MUGLA Vs. RAM NARAIN

JUDGEMENT

(1.) THE following substantial questions of law arise for consideration in both the second appeals: -

(2.) THE two appeals are connected and they are at instance of parties in the same suit. The appeal in RSA No.705 of 1985 is at the instance of the defendant while the appeal in RSA No.1595 of 1985 is at the instance of the plaintiff, both of them being aggrieved by the directions given in the decree for specific performance by the Appellate Court. The Appellate Court was reversing the decree of dismissal of the trial Court in the suit for specific performance. The plaintiff is aggrieved with the direction that the finding regarding the invalidity of mortgage in an earlier suit constituted a res judicata and a direction given by the Court below for paying the consideration of Rs.16,000/ - which was one of the items of consideration mentioned in the agreement. This amount was to be taken as constituting a discharge of the liability by the plaintiff to the defendant for the total amount of sale consideration as per the recitals in the sale agreement.

(3.) THE trial Court found that the issue specifically raised about the validity of the mortgage was concluded in the earlier proceedings itself and that the plaintiff had even failed to produce the document of mortgage to substantiate the validity of a mortgage or the proof of consideration which was recited in the agreement. The suit was dismissed. The Appellate Court reversed the finding to hold that even if the mortgage had not been proved, the item of consideration would stand substituted as a liability by the plaintiff to pay the amount in cash and the agreement having been proved, the plaintiff is entitled to decree for specific performance.