LexRAM KUMAR AGGARWAL AND ANR. versus THAWAR DAS (DEAD) THROUGH LRS.
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RAM KUMAR AGGARWAL AND ANR. v. THA WAR DAS (DEAD) THROUGH LRS. AUGUST 20, 1999 [S. RAJENDRA BABU AND R.C. LAHOTI, JJ.] A B Code of Civil Procedure, I 908-Section I 00-Scope of Second Appeal- Held, jurisdiction of High Court is confined to hearing on substantial question of law-Interference with finding of fact by the High Court not warranted if it involves re-appreciation of evidence-In the present case, judgment of the C High Court suffering from serious infirmities in as much as finding on missed question of law and fact has been upset despite upholding the basic finding of fact recorded by the courts below and plea involving a mixed question of law and fact has been allowed to be urged for the first time and upheld by ~~~~ D Specific Relief Act, 1963-Section 16(c)-Readiness and willingness to perform a contract-Held, a person who falsely alleges to have made a part payment and seeks to substantiate the false plea by producing a false and fabricated document, cannot be said to have been ever ready and willing to perform the essential terms of contract which were to be performed by him- E Plea of part performance-Held, not sustainable-Performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance-Further, plea of part performance raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal-Transfer of Property Act, 1882- F Section 53A. Constitution of India, 1950-Art. 136-Right to appeal against a decree already executed-Held, merely because the decree under appeal has been executed for want of stay order from the superior court, the right of three judgment debtor to prosecute the appeal is not lost without there being G something to show that the judgement debtor had waived or consciously given up his right of prosecuting the appeal. Appeal-right to prosecute-Not lost merely by execution of decree under appeal, 641 H 642 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R. A On 18-7-1956, one P sold to one Ta lime factory known as "Karkhana" situated over or adjoining the land in respect of which an agreement was entered into between the parties for rent and eventual sale. The agreement stipulated that T would pay rent to P@Rs. 150 per month in respect of the land for one year and thereafter, the land would be sold to T Rs. 7,000. It B was further stipulated that ifafter one year no sale deed was made of the land in question, then T would pay rent after one year for three years @ Rs. 200 per month. P had to execute the sale deed if T wanted to take the land any time after one year. If the sale deed was not executed for four years, then T was to vacate the land and hand over the possession to P or his legal heirs. c In 1969, P, after serving a demand-cum-quit notice under Section 106 of the Transfer of Property Act, instituted a suit against T for seeking recovery of arrears of rent and a decree of ejectment for failure to purchase the land. About seven month later, T instituted a suit against P seeking specific performance of another agreement to sell, alleged to have been D entered into on 19-9-1996 whereunder T paid Rs. 2000 to P and P allegedly made a fresh promise to sell the land subject to further payment of Rs. 5000 P having expired, his sons were impleaded in his place. The two suits were consolidated. By a common judgement dated 23-7-1975, the Additional Civil Judge dismissed the suit filed by T and decreed the suit filed by P. E Thereafter, T preferred two appeals which were dismissed by a common judgment by the District Judge. Subsequent to this, T preferred two second appeals before the High Court which were allowed by a Single Judge on 21- 9-1983. By the said judgement dated 21-9-83, the judgements and decrees of the Trial Court and of the District Judge were set aside; instead the suit filed by P was directed to be dismissed and the suit for specific performance F filed by Twas directed to be decreed. Hence the present appeals. On behalf of the respondents, it was contended that the decree under appeal as passed by High Court had been put to execution and sale deed in terms of the decree had been executed and hence the appeals did not deserve to be allowed. G Allowing the appeals, the Court HELD: 1.1. A perusal of the judgment of the High Court reveals reasonin~s, strange to some extent, which ar
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