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Madras High Court · body

2011 DIGILAW 2242 (MAD)

M. Kumaraswamy v. Nanjappa Gounder

2011-04-20

R.S.RAMANATHAN

body2011
Judgment :- 1. The plaintiffs in O.S.No.1436 of 1990, who are also the defendants 4, 13 to 16 in O.S.No.906 of 1989, are the appellants. 2. Marudhachalam Chettiar was the owner of the suit property and according to the first respondent herein, the said Marudhachalam Chettiar entered into an agreement of sale on 22.8.1973 with him agreeing to sell the suit property and as the said Marudhachalam Chettiar failed to execute the sale deed as per the agreement of sale, the first respondent filed O.S.No.466 of 1975 for specific performance of the agreement of sale dated 22.8.1973 impleading Marudhachalam Chettiar and the first appellant and his brother Velliangiri whose legal representatives are appellants 2 to 5 and three others, who are all the sons of Marudhachalam Chettiar. In that suit, Marudhachalam Chettiar and defendants filed separate statements and later, the first respondent herein exonerated defendants 2 to 6 in that suit and the suit was dismissed as against defendants 2 to 6 and Marudhachalam Chettiar submitted to decree, and the suit was decreed as against the said Marudhachalam Chettiar on 21.7.1977. Thereafter, on 9.2.1978, the said Marudhachalam Chettiar handed over possession of the property to the first respondent herein and as the said Marudhachalam Chettiar did not execute the sale deed as per the decree passed in O.S.No.466 of 1975, the first respondent herein filed E.P.No.128 of 1988 against Marudhachalam Chettiar and during the pendency of the said E.P., he died and his legal representatives were added in that Execution Proceedings and they remained ex parte and thereafter the sale deed was executed on 12.4.1989 by court and eversince the handing over of possession by Marudhachalam Chettiar and from the date of sale, the first respondent claims to be in possession of the property as the owner and as his possession is sought to be disturbed by the appellants and respondents 2 to 19, the first respondent filed the suit for injunction in O.S.No.906 of 1989. 3. 3. The appellants filed the suit in O.S.No.1436 of 1990 against respondents 2 to 4 for declaration and injunction stating that the suit property was the self-acquired property of Marudhachalam Chettiar and under a registered settlement deed dated 26.10.1973, Marudhachalam Chettiar settled the property in favour of his sons viz., the first appellant and Velliangiri, whose legal representatives are appellants 2 to 5 and possession was also handed over to the plaintiffs by Marudhachalam Chettiar and they were in possession and enjoyment of the same. The sale agreement alleged to have been executed by Marudhachalam Chettiar in favour of the first respondent was not a valid one and there was no necessity for Marudhachalam Chettiar to borrow a sum of Rs.25,000/= and the agreement of sale in favour of the first respondent to settle the said debt was also not true and the decree in O.S.No.466 of 1975 was also not binding on the appellants as they were exonerated from the suit. Though the first appellant and his brother Velliangiri earlier filed O.S.No.604 of 1978 against the first respondent and Marudhachalam Chettiar for declaration of their title and for injunction on the basis of the settlement deed executed by Marudhachalam Chettiar in favour of the first appellant and Velliangiri by reason of the fraud played by the first respondent and others, that suit was dismissed for default and that was known to the first appellant and his brothers only later and the brother of the first appellant viz., Velliangiri was not heard for so many years and therefore, he was presumed to be dead and hence, his legal representatives viz., appellants 2 to 5 and the first appellant filed the suit in O.S.No.1436 of 1990 for declaration and injunction on the basis of the settlement deed executed in their favour by Marudhachalam Chettiar. In that suit, the first respondent contended that the appellants are bound by the decree passed in O.S.No.466 of 1975 and even though they were exonerated in E.P.No.128 of 1988, they were impleaded as legal representatives of Marudhachalam Chettiar and they remained ex pare and thereafter, the sale deed was executed by the court in favour of the first respondent and possession was already handed over to the first respondent by Marudhachalam Chettiar on 9.2.1978 and appellants 2 to 5 are not entitled to maintain the suit as it was not declared that Velliangiri was dead and therefore, the suit filed by the appellants is not maintainable. 