Judgment

PALEKAR, J.: - This appeal arises on a certificate granted by the High Court at Bombay from its judgment and decree dated April 17, 1963 in First Appeal No. 847 of 1957.

2. The appellant is one Trimbak Narayan Hardas, a resident of Amaravati where he lived after his retirement as a District Judge. Respondent No. 2 Krishnaji Mahadeo Jangli is a resident of Poona. He owned some house properties at Poona and at the relevant time had a small business of manufacturing rubber goods. Jangli was a distant relation of Hardas being the son of the sister of the father-in-law of Hardas. Jangli was in financial difficulties and so he borrowed moneys from Hardas. On 11-5-1949 he was paid Rs. 15,000/- by Bank Draft and again on 13-7-1949 another sum of Rs. 15,000/- was paid to him by a Bank Draft. In respect of these loans Jangli passed a Pronote in favour of Hardas on 12-7-1949. The loans were supposed to be accommodation loans which Jangli had promised to repay as early as possible. On 2-12-1950 he gave a cheque of Rs. 3,000/- to Hardas in part payment but on presentation to the Bank, it was dishonoured. The two met often and Hardas used to remind Jangli about the loan. There was also correspondence between them. Since Jangli was not able to satisfy the loan, Hardas naturally wanted some security for it, especially, as the period of limitation was fast expiring. Sometime in March, 1952 Hardas went to Poona and it seems that some talk as to the property which Hardas would be willing to take as security, took place. In all probability they did not agree as to which of Jangli s Poona properties should be offered as security. So Jangli went to Amaravati on or about 1-4-1952 and it was agreed between them that the matter may be referred to one Chaubal a retired Deputy Collector for his arbitration. Jangli gave the description of his property and on 2-4-1852 the statements of Hardas and Jangli were recorded by the arbitrator. Chaubal gave his award on 4-4-1952 and on the same day the award was filed in Amaravati court. The award was accepted by Hardas and Jangli and the award decree was drawn up on 7-4-1952. The decree was also registered on 29-5-1952. In accordance with this decree, Jangli was directed to pay Rs. 30 000/- with costs and interest within 3 months, in default of which he was liable to execute a sale deed in favour of Hardas of House No. 102 in Mangalwar Peth, Poona City. The decretal amount was also made a charge on house nos. 108, 109, 110, 111, 44 and 45 in Mangalwar Peth, Poona, belonging to Jangli. Jangli failed to pay the decretal amount and so Hardas filed his first petition of execution against Jangli on 30-3-1953 asking for the execution of the sale deed. Later he amended the petition by asking only for the attachment of Jangli s movables. Under that pressure, Jangli handed over possession of house no. 108 to Hardas whereafter Hardas allowed the execution petition to be disposed of without further action. In the meantime another creditor of Jangli filed an execution petition for the recovery of his decretal amount and in execution of the decree attached the property in the possession of Hardas. Hardas applied to the court for raising the attachment and the attachment was raised on 30-8-1954. Hardas continued to be in possession of house no. 108 Mangalwar Peth.

2A. The suit out of which the present appeal arises was filed by one Babulal Motaji, respondent no. 1 in the appeal before us. He filed the suit on 18-11-1954 after giving notice on 2-8-1954. The suit was for the specific performance of an agreement to sell house nos. 108, 109, 110 and 111 Mangalwar Peth executed by Jangli in favour of Babulal. The agreement is dated February 5, 1952 and is Exhibit 49. The suit was directed against Jangli and his four minor sons, defendants nos. 1 to 5 respectively. Hardas was also joined as a party being defendant no. 6. The plaintiff Babulal alleged that Jangli had executed an agreement to sell the property to him on behalf o