A.R. Tiwari, J.
1. This Judgment shall also govern the disposal of M. A. No. 77/76 (Sampatbai v. Rameshchandra and Ors.).
2. This appeal, presented under Section 96 of the Code of Civil Procedure (for short the 'Code') is directed against the Judgment and decree dated 25-2-1974 rendered by the third Addl. Judge to the Court of District Judge, Ujjain in COS No. 7-A/71, thereby granting a decree of specific performance of the contract as regards the suit-house situated at Khachrod.
3. Briefly stated, the facts of the case are that the house, bearing Municipal No. 33, situated in Derji Ward Khachrod and bounded by the periphery as detailed in para 1 of the plaint, was owned by Shankarlal and Ramchandra (Respondents Nos. 3 and 4). They entered into an agreement to sell on 7-2-1971 with Rameshchandra and Shravankumar (Respondents Nos. 1 and 2) on consideration of Rs. 11,201/- after paying the advance of Rs. 1,000/- and promising the documentation of sale within two months from the date of this ageement. The respondents Nos. 1 and 2 pleaded that the respondents Nos. 3 and 4 avoided the performance of this agreement despite several demands and eventually sold this house to the appellant vide sale-deed dated 27-4-1971 (Ex. D./4). They asserted that they had been and are still ready and willing to perform their part of the contract, but the respondents Nos. 3 and 4 and the appellant acted in collusion to defeat and destroy the right of the respondents Nos. 1 and 2. They, therefore, filed the civil suit against the erstwhile owners (Respondents Nos. 3 and 4) and the appellant Sampatbai (subsequent purchaser) claiming the specific performance of the contract. The respondents Nos. 3 and 4 opposed the claim on the ground that the breach was committed by the respondents No. 1 and 2 and they did not discharge their obligation, being not possessed of requisite money. They asserted that they were in dire need of money due to the marriage of their sister and as such were required to sell the house even on lesser amount to the appellant. The appellant disputed the liability and contended that she was a bona fide purchaser for value without notice of the previous contract. On evaluation of the evidence, the trial Court decreed the suit for specific performance on deposit of the money i.e. Rs. 10,201/- in the Court. The appellant was also directed to lose her title acquired by sale-deed and to join in the sale-deed ordered to be executed in favour of the respondents Nos. 1 and 2. As far the aforesaid money, the Court directed that the question is left to be sorted out between the respondents Nos. 3 and 4 and the appellant. The appellant thus, was made to lose title without being paid any consideration on that basis.
4. Aggrieved by the aforesaid Judgment and decree, the subsequent purchaser has filed this first appeal. As far as the respondents Nos. 3 and 4 are concerned, they opted to remain nonchalent against the decree and did not assail the same in this Court.
5. I have heard Shri S. D. Sanghi, learned Sr. Counsel with Shri N.K. Sanghi and Shri S.L. Garg, learned Sr. Counsel with Shri Suresh Garg, learned counsel for the respondents Nos. 1 and 2. None appeared for the respondents Nos. 3 and 4. I have also perused the records carefully.
6. Shri Sanghi strenously submitted that the decree, permitting contract to prevail over sale, was erroneous in law; unsupportable under Section 20 of the Specific Relief Act, and was surely subvertible and, in particular, urged the undernoted points in oppugnation--
(a) The trial Court misdirected itself in passing the decree of specific performance and anaesthetizing legal title, though acquired after the expiry of the period (7-4-1971) fixed for performance of the previous contract, and misappreciated facts and misapplied the law.
(b) The trial Court erred in concluding that the appellant was not a bona fide purchaser and that he did not fall in the category of 'exception' envisaged under Section 19(b) of the Specific Relief Act.
(c) The trial Court, on direction from this Court twice, erred in returning the findings that the prospective vendees had been and still are ready and willing to perform their part of the suit-agreement, (Ex.P/1).
6A. In pursusit of these, the learned counsel invited my specific attention to agreement dated 7-2-1971 (Ex. P/1), notice dated 2-4-1971 (Ex. P/2) averments in para 3 of the plaint presented on 5-5-1971, sale-deed dated 27-4-1971 (Ex. D/4) portions of statements of Shravan Kumar (PW-1) and Shaintanmal (PW-2). He criticised other evidence too but categorised the evidence in opposition as creditworthy. He also made a reference to Sections 37, 50 and 51 of the Contract Act.
