The Court emphasized the need for detailed evidence to determine default in performing the agreement and highlighted the interlinking of issues of limitation and breach of contract.

The defendants in O.S. No.46 of 1999 except defendants 3, 5, 6, 8 and 17 on the file of the Sub Court, Vadakara are the revision petitioners. The suit was filed by respondents 1 to 4 as plaintiffs for realization of money.

2. Theplaint schedule properties, 21 items, having an extent of 29 acres belonged to the defendants and they had agreed to sell the properties to the predecessor of the plaintiffs, late Sahadevan, for a consideration of Rs.46,00,000/-. The terms and conditions agreed between the parties had been reduced into a written agreement for sale executed on 11.1994 and an amount of Rs.9,00,000/-was given as advance towards sale consideration on the date of agreement itself. Subsequent payments were also made and altogether an amount of Rs.17,50,000/-was given towards sale consideration. As per the agreement, the sale deed is to be executed on or before 30.6.1994 after measuring the properties and verifying the extent of the same. One of the terms of the agreement was that the defendants had to satisfy late Sahadevan the title of the properties by showing the original documents and also that the properties are free from encumbrance. The predecessor of the plaintiffs died on 29.1995. According to the plaintiffs, completion of the transaction was delayed by the defendants deliberately under one pretext or other during the life time of late Sahadevan and that after his death, though they persuaded the defendants to execute the sale deed, there was no positive response. It is contended by the plaintiffs that since the defendants failed to perform their part of the contract, they were constrained to rescind the contract and, therefore, entitled to get back the amount paid towards purchase price.

3. In the written statement filed by the defendants, execution of the agreement and receipt of Rs.17,50,000/- from the predecessor of the plaintiffs are admitted. According to the defendants, the plaintiffs and deceased Sahadevan are responsible for not carrying out the terms of the contract and that the defendants were in fact ready and willing to hand over the original title deeds and other documents and to execute the sale deed as agreed. The defendants contended that the transaction was postponed, as the plaintiffs were not ready with the balance sale consideration.

4. The Trial Court framed five issues, two of which are (i) whether the suit is barred by limitation and

(ii) who among the parties to the sale agreement committed breach of contract. The suit was listed for trial and at that time, the defendants insisted for a preliminary hearing on issue No. (i). The court below took the stand that the disputed fact as to who had committed default in the performance of the agreement is a complex issue, which requires proof by oral and documentary evidence on both sides. The Trial Court is of the view that for the purpose of deciding the suit filed under S. 55(6)(b) of the Transfer of Property Act, 1882, the question of applicability of the relevant Article under the Limitation Act can be decided only after the evidence is taken. By taking such a view, according to me rightly, the Trial Court refused to decide the question of limitation as a preliminary issue. The revision petitioners/defendants had insisted for a preliminary hearing of the above issue inspite of the factual and legal position stated above. Since the Trial Court did not consider this question as a preliminary issue, the revision petitioners approached this Court by filing W.R(C)No.21346 of 2005 for a direction to the court below to hear the question of limitation as a preliminary issue and this Court directed the Trial Court to decide the preliminary issue regarding limitation in accordance with law.

5. Thetrial court in order to adjudicate the question of limitation had elaborately narrated the respective contentions of the parties and rightly observed that the question as to who committed default in performing their part of the agreement calls for detai