HARI OM Vs. GOPAL

JUDGEMENT

(1.) Heard Sri V. Sahai, learned Counsel for the appellants and Shri Vishnu Gupta for the respondent, Learned Counsel for the respondent has waived the cross-objection.

(2.) This second appeal was allowed by this Court on 28.11.1996. The matter was taken to the Supreme Court in which Civil Appeal Nos. 868 and 869 of 2001 were allowed and the matter was remanded to this Court to be decided expeditiously.

(3.) Brief facts giving rise to this appeal are as below: The plaintiff Shri Gopal filed a suit for specific performance of contract with the allegations that Shri Mat.ru Mal, father of the defendants had agreed to sell his residential house, for a sum of Rs. 9.500/- for which he executed a written agreement dated 15.1.1972 and accepted Rs. 2,000/- by way of earnest money, with the stipulation that out of this earnest money Rs. 1,000/- will bear the interest at the rate of 2% per month to be taken into account at the time of execution of the sale deed. At the time of execution of the agreement late Matru Mal was not the owner of the property. He had sold it to Harish Chand son of Tejpal towards a loan of Rs. 4,000/- after executing a sale deed with an agreement of re-purchase dated 13.2.1969. Late Matru Mal inserted a clause in the agreement stating that he required the money for getting his daughter Kunti Devi married and for that purpose he is taking Rs. 2,000/- as earnest money from Shri Gopal. As soon as the suit for re-purchase of property is decreed against Harish Chand he shall pay Rs. 4,000/- to him and executed the sale deed in favour of Shri Gopal, and if by that time Shri Gopal is not in a position to pay the remaining amount, the advance of Rs.2,000/- shall be forfeited. Shri Matru Mal succeeded in getting his suit decreed againt Harish Chand. The plaintiff also filed a document from the office of the Registrar certifying that he had reached the office of the Registrar along with Rs. 5,760/- but Matru Mal did not appear in spite of notice for executing the sale deed.