Anil Dev Singh, J.

( 1 )

( 2 ) THIS is an appeal from the order of the learned single Judge in I. A. 9565/94 in Suit No. 1518/94 whereby the suit filed under Order 37 Civil Procedure Code has been treated as an ordinary regular suit. The facts giving rise to this appeal are as under:-

( 3 ) THE first appellant herein is the first plaintiff while the second and third appellants herein are the second and third plaintiffs in the suit. The first appellant is the widow and the second and third appellants are the son and daughter respectively of late Brahm Parkash, who died on July 6, 1990. The first two respondents in this appeal are the first two defendants in the suit. The third and fourth respondents,the legal representatives of late Tej Ram, are the third and fourth defendants in the suit.

( 4 ) ON April 2, 1990 Brahm Parkash entered into an agreement with the first and second respondents and Tej Ram. Under the agreement, the first and second respondents and Tej Ram agreed to sell a piece of land measuring 17 bighas and 4 biswas comprised in Khasra No. 43/12 (4-16), 13/1 (3-12), 17 (4-8) and 18 (4-8) situate in village Kakrola, New Delhi to Brahm Parkash at the rate of Rs. 6. 25 lakhs per acre. At the time of execution of the instrument, Brahm Parkash paid a sum of Rs. 4 lakhs as part consideration to the first two respondents and Tej Ram. As per the terms of the agreement to sell, the sale deed was required to be executed on obtaining the requisite no objection certificates from the Revenue and Income-tax departments. However, no such certificates by the prospective vendors were obtained within the time specified in the agreement. In the meantime on June 6, 1991 a notification under section 4 of the Land Acquisition Act, 1894 was issued in respect of the land in question. This was followed by a declaration under section 6 of the Act on December, 18, 1991. Thereafter the matter culminated in an award on April 2, 1993 and the land owners, the first and second respondednts received compensation in respect of 1/2 share of the land in question and the third and fourth respondents, being the heirs of Tej Ram, received the compensation of the other half. As a result of the acquisition, the land stood vested in the Government of India rendering the agreement to sell incapable of being specifically performed. Thereupon the appellants required the respondents to refund the sum of Rs 4 lakhs, which was paid by Brahm Prakash to the first two respondents and Tej Ram at the time of execution of the agreement to sell. Failing to receive any favourable response from the respondents, the appellants filed a suit under Order 37 Civil Procedure Code against them on the basis of the agreement to sell. On November 22, 1994 the learned single Judge passed an order holding that the suit was not triable under Order 37 Civil Procedure Code as the third and fourth respondents, were not parties to the agreement to sell. In reaching this conclusion the learned single Judge relied upon a decision of the Bombay High Court in Rajesh Steel Centre vs. Smt. Rashmi K. Agarwal and Ors. 1986 Mah. L. J. 993. It is this order of the learned single Judge which has been impugned before us.

( 5 ) WE have heard learned counsel for the parties and we are of the opinion that the learned single Judge was not right in holding that the suit under Order 37 Civil Procedure Code would not lie. In an identical matter where the present appellants had instituted a suit, being Suit No. 1507/94 under Order 37 against some other parties, the learned single Judge has veered around to the view that such a suit would be maintainable against the heirs and legal representatives of the contracting party who have received his assets. The following are the observations of the learned single Judge recorded in his order dated May 3,1995 with which we respectufully concur:

"all the defendants herein have themselves received the amount of compensation. Not only the receipt of compensation by the d

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