K.B.V. Nagabhushana Gupta Vs. Ramadugu Venkateswara Rao and ors. - Court Judgment

B.K. Somasekhara, J.

1. In a suit for specific performance of an agreement of sale in favour of first respondent depended upon in O.S.No. 85 of 1982 which was decreed by the learned Sub-Judge, Khammam on 25-4-1987 which was confirmed by the Additional District Judge, Khammam in A.S.No. 24 of 1987 dated 30-12-1988 has resulted in this second appeal raising the following substantial questions of law.

2. Non-compliance of mandatory requirement in a suit for specific performance; to plead readiness and willingness to perform the part of the contract by the plaintiff is fatal to the suit and in this case when that was not done in addition to want of proof, the learned Judges of the Courts below were totally beyond the legal fore to spell their findings and the decisions.

3. When the claim petition filed by the plaintiff under Order 21 Rule 58 of C.P.C. in regard to the property covered by the agreement which was under attachment in the Execution proceedings filed by defendant No. 2 came to be dismissed and when the petition to set aside the order of dismissal of the petition was hot allowed, the suit for specific performance filed by him was barred by virtue of Order 21 Rule 58 Sub-clauses (3) and (4) (sic. Sub-rule (2)) of C.P.C. and therefore both the Courts below were legally not fortified to entertain the suit and to decree it.

4. When the defendant No. 2 raised the plea of limitation for the suit, in the written statement, failure of the trial Court in not raising the issue as ,is mandatory, under Order 14 Rule 1 of C.P.C., vitiated the ultimate decision in decreeing the suit and confirming it in the appeal.

5. Even without framing the issue, the Court was bound to dismiss the suit by virtue of Section 3 of the Limitation Act in regard to bar of limitation for a suit for specific performance and of the Section 54 of the Limitation Act, when the plaintiff had the notice of the refusal of the agreement of sale by defendant No. 1 when he had number of opportunities to demand without any response and his failure in the previous proceedings to get such a relief in view of the conduct of defendant No. 1 including the proceedings under Order 21 Rule 58 of C.P.C.

6. At any rate, the defendant No. 3 had no opportunity to demonstrate that the suit is barred by limitation. Having regard to the admitted facts and circumstances in this case and also the evidence, these questions of law are specifically raised by Mr. C.V. Rama Mohan Reddy, learned counsel for the appellant.

7. Mr. Vijay Shankar, learned counsel for the respondent No. 1 plaintiff has contended that all the questions of law which are raised as above, have been dealt with by the Courts below and even otherwise by examining all of them the answer is in favour of his party only and therefore there is no need to entertain any such contentions which will not enure to the benefit of the appellant.

8. The appeal thus arises this way:

Reference to parties as they occupied in the trial Court as plaintiff-defendant 1 to 3 would serve the convenience. Defendant No. 1 is the owner of the plaint schedule property which is plot No. 60 with an extent of 1733 square yards situated in Nehru Nagar in Khammam. He entered into an agreement of sale with the plaintiff on 25-4-1971 as per Ex. A-1, agreeing to sell the suit plot for a consideration of Rs. 6,000/-. On receipt of the consideration he handed over possession of the suit plot to the plaintiff. In spite of several demands for a long time, defendant No. 1 failed to execute a registered sale deed in favour of the plaintiff. Therefore, he filed a suit for specific performance before the defendant No. 2 had obtained a money decree against defendant No. 1 in O.S. No. 56 of 1977 on 6-2-1978. He put it into execution in E.P.No. 19 of 1978 on 27-3-1978 and got the suit plot attached in the execution proceedings through Court on 11-11-1979. The plaintiff filed a claim petition under Order 21 Rule 58 of C.P.C. in E.A.No. 78 of 1980 which was dismissed on 24-9-1981. He made E.A.No. 78 of 1982 for restoration of the petition with the condonation of delay petition as per E. A.No. 78 of 1982. That was dismissed on 17-7-1982 for default. Thereafter, the suit plot was sold in the execution proceedings on 29-1-1983 and it was purchased by defendant No. 3. The sale was also confirmed subsequently. The plaintiff alleging that the defendant No. 1 failed to execute the sale deed, sought for a decree for specific performance directing the defendant No. 1 to execute the registered sale deed.

9. The defendant Nos. 1 and 2 remained ex-parte. The defendant No. 3 while denying the agreement, execution, payment of consideration and handing over possession of the suit plot to the plaintiff, inter alia contended that the suit is barred by limitation, the plaintiff is not entitled to the decree and that the suit is barred by virtue of the application of Order 21 Rule 58 of C.P.C. having been dismissed in view of the bar of res judicate. He also raised other contentions in tune with what were mentioned in the written statement and he sought for the dismissal of the suit.

10. These issues were framed:

1. Whether the plaintiff is entitled for the specific performance of the contract?

2. Whether the plaintiff is entitled for perpetual injunction as against the third defendant ?

3. Whether the suit is not properly valued and Court fee paid is not sufficient ?

4. Whether the suit is hit by res judicata?

5. To what relief?

11. During the trial, the plaintiff examined himself as P.W.1 and the defendant No. 1 was examined as D.W. 1 and other defendant as D.W. 2. By way of documentary evidence Exs. A-1 to A-11 were marked for the plaintiff and Exs.B-1 to B-15 were marked for the defendant. After hearing both the sides and with the materials placed before him, the learned Sub-Judge held issues 1 to 3 in favour of the plaintiff and issue No. 4 against the defendant No. 3 and consequently decreed the suit. The matter was taken in appeal before the learned District Judge in A.S. No. 24 of 1987 wherein he, after hearing both the sides, agreed with the learned Sub-Judge confirming the findings on the issues, and dismissed the appeal thereby confirming the judgment and decree.

12. In regard to the execution of the suit agreement Ex. A-1, payment of the consideration amount of Rs. 6,000/- and handing over possession of the suit plot to the plaintiff by defendant No. 1, there is consistent finding of facts by the two Courts below which this Court finds no reason to interfere.

13. In regard to the contention that in a suit for specific performance there must be mandatorily a plea of readiness and willingness of the performance of contract or the agreement by the plaintiff, there appears to be no controversy. But on going through the plaint para 5, it is apparent that the plaintiff has dearly pleaded about his approaching defendant No. 1 to get the sale deed executed for a period of almost four years without any success and he has also testified about it in his deposition. In sum and substance, the plaintiff has come out with a case that although he was ready and willing to execute the sale deed (sic get the sale deed executed), it was defendant No. 1 who did not oblige him. In the first place, the question whether the plea made as such in a plaint in such a suit would be a question of fact warranting no interference in the second appeal, is also a-settled law as has been rightly supported by Mr. Vijay Shanker, learned counsel for the respondent No. 1 in Kirpal Singh v. Kartar, as that may depend upon the plea the facts and circumstances of each case and also the evidence in the case relating to which the Court will have to appreciate the evidence and then apply the law.

14. Moreover even on facts, the plea made by the plaintiff in regard to his readiness and willingness to perform his part of the contract, the contents of plaint, the testimony of the plaintiff and the totality of the circumstances are sufficient to bring home such a requirement and the law appears to be that such a plea need not be in very specific words, but that should be gathered from the totality of the circumstances. The readiness and willingness of a party to a contract to seek performance of the same depends upon the particular situation, conduct of the parties and also the required faculty and the opportunity. Even the mere expression of words of readiness and willingness to perform the contract in the plaint or the testimony of the plaintiff may by themselves, not be sufficient and it requires to be proved to have the benefit of specific performance. In other words, such a plea is not a mere empty formality and it is intended to know whether the party who is coming to Court seeking specific performance is ready and willing throughout to have, as it is a matter to be dealt with in a equity Court, to examine whether the party seeking equity is doing equity. In the present case, the plaintiff had already paid the total amount of consideration to defendant No. 1, he had been put in possession of plot by defendant No. 1 quite a long back and nothing more was to be done by him except to get the sale deed executed. Mr. Rama Mohan Reddy, learned counsel for the appellant contends that in view of the stipulation in Ex. A-1 that the plaintiff should be ready to take the sale deed at his cost, is said to be non-complied with by him and that was never spelt out either in the plaint or in the testimony so as to show that he was ready and willing to get the sale deed by meeting the registration expenses. Such a contention is rejected in Kirpal Singh's case cited, Moreover, by virtue of Section 32(a) of the Registration Act, every document to be registered shall be presented by the person executing the document. It is a statutory obligation on the part of the person executing the document. It is not proved in this case that although defendant No. 1 was ready to execute the document, the plaintiff postponed it Mr. Rama Mohan Reddy has pointed our Section 29 of the Indian Stamp Act in support of his contention that in the absence of agreement to the contrary, the expenses of providing proper stamp duty shall be borne by the grantee in the case of conveyance according to Sub-clause 'C' . This provision is not applicable to the facts of this case. Section 29(a) of the Stamp Act mandates that the proper Stamp Act (sic. duty) shall be borne by the person executing such an instrument, thereby meaning that it was defendant No. 1 who was to do it. However, in view of the agreement under Ex.A-1, the plaintiff was to pay it. That did not absolve defendant No. 1 from praying the stamp duty either by himself or by recovering it from the plaintiff. This harmonious interpretation is possible by reading together Section 29(a) of the Stamp Act with Section 32(a) of the Registration Act. When the person has to execute the document or instrument he is mandatorily required to present the document for registration. It means that he is mandatorily required to be ready to pay the stamp duty also or otherwise, the presentation will not be complete. Therefore, either in law or on facts this contention is not satisfactorily brought home by the learned counsel for the appellant.