7. In this Court, the Respondents Nos. 1 and 2 (plaintiffs) sought amendment introducing the plea of readiness and willingness and point of entitlement to possession and met denial of the same through consequential amendment. This Court, considering these questions worthy of being determined on evidence and essential to the right decision of the suit upon merits, referred the same for trial to the Trial Court and for report thereon. The following additional issues were framed--
13. Whether the plaintiffs were ready and willing to perform their part of the contract?
14. Whether the plaintiffs are entitled to the possession of the suit-house?
8. The trial Court obsequiously recorded additional evidence and, on scrutiny, recorded its findings in the affirmative in favour of the plaintiffs on 11-11-1983 and returned the same to this Court. The appellant objected to this on the ground that she was denied fair and full opportunity. On 10-1-1985, this Court observed that the directions made on 8-10-1982 were required to be adhered to in true spirit. This is how there was second inning of this reference. After recall of witnesses and affording opportunity of further cross-examination, the trial Court (another presiding officer) re-evaluated the evidence and reiterated its findings afresh on 10-10-1986 once again in favour of the plaintiffs. The fate thus, saw no fluctuation. The appellant thus, presented memorandum of objections to these findings in terms of Order 41, Rule 26 of the Code. The evidence and findings however, formed part of the record in the suit.
9. Now, I begin the journey further and notice certain dates. The suit-agreement dated 7-2-1971 is Ex. P/1 and it required performance within a period of two months i.e. by 7-4-1971. The appellant acquired sale-deed (Ex. D/4) on 27-4-1971. The suit was filed on 5-5-1971. The house is situated at Khachrod. The sale-price was fixed at Rs. 11,201/- out of which sum of Rs. 1,000/ - was paid as an advance. One of the terms was that vacant possession of the house would be given on registration of the document. The sale-deed showed the consideration as Rs. 9,000/-.
10. Shri Sanghi submitted that the stand taken by the prospective vendees is inconsistent and apocryphal. It is argued that Ex. P/2 sets up one story, plaint averments told a different tale and yet the version in Court indicated altogether a different warp and woof. It was also submitted altogether a different warp and woof. It was also submitted that evidence was not properly evaluated.
11. In elaboration, the inconsistency was highlighted. It was argued that one plea was that mother was declining, the other plea was that additional sum of Rs. 2,500/- was demanded and yet third one was that Sampatbai (appellant) was willing to purchase on higher sum of Rs. 15,000/-. The story of notice Ex. P/2 was exploded as a myth pointing out that 'blank-papers' in the envelopes were recovered on opening the same in the Court. In short, it was urged that the plaintiffs did not possess at any point of time sufficient fund to enable them to obtain sale-deed and that the house had to be sold to the appellant in answer to the pressure for money due to sistr's marriage. I was taken through the evidence of PW-1 and attesting witness PW-2.
12. Shri Sanghi has forcefully submitted that the trial Court has 'abdicated its judicial function' by not marshalling and appreciating the evidence in its proper perspective. He also submitted that the story put forward by the plaintiffs was a 'cock and bull story'. He has drawn my attention to certain portions of the statements of the witnesses. PW-1 Shravan Kumar stated in para 6 of his statement that till 27-4-1971 he had no occasion to meet the defendants Nos. 1 and 2. He also stated that the vendor indicated that he had no mind to sell the house and that the mother was also not signifying her consent. PW-2 Shaitanmal stated in para 2 that the vendor spoke of the offer of the more money on the sale of the house and on this ground declined to perform the contract. PW-3 Mahendra Singh Chawla spoke of the demand of Rs. 15,000/-. PW-4 Abdul Rahaman spoke about the declaration of Shankarlal that mother had declined in the matter. PW-5 Dhannalal indicated the urge of the husband of the appellant to pursue the matter and procure sale of the house, even on consideration of Rs. 15,000/-. PW-6 Babulal, Advocate was not questioned by the plaintiffs about the matter as deposed to by PW-1. PW-7 Mohanlal spoke about the demand of an additional sum of Rs. 2,500/-. PWs. 9, 10 and 11 spoke about availability of funds with the vendees.
13. I have carefully examined the entire evidence furnished by the aforesaid witnesses. PW-3 Mahendra Singh Chawla, PW-4 Abdul Rahaman, PW-5 Dhannalal are not found to be wholly reliable witnesses. However, this does not til the balance in favour of the appellant. One factor which convincingly goes against the vendors is as to why no notice was issued under registered cover to the vendees, and as to why they omitted to say in writing about non-availability of funds? On the linchpin of these material omissions, I find that the evidence furnished by the appellant or the vendors is not creditworthy and fails to inspire confidence.