4. Both the suits were tried together and both the courts below have concurrently held that the first respondent herein is the owner of the suit property as the sale deed was executed in his favour by the court and he is in possession of the property and the appellants have not proved that Velliangiri was not heard for seven years and therefore, appellants 2 to 5 cannot represent Velliangiri as he is alive and they have already filed the suit in O.S.No.604 of 1978 for declaration of their title and injunction based on the settlement deed dated 26.10.1973 and that suit was dismissed for default and therefore, the subsequent suit in O.S.No.1436 of 1990 is barred under Order IX Rule 9 of the Code of Civil Procedure and even as per the agreement entered into between the parties on 3.7.1978, it was agreed that if the amount as stated therein was not paid to the first respondent, the first respondent is entitled to the suit property as per the decree passed in O.S.No.466 of 1975 and as per the agreement dated 3.7.1978, the appellants have not proved the payments to the first respondent and therefore, as per the said agreement, the appellants and other respondents lost their right in the suit property and therefore, the first respondent herein is entitled to decree and the appellants are not entitled to the decree and decreed the suit filed by the first respondent and dismissed the suit filed by the appellants. Hence, these two second appeals. 5. The following substantial questions of law were framed at the time of admission in "S.A.No.1703 of 1998 1. Hence, these two second appeals. 5. The following substantial questions of law were framed at the time of admission in "S.A.No.1703 of 1998 1. Whether in law, the courts below have not erred, in overlooking that the first respondent, who is the plaintiff in O.S.No.906 of 1989, lost his right to execute the decree in O.S.No.466 of 1975 after having given up the same expressly by executing Exhibit A9 thus acknowledging the title of the defendants 1 to 3. 2. Whether in law, the courts below have not erred in holding that the suit O.S.No.1436 of 1990 was barred by limitation, overlooking that the decree in O.S.No.466 of 1975 became non est in law after Exhibit A9 was executed. 3. Whether in law, the courts below have not erred in holding that the suit O.S.No.1436 of 1990 was barred as the previous suit in O.S.No.604 of 1978 was dismissed for default overlooking that even according to first respondent herein, the said suit in O.S.No.604 of 1978 was to be withdrawn as per Clauses found in Exhibit A9. 4. Whether in law, the Courts below have not erred in presuming procession in favour of the first respondent herein, on the basis of Ex.A19 to A22 overlooking that he cannot maintain the suit for injunction against the appellants even after they were exonerated by him in O.S.No.466 of 1975 itself. S.A.No.1704 of 1998 1. Whether in law, the courts below ought not to have seen that the decree and judgment in O.S.No.466 of 1975 are not binding on the appellants since the plaintiff therein gave up the defendants 2 to 5? 2. Whether in law the courts below have not erred in holding that the decree in O.S.No.466 of 1975 ought to have been set aside when as a fact defendants 2 to 5 were exonerated by the plaintiff? 3. Whether in law the courts below have not erred in overlooking that the plaintiff and the first defendant colluded with each other and consequently a fraudulent decree has been obtained, which is a nullity vide 1994, I LW 235? 4. 3. Whether in law the courts below have not erred in overlooking that the plaintiff and the first defendant colluded with each other and consequently a fraudulent decree has been obtained, which is a nullity vide 1994, I LW 235? 4. Whether in law, the courts below have not erred in holding that the suit in O.S.No.1436 of 1990 was barred as the previous O.S.No.604 of 1978 was dismissed for default overlooking that even according to the first defendant in the said suit the O.S.No.604 of 1978 was to be withdrawn as per clauses found in Exhibit A9?" 6. Mr.K.V.Subramanian, learned Senior Counsel appearing for the appellants submitted that the decree in O.S.No.466 of 1975 is not binding on the appellants as they were exonerated in that suit and therefore, they were not parties in that suit and therefore, they will not come under the definition of person as stated in Section 47 of the Code of Civil Procedure and therefore, the decree passed in O.S.No.466 of 1975 is not binding on them. He further contended that after the execution of the settlement deed, Ex.B3 in favour of the appellants, they became the owner of the property and as per the settlement deed, possession was handed over to them and therefore, Marudhachalam Chettiar could not have handed over vacant possession to the first respondent under Ex.A7 and the sale deed executed by the court in pursuant to the order passed in E.P.No.128 of 1988 is also not binding on them. According to the learned Senior Counsel, though the appellants were made parties to E.P.No.128 of 1988, they were impleaded in the capacity of legal