15. At this stage, it is pertinent to note that such a plea of want of readiness and willingness to be made in the plaint is available only to the vendor or the executant under the sale deed and not by a subsequent purchaser as has been well demonstrated by Mr. Vijay Shankar, the learned counsel for respondent No. 3 with the aid of the pronouncement of the Apex Court in Jugrah Singh and Anr. v. LLabh Singh and Ors., : (1995)2SCC31 . Therefore, such a contention is no longer open to the appellant.

16. More than all, the mandatory intents of Section 16(c) of the Specific Relief Act cannot be drawn to logical ends except to draw the real intentions behind the legislation that such an expression is to show that the purchaser is always ready and willing to perform his part of the contract and if such part of the contract has already been performed, the mere expression serves no purpose. That is what His Lordship Justice P. Venkata Rami Reddy in Jonnalagadda Suryakantham v. R. Sathiyamma, : 1994(1)ALT93 stated while laying down the law in this regaid:

17. The learned expressions therein to conclude the question are to be found in para 7 as hereunder:

Section 16(c) of the Act presupposes that certain essential terms of the contract remain to be fulfilled by the plaintiff who sues for specific performance. If the plaintiff had already performed the obligation under the contract and he has nothing more to do to comply with the essential terms of the contract, the averment that he is ready and willing to perform his part of the contract has really no meaning and It would be wholly inappropriate. The averment contemplated by Section 16(c) of the Act cannot be regarded as a ritualistic formality. Section 16(c) does not intend to give primacy to form, ignoring the substance. A pedantic repetition of what is mentioned in Section 16(c) of the Act is not what the law requires. The averment should suit the facts of the case.'

18. In this case, when the plaintiff had already paid the entire sale consideration to defendant No. 1 and he had been put into possession and when he waited for such a long time with futility after payment to get the sale deed he had to file the suit to enforce the specific performance. As already pointed out, in form and substance and the pith and core, the expression of Section 16(c) of the Specific Relief Act had been totally complied with. If what Mr. Rama Mohan Reddy has contended in this regard is taken to be the correct law, then it may only mean a verbal and pedantic repetition of the contents of Section 16 of the Specific Relief Act. Therefore, judged in any angle, the contention as above has no merit and deserves to be rejected.

19. Mr. Rama Mohan Reddy learned advocate has formulated his contention in regard to the claim under Order 21 Rule 58 of C.P.C. to mean that when once a claim petition therein is dealt with or disposed of by the Court, no suit by the claimants to enforce his right and title to the property, if any, covered by the claim can be agitated by virtue of the true implications of the provision contained therein. According to him, when Sub-clause (sic. Sub-rule) (2) of Order 21 Rule 58 of CPC mandates that all questions relating to right, title or interest in the property attached are to be adjudicated and dertermined by the Court dealing with the claim and not by a separate suit and when Sub-clause (sic. Sub-rule) (4) of the provisio contemplates that when the claim or objection has been adjudicated under the rule, the order made thereon shall have the same force and be subject to the same conditions to the appeal or otherwise as if it was a decree. Reading this with Sub-clause (sic. Sub-rule) (2) of the provision, it means that a suit by a party to the claim petition is totally barred. It is also his contention that except such a bar for the suit where the Court refused to entertain the claim petition under two grounds enumerated in proviso to Sub-clause (sic. Sub-rule) (1) of Order 21 Rule 58 by virtue of Sub-clause (sic. Sub-rule) (4) and in no other case, therefore according to him, when the facts and circumstances are judged in the proper perspective and when the plaintiff allowed his claim petition to be dismissed due to non-prosecution, it amounted to adjudication ex-parte and not failure to entertain and thus the suit is barred by res judicata. According to him, all the questions between the parties namely, the agreement, the right and title of the parties under the agreement, the consequences of such an agreement as part of challenging the claim, should be impliedly taken to have been adjudicated to bar a suit. As against this Mr. Vijay Shanker, learned counsel appearing for respondent No. 1 contends that the whole object of Order 21 Rule 58 of C.P.C. is directed towards the investigation of claims and objections in regard to the attachment of the property in an execution proceedings so as to enure to the benefit of the decree holder and the auction purchaser and for no other purpose. It is also his contention that judging the provision as a whole it contemplates two ingredients to bar the suit or otherwise, namely where the claim is adjudicated and where the claim is not entertained. According to him the two instances mentioned in the proviso to Sub-clause (sic. Sub-rule) (1) of Order 21 Rule 58 of CPC are illustrative and cannot be exhaustive. He has dependent upon Srikantaradhya v. Kamalamma, AIR 1983 Karnataka 236 which has referred to L.E. Works v. Assistant Commissioner Sales Tax, AIR 1963 SC 488 and Hindustan Commercial Bank v. Punnu Sahu, : AIR1970SC1384 . In this regard he has also referred to the definition of 'adjudication' in Black's Law dictionary, page 42, 16th Edition. Mr. Rama Mohan Reddy tried to distinguish these decisions having due regard to the facts and circumstances of this case and also not having dealt with the whole aspect of Order 21 Rule 58 of CPC exhaustively to bring home the real implications which he has put within his contention.

