Subhro Kamal Mukherjee, J.

Although the matter is appearing under the heading ‘application’, on the prayer of Mr. Mainak Bose, learned advocate appearing for the appellant, and Mr. Sabyasachi Bhattacharyya, learned advocate appearing for the respondent, the appeal itself is taken up for hearing upon dispensation of all formalities.

This is an appeal against order dated March 6, 2012 passed by the learned Civil Judge (Senior Division), Fifth Court, Alipore, in Miscellaneous Case No. 16 of 2011.

By the order impugned, the learned trial judge rejected an application filed by the defendant-appellant under Order IX, rule 13 read with Section 151 of the Code of Civil Procedure.

Undisputedly, the parties entered into an agreement for sale on December 16, 2007. The defendant agreed to convey the property-in-suit in favour of the plaintiff for Rs.12, 75,000/- (Rupees twelve lakh seventy five thousand) only. The defendant accepted Rs.7, 00,000/- (Rupees seven lakh) only towards earnest money/advance.

As the defendant did not execute the deed of sale in spite of repeated demands, the plaintiff approached the Court with a suit for specific performance of contract.

The suit was re