GURUSWAMI GOUNDER Vs. KESAVA REDDIAR

JUDGEMENT

(1.) SECOND defendant is the appellant in the above second appeal. First respondent herein has filed O.S.No.510 of 1980 on the file of the Sub-Court, Gobichettipalayam seeking for specific performance of an agreement of sale entered into between the second respondent in this appeal and the first respondent-plaintiff on 23.10.1978 for the sale of the suit schedule property. The case of the plaintiff was that the second respondent herein has agreed to sell the property in question on 23.10.1978 to the plaintiff for consideration of Rs.18,100 that various amounts were paid on the dates set out in detail in the plaint, that a balance of Rs.8,100 was due towards the sale consideration, that the plaintiff was ready and willing to perform his part of the contract, that for a sum of Rs.4,000 that was paid on 29.4.1979, there was no endorsement on the agreement, that even if the court comes to the conclusion that there is no proof for payment of the said sum of Rs.4,000 the plaintiff is prepared to deposit the said amount also on a direction given by the court and that in spite of the readiness and willingness of the plaintiff to purchase the property, the second respondent has sold the property to the appellant, which necessitated the filing of the suit for specific performance.

(2.) THE defendants contested the claim on several grounds.

(3.) AGGRIEVED, the second defendant filed the appeal in A.S.No.144 of 1981 before the District Court, Erode District at Erode. The learned District Judge also had gone into the matter at considerable length and detail formulating the necessary points to be adjudicated in the appeal. While confirming the judgment and decree of the trial court, the lower appellate court held that the plaintiff was ready and will ing to perform his part of the contract and as such he is entitled to specific performance sought for and the second defendant-appellant before the lower appellate court cannot be considered to be a bona fide purchaser without notice of the suit agreement of sale in favour of the plaintiff. The lower appellate court ordered only modification of the decree to the extent that the amount to be deposited by the plaintiff towards the balance of consideration is due to the second defendant and not to the first defendant. Hence, the second appeal by the second defendant in the suit, who was unsuccessful before the courts below: