In a suit for specific performance of a contract, the plea of illegality and validity of the ex parte decree cannot be entertained in the first appeal as it is hit by the principle of res judicata and issue estoppel.

K. J. SENGUPTA, J.

( 1 ) THIS was an appeal against a decree dated 6th April, 2004 passed in the suit for specific performance of an agreement for sale by the learned Civil Judge (Sr. Division) 3rd Court, Alipore, 24-Parganas, ex parte. The appellant was unsuccessful in getting the decree set aside by their proceedings under Order 9 Rule 13 of the Code of Civil Procedure right up to the Appeal Court. Now the present appeal is preferred against the decree itself.

( 2 ) IT appears from the records the defendants despite having taken time on several occasions to file written statement did not do so, however, the interlocutory application of the plaintiffs for injunction was contested by filing written objection. On 6th April, 2005 an application was made for adjournment of hearing of the suit and, after this prayer having been refused the suit was taken up for hearing. The case made out in the plaint is that the plaintiff Nos. 2 to 5 and their elder brother Prakash Chandra Gupta, since deceased, who was the husband of the present plaintiff No. 1 entered into an agreement for sale with the appellant who was absolute owner amongst others of the premises no. 3/1b, Chetla Hat Road, Kolkata - 700027, comprising a land measuring about 4 Cottahs 8 chittacks together with kachcha structures standing thereon at the agreed price of Rs. 2,40,500/- on or about 8th October, 1986. At the time of agreement a sum of Rs. 75,000/- was paid as and by way of advance and/or part of the consideration amount. Thereafter, on several occasions the plaintiff Nos. 2 to 5 and their elder brother paid an aggregate sum of Rs. 18,000/- as and by way of part consideration out of the agreed consideration as above. It is alleged that in the said suit premises one Sri Pramad Praharaj had been in possession pursuant to another agreement for sale of the said structure. The said Pramad praharaj alias Das on 30th October, 1987 duly and lawfully entered into an agreement with the defendant to vacate his occupied portion by accepting a sum of Rs. 25,000/- on or before 1st April, 1988. The defendant paid the said amount to the said Pramad for his vacating and he vacated the same accepting the consideration money paid by the plaintiffs and thereafter the plaintiff Nos. 2 to 5 and their deceased elder brother came into possession pursuant to the said agreement, but the conveyance could not be executed in spite of the agreement because while the defendant was trying to obtain clearance under section 230a of the Income-tax Act, 1961, the competent authority Land and land Reforms Department under the Urban Land (Ceiling and Regulation)Act, 1976 initiated suo motu case bearing No. 187 of 1989 against the defendant in respect of premises No. 3/1b, Chetla Hat Road and declared the excess land of the said premises vested. The defendant contested the said case and ultimately the competent authority by its letter dated 28. 10. 1991 addressed to the defendant/appellant indicating extent of excess vacant land held by her, and asking her to exercise option for retention of land within ceiling limit. The defendant preferred appeal against the said order of vesting of the competent authority under section 33 of the said Act however the said appeal did not succeed. As a result whereof the agreement could not fructify in execution and registration of conveyance because of the aforesaid proceedings. The defendant neither returned the said part consideration nor took any step for execution of the conveyance, rather on 6th February, 1997 again in writing agreed to sell to the plaintiffs part of the said premises wherein the plaintiffs have been in possession. Thereafter one Tapan Jyoti Sarkar and his friends decided to purchase half of the said property and the defendant executed an agreement on 8th October, 1986 for assignment in their favour and modified the original agreement dated 6th February, 1997. Finally the defendant agreed to sell the land comprising an area about 3 cottah 10 chi

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