representatives of Marudhachalam Chettiar, who were the judgment debtors and when they were impleaded as the legal representatives of Marudhachalam Chettiar, they cannot agitate their independent claim in that suit and they have to take the defence of Marudhachalam Chettiar and therefore, even assuming that they were parties to E.P.No.128 of 1988, the sale is not binding on them. He further submitted that Ex.A9 ought not to have been relied upon by the court below and if Ex.A9 was taken into consideration, a new contract came into force between the parties and therefore, the first respondent is not entitled to maintain the suit in O.S.No.906 of 1989 for injunction inasmuch as in the said agreement, the first respondent has agreed to give up his right under the decree obtained in O.S.No.466 of 1975 and agreed to receive various amounts from the legal representatives of Marudhachalam Chettiar and therefore, his only remedy is to file a suit for recovery of amount as stated in Ex.A9 and the dismissal of the suit in O.S.No.604 of 1978 filed by them was only as per the conditions stated in Ex.A9 and therefore, that dismissal order will not stand in the way of filing of the present suit for declaration and injunction and in any event, there is a valid settlement in their favour by their father Marudhachalam Chettiar even prior to the suit filed by the first respondent in O.S.No.466 of 1975 and therefore, the subsequent purchasers or subsequent owners ought to have been made as parties in the suit for specific performance and even though the appellants were made parties to O.S.No.466 of 1975, they were exonerated by the first respondent and therefore, the suit for specific performance without impleading the subsequent purchasers cannot bind the subsequent purchasers and relied upon the judgments reported in DURGA PRASAD AND ANOTHER v. DEEP CHAND AND OTHERS ( AIR 1954 SC 75 ), VIMALA AMMAL v. C.SUSEELA (AIR 1991 MADRAS 209), CHINNA VANAN v. ALAMELU ( 1975 (1) MLJ 263 ) for that proposition. He further relied upon the judgment reported in RAMALINGAM v. VENUGOPAL (2000 MLJ (Supp.) 141 for the proposition that when a suit was dismissed for default pursuant to an agreement entered into between the parties to the suit, that dismissal order cannot be brought under the category of Order IX Rule 9 and the subsequent suit is maintainable. He further relied upon the judgment reported in NARAYANAPPA v. P.D.KHURANA (AIR 1953 MYSORE 153) for the proposition that the legal representatives of the deceased defendant cannot raise pleas which are open to them in their individual capacity in execution petition filed by the decree holder. He further relied upon the judgment reported in NARAYANAPPA v. P.D.KHURANA (AIR 1953 MYSORE 153) for the proposition that the legal representatives of the deceased defendant cannot raise pleas which are open to them in their individual capacity in execution petition filed by the decree holder. He further relied upon the judgment reported in RADHA NATH v. RAM CHANDRA (AIR 1954 CALCUTTA 367) for the proposition that the dismissal of a suit against a particular party on the ground that he is not a necessary party, is not a dismissal within the scope of section 47 and therefore, the appellants are not bound by the decree passed in O.S.No.466 of 1975 and they could not have raised objection in the execution petition in E.P.No.128 of 1988 even though they were made as parties in the capacity of legal representatives of the judgment debtor. 7. On the other hand, Mr.A.L.Somayaji, learned Senior Counsel submitted that under Ex.A9 it was agreed among the parties that if the amount stated therein were not paid to the first respondent, they cannot have any right against the first respondent in respect of the suit property and it was also agreed that the appellants should withdraw the suit in O.S.No.604 of 1978 and as per the terms of the agreement, though the appellants withdrew the suit in O.S.No.604 of 1978, by not prosecuting the same and allowed the suit to be dismissed for default, they have not acted according to the terms of the settlement by paying amount to the first respondent and therefore, as per the terms of Ex.A9, the first respondent became the owner of the property and the appellants and other respondents cannot question his title. The learned Senior Counsel further submitted that even though a suit was dismissed as against a particular defendant on the ground that he was exonerated, he continues to be a party as per section 47 of the Code of Civil Procedure and he ought to have raised objections while executing the decree in O.S.No.466 of 1975 and in the absence of any objection raised by the appellants, it is not open to the appellants to raise the said plea and relied upon the judgment reported in V.K.KELU ACHAN AND ANOTHER v. THANDAVAN CHETTIAR AND ANOTHER (AIR 1933 MADRAS 340) and VADDADI SANNAMMA