Chackochan and others v Neo Hotel Palace and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 30[TH] DAY OF JUNE 2021 / 9TH ASHADHA, 1943** ## **AS NO. 454 OF 2002** **AGAINST THE ORDER/JUDGMENT IN OS 330/1995 OF II ADDITIONAL SUB COURT,THRISSUR,** ## **THRISSUR** ## **APPELLANT/DEFENDANTS 7 TO 9** 1 A.C.CHUMMAR, AKKARA HOUSE, OLLUR, THRISSUR. 2 ANITHA MATHEW DO. DO.. 3 CHARLES @ ANTHONY DO. DO. BY ADVS. SRI.H.HAMZA ROWTHER SRI.K.M.ANEESH SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.V.K.PEERMOHAMED KHAN SRI.ADARSH KUMAR SRI.H.SUNIL SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN SRI.SHASHANK DEVAN ## **RESPONDENTS/ADDL.PLAINTIFFS AND DEFENDANTS 1 TO 6 AND 10** - 1 MARY CHACKOCHAN PAULPADAVAN S.T.CONVENT ROAD, THRISSUR. - 2 RIA .DO. DO. - 3 JAYARAJ DO. DO. - 4 T.P.NARAYANASWAMY IYYER (DIED) - 5 VISWANATHA IYYER THRITHALAPUTHENMADATHIL,, THRISSUR. - 6 T.S.NADARAJAN(DELETED) S/O SUBRAMANYA IYER THRISSUR. - 7 SARASWATHI AMMAL(DELETED) W/O SIVARAMAKRISHNA IYYER,, THRITHALAPUTHENMADATHIL,, THRISSUR. - 8 PARAMESWARAN(DELETED) A.S.No.454-2002 2 DO.DO 9 T.S.KRISHNAN (DELETED) DO.DO R6 TO R9 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 7/2/2003 ON CMP 620/2003 10 MS.KINS TRADERS PAVARATTY VILLAGE AND DESOM, REP. BY ITS MANAGING PARTNER, E.D.JACOB S/O.EDAKKULATHOOR DEVASSYKUTTY. BY ADVS. SMT.M.A.ZOHRA - FOR R1 TO R3 SMT.TESSY JOSE - FOR R1 TO R3 SRI.K.RAMACHANDRAN FOR R10 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11.11.2019, THE COURT ON 30.6.2021 DELIVERED THE FOLLOWING: A.S.No.454-2002 3 ## JUDGMENT Challenging the judgment and decree dated 31.5.2002 in O.S.No.330/1995 on the file of the Additional Sub Court-II, Thrissur, the defendants 7 to 9 have come up with this appeal. The suit was originally filed by one Chackochan. He expired during the pendency of the suit and his legal representatives were brought on record as additional plaintiffs 2 to 4. 2. The plaintiffs filed the suit praying for decree of specific performance of contract on the pleadings inter alia that the plaint schedule property belonged to one Sri.T.V .Sivaramkrishna Iyer and the defendants 1 to 3. They entered into an agreement for sale of the property with the plaintiff on 12.9.1986 fixing the sale consideration as Rs.85,000/- per cent. The father of the plaintiff was originally doing business in the plant schedule property on rental arrangement and after his death the original plaintiff continued his business in the building. An advance amount of A.S.No.454-2002 4 Rs.25,000/- was paid on the same day of the execution of the agreement and a further sum of Rs.20,000/- was paid on 11.06.1987. Originally the time fixed for execution of the document was 6 months but it was extended up to 30.06.1995. Though the plaintiff was ready to get the document executed in spite of lawyer notice they failed to execute the document and even attempted to alienate the property to others. Therefore, a cause of action arose for the plaintiff to file the suit for specific performance of contract with alternative prayer for return of money and injunction. 3. The defendants 3 to 6 were set exparte and the first defendant expired during the pendency of the suit. The plaintiff filed a statement to the effect that there was no necessity to implead the legal representatives of the deceased first defendant and the same was recorded. 4. The second defendant in his written statement contended that the plaint schedule property belonged to a partnership by name 'Neo Hotel Palace' wherein his brothers were partners along A.S.No.454-2002 5 with him. The sale agreement was executed on the bona fide belief that the partnership would be dissolved. While so, some of the partners expired. Their legal representatives were not willing to execute the sale deed and so no sale deed was executed. The second defendant had purchased 3/4[th] share of the other partners as an agent of the wife of the 7[th] defendant and later the same was assigned to her. The 2[nd] defendant is ready to return the advance amount received. The suit is also barred by limitation. Therefore,the plaintiff is not entitled to get a decree for specific performance. 5. Appellants, the contesting defendants 7 to 9 contended that the plaint schedule property belonged to the partnership firm namely 'Neo Hotel Palace'. The defendants 1,3,4,5 and 6 were having 3/4[th] share in the property and the 2[nd] defendant was having the remaining 1/4[th ] share. The 2[nd] defendant purchased the 3/4[th] share of the other partners as agent of defendant Nos.8 and 9 and defendants 7 and 8 then purchased the 3/4[th] share of all the other partners from the 2[nd] defendant. The 2[nd] defendant 6 A.S.No.454-2002 assigned the share in the name of defendants 7 and 8 and they are bonafide purchasers for value without notice. The 2[nd] defendant never informed about the agreement to the defendants 7,8 and 9. So the agreement is an invalid one, not enforceable against the firm or the partners. 