The main legal point established in the judgment is the interpretation of the nature of the transaction based on Section 58(c) of the Transfer of Property Act, 1882 and the distinction between mortgage by conditional sale and outright sale.

JUDGMENT

1. This second appeal preferred by the appellant/defendant (now, his Lrs.) was admitted for hearing on the following two substantial questions of law :

''1. Whether the finding recorded by both the Courts below that document dated 05071993 is a mortgage, is contrary to law ?

2. Whether both the Courts below erred in granting a decree for specific performance in favour of the respondent plaintiff in the absence of specific pleading and proof that the plaintiff was always ready and willing to perform his part of the contract and to repay the amount of Rs.20,000/ to the appellant/defendant?''

(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)

2. The two plaintiffs instituted a civil suit for specific performance of contract stating inter alia that due to certain requirement, they borrowed a sum of ? 20,000/ from the defendant who agreed to extend the loan to them but only on the condition if plaintiffs mortgage their land in his favour, which they accepted and executed a sale deed on 05/07/1993 (Ex. D/1) thereby, mortgaging their lands bearing Khasra No. 540/1 area 0.049 hectare, Khasra No. 540/2 area 0.299 hectare, Khasra No. 540/3 area 0.129 hectare and Khasra No. 587 area 0.121 hectare in favour of the defendant which was registered on 06/07/1993. On the same day i.e. on 06/07/1993, defendant executed an agreement (Ex. P/1) in favour of the plaintiffs stating that if the plaintiffs return the loan amount of ? 20,000/ back to him till 30/12/1995, he would execute sale deed in favour of the plaintiffs and return their land except for Khasra No. 587 area 0.121 hectare back to them. It was further pleaded that plaintiffs have been in continuous possession of the said land and it was only mortgaged to the defendant for security of loan and no such outright sale has been made in favour of the defendant. It was also pleaded that plaintiffs asked the defendant from time to time to accept repayment of the loan amount of ? 20,000/ and return their land to them by executing the sale deed in their favour as promised by him, but he avoided it and ultimately, on 26/10/1994, a legal notice was served upon him by the plaintiffs (Ex. P/5). Despite that, defendant did not return the disputed land to the plaintiffs and got his own name mutated in the revenue records on 26/12/1996 by the order passed by the Naib Tahsildar against which plaintiffs preferred an appeal before the Subdivisional Officer, Raigarh wherein the earlier order passed by the Naib Tahsildar was set aside, therefore, plaintiffs are entitled to get the decree as claimed and defendant be directed to execute the sale deed in their favour and return the suit land back to them.

3. Defendant set up a plea by filing a copy of the sale deed (Ex. D/1) executed by plaintiffs in his favour on 05/07/1993 which was registered on 06/07/1993 stating inter alia that it was an absolute and outright sale deed executed by the plaintiffs in his favour and not a sale intended only for security of loan, as such, the suit deserves to be dismissed.

4. Learned trial Court, upon appreciating the oral and documentary evidence on record, held that the suit land was mortgaged by the plaintiffs in favour of the defendant and the sale deed (Ex. D/1) was executed for security of loan and plaintiffs were under obligation to repay the loan amount of ? 20,000/ to the defendant and get the suit land registered in their favour and ultimately, vide its judgment and decree dated 22/07/2005, the trial Court granted decree of specific performance of contract in favour of the plaintiffs on payment of ? 20,000/ to the defendant.

5. On appeal being preferred by the defendant, learned first appellate Court affirmed the findings recorded by the trial Court and vide its judgment and decree dated 25/08/2006, dismissed his appeal against which this second appeal under Section 100 of the CPC has been preferred by the appellant/