v. KODUGANTI RADHABHAYI AND OTHERS (AIR 1918 MADRAS 123). He further submitted that as per section 47 of the Code of Civil Procedure, a purchaser, in execution of a decree, is also a party to the suit and in this case, the appellants were parties to a suit in O.S.No.466 of 1975 and even though they were exonerated and the suit was dismissed as against them, they remained parties to the suit and ought to have raised all the objections in the execution petition and a separate suit is not maintainable. He further submitted that as per the agreement Ex.A9, the appellants alone were not entitled to the suit property and the other legal heirs of Marudhachalam Chettiar were given various extent and therefore, even assuming that a new contract has come into existence, the first respondent cannot rely upon the decree passed in O.S.No.466 of 1975 without impleading the other legal heirs of Marudhachalam Chettiar and the suit filed by the appellants for declaration was not maintainable and the appellants are also not entitled to the entire suit property. 8. Mr.R.Subramanian, learned counsel for the respondent submitted that the appellants filed O.S.No.604 of 1978 and that suit was allowed to be dismissed for default and under Order IX Rule 9, the subsequent suit is barred on the same cause of action and in this case, it is admitted that O.S.No.604 of 1978 was filed for declaration and injunction on the basis of the settlement deed, Ex.B3 and therefore, the subsequent suit in O.S.No.1436 of 1990 is barred. He further submitted that even though the parties have not pleaded about Ex.A9 in their plaint in both the suits, and no issue was framed regarding Ex.A9, the fact remains that the case was contested on the basis of Ex.A9, evidence was let in by both the parties and as a matter of fact, the 16th defendant in O.S.No.906 of 1989 had stated about the agreement, Ex.A9 and as the parties led evidence and contested the suit knowing fully well about Ex.A9, it is not open to them to turn around and contend that Ex.A9 could not be looked into. He relied upon the judgment in KALI PRASAD AGARWALLA v. BHARAT COKING COAL LIMITED (1989 Supp. (1) SCC 628). He relied upon the judgment in KALI PRASAD AGARWALLA v. BHARAT COKING COAL LIMITED (1989 Supp. (1) SCC 628). He further submitted that even in the second appeal, the substantial questions of law were framed only with respect to Ex.A9 and the appellants relied upon Ex.A9 and contended that as per Ex.A9, the first respondent is not entitled to claim any right in O.S.No.466 of 1975 and hence, it is not open to the appellants to ignore Ex.A9. He further submitted that as per Ex.A9, the parties never intended to extinguish the decree in O.S.No.466 of 1975 and it was agreed between the parties that various amounts are to be paid by the legal representatives of Marudhachalam Chettiar in favour of the first respondent and if they failed to make the payment, they cannot question the right of the first respondent and therefore, under the agreement, Ex.A9, a new contract did not come into force and reciprocal promises were to be performed and the effect of non performance was stated and as the appellants did not make the payment as per the terms of the agreement, Ex.A9, the decree passed in O.S.No.466 of 1975 cannot be questioned by them and they are bound by the same. He further relied upon the judgment in SURAJ RATTAN v. AZAMABAD TEA CO. ( AIR 1965 SC 295 ) and PARASRAM HARNAND RAO v. SHANTI PARSAD NARINDER KUMAR JAIN ( AIR 1980 SC 1655 ) in support of his contention that the present suit is barred under Order IX Rule 9 of the Code of Civil Procedure as the earlier suit filed by the appellants in O.S.No.604 of 1978 was allowed to be dismissed for default. 9. Mr.M.V.Venkataseshan, learned counsel for the first respondent submitted that as per the judgment reported in RANJITH AMMAL v. SIVASUBRAMANIAN ( (2010) 4 MLJ 1002 and the judgment reported in KANDAPAZHA NADAR v. CHITRAGANIAMMAL ( (2007) 7 SCC 65 ), the subsequent suit in O.S.No.1436 of 1990 filed by the appellants after the dismissal of O.S.No.604 of 1978 is barred and therefore, O.S.No.1436 of 1990 is not maintainable. He also filed C.M.P.Nos.165 and 166 of 2011 in Second Appeal Nos.1703 and 1704 of 1998 respectively to receive the suit extract register in O.S.No.604 of 1978 as additional evidence and contended that though sufficient pleadings and evidence are available to arrive at a conclusion that O.S.No.604 of 1978 filed by the appellants was for declaration and injunction on the basis of the settlement deed, Ex.B3, executed by Marudhachalam Chettiar and a certified copy of the decree passed in O.S.No.604 of 1978 was also filed as Ex.B6, as all the particulars of the suit in O.S.No.604 of 1978 was not stated in Ex.B6, the suit extract register may be received in evidence which would throw light about the nature of suit filed in O.S.No.604 of 1978 and that document will help the court to decide the issue and therefore, the document may be received in evidence. It is further contended that the suit filed by the legal representatives of Velliangiri alongwith the first appellant is not maintainable and in Ex.A38 letter written by Palanichamy one of the brothers of Velliangiri and Kumarasamy, he mentioned about Velliangiri's presence and state that Velliangiri refused to sign the document and claimed no interest in the properties and therefore, it cannot be contended that Velliangiri was not heard of for more than seven years and therefore, when Velliangiri was alive, appellants 2 to 5 cannot maintain a suit on his behalf. 