14. Shri Sanghi also submitted that when the vendees did not meet the vendors till 27-4-1971, then the story that naturally emerges is that they were not ready and willing to perform their part of the contract. Although, this part of argument is quite attractive, yet the established principle of law is to read the entire statement rather than stray sentences here and there and to shift the grain from chaff. I have also carefully read the statements of D.W.-1 Shankarlal, DW-2 Radheshyam, DW-3 Ranchhor, DW-4 Ramchandra Shriva stava as also the statements of the witnesses examined by the appellant as DW-1, DW-2, DW-3, DW-4 and DW-5. It is unnecessary to comment on their statement in detail. The following portion is however, quite significant and lifts the veil--
^^eSaus oknhx.k dks jftLVMZ uksfVl edku [kjhnusds laca/k esa ugha fn;kA lEirckbZ dks edku cspus ds iwoZ Hkh eSaus uksfVloknhx.k dks ugha fn;kA eSaus lairckbZ dks edku cspus laca/kh izdk'ku fdlh i= esaugha djok;kA**
(para 13 of DW-4 Ramchandra Shrivastava).
Total impression gathered from the evidence is that the defence was rejectable. Now if the agreement Ex. P/1 had already come to an end as contended then no explanation was placed on record as to why steps to intimate and refund the sum of Rs. 1,000/- received at the time of execution of this agremeent, were not initiated before proceeding to sell the house to some one else.
15. True it is, that there was no real reason behind issuance of general notice in newspaper on 27-4-1971 when the period for obtaining the sale-deed had already expired on 7-4-1971.
16. On being questioned, Shri Garg was unable to explain as to why the suit had been filed only on 5-5-1971 and why no notice was given to Sampatbai even after sale. His only answer was that it was not considered necessary to do so.
17. Even otherwise, in the welter of agitated controversy, I have thus, read the statements of PW-1, PW-2, PW-3, PW-4 and PW-5 as also PW-7 and find that their material portions are cogently creditworthy and demonstrably dependable. I have also gone through the statements of PW-6 (Advocate) and PW-8 (Munshi) which gave blatant lie to the story of blank papers in Exs. P/3 and P/4 and exposed the design of wrong doer. I have also analysed the versions of PW-9, PW-10 and PW-11 which cogently established the financial competence of the plaintiffs.
Explanation to Clause (c) of Section 16 of the Specific Relief Act provides as under--
'(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. '(Empphasis supplied)
18. I have also scrutinised the evidence furnished by DW-1, DW-2, DW-3, DW-4 and DW-5 carefully. The story as introduced was that (a) stamps worth Rs. 515/- (Exs. D/4 and D/5) were purchased; (b) Letters indicating urge to obey the agreement were sent on 1-4-1971 and 6-4-1971 under postal certificate marked as Ex. D/2 and D/3; (c) Eviction, as term of the agreement, was obtained from the tenants within one and a half months only:(d) owners did go to the office of Sub-Registrar as evidenced by Ex.D/1. It is found unnecessary to reproduce relevant portion of statements of witnesses of both the sides.
19. What left me unimpressed was --
(a) As to why notice under Registered Cover A. D. by the owners was not sent till 6-4-1971?
(b) As to why alleged letter was repeated on 6-4-1971, again under Postal Certificate when one sent on 1-4-1971 through same mode evoked no response?
(c) As to why no notice soon after the execution of sale-deed dated 27-4-1971 (Ex,D/4) was sent demanding indemnification (Rs. 11,201/ - vis--vis Rs.9,000/-whenthevendeesweredefaulters and violators as contended?
(d) As to why no communication in writing was made asserting financial disability of the vendees as that could have clinched the material issue?
(e) As to why it become necessary to purchase stamps on 6-4-1971 when the story as spun was that the vendees had no funds to obtain sale-deed?
(f) As to why sale-deed (Ex.D/4) omitted the assertion of breach of agreement by the vendees?
(g) As to why sale had become necessary on lesser amount?
(h) As to why attesting witness (PW-2) was not contacted?
20. Luculently, the contentions are non-meritorious and seem to be born of 'airy-nothings'. I have also read the written-objections submitted against the additional findings of the trial Court. On my scrutiny, I find that they do not deliver any dent on the conclusions which are held to be on firm foundation. The date 6-4-1971 as put on the stamps indicated clear case of malignity and preparedness to contest the protest against the said accomplished in breach of the binding contract. This conduct enubilates and throws enough light on the controversy, as projected although as an exercise in futility. Moreover, the original owners have not chosen to assail the conclusion operating against them.
