ORDER :

Re. Interlocutory Application no. 01 of 2019 (Kept at Flag-A) Heard Mr. Radha Mohan Pandey learned counsel for appellant and Mr. J.S. Arora learned senior counsel for respondents.

2. The instant interlocutory application under Order 41, Rule 5 read with Section 151 of CPC has been filed by appellant making prayer to stay the operation of judgment and decree dated 27.04.2018, passed by Subordinate Judge-4, Patna, in Title Suit No. 176 of 2008.

3. It has been submitted that plaintiff-respondent 1st set instituted Title Suit No. 176 of 2008 seeking relief of specific performance of unregistered agreement for sale dated 25.01.2008 with assertion that they have paid an amount of Rs. Patna High Court FA No.83 of 2018(7) dt.24-07-2019 2/20 10 lacs against total consideration amount of Rs. 25 lacs. The alleged unregistered agreement for sale dated 25.01.2008 has been executed by Kusum Kumari, the original vendor (now deceased) in favour of plaintiff after receiving an amount of Rs. 10 lacs in advance.

4. The plaintiff and defendant entered into an agreement dated 25.01.2008 which was duly signed by plaintiff and defendant no.1 (now deceased) and witnessed by Deepak Kumar Sinha and Smt. Sangeeta Sinha (grandson and grand daughter-in-law of the defendant no.1 Kusum Kumari). The further case of the plaintiff is that out of total consideration amount of Rs. 2,51,000/- was paid to the defendant in cash and also issued cheques of Rs. 7,50,000/- in favour of the defendant. Rest consideration amount was agreed to be paid by the plaintiff prior to registration of the sale deed. The defendant acknowledged the receipt of Rs. 10,00,000/- against the sale of the property. The plaintiff’s further case is that the defendant agreed to obtain “No objection Certificate” from People’s Cooperative Grih Nirman Samittee for transferring the membership of Samittee in the name of plaintiff and also agreed to transfer the property to the plaintiff by executing a registered sale deed in favour of the plaintiff. The defendant also agreed to take responsibility to get the property vacated from possession of the tenant prior to registration. As per the terms of the agreement, defendant applied for issuance of a form for transfer of membership in the name of plaintiff (Member no. 710, plot no. A.164) which contained written agreement by the grand daughter-in-law Smt. Sangeeta Sinha in favour of whom the defendant had executed registered Will of the property.

5. Further case of the plaintiff is that she visited the house of the defendant on 11.02.2008 at about 4.00 PM along with her husband to discuss the matter further and, during discussion, the tenants of defendant, namely, Ajay and wife of Amar interfered and started scuffling and abusing the plaintiff and her husband and forced them to go back. The plaintiff became surprised and shocked to see that the defendant instead of preventing her tenants supported them although it was agreed that the defendant would get the property vacated from the possession of the tenants prior to registration. This incident gave plaintiff clear understanding that the defendant is intending to avoid the agreement dated 25.01.2008 and does not want to perform the agreement on her part. Subsequently, the defendant flatly refused to act in terms of the agreement to sell dated 25.01.2008. Then, the plaintiff sent a legal notice dated 23.02.2008 under registered cover with A/D. Thereafter, The plaintiff expressed her desire and willingness to pay the rest amount of consideration, as agreed. In reply to the said legal notice, the defendant did not deny the agreement entered into with the plaintiff. The reply has been sent that defendant is intending to return the said advance money with change of her mind. Thereafter, the plaintiff again sent a reply notice after receiving the same on 23.04.2008 under registered cover with A/D reminding the defendant no.1 (now deceased) to act as per the agreement and execute the sale deed in favou