10. Heard the counsel. In this case, certain facts are admitted. Marudhachalam Chettiar was the owner of the property and he had five sons. It is the case of the first respondent that Marudhachalam Chettiar executed an agreement of sale deed 22.8.1973 agreeing to sell the property to him and he field the suit in O.S.No.466 of 1975 to enforce the agreement of sale. Even prior to the filing of the suit in O.S.No.466 of 1975, Marudhachalam Chettiar settled the suit property in favour of his two sons Kumarasamy and Velliangiri and the first appellant and the predecessor-in- title of appellants 2 to 5. Even prior to the filing of the suit in O.S.No.466 of 1975, Marudhachalam Chettiar settled the suit property in favour of his two sons Kumarasamy and Velliangiri and the first appellant and the predecessor-in- title of appellants 2 to 5. In O.S.No.466 of 1975, the first respondent impleaded Marudhachalam Chettiar and his five sons and all of them have filed statements and later defendants 2 to 6 viz., the sons of Marudhachalam Chettiar were exonerated and the suit was dismissed as against them and Marudhachalam Chettiar submitted to decree and decree was passed against Marudhachalam Chettiar and he was directed to execute sale deed as per the agreement of sale. The decree was passed on 21.7.1977. Thereafter, under Ex.A7, Marudhachalam Chettiar handed over possession of the suit property to the first respondent and on 14.4.1978, an agreement was entered into between Marudhachalam Chettiar and his son Krishnamurthy, Paappammal, Ramdoss, Maragatham and Dhanalakshmi and Nanjappa Gounder, the first respondent, wherein the decree passed in O.S.No.466 of 1975 was mentioned. Thereafter, an agreement was entered into between Marudhachalam Chettiar and his sons, grandchildren and the first respondent and in that agreement, Ex.A9, the parties admitted the handing over of possession to the first respondent under Ex.A7 and according to that, the sons and grandchildren of Marudhachalam Chettiar shall pay various amounts to Nanjappa Gounder, the first respondent herein and as per the the said agreement if the amounts were not paid, the sons and grandchildren of Marudhachalam Chettiar will lose their right in respect of the suit property in favour of the first respondent herein. There is also another clause that the sons of Kumarasamy and Velliangiri shall allow the suit in O.S.No.604 of 1978 to be dismissed and therefore, having regard to the admitted facts, we will have to see whether the appellants are entitled to the relief prayed for. 11. There is also another clause that the sons of Kumarasamy and Velliangiri shall allow the suit in O.S.No.604 of 1978 to be dismissed and therefore, having regard to the admitted facts, we will have to see whether the appellants are entitled to the relief prayed for. 11. Though the learned Senior Counsel for the appellants, Mr.K.V.Subramanian at one breadth argued that Ex.A9 should not be taken into consideration and the decree passed in O.S.No.466 of 1975 is not binding on the appellants as they were exonerated and not parties to the suit and to get over the bar under Order IX Rule 9 of the Code of Civil Procedure, regarding the dismissal of the suit in O.S.No.604 of 1978, he relied upon the judgment reported in 2006 MLJ Supplement 141 cited supra, in support of his contention that when the suit was dismissed for default pursuant to the agreement of sale between the parties, the dismissal cannot be stated as one for default and Order IX Rule 9 will not be a bar. 12. Further, the substantial questions of law were framed only on the basis of Ex.A9 and therefore, I am not able to accept the contention of the learned Senior Counsel for the appellants that Ex.A9 cannot be looked into. As rightly submitted by the learned Counsel Mr.R.Subramanian that parties were aware of Ex.A9 and evidence was let in respect of Ex.A9 and the case was contested on that basis and therefore, it is not open to the appellant to turn around and contend that Ex.A9 shall not be looked into and the first respondent cannot rely upon Ex.A9 to claim a decree in his favour. 