21. On the other hand, it is noticed that the conduct of prospective vendees in pursuing and persisting to procure sale-deed as evidenced from Ex. P/2 (notice) to Ex. P/12 (publication in newspaper) clearly showed the positive urge to comply with the agreement and to seek its specific performance. In contrast documents like Exs. D/1, D/2 and D/3, coupled with Exs. D/4 and D/5 X-rayed the mind and demonstrated grotesque evil design towards avoidance of the agreement perhaps in an urge to get more money and/or to oblige husband and son of the appellant. The law is not so petrified as to close its eyes to such deeds and stay unresponsive to such acts which are palpably impeachable and untenable.
22. In this analysis, agreeing with the conclusion of the trial Court, I am satisfied that the vendees had been and still are ready and willing to perform their part of the contract and that the defence plea lacked the label of verity.
23. This may be stated in another way as well. When the only defence was that the vendees had no money for the purpose then why, immediately on notice of the suit from the Court, a direction was not sought from the Court for tender or deposit of money in the Court just to establish the bankruptcy and to ascertain the financial capability in terms of the provision quoted above? Suspicion is further augmented when it is seen that on the point of bad financial state, DW-4 and DW-5 were examined, and that too as witnesses of the appellant, only on 15-3-1983? This then further fortified the inference that the defence was ex facie untrue and that the owners were hell-bent on flouting the suit-agreement. Promises cannot be permitted to be broken in this crude and rude fashion.
24. Now the chronicle of facts may be noticed once again. The respondents Nos. 1 and 2 sued upon the document of agreement to sell and produce it in the Court in terms of Order 7, Rule 14(1) of the Code. On evaluation of evidential material, the trial Court found that this agreement was valid and enforceable; that the prospective vendees had been and still are ready and willing specifically to perform the agreement on their part of which the vendors have had notice; that the vendors, in disregard of their legal liability avidly transferred the property in question to the appellant that the appellant lulled the vendors into that trap on element of avarice and was not a bona fide purchaser; that it was preeminently a fit case where the Court ought to exercise its jurisdiction to decree specific performance in preferring previous agreement to subsequent sale on sound and reasonable discretion guided by judicial principles in terms of Section 20 of the Specific Relief Act, 1963. So the decree was passed.
25. In AIR 1979 SC 1241, Prakash Chandra v. Angadlal and Ors., it was ruled that --
'The ordinary rule is that specific performance should be granted.' Denial is permissible only as an exception when equitable considerations point to its refusal or that circumstances show that damages would constitute an adequate relief. The High Court of Delhi also reiterated the same principle in AIR 1990 Delhi 42, Ajit Prashad Jain v. N.K. Widhani and Ors., that specific performance should be allowed as a rule.
26. Bentham opined that 'The law ought to assure me everything which is mine, without forcing me to accept equivalents, even though I have no particular objection to them.' Sir Edward Fry toed the same line when he voiced that a perfect system of jurisprudence ought to enforce the actual performance of contracts of every kind and class, except only where there are circumstances which render such enforcement unnecessary or inexpedient, and that it ought to be assumed that every contract is specifically enforceable until the contrary be proved.'
27. The suitor, here, insisted to obtain the 'very thing' to which he claimed to be entitled. And the court found the insistence worthy of being accepted and decreed. Realising perhaps the guilt-consciousness or resigning to the fate fixed by law or registering no protest due to loss of title in any case, be in favour of the prospective vendees or the procurer of sale-deed, the erstwhile owners gave up the fight by non-appealing and cosily left it to the subsequent purchaser to take up the cudgels. Even as respondents, they exhibited complete nonchalance, and contributed nothing.
28. The conclusion against original owners is ex facie unimpeachable. The only point is as to what should be the fate of subsequent purchaser?
29. The subsequent transferor (defendant No. 3) chagrined by lugubrious liquidation of his title, thus, impugned the verdict which directed her to join in the execution of sale-deed, in performance of previous contract in favour of the prospective vendees (respondents Nos. 1 and 2).
30. Though the contract for sale of immovable property does not create any interest in such property in the prospective vendee, 'yet the law, on equitable grounds recognises the principle that if there is a clear valid contract for sale, property is in equity transferred to the purchasers as the vendor then becomes the 'tustee' for the vendee-and, sequel to this, he is precluded from dealing with the property so as to defeat the rights of the prospective vendee.