6. The 10[th] defendant had raised a contention that the plaint schedule property was attached on 5.10.1991 for the debt due from the second defendant and E.P.536/1998 is pending for realization of the amount due. So the plaintiff is not entitled for the reliefs sought for. 7. Before the court below necessary issues were raised and the 2[nd] plaintiff was examined as PW1 and another witness was examined as PW2. Exts.A1 to A25 were also marked on the side of the plaintiffs. Additional 7[th] defendant was examined as DW1 and Exts.B1 to B6 were marked. Exts.C1 and C2 were also marked. The court below after evaluation of the evidence decreed the suit for specific performance directing the plaintiff to deposit the balance sale consideration. A.S.No.454-2002 7 8. Aggrieved by said judgment and decree this appeal has been preferred by the defendants 7 to 9 inter alia contending that a decree for specific performance of contract cannot be granted in favour of the plaintiff but a decree for return of advance money alone is feasible. 9. Heard Adv.Adarsh Kumar, the learned counsel for the appellants/defendants 7 to 9 and Adv.Zohra the learned counsel for the respondents /plaintiffs. 10. For the sake of convenience the parties are hereinafter referred to as per their status before the trial court. The learned court below had committed a manifest error in allowing the suit for specific performance ignoring the sale deeds for the suit property in favour of the defendants 7 to 9, is the submission of the learned counsel for the appellants/ defendants 7 to 9. 11. The suit property is 4 cents with a building of two floors bearing Nos.25/351 and 25/356 in Sy.Nos.1366 and 1365 of Thrissur District. Admittedly, as per sale deed No.3657/1980 the property originally owned by a firm constituted by four persons 8 A.S.No.454-2002 namely Sivaramakrishna Iyer, Narayana Swami Iyer, Viswanatha Iyer and Subrahmania Iyer. The ground floor of the building was rented out to the original plaintiff and he was holding possession of the same as a tenant. While so, Ext.A1, the agreement to sell the property was executed between the owners of the property as well the tenant on 12.09.1986 and the value of the property was fixed as Rs.85,000/- per cent. Apart from the amount of 85,000/- per cent for the 4 cents, Rs.45,000/- was also fixed for the upstairs of the building. Out of which Rs.25,000/- was received as advance on the date of execution of the agreement ie, on 12.09.1986. Ext.A1 agreement would reveal that the time fixed for execution of the sale deed was extended several times and it was extended till 30.06.1995. When the time for execution of the sale deed was extended the same was endorsed by all the parties in the agreement but the endorsement by all of them was only up to 15.01.1988 and thereafter the extension up to 30.06.1995 was by the second defendant alone. However, the terms of the agreement would show that the extension of time was as consented by all the A.S.No.454-2002 9 owners of the property and it was specifically recited in the agreement that the document will be executed by all the persons having right over the property. So it is not in dispute that the renewal of the period for execution of the sale deed was on mutual consent. According to the learned counsel for the contesting defendants, time was considered as the essence of the contract however, the plaintiffs have not proved their readiness and willingness to execute the sale deed and so they are not entitled to get a decree for specific performance and the purchase of the property by the contesting defendants ie, defendants 7 to 9 could only be treated as bona fide purchase and they have to be treated as bonafide purchasers, for value without notice is the contention raised by them. It is pertinent to note that though the suit was filed with all the defendants, in the party array the defendants 1,3 and 4 remained absent and were set ex parte. Though the second defendant filed the written statement, at the time of evidence he too remained absent. So in fact, the contesting parties are only the defendants 7 to 9. A.S.No.454-2002 10 12. Ext. A19 is the the original title deed No.3657/1980 in favor of the firm executed in the name of Viswanatha Iyer, the 2[nd] defendant for the firm. Ext.A1 agreement was executed by T.P.Sivsramakrishna Iyer, T.P. Narayana swamy Iyer ,T.P Viswanatha Iyer, T.S.Natarajan s/o of Subramanya Iyer in favour of Chackoachan, the original plaintiff. At the time of filing of the suit T.P.Sivaramakrishna Iyer expired and his legal heirs have come on record as defendants 4 to 6. As mentioned earlier after 15.01.1988 the endorsement for extension of time for execution of the document was by T.P.Viswanatha Iyer, the second defendant alone. But the recital is to the effect that it was as agreed and consented to by all the parties. 