JUDGMENT

Shiva Kirti Singh, J. - The original plaintiff, C S Benjamin (Respondent No. 11) is now dead and is represented by his three daughters (for the sake of convenience they are being described as plaintiff). Respondent No. 1-M/s. Gajaraj & Co. was the original landlord of the suit property and as per its party position in the plaint it is being described as first defendant. The appellant (respondent No. 11 in High Court) is auction purchaser of the property in a court auction in an earlier suit filed by second defendant-respondent No. 2- Srinivasa Perumal Financing Corporation against first defendant for recovery of money from first defendant who had mortgaged substantial part of suit land, about 38 cents to the second respondent for the said money due.

2. The instant suit was filed by the plaintiff as OS No. 1538 of 1980 in the court of Third Additional Subordinate Judge, Coimbatore for specific performance of an agreement for sale dated 27.5.1978, on the allegation that the land owner, the first defendant was acting against law in refuting the agreement and not executing the sale deed in favour of the plaintiff. The suit was dismissed by the judgment dated 30.4.1991. But plaintiff's money was ordered to be refunded with interest @ 12% per annum. Against that, the plaintiff preferred first appeal bearing AS No. 627 of 1991 which has been allowed by the impugned judgment dated 3.7.2002 rendered by the Division Bench of the Madras High Court.

3. Mr. Mohan Parasaran, learned senior counsel for the appellant, who was 11th respondent before the High Court highlighted the chronological list of events to point out that the first defendant mortgaged the suit property on 25.1.1972 to an extent of about 38 cents to the second defendant for availing money loan. The first defendant also owed money to 6th and 7th defendants. Defendant No. 6 filed original suit No. 421 of 1976 in the Court of Subordinate Judge, Coimbatore in which the present suit property was attached on 28.7.1976. Another suit bearing OS No. 352 of 1977 was also filed by the 7th defendant against the first defendant.

4. Thereafter the second defendant on 23.1.1978 filed original suit No. 85 of 1978 in the same court at Coimbatore for realization of his money dues, if required, by selling of the property mortgaged in his favour through mortgage deed dated 25.1.1972. It was during the pendency of the above suits that the plaintiff, on 27.5.1978 entered into an agreement for sale of the suit property measuring about 41.24 cents including the mortgaged property with the owner, the first defendant. The plaintiff initially paid an advance of Rs.1,00,000/- against the agreed consideration of Rs. 6,00,000/-. Further amount of Rs. 67,700/- was also paid by the plaintiff to first defendant on different occasions within a period of about one year. The time limit of the agreement was extended from 30.6.1979 to 31.12.1979. It has been highlighted that as per clause 7 of the agreement if the vendor fails to convey full title, the money paid by the purchaser shall be refunded with interest at the rate of 15% per annum and other damages if suffered by the purchaser. In the suit preferred by second defendant, OS No. 85 of 1978 a preliminary decree was passed on 9.2.1980. After March 1980, the plaintiff and the first defendant could not agree on further extension of time for complying with the agreement of sale. On 26.6.1980 an agreement of sale was entered between the appellant and first defendant and the property was leased out to the appellant. The appellant filed the present suit OS No. 1538 of 1980 on 20th November, 1980. Final decree was passed in the mortgage suit OS No. 85 of 1978 on 10.2.1981. In execution proceedings the mortgaged property which is, in substance, also the suit property in the present proceedings was purchased in Court auction by Mr. P.K. Unni, said to be Managing Director of Embassy Hotels-the appellant, on 26.8.1981 for a sum of Rs. 7,52,000/-.

5. Efforts made