31. The pericope from Section 19 of the Specific Relief Act, 1963 may be quoted--
19. Except as otherwise provided by this chapter, specific performance of a contract may be enforced against
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequent to the contract except a transferee for value who has paid his money in good faith and without notice of original contract.
32. Section 19(b), as quoted above, enacts the English equitable rule which allows a later legal title (sale) to prevail over an earlier equitable title (contract) in the case of bona fide purchaser for value without notice. Conversely, equitable title is allowed to defeat legal title.
33. In order to take advantage of the exception in Clause (b) of the aforesaid section, the transferee is required to prove that (a) he or she is transferee for value, (b) he or she has paid money, (c) he or she acted bon afide and (d) he or she had no notice of the original contract.
34. In AIR 1934 PC 68, Bhup Narain Singh v. Gokul Chand Mahton and Ors., it is held that --
'In their Lordships' opinion, the section lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee, and in their Lordships' opinion, it is clearly for the transferee to establish the circumstances which, will allow him to retain the benefit of transfer which prima facie he had no right to get. Further the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of Sections 103 and 106, Evidence Act, 1972, have a bearing on the question. The plaintiff does not necessarily have knowledge of either matter.'
-x- -x- -x-
35. In the instant case, one more material issue as extracted below is issue No. 12 --
Whether the defendant No. 3 is a bona fide purchaser for value without notice?'
This issue was answered against the appellant on the undernoted grounds:--
(a) The appellant (DW-1) and her witnesses -- husband and son --DW-2 and DW-3 perjured themselves on the point of residence of the respondents Nos. 1 and 2. It is in evidence that they resided in the same locality.
(b) It was unimaginable, and unnatural that in a small locality, the appellant would have no notice of original contract sought to be enforced.
(c) The execution of sale-deed at Ujjain, instead of Khachrod, was a clear pointer to clandestine character of transaction.
(d) The sale is not preceded by any written-contract and is shown to rest on oral one. This demonstrated element of unholy haste.
(e)There was agreement dated 7-2-1971 and general notice in 'Dainik Bhaskar' on 27-4-1971.
Coupled with the aforesaid factors, there are two additional circumstances fortifying the necessity to impeach the subsequent sale--
(a) The original contract dated 7-2-1971 was on consideration of Rs. 11,201/- with payment of Rs. 1,000/- as advance whereas the sale-deed mentioned the consideration of Rs. 9,000/- only? This meaningful 'undervaluation' is part of the design. The finding of thee trial Court is that real sale price is Rs. 15,000/-.
(b) The appellant seemed to have acted in collusion with the vendors. More money seems to have been the prime factor to generate less concern for liability. The transaction is conceived and completed in hugger-mugger.
36. In 1959 MPLJ 144 = AIR 1960 MP 3, Ghasiram v. Shankarlal and Ors., it is laid down that:--
'If the subsequent transferee has taken the transfer with notice of the contract for the sale of the property, he is liable to the same equities as the party from whom he has taken the transfer. If the subsequent transferee cannot show that he is a bona fide transferee for consideration and without notice of the agreement to sell, his transfer can legitimately be said to be one obtained in fraud of the right created in favour of a third party under the agreement to sell.'
-x- -x- -x-
37. The crucial question is whether the conclusion of the trial Court on the aforesaid issue as well on the linchpin of the above-quoted grounds and factors is in any way vitiated and deserves to be dislodged? And whether discretion was improperly exercised? The fate of this appeal thus now depended on the answers of these twin questions.
38. In AIR 1972 SC 1520, Dr. Govinddas and Anr. v. Smt. Shantibai and Ors., similar decree anaesthetizing subsequent document of transfer, was sustained on the following reasonings --
'... First, all the parties are residents or have shops in the same vicinity and in places like this it is not probable that the appellants would not come to know of the execution of the agreement (Souda Chitthhi) of the plaintiff. Secondly, the haste with which the sale deed in favour of the appellants was executed was unusual. It is more usual for an agreement to be executed in such cases rather than arrive at an oral agreement on one day and have the sale-deed executed the next day and registered the following day. For some reason the appellants were in a hurry to get the deed registered. What was the reason? In view of all the circumstances we are inclined to accept the evidence of Hem Raj Chouhan, and corroborated by Hayat, that Govardhandas knew of the execution of the agreement with the plaintiff on March 1, 1960.'
X- -X- -X-
39. It is luculent that aforesaid grounds are legal and proper and that the adverse conclusion, as recorded by the Trial Court is backed by relevant considerations, and is on firm foundation, not liable to be dislodged and demolished. The transaction is clearly esoteric and is elvishly intended to defeat equitable rights. Law then must spring into action. It is cogently established that the appellant is not a bona fide purchaser and has express notice of the original contract. This, then destroys the plea of bona fide conduct.