13 . Therefore, it is significant to note that the time for execution of sale deed was extended till 30.06.1995.The suit was instituted on 14.03.1995 with notice published in news paper. The contesting defendants are claiming right over the property as bonafide purchasers on the basis of Ext.A17 and A18. Ext.A17 is the copy of sale deed No.4268/2000 executed by the second A.S.No.454-2002 11 defendant in favour of the 7[th] defendant on 05.04.2000. In Ext.A17 there is specific recital to the effect that the right of the three sharers were transferred as per document No.2220/95, 2219/95 and 7560/95 to the contesting defendants and so the second defendant is having only one share. The second defendant had also raised a contention in his written statement that he had purchased the 3/4 shares of the other partners of the plaint schedule property as an agent of Anitha (D8) and the said share was assigned by him to Anitha after the purchase, and therefore what was left with him was his one share. Ext.A18 is the document executed by the 2[nd] defendant on 15.07.1995 in favor of the 8[th] defendant with respect to his 1/4th share. In this deed it is recited that the right of T.P Sivaramakrishna Iyer was got assigned from his legal heirs by the second defendant as per Dt.No.5476/1995. Ext.A21 the encumbrance certificate issued on 08.03.1995 reflects the purchase of the shares by the 2[nd] defendant from the legal heirs T.S.Natarajan on 26.10.1994 and T.S. Narayanaswami's share on 05.11.1994. The legal heirs of T.P.Sivaramakrishna Iyer A.S.No.454-2002 12 alienated the share derived on them on his death also in the name of the second defendant by Dt.No.5476/1995 as reflected in Ext.A 18. But the transfer by Ext.A17 and A18 in favor of the 7[th] and 8[th] defendants by the 2[nd] defendant are lis pendens. As mentioned above the institution of the suit for specific performance was on 14.03.1995. The endorsements in Ext.A1 would reveal that the time for execution of the sale deed in favour of the plaintiffs was extended till 30.06.1995. 14. In this background, the question to be looked into is whether the plaintiffs are entitled to get a decree for specific performance ignoring the fact of purchase of the entire share by the defendants 7 to 9 and also whether the purchase is for value without knowledge or notice of the agreement to sell by the owners of the property in favour of the original plaintiff . 15. At the outset it is to be noted that the learned counsel for the defendants 7 to 9 submitted that Section 16 (c) of the Specific relief act mandates readiness and willingness on the part of the plaintiffs as a condition precedent for obtaining relief of A.S.No.454-2002 13 grant of specific performance, but here the plaintiffs have no specific case in the suit that they are ready and willing to perform their part of contract and the finding of the court below in the absence of sufficient pleadings and evidence though the onus is on them is not legally correct and therefore they are not entitled to get a decree for specific performance. There is no straitjacket formula to ascertain readiness and willingness of the parties. Therefore, for ascertaining readiness and willingness the entire attending facts and circumstances of the case including the conduct of the parties must be judged with regard to the entirety of the pleadings as well the evidence brought on record. Readiness must be shown throughout up to the date of decree. The Apex Court emphasized the same in very many judgments. According to the learned counsel for the defendants here the pleadings and evidence reflects lack of readiness and willingness. In order to substantiate the argument reliance was placed mainly on **Ram Avadh and ors vs Achbarbar Dubey's case** (AIR 2000 SC 860) where it was observed that in a suit for specific performance the A.S.No.454-2002 14 pleading of readiness and willingness from the date of execution of the agreement up to the date of the decree is absolutely necessary and a court may not grant a decree to a plaintiff who fails to aver and prove the requirements of clauses (a) (b) (c) of 16 of the Specific relief Act ,1963. In paragraph No .6 it has been observed as follows: “The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of Clauses (a)(b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusions, decree or decline to decree the suit. We are of the view that the decision in Jugraj Sing's Case AIR 1995 SCW 901:AIR 1995 SC 945 is erroneous.” ## 16. On the other hand the learned counsel for the plaintiffs A.S.No.454-2002 15 have contended that they have made specific pleadings to the effect that they are ready and willing to purchase the property and evidence was led to demonstrate readiness and willingness including the continuous capacity for discharge of balance sale consideration but the defendants have