13. As a matter of fact, Mr.K.V.Subramanian also argued that if the parties failed to make the payment as per Ex.A9, the remedy open to the first respondent is to enforce the payment and he cannot claim that the parties lost their right against him by reason of non-payment of the money as per the terms of Ex.A9. Even though in the plaint in O.S.No.1436 of 1990, it was contended that the suit in O.S.No.694 for 1978 was dismissed for default, now it was contended that as per the agreement, Ex.A9, the appellants are bound to withdraw the suit in O.S.No.604 of 1978 and therefore, it was allowed to be dismissed. Even though in the plaint in O.S.No.1436 of 1990, it was contended that the suit in O.S.No.694 for 1978 was dismissed for default, now it was contended that as per the agreement, Ex.A9, the appellants are bound to withdraw the suit in O.S.No.604 of 1978 and therefore, it was allowed to be dismissed. As per the judgment reported in 2000 MLJ (Supp.) 141 cited supra, the dismissal of the suit will not be a bar under Order IX Rule 9. Therefore, having regard to the inconsistent pleas taken by the learned Senior Counsel regarding Ex.A9, I am of the opinion that Ex.A9 was relied upon by both the parties and the parties went to trial with the full knowledge about Ex.A9 and the suit was filed on the basis of Ex.A9 and therefore, it is not open to the appellants now to contend that Ex.A9 should not be relied upon. 14. As stated supra, the substantial questions of law were also framed with reference to Ex.A9. It was contended by the learned Senior Counsel for the appellants that prior to filing of the suit in O.S.No.466 of 1978, the settlement deed was executed by Marudhachalam Chettiar in favour of his two sons under Ex.B3 and without impleading them, the suit filed by the first respondent in O.S.No.466 of 1975 is not maintainable and the decree passed in O.S.No.466 of 1975 will not confer any title to the first respondent as the title had already vested with the first appellant and his brother Velliangiri under Ex.B3 and they relied upon the judgments in DURGA PRASAD AND ANOTHER v. DEEP CHAND AND OTHERS ( AIR 1954 SC 75 ), VIMALA AMMAL v. C.SUSEELA (AIR 1991 MADRAS 209), CHINNA VANAN v. ALAMELU ( 1975 (1) MLJ 263 ) cited supra. 15. It is admitted that the first appellant and Velliangiri and other sons of Marudhachalam Chettiar were parties to O.S.No.466 of 1975 and they contested the suit and only later, the sons of Marudhachalam Chettiar were exonerated. Further, I am of the opinion that having regard to Ex.A9, there is no need to go into the question whether the appellants are entitled to question the decree in O.S.No.466 of 1975 on the ground that they were not parties to the suit. 16. It is seen from the arguments of the learned Senior Counsel Mr.K.V.Subramanian that he is taking consistent pleas regarding Ex.A9. 16. It is seen from the arguments of the learned Senior Counsel Mr.K.V.Subramanian that he is taking consistent pleas regarding Ex.A9. At one breadth, he would contend that Ex.A9 amounts to novation of contract and therefore, as per Ex.A9, the plaintiff cannot claim title pursuant to the decree in O.S.No.466 of 1975. At the same time, the learned Senior Counsel would argue that Ex.A9 cannot be looked into and it was not acted upon. He would further submit that the the appellants withdrew the suit in O.S.No.604 of 1978 only as per the terms and conditions stipulated in Ex.A9. Therefore, having regard to the prevaricating stand taken by the learned Senior Counsel Mr.K.V.Subramanian, one thing is made clear that the appellants cannot get rid of Ex.A9. It is further submitted by Mr.K.V.Subramanian, learned Senior Counsel for the appellants that under Ex.A9, the parties had to work out their remedies and if the plaintiffs and respondents 2 to 18 failed to make the payment as per Ex.A9, he has to file a suit for recovery of money and therefore, the plaintiff cannot claim any title in pursuance of the decree passed in O.S.No.466 of 1975. 17. According to me, the contention of the learned Senior Counsel for the appellants cannot be accepted. A reading of Ex.A9 would make it clear that if the parties failed to make payment as stated therein, they lose their right in respect of the property against the first respondent. The relevant paragraph is VERNACULAR (TAMIL) PORTION DELETED 18. Therefore, from the above passage, the parties agreed specifically that if they failed to comply with the terms, they will lose their right in respect of the suit property against the first respondent herein. Further, as per Ex.A9, not only the appellants, but respondents 2 to 19 were also given various extents in the suit property. Therefore, in any event, Ex.A9 is a deathknell to the claim made by the appellants in respect of the suit property. 