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SHAILENDRA SINGH
Archana Mukherjee @ Archana Mukherji – Appellant
Versus
Madhumesh Choudhary – Respondent
ORDER
Re : I.A. No. 04 of 2025
The instant matter has been taken up in the light of the direction given by the Civil Motion Bench of this Court to the Listing Section to list this matter before this Bench on 27.02.2025 at the top.
2. In this interlocutory application, the appellants, who were defendants before the trial court, have made a prayer under Order 41, Rule 5 read with Section 151 of the Code of Civil Procedure, 1908 (in short ‘C.P.C.’) for staying the proceeding in the Execution Case No. 767/2023 having arisen in the light of judgment and decree which have been challenged in this appeal.
3. The appellants were defendants and the respondent No. 1 was the sole plaintiff before the trial court and the defendant Praveen Kumar Banerjee, who was made as respondent No. 2 in this appeal, died before the filing of the appeal, so, his legal heirs were made as proposed respondents Nos. 2(a) to 2(c) and the defendant Vandana Chaterjee has been made as respondent No. 3 in this appeal.
4. The instant matter relates to the specific performance of contract and the case of the plaintiff/respondent No. 1 is based on a deed of agreement for sale of suit property and his suit was decreed and the
Stay of proceeding in Execution Case – Appeal is considered to be continuation of suit and subject matter of dispute must be kept safe till attaining finality ofissue by way of judgment.
The court affirmed that specific performance is a discretionary remedy, requiring the plaintiff to prove the validity of the contract and readiness to perform.
In a suit for specific performance, the plaintiff must prove the execution of the agreement and readiness to perform the contract, including financial capability.
(1) Agreement to sell – Specific performance will not be ordered if contract itself suffers from some defect which makes contract invalid or unenforceable – Discretion of court will not be there even....
A plaintiff seeking specific performance must demonstrate continuous readiness and willingness to complete contract obligations, failing which relief may be denied.
The presumption of validity of a registered agreement for sale cannot be rebutted without substantial evidence, and the burden of proof lies on the party challenging it.
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