( 1 ) THIS appeal is preferred by defendants 2 and 3 as against the decree and judgment made in O. S. No. 46 of 1985 on the file of the principal Subordinate Judge, Visakhapatnam.

( 2 ) THE plaintiff if the 1st respondent in the appeal and inasmuch as the plaintiff died, his legal representatives-respondents 3 to 5 were brought on record. The 2nd respondent in the appeal is the 1st defendant in the suit.

( 3 ) THE deceased plaintiff instituted the said suit O. S. No. 46 of 1985, referred to supra, praying for the relief of specific performance of the agreement of sale in relation to the plaint schedule property dated 20-5-1984 executed by the 1st defendant in his favour and in alternative further prayed for the refund of the advance amount of Rs. 90,000/- and also for damages and also for certain other ancillary reliefs.

( 4 ) ON the strength of the respective pleadings of the parties and having settled the issues, the learned Principal Subordinate judge, Visakhapatnam, recorded the evidence of P. W. 1, the plaintiff, D. W. 1, the husband of 1st defendant, D. W. 2, the 2nd defendant, and yet another witness D. W. 3, marked Exs. A-1 to A-17 and Exs. Ex. B-1 to b-17 and came to the conclusion that the plaintiff is entitled to the relief of specific performance of agreement of sale in question and also the plaintiff is entitled for recovery of possession of the plaint schedule property and defendants 1, 2 and 3 to execute a sale deed in favour of the plaintiff at the expenses of the plaintiff after receipt of balance sale consideration and if there is failure to execute the sale deed by the defendants, the plaintiff is at liberty to obtain the sale deed through court and the plaintiff to deposit She balance of sale consideration within a week from the date of the decree. It is stated by the counsel representing the legal representatives of the plaintiff that the remaining sale consideration had been deposited, but during the pendency of the appeal the same had been withdrawn and again a re-deposit was made and it is stated that the amount which had been made by way of re-deposit was lying in the Court deposit to the credit of the suit. Aggrieved by the above judgment and decree, the present appeal was preferred by defendants 2 and 3. The 1st defendant had not preferred any independent appeal challenging the findings which had been recorded by the learned principal Subordinate Judge, Visakhapatnam.

( 5 ) THIS Court on 23-1-2003 made a limited order of remand directing the learned Principal senior Civil Judge at Visakhapatnam to frame an additional issue to the effect that whether defendants 2 and 3 were bona fide purchasers for value without notice of prior contract of sale 0! otherwise and remit back the suit to this Court within a period of two months. The learned Judge recorded findings in relation thereto by order dated 11-11-2003 and subsequent thereto, as can be seen from the docket the matter had undergone several adjournments and ultimately the matter is corning up for final hearing before this Court.

( 6 ) SRI L. Ravichander, learned counsel representing Sri Dhananjaya Reddy, learned counsel representing the appellants, in all thoroughness had taken this Court through the respective pleadings of the parties, the evidence available on record and further pointed out to the clauses in the agreement and would maintain that in the facts and circumstances or the case decreeing the suit for specific performance cannot be sustained. The learned counsel also would main that though normally time may not be the essence of the contract in cases of immovable of property, in the light of the specific clauses in the agreement of sale in question and also the conduct of the parties it is clear that time is the essence of the contract. The learned counsel also would point out that the question whether defendants 2 and 3 are the bona fide purchasers or not may assume some importance if there was a subsisting contract and in the light

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