19. Further, the facts of the case reported in UNITED BANK OF INDIA v. RAMDAS MAHADEO PRASHAD ((2004) 1 MLJ 990 are also, to some extent, similar to the facts of this case. In the reported case, there was a Memo of Understanding between the parties. Some of the parties did not act according to the terms of the Memo of Understanding. In the reported case, there was a Memo of Understanding between the parties. Some of the parties did not act according to the terms of the Memo of Understanding. In that context, the Honourable Supreme Court has observed that by no stretch of imagination, it can be stated that the terms and conditions stipulated in the Memo of Understanding had been complied with and acted upon by the parties and held that there was no concluded contract and therefore, there is no novation. Therefore, in view of the above Supreme Court judgment, in this case also, the parties, have not acted according to the terms of the contract and there was no concluded contract and there is no question of novation. Even though the learned Senior Counsel has commented on Ex.A9 as stated above, the substantial questions of law were framed only with respect to Ex.A9 and therefore, it is not open to the appellants now to argue that Ex.A9 cannot be looked into and it is not a valid document. 20. It is submitted by the learned Senior Counsel that as per the judgment in 2000 MLJ (Supp.) 141 cited supra, when the parties entered into an agreement and as a result of that the suit was allowed to be dismissed, it will not come under the ambit of Order IX Rule 9 of the Code of Civil Procedure. Now, as per the above judgment, when all the parties entered into an agreement not to prosecute a suit and in pursuant to that the suit was allowed to be dismissed for default, it will not come under the scope of Order IX Rule 9 of the Code of Civil Procedure. In that event, the appellants have to admit that they have allowed the suit in O.S.No.604 of 1978 to be dismissed for default in terms of Ex.A9. Then they are bound by Ex.A9 and as per Ex.A9, the appellants cannot claim any right if they failed to act as per the terms of the agreement in not paying the amount to the first respondent. Further, the appellants are not the absolute owners of the property and even assuming that payments were made, the properties belong to the appellants as well as respondents 2 to 19 and in that event also the appellants cannot make a declaration in this case. Further, the appellants are not the absolute owners of the property and even assuming that payments were made, the properties belong to the appellants as well as respondents 2 to 19 and in that event also the appellants cannot make a declaration in this case. Admittedly no payment was made to the first respondent as per the terms stated in Ex.A19. 21. A contention was raised by the learned Senior Counsel Mr.K.V.Subramanian that the dismissal of O.S.No.604 of 1978 will not be a bar to file a fresh suit under Order IX Rule 9 of the Code of Civil Procedure, in the absence of any proof filed by the first respondent that the cause of action pleaded in O.S.No.604 of 1978 and the cause of action pleaded in the present suit is the same. No doubt, during trial, the first respondent has not produced the pleadings in O.S.No.604 of 1978. However, in the second appeal, applications were filed in C.M.P.Nos.165 and 166 of 2011 to receive the suit register extract in O.S.No.604 of 1978 as additional evidence and it is seen from the suit register in O.S.No.604 of 1978, that the earlier suit in O.S.No.604 of 1978 was also filed for declaration on the basis of the settlement deed executed by Marudhachalam Chettiar in favour of the first appellant and his brother Velliangiri and the present suit is also filed on the same set of cause of action. Though the first respondent could have produced the pleadings during trial, the decree passed in O.S.No.604 of 1978 was produced during the trial and unfortunately, the decree does not contain any particulars about the schedule of property or the nature of relief prayed for and therefore, in the interest of justice, I am inclined to allow the applications and receive the documents on the side of the respondent as the contents of the document were not disputed and cannot be disputed and it is only a certified copy of the decree passed in O.S.No.604 of 1978. Therefore, the petition is allowed and as per the said document, the cause of action for the suit in O.S.No.604 of 1978 is the same as in O.S.No.1436 of 1990. 22. Therefore, the petition is allowed and as per the said document, the cause of action for the suit in O.S.No.604 of 1978 is the same as in O.S.No.1436 of 1990. 