S JAYAVEL Vs. S MANICKAM

JUDGEMENT

(1.) THIS second appeal has been preferred against the decree and judgment in A. S. No. 12/1993 on the file of the court of Subordinate Judge, Dharmapuri. The defendant in o. S. No. 52/1985 on the file of the Court of District Munsif, dharmapuri, is the appellant herein. The plaintiff/respondent herein filed O. S. No. 52/1985 before the district Munsif for specific performance of contract entered into between the plaintiff and the defendant on 1. 2. 1978. The suit was dismissed by the learned District munsif. On appeal before the first appellate Court in a. S. No. 12/1993 preferred by the plaintiff, the learned subordinate Judge has set aside the decree and judgment of the trial Court and allowed the first appeal thereby decreeing the suit as prayed for. Aggrieved by the findings of the learned Subordinate Judge in A. S. No. 12/1993, this second appeal has been preferred.

(2.) THE short facts relevant for the purpose of deciding this appeal as narrated in the plaint are as follows:-The defendant had agreed to sell the plaint schedule property for Rs. 7,500/- to the plaintiff after receiving Rs. 1,000/- towards advance. The sale agreement is dated 1. 2. 1978. As per the sale agreement the possession was delivered to the plaintiff. Inspite of repeated request the defendant has not executed the sale deed. Hence, the plaintiff issued suit notice for specific performance of the contract. The suit property was attached as per the decree in O. S. No. 1162/1979 filed by one Ramakrishna Chetty in e. P. 358/1980. The defendant has promised to discharge the debt and then executed a sale deed. To cancel the attachment proceedings the plaintiff filed E. A. No. 650/1980 in the above said E. P. No. 358/1980. The said application was dismissed on 10. 01. 1984. CMA. No. 7/1984 was preferred against the order passed in E. A. No. 650/1980, which was also dismissed on 10. 1. 1984. In E. P. No. 358/1980, the plaintiff in order to protect his property has paid Rs. 4,540/- before the Court and on that basis it was recorded as the entire debt has been discharged and on the endorsement made by ramakrishna Chetty, CMP. No. 7/1984 was allowed. The plaintiff is liable to pay Rs. 1,960 towards balance of sale consideration. Since there was an attachment in respect of the suit property in force from 14. 7. 1980 to 12. 09. 1984 the suit is not barred by limitation. Hence, the suit.

(3.) THE defendant in his written statement has contended that his agreement of sale dated 1. 2. 1978 is true. The plaintiff is the brother of the defendant. Only at the request of the plaintiff, the plaintiff was allowed to reside in the suit house and he undertook to vacate the suit property soon after the marriage of his daughter. But as promised, the plaintiff has not vacated the property. As per the mutation took place between the plaintiff and defendant, the defendant had agreed to sell the house to the plaintiff. But he has not received any amount in advance. But the advance amount was deposited before the mediators. The defendant has agreed to sell the property if the plaintiff pays the entire sale consideration. Since the plaintiff has failed to pay the entire sale consideration he is not entitled to any relief in the suit. The time stipulated under the agreement of sale also expired. The suit is barred by limitation. Hence, the suit is liable to be dismissed.