failed to execute the deed and therefore on 12.3.1995 notice was sent demanding execution of the sale deed. It is apparent that the defendants have not raised a contention in the written statement that there was lack of pleadings to that effect. They have no case that the original plaintiffs or the legal heirs impleaded were not ready and willing to purchase the property and thus the agreement had turned as not executable. Only at the stage of appeal, they raised a contention that the plaintiffs have not proved readiness and willingness as contemplated under S.16(c) of the Act. When parties resisting enforcement of contract, must contend and establish that mandatory requirements of S.16(c) of the Act are lacking . Here a perusal of the plaint itself shows that definite pleadings are there that they are ready and willing to purchase the plaint schedule 16 A.S.No.454-2002 property and ready with the balance consideration and it is reflected in the lawyer notice issued, before the last date extended for execution of the sale deed. It is significant to note that though the 2[nd] defendant received the notice of the plaintiffs expressing readiness and willingness to purchase the property after paying the balance sale consideration there was no effective response from the side of the 2[nd] defendant. Paper publication was also effected on 12.3.1995 as time was extended up to 30.06.1995 . All these circumstances substantiate the case of the plaintiffs that they were always ready and willing to purchase the property. So it could correctly be concluded that it was not a bare averment or a statement in evidence but they have established that, since the date of the contract they were continuously ready and willing to perform their part of the contract. As mentioned above plaint paragraph nos.3,6 and 7 would show that sufficient pleadings were there expressing the readiness and willingness of the plaintiffs to purchase of the plaint schedule property and issuance of Ext.A3 lawyer notice was also within the extended period of time. The A.S.No.454-2002 17 readiness and willingness to purchase the property on payment of balance sale consideration had been clearly mentioned in the notice issued within the extended time. PW1 the wife of the original plaintiff had adduced evidence to prove readiness and willingness to perform her obligations under the agreement for sale. But there was no contest by the defendants that she was not having sufficient funds to pay balance sale consideration. Moreover immediately after disposal of the suit the balance sale consideration was deposited in court that is on 5.8.2002 within the time granted by the court, and now the sale deed had also been executed in their favour on 6.2.2003 as per the decree obtained in their favour. Though, the appeal was filed on 16.10.2002 there was no order of stay against the execution of the decree. 17. As endorsement for extension was made by the second defendant alone after 13.06.1988 till 30.06.1995 the question posed for consideration is whether that will bind upon the other owners of the property. The purchase of the property by the contesting defendants/the appellants are only on 05.04.2000 18 A.S.No.454-2002 and 15. 07.1995 after filing of the suit on 14.03.1995. 18. As referred above Ext.A19 the title deed reveals that the purchase was by Neo Hotel Palace, a firm. Sivaramakrishna Iyer, T..P Narayanswami Iyer(D1), T.P Viswanatha Iyer (D2) and T.P Subramanya Iyer were the partners of the firm. As per Ext.B6 the certificate of registration the firm was constituted on 12.04.1950. Admittedly T.P Sivaramakrishna Iyer expired on 19.9.1994 and Narayana Swami Iyer on 7.5.1990. T.P Subramania Iyer expired on 18.02.1985. Ext.A1 agreement is dated 12.09.1986 ie, after the death of T.P Subramanya Iyer. The third defendant joined the agreement as the legal heir of T.P Subramanya Iyer. But in Ext.A1 agreement there was no recital to the effect that the partnership firm was in existence and the agreement to sell the property was made by the firm. There is also no record to show that the firm was reconstituted after the death of T.P Subramanya Iyer on 18.02.1985.The partnership was not reconstituted as evident by Ext.B6. No deed is available with express terms that the partnership will not cease to exist on death of a partner. So it A.S.No.454-2002 19 could correctly be presumed that the firm was dissolved by the death of a the partner. Therefore, it is not possible to conclude that the plaint schedule property is the partnership property but, it belongs to the existing partners of the firm as well the legal heirs of the deceased partner in their individual capacity. Therefore, they have to be treated as co- owners of the property. So the first thing to be noted is that the property is not a partnership property but is only the common property and therefore the argument raised by the defendants 7 to 9 that the plaint schedule property cannot be assigned by some of the partners of the firm, is only to be rejected. So also it is significant to note that in the 1[st] page of Ext.A1 itself there is specific recital to the effect that all the owners of the property will join to execute the sale deed in terms of the agreement. 