LAKSHMINARAYANA REDDIAR Vs. SINGARAVELU NAICKER

JUDGEMENT

(1.) THIS appeal is preferred against the decree and judgment of the learned District judge, South Arcot, dismissing the appellant's suit for specific performance of as agreement dated 3-8-1946, for sale of immovable properties, or, in the alternative for recovery of damages and the price advanced by the appellant under the agreement.

(2.) THE admitted facts are the following. The properties in suit belonged to respondents. 1 and 2 who are members of an undivided Hindu family. The first respondent executed a mortgage over these properties in 1923 in favour of one manjini Gounder for Rs. 2500. The mortgagee obtained a decree on this mortgage in O. S. No. 20 of 1937 on the file of the District Court, South Arcot, for sale of the mortgaged properties and assigned his decree to one Muthuvenkatapathi Reddi, who brought the properties to sale and the properties were sold to several auction purchasers. Thereupon the second respondent filed M. P. No. 302 of 1944 under order 21 Rule 90 C. P. C. to set aside the sale. That was dismissed on 10-7-1945 and the sale was confirmed on 12-7-1945. The matter was brought up to High court in C. M. A. No. 447 of 1945, and by the order of this Court dated 28-3-1946, the appeal was allowed and the petition to set aside the sale was remanded to the district Court for disposal.

(3.) IT is said that the appellant had paid Rs. 1000 to the respondents towards the expenses of these proceedings and when the application to set aside the sale was remanded for disposal, another application under Order 34 Rule 5 C. P. C. was made for depositing Rs. 5856-8-3 into court. The sum represents the decree amount for which the properties ha been ordered to be sold. The appellant claimed that he had thus advanced Rs. 6856-8-3 to the respondents under the agreement that the respondent would sell the suit properties to him for the total sum of Rs. 6856-8-3 due to him. This agreement was entered into on 3-8-1946. A period of three months was fixed in the agreement as period within which the sale deed should be executed. The District Court on remand dismissed the application to set aside the sale. This happened on 25-2-1947. Thereupon an appeal was again preferred to this court, and it is said, that the parties mutually agreed to extend the time for execution of the sale deed pending disposal of the appeal in the High court. The respondents were successful in the High Court and ultimately the sale was set aside on 8-1-1953. Thereupon, the appellant sent notices to the respondents on 9-12-1952 and again on 6-12-1953 calling upon them to execute the sale deed, but the respondents refused to comply with the demand.