Special Civil Suit, either as necessary party or proper party. It is well settled a 'necessary party' is a person who ought to have been joined as a party since in whose absence no effective decree could be passed at all by the court. Unless the necessary party is impleaded, the suit will become liable to be dismissed. A 'proper party' is one who is not necessary party but whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit. The present applicants cannot be said to be necessary party or proper party in the Special Civil Suit No.31 of 2012 as it was possible to pass an effective decree in their absence and it was also possible to adjudicate the 'matters in dispute' in their absence to deny them to become even proper party. The ratio in decisions in Bharat Karsondas (supra), Patel Natvarlal Rupji (supra) and Jayantilal Hansraj Shah (supra) bring home the point.

8.7 This Court observed to explain the concept of 'appelable interest' in Thakor Jamasherkhanji Tajkhanji v. Rajgor G.V. [1998 (3) GLR 1966] thus,

"... ... ... third party can also file Appeal provided two essential conditions are satisfied. The first is that such third party is going to be vitally and adversely affected by the Judgment and Decree of the trial Court and such party has interest in the property which was the subject matter of the Suit. Merely by showing that a party has interest in the property in Suit or that his interest is going to be adversely affected he can not, as of right, file Appeal."

(Para 27) (Emphasis supplied)

9. Having discussed the principles of law as above and particularly considering the concept of 'aggrieved person' to be entitled to enjoy the right to appeal, now the basic facts of the case may be recapitulated and reverted to. The plaintiff Patel Pravinbhai Kachrabhai of Special Civil Suit No.31 of 2012 had executed agreement to sell dated 05th August, 2008 in respect of the subject matter property involved in the above Special Civil Suit for specific performance between the plaintiff and the defendants in favour of one Patel Bharatkumar and three others. This Bharatkumar and three others, subsequently on 09th December, 2008 executed another document being agreement for sale in favour of the present applicants. When the suit was compromised between the parties to the suit, the applicants on the basis of the above agreements dated 05th August, 2008 followed by 09th December, 2008 claimed their interest to project themselves as the party aggrieved qua the compromise decree.

9.1 In other words, what is fundamental is that in order to be entitled to prefer an appeal, a person must be one who can be said to be aggrieved against the judgment. This aggrievement has to be a legal aggrievement where the aggrieved person could be said to be prejudicially affected to permit him to prefer appeal even if he is not a party to the suit proceedings. He must have an appealable interest. A party who would be benefited because of the change in the judgment by redressal of legal injuria, is said to have an appealable interest. The change in the

judgment prayed to be appealed against by the third party, when brings an immediate right or legal benefit, then the person can be said to be having appealable interest. This appealable interest should not be contingent, speculative or futurative. The appealable interest must be substantial and immediate.

9.2 In order to acquire the status of aggrieved party, the person must have legal interest and an enforceable right which would in turn allowing him to question the decree or order by preferring appeal, though he may not be a party to the suit or proceedings. The applicants who claim their interest on the basis of the agreements to sell as above could not be said to be holding any interest in the property to be within the definition of legally aggrieved or prejudiced persons. As the applicants are not 'aggrieved party' vis-a-vis the compromise decree having regard to their legal status, they could not be clothed with right to appeal. They do not have 'appelable interest' in connection with the compromise decree.

10. The present applicants do not qualify on facts and in law to be the aggrieved persons to be entitled to question the compromise decree between the parties to the said Special Civil Suit by preferring appeal thereagainst. Whatever rights the applicants can claim on the basis of agreement to sell in their favour, they have to establish such rights and the enforceability thereof in an

independent proceedings by filing separate suit. The leave to appeal cannot be granted to the applicants.

11. The application is dismissed. The registration of the First Appeal shall consequentially be cancelled.

(N.V.ANJARIA, J)

(VAIBHAVI D. NANAVATI,J) ANUP