22. It was contended by Mr.K.V.Subramanian, the learned Senior Counsel for the appellant that the appellants were impleaded in E.P.No.128 of 1988 as the legal representatives of the deceased Marudhachalam Chettiar and therefore, they cannot take up the defences that are available to them in the individual capacity and hence, they are entitled to question the decree in the subsequent suit and the right is not barred under section 47 of the Code of Civil Procedure. No doubt, the appellants, as legal representatives, cannot project their independent claim over the suit property in O.S.No.466 of 1975 and they will have to prosecute the rights of Marudhachalam Chettiar. Having regard to the Full Bench judgment of this court in AIR 1918 MADRAS 123 cited supra, the appellants being parties to the suit in O.S.No.466 of 1975, and even though the suit was dismissed against them, still they continue to be the defendants within the meaning of explanation to section 47 of the Code of Civil Procedure and the judgment was also followed in the judgment reported in AIR 1933 MADRAS 40 cited supra. 23. The learned Senior Counsel Mr.K.V.Subramanian relied upon the Full Bench Judgment of this court in AIR 1930 MADRAS 817 cited supra, to buttress his contention that when a party was abandoned on the ground that he is not a necessary party, he will not come under the term of party to the suit as per section 47 of the Code of Civil Procedure and therefore, the appellants can question the decree passed in O.S.No.466 of 1975. 24. In that judgment, the Honourable Full Bench has only held that when a party was exonerated on the ground that he was not a necessary party, he will not be termed as party for the purpose of section 47 of the Code of Civil Procedure but, in this case, the facts are different. The appellants were not exonerated on the ground of unnecessary parties. But, they were exonerated and decree was passed against the first defendant viz., Marudhachalam Chettiar and therefore, they continued to be the party so far as section 47 of the Code of Civil Procedure is concerned. The appellants were not exonerated on the ground of unnecessary parties. But, they were exonerated and decree was passed against the first defendant viz., Marudhachalam Chettiar and therefore, they continued to be the party so far as section 47 of the Code of Civil Procedure is concerned. Further, as per the judgments relied upon by the learned Senior Counsel Mr.A.L.Somayaji, learned counsel Mr.R.Subramanian and Mr.M.V.Venkataseshan, appearing for the respondents, the appellants are parties within the meaning of Section 47 of the Code of Civil Procedure. 25. Considering all these aspects, I am of the view that the courts below have rightly dismissed the suit filed by the appellants and decreed the suit filed by the first respondent. Hence, the first substantial question of law in S.A.No.1703 is answered thus the first respondent viz. the plaintiff in O.S.No.466 of 1975 did not lose his right to execute the decree in O.S.No.466 of 1975 and as per Ex.A9 when the appellants and other respondents failed to make payment, they lost their right over the suit property in favour of the first respondent. Insofar as the second substantial question of law is concerned, the courts below are right in holding that the suit in O.S.No.1436 of 1990 is barred by limitation and it is answered in favour of the first respondent. The third substantial question of law is answered against the appellant and I hold that the dismissal of the previous suit in O.S.No.604 of 1978 is a bar for filing fresh suit on the same cause of action and the suit in O.S.No.1436 of 1990 is barred under Order IX Rule 9 of the Code of Civil Procedure. Insofar as the fourth substantial question of law is concerned, the courts below have not erred in decreeing the suit in O.S.No.466 of 1975 as it is established through Ex.A7, A8 and A9 that possession was handed over to the first respondent. 26. Insofar as substantial questions of law in S.A.No.1704 of 1998 is concerned, the first question of law is answered against the appellants for the reasons stated above and the decree in O.S.No.466 of 1975 is binding on the appellants as they continue to be parties even though they were exonerated in terms of section 47 of the Code of Civil Procedure. As regards the second substantial question of law, the appellants need not have filed any proceedings to set aside O.S.No.466 of 1975 but, they ought to have raised objections in E.P.No.128 of 1988 when the decree in O.S.No.466 of 1975 was sought to be executed and having failed in that, they are bound by the same and therefore, the second substantial question of law is also answered against them. So far as the third substantial question of law is concerned, there is no pleading to that effect and no evidence was let in and therefore, it is also answered against the appellants. The fourth substantial question of law is also answered against the appellants as it is the repetition of the third substantial question of law in S.A.No.1703 of 1998. In the result, the second appeals are dismissed. The judgment and decree of the courts below are confirmed. No costs. The connected pending miscellaneous petitions are closed.