Judgment

SARKARIA, J.:- These two appeals on certificate arise out of execution petition No. 118 of 1962 on the file of the Subordinate Judge, Trichur, filed by P. Meriappa Gounder (hereinafter referred to as the plaintiff) to execute the decree of the SC in C. A. 129/56 passed on April 22, 1958. The common facts, out of which these appeals arise, are as follows:

2. The plaintiff filed a suit on August 23, 1950 in the District Court, Trichur, for specific performance of an agreement, dated May 22, 1950, made by Soliappa Chettiar (hereinafter referred to as defendant 1) to sell a factory known as "Sivakami Tiles Works", for a consideration of Rs. 90,003/-. The plaintiff made an advance payment on that very date of a sum of Rs. 5,003/- to defendant 1. It was stipulated in the agreement that the sale deed must be executed and registered on or before July 15, 1950. It was further provided that our of the balance of sale consideration, Rs. 50,000/- would be paid by the plaintiff at the time of the registration, and for the remaining Rupees 35,000/-, the plaintiff was to execute a mortgage of the suit property to be redeemed on or before May 31, 1951. It was further agreed that on payment of Rs. 50,000/- at the time of registration, the plaintiff would be put in possession of the suit property. The plaintiff pleaded that he was ready and willing to perform his part of the agreement, but came to know that defendant 1 was trying to evade his obligation under the agreement. Accordingly, the plaintiff sent a registered notice, dated July 7, 1950, through his lawyer to defendant 1, to which the latter replied on the same day, that the factory was in possession of one Neelkanta Iyer as lessee, who had refused to give up possession and therefore, it had become impossible to give effect to the agreement to sell the factory, as giving possession to the plaintiff was a condition precedent to the execution of the sale deed. The plaintiff further pleaded that the suit property was really in possession of defendant 1 and the alleged lease in favour of Neelkanta Iyer was a sham transaction and a device to evade payment of income-tax, had hence defendant 1 was bound to carry out the terms of the agreement to sell.

3. The suit was contested by defendant 1 (who originally, was the sole defendant). His case was that, although there was an agreement to sell the suit property, it had been made clear at the time when negotiation for sale was going on, that the factory was in the possession of Neelkanta Iyer as lessee and that it was a condition precedent to the sale that Neelkanta Iyer would surrender his right under the lease and give up possession and that if he refused to do so, the agreement to sell would not be given effect to. The defendant urged Neelkanta Iyer to surrender the possession, but he refused to do so. In the circumstances, the contract for sale had become incapable of performance. He denied that the lease in favour of Neelkanta was a sham transaction.

4. Pending the suit, T. V. Kochivareed (the deceased husband of the appellant, Lucy Kochivareed in Civil Appeal 466/69) obtained an assignment if the lease (Ex. D-3) from Neelkanta Iyer on March 5, 1951. Since Kochivareed was later on, when the suit was pending in the SC, impleaded as defendant 3, for the sake of convenience the appellant in C. A. 466/69, will hereinafter be referred to as defendant 3.

5. On March 8, 1951, defendant 1 executed a sale deed of the suit property in favour of George Thatil, who is the nephew of defendant 3, and will hereinafter be referred to as defendant 2. Like defendant 3, he also joined as defendant 2 at his own request, when the appeal was pending in this Court.

6. On December 23, 1950, the Court appointed a Receiver to manage the suit property. On March 21, 1951, defendant 3 obtained a lease of the suit property at a rent of Rs. 15,000/- for a period of one year from the Receiver. The term of the lease was extended for one more year, and two years rent, amou