20. In view of the serious contentions raised by the two learned advocates and having regard to the implication of such contentions deciding the fate of this appeal and the rights of the parties, this Court feels that the matter requires a detailed examination.

21. Under the circumstances repetition of the provision will have a say and Order 21 Rule 58 of CPC reads as hereunder:

(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:

Provided that no such claim or objection shall be entertained-

(a) Where, before the claim is preferred or objection is made, the property attached has already been sold; or

(b) Where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

(3) Upon the determination of the questions referred to in Sub-rule (2). the Court shall, in accordance with such determination, - -

(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or

(b) disallow the claim or objection; or

(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or

(d) pass such order as in the circumstances of the case it deems fit.

(4) When any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and the subject to the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or an objection is preferred and the Court, under the provisio to Sub-rule (1) refuses to entertain it the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.'

22. As the very object of the provision shows, it contemplates the adjudication of claims or objections in regard to attachment of property. If the attachment is before the judgment it is governed by Order 38 Rule 5 of CPC. If it is regarding the immovable property the meaning and method of attachment is in accordance with Order 21 Rule 54 of CPC. The attachment will subsist as long as decree is satisfied, as long as the execution petition survives, and as long as it is not nullified by virtue of the rejection of the claim of attachment under Order 21 Rule 58 of CPC. The property so attached will be sold by virtue of Order 21 Rule 64 of CPC. In other words, attachment precedes the sale. The object of attachment of a property has to be garnered in the nature and form of order of attachment either under Order 38 Rule 5 of CPC or Order 21 Rule 50 of CPC. Both from the provisions and from the prescribed order of attachment, the moment a property is attached, the judgment debtor will be prohibited from alienating the property. It need not be said that it becomes effective the moment an attachment is effected and made absolute or unless it is raised or determined. It is operative only from the date of effecting the attachment If no claim is made by anybody before the sale is effected after the attachment, the attachment subsists and enures to the benefit of the decree holder and the auction purchaser. In that view of the matter, the whole object of attachment is to see that the property which is sought to be sold in the proceedings of the execution of a decree is kept in tact without alienation so that the right, title and interest of the judgment debtor is available to be sold by public auction in the execution of a decree. It is so clear for Order 21 Rule 66 of CPC that a proclamation of sale consists so many particulars, including encumbrance, any claim and any other right which the judgment-debtor may have and any other person having any such right ultimately so that it can bind the purchaser of the property in the Court auction. Sub-clause (c) and (e) of Sub-clause (sic. Sub-rule) (2) of Order 21 Rule 66 are mandatory that the proclamation shall contain any encumbrance to which the property is liable and every other thing which the Court considers material in order to judge the nature and value of the property etc. That is how Sub-clause (sic. Sub-rule) (3) of Order 21 Rule 66 mandates that the application for sale should be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing the verification of the pleading containing such particulars. All these proceedings have been incorporated therein to give a notice to the purchaser of a property in the execution proceedings so that he will be able to bid in the auction both regarding the value subject to other encumbrances which he it expected to forbear Subsequently, it may be almost in the nature of caveat emptor statutorily Incorporated. Therefore an attachment is a mode which is adopted to preserve the property without further alienation or further encumbrances. Judged in that context, the clam petition in regard to attachment under Order 21 Rule 58 of CPC for the purpose of entertainment or adjudication would be only with reference to the attachment and nothing more than that and for the purpose of prohibiting further alienation of the property or encumbrances serves effect. The Supreme Court in Govindrao Mahadik v. Devi Sahai, : [1982]2SCR186 appears to have brought home the true object and the purpose of an attachment which is as under:

'The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree it made would satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree. If attachment before judgment is obtained in a suit which ends in a decree but if in appeal the decree is set aside the attachment of necessity must fall.'

23. To repeat again, the claim under Order 21, Rule 58 of CPC is thus intended in regard to the implication of attachment to be preserved or not as enumerated above and nothing beyond that. Therefore, unless the provision gives any meaning or scope beyond this, it cannot be stretched too far to defeat the rights of the parties beyond the scope and adjudication.

24. At this stage, it may not be improper to say that by entertaining or otherwise of a claim under the provision, the Court will only decide whether the attachment should continue or not and to have the effect of Section 64 of CPC.