19. Another contention raised by the contesting defendants is that the suit is barred by limitation as per Article 54 of the limitation Act. According to the contesting defendants all the parties together extended the period of execution of the sale deed A.S.No.454-2002 20 only upto 30.09.1987 and as the suit was filed only on 14.03.1995, it is hopelessly barred by limitation. The second defendant alone had renewed the agreement till 30.06.1995 and the plaintiff had not rescinded the contract. There was also no delay in demanding specific performance by the plaintiff. The suit was filed on 14.3.1995 within the extended period and therefore, the suit is not time barred against the second defendant. It is also important to note that Section 43 of the T.P.Act also protect the rights of the plaintiff.. 20. It is required to be noted that the time fixed for execution of the agreement was extended till 30.06.1995 by the second defendant but the said recital was not endorsed by the purchaser, therefore another contention was also raised that, the document is not a valid and enforceable one and hence, the plaintiffs are not entitled to get a decree for specific performance of contract . But it is to be noted that the Apex court in **Aloka Bose v Parmatma Devi** (AIR 2009 SC 1527) has held that an agreement of sale comes into existence when the vendor agrees to sell and the purchaser A.S.No.454-2002 21 agrees to purchase for an agreed consideration on agreed terms, it can either be oral or it can be by exchange of communication which may or may not be signed. It may be by a single document signed by both the parties. It can also be by a document in two parts each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has a copy signed by the purchaser for it and one by the vendor executing the document and then delivering it to the purchaser who accepts it. So it could be concluded that though the purchaser has not signed the agreement the essential constituent of an agreement is there which clearly shows that the vendor had agreed to sell the property to the purchaser till the extended period of 30.06.1995 and therefore it could correctly be concluded that there was a valid agreement to sell the property. So the contention of the contesting defendants that Ext.A1 is not a valid document and therefore, not enforceable is not a tenable contention. 21. The material on record clearly depicts that the 2[nd] defendant though did not contest the suit had filed a written A.S.No.454-2002 22 statement with a definite contention that he had purchased ¾[th] share of the other partners of the plaint schedule property as an agent of the 8[th] defendant and thereafter assigned the property to the 8[th] defendant. Ext.A17 deed was executed on 5.04.2000 during the pendency of the suit by the 2[nd] defendant in favour of the 7[th] defendant. Ext.A17 itself recites about certain documents by which the 2[nd] defendant had purchased the shares of the other owners of the property. As referred the documents are Dt.No.2220/95, 2219/95 and 7560/95 executed by the legal heirs of T.S Natarajan and T.P Narayanswami to the 2[nd] defendant on 26.10.1994 and 5.11.1994. Ext.A21 the encumbrance certificate No.2164 issued from the office of Sub Registrar, Thrissur on 8.3.1995 would reveal that the property stands in the name of the 2[nd] defendant based on the respective endorsement in the certificate as the owners have assigned the property to the 2[nd] defendant. The assignment appears to have been effected by them before the institution of the suit. So, there can be no doubt that the 2[nd] defendant had purchased the 3/4[th] share from the A.S.No.454-2002 23 respective co-owners of the property. At this juncture, it is also to be noted that the 1[st] defendant expired during the pendency of the suit but his legal representatives were not impleaded as parties to the suit and that could only be because his rights had already been transferred to the 2[nd] defendant. 