( 1 ) THIS is an appeal under Sec. 104 (1) of C. P. C. read with Order 43, Rule l (r) of C. P. C. , filed by the original defendant Nos. 2 and 3 in Special Civil Suit No. 39 of 1994, challenging an order dated 15-3-1995, passed below Exh. 5 in Special Civil Suit No. 39 of 1994, at present, pending on the file of 2nd Jt. Civil Judge (S. D.), Bhavnagar (who will be referred to hereinafter as the learned Judge of the trial Court ).

( 2 ) HERE in this appeal, the appellants are the original defendant Nos. 2 and 3 while respondent No. 1 is a plaintiff in that suit. Respondent Nos. 2/a and 2/b are the heirs and legal representatives of original defendant No. 1 in the aforesaid suit, and therefore, parties will be referred to hereinafter as the plaintiff and defendants respectively at appropriate places.

( 3 ) THE facts leading to this appeal in a nutshell are as follows :

( 4 ) TILL 29-4-1983, plaintiff was a Power of Attorney-Holder of defendant no. 1-Dr. Virbhadrasinhji Gohil. On or about 21-3-1980, defendant No. 1 executed one agreement to sell (Banakhat) in favour of plaintiff for four different lands bearing Survey Nos. 244, 248, 258 (Paiki 8000 sq. yds.) and Survey no. 450 all situated in the area known as Vadva of city of Bhavnagar. It is the case of the plaintiff that he paid Rs. 1,50,000. 00 as an earnest money to the defendant No. 1 and it was agreed upon by plaintiff and defendant No. 1 that rest of the amount of consideration of the lands would be paid 90 days after permission is granted by the Government under Sec. 76 of the Urban Land (Ceiling and Regulation) Act, 1976. It is also the case of the plaintiff that, in continuation of said agreement dated 21-3-1980, one writing was executed by defendant No. 1 in favour of plaintiff on 9-8-1980. Thereafter, plaintiff executed an agreement to sell for land Survey No. 258 in favour of defendants nos. 2 and 3 on 22-8-1981. Thereafter, defendant No. 1 addressed a letter cancelling Banakhat dated 21-3-1980 to plaintiff on 30-4-1983 and returned the amount which he had received as an earnest money from plaintiff by Demand draft. Thereafter, plaintiff, in reply to letter dated 30-4-1983 of the defendant no. 1 gave his reply dated 18-5-1983. It is the case of the plaintiff that defendant no. 1 in his capacity as an owner of the land bearing Survey No. 258 executed a supplementary agreement on 4-5-1987 in favour of defendant Nos. 2 and 3 in continuation of earlier main Satakhat dated 22-8-1981 and handed over the actual physical possession of the land Survey No. 258 to defendant Nos. 2 and

( 5 ) AS per endorsements below the supplementary agreement dated 4-5-1987, defendant Nos. 2 and 3 paid consideration of Rs. 4,01,000=00 in part by different items during the period from 22-8-1981 to 9-10-1993. Thereafter, defendant nos. 2 and 3 paid Rs. 99,000. 00 to defendant No. 1 on 2-1-1995 and thus they have paid full consideration of Rs. 5 lacs to original defendant No. 1 i. e. owner of the land.

( 6 ) FOR remaining land Survey No. 248 one Special Civil Suit No. 176 of 1993 was filed by the plaintiff against defendant No. . 1 in the Court of the learned Civil Judge (S. D.) Bhavnagar. That suit was compromised and ultimately plaintiff of that suit i. e. present plaintiff withdrew that suit on or about 1-12-1993.

( 7 ) AS per the record, defendant No. 1 died on 29-7-1994. Defendant Nos. 1/1 and 1/2 who are respondent Nos. 2/a and 2/b in this appeal appeared and contested the suit by filing their written statement Exh. 37. Defendant Nos. 2 and 3 also appeared in the suit and tiled their written statement Exh. 25.

( 8 ) THE present plaintiff filed Special Civil Suit No. 39 of 1994 in the court of the learned Judge of the trial Court on 15-3-1994 for specific performance of the Satakhat dated 22-8-1981. On that very day, plaintiff submitted one application Exh. 5 seeking an interim relief in form of an interim injunction restraining defendant No. 1 from selling the land Survey No. 2