25. It is true that Order 21 Rule 58 Sub-clauses (sic. Sub-rules) (1), (2) and (4) specifically use the word 'adjudication' whereas it is only under Sub-clause (sic. Sub-rule) (5) the word 'entertain' is used. A simple reading of the provision in the Sub-clause (sic. Sub-rule) obviously, and with unmistakable terms, distinguishes the two expressions namely 'adjudication' and 'entertainment. While the object of the claim under Order 21 Rule 58 Sub-clause (sic. Sub-rule) (1) is to adjudicate upon the claim or the objection , the entertainment or otherwise of the claim under Sub-clause (sic. Sub-rule) (5) has been actually restricted to the two situations mentioned in the proviso, namely, where the claim is made after the property is sold and where the claim was designedly or unnecessarily delayed (effect of laches) not to entertain the claim at all. In all other cases except the two mentioned supra, the claim will be adjudicated and all the questions between the parties including the right, title or interest in the property attached will be adjudicated. That is why the order passed as a result of adjudication of a claim will have the force of a decree and becomes appelable and furthermore bars a suit by virtue of Sub-clauses (sic. Sub-rules) (4) and (2) of Order 21 Rule 58 of CPC. Mr. Reddy has tried to stretch this meaning to the logical end that the moment the case does not fall within the two conditions of proviso of Sub-clause (sic. Sub-rule) (1), the order in the claim will have the force of a decree and becoming appealable would bar a suit. In fact, such a meaning appears to have been attempted to be pressed into service at several junctures. While distinguishing the provision before amendment and after amendment it appears to have been interpreted wrongly without any basis that in whatever manner the claim is disposed of it operates as a decree and therefore bars a suit. Referring to Southern Steel v. B.M. Steel, AIR 1978 Madras 217 the above inference is drawn in CPC by Mulla 14th Edition Volume 3 page 1544. A careful understanding of the matter including the decisions supra only means that after amendment the enquiry under Order 21 Rule 58 of CPC is no longer a summary but a detailed one becoming final and conclusive between the parties in regard to the matters pending there from, ultimately leading to the consequences of either having the attachment or otherwise and nothing beyond that. There may be many incidents during enquiry or adjudication, that the judgment debtor himself may not have any right or interest in the property or that the claimant may have the real title, interest, right etc. which has a bearing on the contents of attachment and the sale of the property attached. That is why Court is also empowered to pass such order as in the circumstances of the case it deems fit as contemplated under Order 21 Rule 58 Sub-clause (sic. Sub-rule) (3) (d) of CPC. This appears to be a clear implication of the provision. It may be further examined to know the real intention of the law makers.

26. The litigations, controversies, fabulations and the human six sensuory enemies or antipathys called arishadvarga may lead to various types of litigations warranting the Courts to entertain, adjudicate or decide. The question is whether all of them can be pressed into an enquiry under Order 21 Rule 58 of CPC. That illustration of the present kind may be of one such.

27. The suit is filed for specific performance of an agreement of sale. Presuming that the claim of the plaintiff had been adjudicated under the said provision and had been rejected even after the contest and on merits, the question is whether he would have got a decree for specific performance, whether he would have got damages or compensation from defendant No. 1 and the vendor if he had committed a breach of agreement for any purpose or whether the executing Court or the Court dealing with the claim petition could have dealt with all the equitable questions which are to be dealt with and considered in a suit for specific performance in accordance with Chapter 2 of the Specific Relief Act (the Act) which has got law on equitable bearing and spending or expanding. If that is possible then the contention of Mr. Reddy, learned advocate for the appellant may be accepted as the true implication of the provision. This Court is afraid whether at all such an implication is even possible or probable. Sections 10 -13 of the Act deal with the contracts which can be specifically enforced. Sections 14 - 19 deal with the contracts which cannot be specifically enforced. Sections 20 - 24 deal with the discretionary powers of the Court in dealing with such a matter. Ultimately, the Court will think whether at all the suit can be decreed for specific performance in accordance with Section 20 of the Specific Relief Act. If all these provisions can be read into Order 21 Rule 58 of CPC under the guise of adjudication of claim or otherwise then the consequences may open pandora's box to have very confusory results and conflicting conceptions. Ultimately, the result will only be to think whether the attachment should be continued or not. If that is the only result then all other exercises applying such principles of law embodied in Chapter 2 of the Specific Relief Act would be a futility. In that situation of the matter, a claim is only a fraction in the millennium of the litigations which may crop up between the parties, all of them reaching the Court in a claim petition under Order 21 Rule 58 of CPC. If all the litigations and their complexities are to be pressed into service for the purpose of a claim under Order 21 Rule 58 of CPC then perhaps the law makers would have not at all thought of making it an adjudicatory claim only with reference to attachment of the property to lead to the sale of the property in accordance with the execution proceedings. Judged in that situation, the two conditions under proviso to Sub-clause 2 (sic. Sub-rule(1)) of Order 21 Rule 58 of CPC can be taken as illustrative and not exhaustive.

