Point of Law: An order remanding a proceeding may ordinarily be made under Order XLI Rule 23 of the Code of Civil Procedure when the Trial Court has decided the case on a preliminary point and the Appellate Court reverses the decision of the Trial Court.

JUDGMENT :

K. BABU, J.

This appeal is directed against the judgment and decree dated 31.10.2018 passed by the Subordinate Judge's Court, Chengannoor in O.S.No.37 of 2012. The plaintiff who lost his case in the Court below, has preferred this appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (for short, 'C.P.C').

2. The plaintiff instituted the original suit seeking specific performance of a contract in respect of the plaint schedule property.

3. Defendant No.2 is the mother of defendants 1 and 3. They are the owners of the plaint schedule property. On 07.06.2010, defendants 1 and 2 entered into an agreement for sale in respect of the plaint schedule property with the plaintiff for a total consideration of Rs.50 lakhs. The agreement for sale was executed by defendants 1 and 2 with the knowledge and concurrence of defendant No.3, who was then working abroad. The time for performance was fixed as 11 months. Defendants 1 and 2 received Rs.10 lakhs as advance on the date of the agreement, and thereafter, they received amounts on different dates totalling a sum of Rs.31 lakhs. The date of performance of the agreement was extended to 30.11.2011. Subsequently, on 03.08.2010, defendants 1 and 2 received Rs.3 lakhs more from the plaintiff and executed a document acknowledging the receipt of the amount. Thereafter, the defendants did not come forward to execute the sale deed, in spite of repeated demands of the plaintiff. The defendants instituted O.S.No.308 of 2011 and obtained an interim injunction to restrain the plaintiff from entering into the plaint schedule property. Even after that, the defendants sought time for performing the agreement for sale. But at the same time, they tried to sell off the properties to third parties, against which the plaintiff filed a suit to restrain them from alienating the property to others in violation of the agreement for sale. The plaintiff has always been ready and willing to perform his part of the agreement by paying the balance sale consideration. The plaintiff intimated his readiness and willingness to the defendants, but they refused to perform their part of the contract. Hence the plaintiff instituted the original suit seeking specific performance of the contract.

4. Defendants 1 and 2 resisted the claim of the plaintiff. They denied the execution of the agreement for sale. According to the defendants, the alleged sale agreement is a forged one made by the plaintiff using the blank signed stamp papers procured from the defendants when they borrowed a sum of Rs.25 lakhs from him to discharge certain liabilities. The plaintiff had obtained papers with their signatures affixed in revenue stamps at the time of the abovesaid transaction. He had also obtained blank signed cheque leaves of the wife of defendant No.1. The defendants had paid a sum of Rs.30 lakhs as interest for the amount borrowed from the plaintiff. But the plaintiff demanded increase in interest and required the defendants to pay a further sum of Rs.31 lakhs to clear the liability. The defendants never thought of selling the plaint schedule property to the plaintiff, which is worth more than Rs.50 lakhs. The plaint schedule property is the only asset of the defendants, where they are residing. Defendant No.3, who has a co-ownership right over the property, is not a party in the agreement for sale. Hence it cannot be executed. The defendants instituted O.S No.308 of 2011 to prevent the high-handedness of the plaintiff under cover of the forged agreement for sale. The Plaintiff also filed O.S No.210 of 2012 to restrain them from alienating the plaint schedule property ignoring the forged agreement for sale. The plaintiff is not entitled to get specific performance as prayed for.

5. Defendant No.3 filed written statement contending that he has no knowledge about the execution of the agreement in respect of the plaint schedule property. According to him, he never executed such an agreement for sale.

6. T