40. I have scrutinised the evidence for this purpose as well. It does not require reproduction or detailed or critical analysis particularly when this Judgment happens to be one of affirmance. Suffice it to say that the evidence led by the Respondents Nos. 1 and 2 inspires confidence as against the evidence of the side of the appellant and the Respondents Nos. 3 and 4. The evidence in opposition is incredulous and iridescent in selfinterest. Little lacination demonstrated the debility. Consequently, the oppugnation is found to be acarpous. I also hold that the discretion was properly exercised on sound judicial principles and needed no correction. The conclusion is on firm foundation.
41. At bottom, the fate of this appeal depended on evaluation of facts and features and involved no legal acrobats. On evaluation, the discretionary relief is found to be legal and proper and consequently is held to be sustainable in law. It gave rise to no question of law as such. The question was simple. So was the answer then.
42. Yet this is not the end of the matter. The trial Court has held that the appellant parted with the amount of Rs. 15,000/- to procure the sale deed which is declared to be inoperative. This extent is exclusive of the expenses incurred in documentation and registration. The figure of Rs. 9,000/- as mentioned in document obviously seemed to be miles away from truth and reality.
43. In tussle between equitable title and legal title these are some of the methods adopted. But the law is capable of giving nasty kick and piercing the esoteric veil and seeing matters in their true colour. The figure seemed to be a clear 'pointer' to the picture and problem that played on mind. In AIR 1973 SC 2457, M.L. Devender Singh and Ors. v. Syed Khaja, it was held as under:--
'It is, therefore, clear, that the first defendant must have some ulterior motive in being prepared to suffer an ostensible loss of Rs. 10,000/-even if his sale of 16-10-1962 for Rs. 70,000/- to the partners of the Alpha Hotel could be upheld. The plaintiff himself had stated that financial considerations do not really determine his stand. We are unable to accept this profession of unconcern for financial gain on the part of an astute businessman like the first defendant. It is more likely that there is some undisclosed understanding between him and the partners of Alpha Hotel who are also co-appellants with him before us.'
-x- -x- -x
44. Now it is plainly grotesque to direct the appellant to join in the sale-deed but to deprive her of the benefits of the balance consideration of Rs. 10,201/-. It would be unjust to permit undue enrichment of the erring vendors and to permit them and subsequent transferee to fight out among themselves. This is curious way of flagellating the loser of title. In the circumstances, even while dismissing the appeal, relevant direction in the decree, with due concern of grievance as raised in para 16 of the appeal-memo, deserves to be modified.
45. Accordingly, it is directed that the amount of Rs. 10,201/- as deposited shall be paid to the appellant and not to the respondents Nos. 3 and 4 (defendants Nos. 1 and 2). The Respondents Nos. 1 and 2 (plaintiffs) on execution of the sale-deed by the parties, as directed or by the Court in default, shall be put in possession of the property covered by the suit contract as being the inherent and implicit consequence of specific performance of such a contract and as being held by the Court below.
46. Ex consequenti, for the reasons stated above, this appeal as well as M. A. No. 77/76 are dismissed subject to the modification in direction in terms indicated above. In peculiar facts and circumstances of the case, parties are left to bear their own costs of these appeals as incurred. Counsel's fee on each side (appellant and Respondents Nos. 1 and 2) is fixed at Rs. 1,000/-. Let a decree be drawn up accordingly in the First Appeal.
47. Before parting with this case, I deem it proper to mention one fact. The amount of Rs. 10,201/- was deposited by the respondents Nos. 1 and 2 in the Trial Court after passing of the decree in 1974. By order dated 3-10-1974, the Division Bench of this Court had clarified that the amount of Rs. 10,201/- deposited under the decree by the respondents Nos. 1 and 2 shall not be paid to the respondents Nos. 3 and 4 during the pendency of the appeal. This is how the money has been lying in the Court since 1974. About 19 years have rolled by since then. It would have been far better if any party would have applied for keeping this amount in the fixed deposit so that the party held entitled to this amount would have been immensely benefited. However, at this distance of time, the position is rendered irretrievable. Now in the light of the direction contained in this Judgment this amount together with interest, if any, shall be paid to the appellant.
48. A copy of this Judgment shall be placed in the records of M. A. No. 77/76.
49. The record of the Court below shall now be returned.