Lord Dunedin :-

The suit in which these two consolidated appeals have arisen was brought in the Court of the First Class Subordinate Judge of Thana on the 11th August, 1913, by Dinshaw Hormasji Motiwalla against Adam Haji Jacob alias Adam Abdulla Patel, Nur Mahomed Purhai Damji, who is defendant 2, and Waman Ganesh Desai, the defendant 3, to obtain under the Specific Relief Act, 1877, a decree for the specific performance of a contract of sale of the 17th July, 1912, by which it was agreed that Adam Haji Jacob should sell and convey to Motiwalla, and Motiwalla should purchase :-

"All that piece or parcel of land with the bungalow, trees, plants, shrubs, etc., and a well standing thereon, situate lying and being at Hill Road, Bandra, in the Thana District, Sub-District Bandra, and measuring about 5,000 square yards, bearing Municipal No. 139 and City Survey No. 136, and bearing Collector's Survey No. 17, Pot Nos. 2, 3, 4 and 5 and measuring 25 Gunthas, and bounded on the East by property of Rustomji Muncherji Jasawala, on the West by property of Burjorji Ghamat, on the South by Government Hill Road, and on the North by the land of Mr. Dias, and which said premises are particularly described in the title-deed now in the possession of the mortgagees Sorabshah and Pirojsha Framji Bandrawala" for the price of Rs. 15,600, of which Rs. 1,000 were in compliance with the contract, paid as earnest-money by Motiwalla to Adam Haji Jacob on the execution of the contract. The purchase was to be completed within two months from the 17th July, 1912. The contract was registered by the Sub-Registrar of Bandra on the 22nd July, 1912.

The only relief prayed for, to which it is necessary to refer, may, in effect, be briefly stated as follows :-

That it should be decreed that Adam Haji Jacob, and the defendants 2 and 3, should execute a deed of sale in favour of Motiwalla, of the property described as bearing Municipal Number 139, and that Adam Haji Jacob should execute a deed of sale, in favour of Motiwalla, of the property described as bearing Collector's Survey Number 17, Pot Numbers 2, 3, 4, and 5. Adam Haji Jacob, by his written statement, admitted that the contract of the 17th July, 1912, was made and that he had received as earnest-money Rs. 1,000, and pleaded, in effect, that he was ready and willing to convey to Motiwalla the property bearing Collector's Number 17, Pot Numbers 2, 3, 4 and 5, but that he was unable to convey to Motiwalla the property bearing Municipal Number 139, as it had been sold on the 25th April, 1913, to the defendant 2, in execution of a decree against him (Adam Haji Jacob).

The defendants 2 and 3 who claimed title under the Court-sale of the 25th April, 1913, separately filed written statements, in which they pleaded that the contract of the 17th July, 1912, was void under Section 64 of the Code of Civil Procedure, 1908. They also pleaded that all the property in respect of which specific performance was claimed by Motiwalla, was purchased at the Court-sale of the 25th April, 1913, by the defendant 2, and they further pleaded several other matters, which, in the view that their Lordships take of the case, need not be considered by them.

To the allegation that the whole property was included in the Court-sale the plaintiff replied that on the face of the sale only property bearing Municipal Number 139 was included.

The history of the various executions as regards the lands in question is as given by the learned Judges of the Court of Appeal as follows :-

"On the 19th of August, 1911, an attachment was levied by a judgment-creditor under Darkhast No. 32 of 1911, and in June, 1912, the property was put up for sale after being attached. On the 29th of August, 1912, the judgment-debtor, that is, the first defendant, paid in the whole of the decretal amount and costs, and therefore the sale was not confirmed, and the Darkhast proceedings were struck off on the 1st of October, 1912. Before the payment of the decretal amount, name