28. There is no specific provision for procedure in the CPC to deal with a claim petition under Order 21 Rule 58 of CPC. By virtue of Section 141 of CPC, the procedure provided in the code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. In other words, the procedure for dealing with a claim petition under Order 21 Rule 58 of CPC would be the one which is applicable to a suit as far as it can be made applicable. The question crops up as to what is to be done when the claimant does not take interest in regard to a claim petition like the plaintiff in a suit. Equally so, the question arises in regard to the respondents who may be occupying the position of the defendants in suits or the respondents in the appeals. Could it be that the Court dealing with such a petition is constrained not to entertain the petition only in two situations. If the procedure in relation to a suit is applied to such proceedings then the implications of Order 9 of CPC and Order 7 Rule 11 of CPC are also to be made applicable. It is well known that a suit or a proceedings may be dismissed for various reasons as has been enumerated in Order 9 of CPC namely, failure to pay costs for services (Rule 2 Order 9), where neither party appears when the suit is called (Rule 3), where the plaintiff fails to apply for fresh summons within three months when the summons are returned unserved (Rule 5), where only defendant appears but not the plaintiff (Rule 8), where the plaintiff or the defendant who is ought to appear in the Court fails to appear (Rules 1 and 2), where the parties are called upon to be present for examination before framing the issues (Order 10 Rule 4 of CPC) etc.

29. In a given situation when the claimant poses the same problems in a claim petition, the Court is bound to pass such orders in whatever manner it is warranted in a given situation. The word 'entertain' should be thus understood in such a situation. To call it properly, it may amount to dismissal for default (which Mr. Reddy calls as popular expression 'non-prosecution'). If that is so, if a petition is not entertained only for two situations it means that in all other situations it is going to be adjudicated. Then that would be repugnant to Order 17 Rules 2 and 3 of CPC. Presuming that the petition is entertained for not failing to comply with the two ingredients under proviso to Sub-clause 2 (sic. Sub-rule (1)) of Order 21 Rule 58 of CPC then naturally it reaches the stage of adjudication or hearing of the case. A stage may come where the respondent has not at all appeared either for want of service of the notice or for other reasons. If that is the case, naturally the consequences of Order 9 and other rules stated therein should enure. If the other consequences occur the Court will have to follow the procedure prescribed under Order 17 Rule 2 of CPC. It again empowers the Court to proceed in accordance with Order 9 only where we lead to square one. It is only in case of Order 17 Rule 3 of CPC the Court, having found that neither of the parties are present, will decide the suit (which may be equivalent to adjudication) or if either any one or both of them are absent procedure under Sub-clause (sic. Sub-rule) (2) viz., to Order 9 of CPC has to be followed. In all respects, where a case is not decided which is equivalent to adjudication, the Court will not entertain the petition whereby it proceeds under Order 9 of CPC. Therefore, to think that not entertaining a petition under Order 21 Rule 58 Sub-clause 2 (sic. Sub-rule (1)) only for two reasons would be neither reasonable nor feasible much less exhaustive of the situation in view of the provisions in CPC supra.

30. The true meaning of 'entertain' and 'adjudication' has been rightly brought home by Mr. Vijaya Shanker, learned counsel for respondent No. 1. The meaning of 'adjudication' in the Law Lexicon dictionary as herein:

'Adjudication the legal process of resolving a dispute. The final giving or pronouncing the judgment and decree in a Court proceedings ft implies a hearing of a Court after notice of legal evidence of factual issues involved. (Black's law Dictionary, 16th Edition, Page 42).'

'Adjudication: Giving or pronouncing a judgment or decree. In Bankruptcy Law, adjudication is the act of the Court declaring a person to be bankrupt. In Scots Law it signifies the diligence by which land is attached in security and payment of debt or by which feudal title is made up in a person holding on obligation to convey without a procuratory of resignation or precept sasine. There are thus (1) adjudication for debt (2) the adjudication in security and (3) the adjudication in implement - Bell's Dictionary.

(Law Lexicon, Volume I, T.P. Mukherjee, Page 59).

'Adjudication means the judgment or decision of a Court. The term is principally used in bankruptcy proceedings the adjudication being the order which declares the debtor to be bankrupt. (Howitt's Law Dictionary 1956, Volume I, Page 57 in Venkataramaiya's Law Lexicon 2nd Edition, Page 76 (1977).

31. Judged in the context of the provisions of CPC supra and the meaning of 'adjudication' in the true sense of the term there cannot be any confusion in understanding the two expressions in Order 21 Rule 58 of CPC whereby the former is the decision on merits based on evidence and based on reasons resulting in an order to continue the attachment or not to continue the attachment and the latter is the disposal of the claim petition either in limine or for default or for non prosecution. Therefore, it is for the appellant to establish from the materials that he falls in the former category to bar the present suit applying the principle of res judicata or by applying the rule of specific bar under Order 21 Rule 58 Sub-clause 3 (sic. Sub-rule (2) read with Sub-clause (sic. Sub-rule) (4) of CPC.

32. The only material which is available to know the nature of disposal of the claim petition of the first defendant is Ex. B-8, the docket order in the claim petition. The order is short and reads thus:

'K.H.R. endorses no instructions. Claimant called absent. E. A. dismissed.'

