BARIK Vs. BANSHIDHAR LENKA

JUDGEMENT

(1.) DEFENDANTS have filed this appeal against the judgment dated 17.6.1996 whereunder the lower appellate Court has set aside the judgment and decree of the trial Court and remanded the suit to the trial Court for fresh disposal.

(2.) THERE is no dispute that defendant No. 1 was the owner of the disputed land. Originally, the suit was filed for specific performance of contract against defendant No. 1. It appears that the said suit was decreed ex pane on 19.12.1979 and subsequently, a sale deed was executed in execution through Court. On 2.1.1982, defendant No. 1 executed three sale deeds in favour of defendants 2 to 4. Subsequently, defendant No. 1 filed Misc. Case No. 327 of 1982 under Order 9, Rule 13, Code of Civil Procedure, to set aside the ex pane decree and the ex pane decree was set aside. Thereafter, defendants 2 to 4 got themselves impleaded in the suit. The plaintiff also amended his plaint and prayed that the sale deeds in favour of defendants 2 to 4 are illegal and inoperative. According to the plaintiff's case, defendant No. 1 had executed an agreement on 29.3.1976 to sell the disputed land to the plaintiff and out of the total consideration of Rs. 10,000/ - a sum of Rs. 8,000/ - had been paid and written agreement had been executed and possession had been delivered. Thereafter, though the plaintiff had verbally requested defendant No. 1 to execute the sale deed, the latter avoided to do so.

(3.) THE trial Court dismissed the suit. In appeal at the instance of the plaintiff, the Additional District Judge set aside the judgment of the trial Court, framed two additional issues and remanded the matter to the trial Court for fresh disposal on the basis of the existing evidence on record. The aforesaid order of remand is under challenge in the present Miscellaneous Appeal.