22. Now it is to be noted that Ext.A17 is the document executed by the 2[nd] defendant in favor of the 7[th] defendant on 5.04.2000 . Ext.A18 is in favour of 8[th] defendant executed on 15.07.1995. These two documents are after the institution of the suit by the plaintiffs. The plaintiffs had also obtained an order against the 2[nd] defendant from the court restraining transfer of the property . Paper publication was also effected by the plaintiffs regarding the order restraining transfer of the property. But the property was transferred during the pendency of the suit in favour of defendants 7 and 8. The plea of the defendants 7 to 9 is that they are bona fide purchasers who purchased the property from the 2[nd] defendant who got the entire ownership of the property by purchasing the shares of the other co-owners of the property. They A.S.No.454-2002 24 have taken a definite contention that the 2[nd] defendant who was holding 3/4[th] share of the property assigned the same in their favour and thereafter assigned his 1/4[th] share also by a separate deed and thus the entire property had been assigned in their favour. The circumstances available on record would reveal that the purchase effected by them was with the full knowledge of the pendency of the suit and the order of injunction passed against the 2[nd] defendant. As they had knowledge about the suit and the order restraining alienation, they cannot be treated as bona fide purchasers in good faith for value without notice of the original contract. Section 19( b) of the Specific relief act protects only the bona fide purchaser in good faith for value without notice of the original contract. 23. From the facts emerged from the record by Ext.A17, A18 and Ext. A21 it is explicitly clear that the 2[nd] defendant had become the absolute title holder of the entire property. Now the question to be looked into is whether he is bound to perform his part of the contract and to assign the property in terms of the A.S.No.454-2002 25 agreement. 24. Section 13 (1)( a)of the Specific Relief Act says that if the vendor had subsequently to the contract acquired any interest in the property, he has to make good of the contract out of such interest. Here, he had extended the time for execution of the contract till 30.06.1995 and before the crucial date itself the suit was filed by the plaintiff. So no doubt the 2[nd] defendant who was restrained by a competent court had transferred the property to defendants 7 to 9 during the pendency of the case. When the 2[nd] defendant continued to be the owner of the property as per the document referred above he has to perform his part of the contract and it is enforceable against him. The evidence available on record would show that the agreement is a complete one and the intention of the 2[nd] defendant while extending the time for execution of the agreement could only be to complete the contract and to sell the property which he got assigned from the other coowners. 25. Specific performance is an equitable relief granted by the 26 A.S.No.454-2002 court to enforce contractual obligations between contracting parties. As per Section 20 of the Specific relief act the court is not bound to grant a decree for specific performance merely because it is lawful to do so. Therefore, the court has to exercise the discretion after evaluating all the circumstances and conduct of parties and has to verify whether the decree would cause unfair advantage to the plaintiff and hardship to the defendant .Here the original plaintiff was the tenant of the building engaged with his business during the relevant time. Nothing was brought on record to conclude that granting of a decree would cause hardship to the 2[nd] defendant which he did not foresee. In fact he remained absent also. 26. Thus, in the aforesaid facts and circumstances it is revealed that the plaintiffs have established that they have performed and fulfilled the terms of the agreement and deposited the balance sale consideration before the court to get the document executed in their favor. Therefore, the finding of the court below that the plaintiffs are entitled to get a decree for A.S.No.454-2002 27 specific performance of contract is perfectly correct and the court below has rightly granted a decree for specific performance in favour of the plaintiffs. 27. The 10[th] defendant has filed a suit as 1162/91 before the Sub Court on 28.9.1991 and obtained an attachment order in that case against the 2[nd] defendant for a realization of an amount of Rs.4,20,883/-. The attachment effected was after the agreement executed between the plaintiff and the 2[nd] defendant and the other owners of the property and hence, the finding of the court below that the 10[th] defendant is entitled to proceed against the balance amount remained as unpaid at the time of the decree against the 2[nd] defendant in the money suit warrant no interference. Therefore, the finding of the court below that the 10[th] defendant is entitled for the balance amount of Rs.3,40,000/deposited in court need not be modified and they are entitled to recover the same from the court. For the aforementioned reasons, I find that the appeal filed defendants 7 to 9 is liable to be dismissed confirming the 28 A.S.No.454-2002 judgment and decree passed by the trial court in favour of the plaintiffs/respondents 1 to 3. Therefore, the appeal stands dismissed. The parties shall bear their respective costs. Sd/- SHIRCY V JUDGE smm