33. The stage of the proceedings is not known. The reason excepting the presence of the claimant is not known. Why the learned advocate reported no instructions is not recorded. Except that for the absence of the claimant, the case came to be dismissed, nothing can be made out from Ex. B-8. Mr . Reddy expresses his inability to point out from any material that the claim petition was disposed of for a particular reason either for the purpose of the conditions in proviso to Sub-clause 2 (Sub-rule (1)) of Order 21 Rule 58 of CPC or as part of ex-parte adjudication of the claim. Therefore on facts, the appellant is not entitled to take the benefit of bar of suit under Order 21 Rule 58 Sub-clause 3 (sic. Sub-rule (2)) of CPC. It should be made emphatic that a party, before taking the benefit of any provision, particularly barring of suit etc., is bound to produce the necessary facts either by way of evidence or by admissions. That is lacking in this case and therefore this part of the contention of the learned counsel for the appellant cannot be accepted.

34. Then comes the last serious contention but not the least according to Mr. Reddy, learned counsel for the appellant. According to him from the admitted and known facts on record, suit was barred by limitation. He has got two grievances about the judgments of the Courts below, namely, that although the bar of limitation was raised as a specific contention in the written statement no issue was framed by the learned Sub-Judge, nor considered by the learned District Judge and consequently the Courts below did not dismiss the suit as barred by limitation in view of the mandatory rule Under Section 3 of the Limitation Act. Mr. Vijay Shanker, the learned advocate has contended that both the occasions did not arise in this case. In the first place due to the failure of the contesting defendant No. 1 in not moving the Court to raise a proper issue even tilt now and secondly the materials on record, not warranting such a contention to be accepted as the suit is not barred by limitation and finally according to him in spite of Section 3 of the Limitation Act the defendants can be taken as having waived such a contention when they did not pursue it by invoking the powers of the Court to pass appropriate orders.

35. Before adverting to rival contentions in regard to the plea of limitation raised by Mr. Reddy, learned counsel for the appellant certain relevant admitted dates are to be recorded.

The date of suit agreement 25-4-1971

Date of attachment of suit property 11-11-1977

Date of claim petition 4-9-1981

Date of dismissal of claim petition 24-9-1981

Date of disposal of restoration petition 17-7-1982

Date of suit 27-7-1982

Date of confirmation of sale 19-7-1982

36. Mr. Reddy, learned advocate has pointed out para 5 of the plaint, which specifically states that the plaintiff had been demanding the defendant No. 1 to execute the sale deed since about four years prior to the date of the suit and also para 9 giving dates of cause of action (25-4-1971 date of agreement) on 4-9-1978 the date of claim petition when the plaintiff had come to know of obtaining of a collusive decree and the attachment of the suit site in execution in E.P.No. 19 of 1978 and again on 19-1-1982 when defendant Nos. 1 and 2 illegally got sold the suit site in favour of defendant No. 3 and the cause of action arose at Khammam.

37. Both the sides have rightly referred to Article 54 of the Limitation Act as governing the period of Limitation for a suit for specific performance of contract as like the present one. The period of limitation is three years. The time begins to run from the date fixed for completing the sale or from the date fixed for the performance or if no such date is fixed when the plaintiff has noticed that performance is refused. Obviously and admittedly, it is the second limb which is applicable to the facts of this case because no time or date was prescribed under Ex. A-1 for the performance. Therefore, we are to find out as to when the plaintiff had notice that the performance had been refused. The Courts below appeared to have proceeded on the assumption that since the possession had been delivered to the plaintiff under Ex. A-1, there was no question of bar of limitation and that is patently wrong.

38. The Courts below have not taken any pains to examine the question of limitation in the correct perspective and with the aid of Article 54 of the Limitation Act, the task of which has been presented to this Court for consideration and decision. According to Mr. Reddy, learned advocate, when the plaintiff himself knew that defendant No. 1 did not execute the sale deed for all the four years prior to date of the suit, when he did not approach the Court within three years from the date of refusal which commenced exactly four years prior to suit and therefore the suit is barred by limitation. Mr. Vijay Shankar counsel has pointed out that what the plaintiff had stated in the plaint does not mean that there is no expression either in the plaint or in the evidence that the plaintiff was able to make out that the defendant had actually refused to perform the contract. Unfortunately, in this case, mere is no exchange of notices. The dates given in para 9 of the plaint also appear to be not the real basis to know as to when the plaintiff had notice that the defendant No. 1 had refused to perform contract. The learned Judges of the Courts below have not dealt with the matter at all in this regard. Therefore, we are in doubt as to when the plaintiff had actually noticed that defendant No. 1 refused to perform the obligation to execute the sale deed in favour of the plaintiff by virtue of Ex. A-1. The question whether a party has a notice of the refusal to perform the contract is a pure question of fact. That depends upon the facts and circumstances of each case. The conduct of the parties may also become relevant to attribute knowledge as direct or the deemed notice if there is gross negligence on the part of the party in not trying to know the fact which was within his sphere and control as to draw the definition of notice Under Section 3 of the Transfer of Property Act. Whether such a negligence is gross or otherwise is also a question of fact leading to legal inferences. On a careful examination of the totality of the circumstances of this case, this Court feels that there are no factual foundations to point out as to when the plaintiff had the notice of refusal of defendant No. 1 to perform the contract by executing the document; the allegation that defendant refused to perform the contract for full four years prior to date of suit, cannot at all be correct in the absence of saying that defendant No. 1 had refused to do it and did not produce any material to show as to when defendant No. 1 refused to perform the contract. Neither the plaintiff nor defendant No. 1 testified to it nor was cross-examined obviously according to Mr. Reddy for want of issue in this regard. Whatever be the reason the fact remains that no factual foundation is laid to decide the question of notice of the refusal to perform the terms of the contract by defendant No. 1 in favour of the plaintiff. Thus it has become difficult to find out whether the suit is barred by limitation by virtue of Article 54 of the Limitation Act.

39. Now we have reached a stage to examine as to what is to be done in a situation where for whatever reason the factual foundation is not laid to determine the question limitation. According to Mr. Vijay Shankar two options are left open to this Court, namely, (1) to deal with the matter from the materials on record and (2) to call upon the parties to lead evidence and then decide the question. Mr. Reddy learned counsel for the appellant also appears to suggest the same thing.

40. The first suggestion is difficult to adopt. This Court being the Court of second appeal will not be right in taking the role of the Court of first resort and Court of first appeal to confront itself with the trial of the suit. Secondly, when the facts themselves are not available, this Court is unable to decide the question of limitation on facts and thirdly to draw inference as a part of law. Second course is always conveniently and correctly available for a Court like this to give an opportunity to the parties to produce sufficient materials to enable the Court to decide such a question. The law appears to be settled that the question of limitation is not a pure question of law but it is a mixed question of law and fact. That in an occasion to deal with such a question this Court in Khaja Kutubullah v. Government of Andhra Pradesh, : AIR1995AP43 wherein it has been affirmatively held that the jurisprudential concept of question of limitation is not a question of law but it is a mixed question of law and fact The reasons for that are plenty. As the period and time for limitation has so many ingredients, namely, the cause of action, when the cause of action commenced, when the parties act in a particular manner and ultimately what is the result flowing from such a cause of action (para 5 of the pronouncement).

41. Before considering that aspect of the matter, the contention of Mr. Reddy about the failure to frame the issue of limitation by the Courts below deserves to be considered.

42. It is mandatory that issues of fact and law are to be framed by the Court whenever confronted with controversies in pleadings. Sub-clause (sic. clause) 5 of Rule 1 of Order 14 makes it mandatory that the Court on examining the material propositions of facts and law shall frame and record the issues. There is no gain - saying that an issue need not be framed in spite of raising in the written statement. Rule 2 Order 14 of CPC also makes it mandatory that the Court will dispose of all the issues by recording finding unless it chooses to decide any question as preliminary issue because the question of limitation cannot be decided as a preliminary issue as has been explained in Khaja Kuttubullah v. Government of Andhra Pradesh case cited (9 supra). It has necessarily to be scanned and judged by means of trial afforded to the parties. The failure to frame such an issue in spite of raising such a contention of bar of limitation by contesting defendants in this suit is a travesty of justice leading to wrong results. If there was an issue of limitation the parties would have concentrated on that question and the Court would have recorded a definite finding either in the affirmative or in the negative and in the latter case it would have been fatal to the case putting an end to all the litigation. Moreover, by virtue of Section 3 of the Limitation Act it is mandatory for the Court to dismiss the suit where it is barred by limitation even without raising such a defence by the parties to the suit. Therefore, the question is not whether there is an issue framed or not.

43. Having regard to the nature of the pleadings, the framing is only an administrative or a physical act. That appears to be the true meaning if Section 3 of the Limitation Act. The Courts below have totally avoided to deal with the matter in the right perspective and therefore this Court with all its anxiety while dealing with the old matter is constrained to hold that the matter should go back to the appropriate Court to decide the question of limitation in the light of the observations made above. Barring that this appeal has no merit in regard to other contentions raised by the learned counsel for the appellant. Mr. Vijay Shankar, learned advocate submits that in view of the finding of possession of the suit land having so confirmed in favour of defendant No. 1 the plaintiff should continue pending disposal of the appeals. Such a thinking need not be emphasized except to agree with the learned Counsel in this regard. In the result the appeal is allowed. The Judgment of the learned District Judge in the appeal is set aside. The matter is remanded back to learned District Judge, Khammam for raising an issue namely whether the suit is barred by limition and to decide it after giving opportunity to both the sides to lead additional evidence, if they so desire and to dispose it of in the light of the observations made within three months from the date of communication of a copy of this order. Barring this, the findings recorded by the Courts below are confirmed. It is made further clear that the learned District Judge shall deal with the matter only in regard to the question of limitation on the issue stated above and on, no other questions, which are already involved in this suit. The order as to costs shall abide by the the result in the appeal to be disposed of by the learned District Judge ultimately.