Dinesh Maheshwari, J.-This second appeal by the plaintiff in a suit for specific performance is directed against the Judgment and decree dated 08.03.1983 passed by the District Judge, Pali in Appeal No. 21/79 whereby the learned Judge held the appeal preferred by the plaintiff-appellant against the order dated 30.04.1979 passed by the trial Court to be not maintainable and dismissed the same.

2. The order dated 30.04.1979 passed by the learned trial Court in Civil Suit No. 10/1978 which is the bone of contention in the present appeal on the question whether a regular appeal under Section 96 of the Code of Civil Procedure (CPC) was maintainable against the said order or not, reads as under:-

“30.04.1979

odhy i{kdkj gkftjA oknh Lo;a ,oa mldk dksbZ xokg gkftj ughaA u fiNyh rkjh[k ij yxkbZ xbZ Costs gh vnk dh xbZ gSA odhy oknh Jh lEirjkt No instructions plead djrs gSA vr% mldh kgknr lekIr dh tkrh gSA okn ds i{k esa bl izdkj dksbZ kgknr u gksus ds dkj.k nkok [kkfjt fd;k tkrk gSA mDr ifjfLFkfr;ksa esa nksuksa i{k viuk&viuk [kpZ Lo;a ogu djsaxsA vkns’k lquk;k A”

] 3. The aforesaid is obviously an order of dismissal of the suit. The question is, whether it would be deemed to be a disposal under Order 17 Rule 2, CPC; or a decision under Order 17 Rule 3, CPC? The only substantial question of law on which this appeal has been admitted reads thus:-

“Whether the learned appellate Court was wrong in holding that the appeal under Section 96, CPC was not maintainable?”

4. The sole relevant aspect in this case remains that if the aforesaid order dated 30.04.1979 could be deemed to be a dismissal of the suit on merits and the dismissal is referable to Order 17 Rule 3, CPC as the learned Counsel for the appellant contends, a regular appeal against the same was maintainable; however, if this amounts to dismissal under Order 17 Rule 2, CPC read with Order 9 Rule 8, CPC as the learned Appellate Judge has held and as learned Counsel for the respondents contends, then obviously, it was not a decree and not appealable under Section 96, CPC. A brief reference to the pleadings and the proceedings would suffice.

Pleadings and Issues

5. The plaintiff Shanti Lal filed a suit for specific performance of agreement against the defendants Mukna Ram and Moti Ram with the averments in the plaint that the defendants agreed to sell their khatedari land as described in Para 1 of the plaint to the plaintiff on 22.06.1972 for Rs. 6,000/-and after receiving the entire sale consideration delivered the possession of the land to the plaintiff . However, as the requisite stamp was not available that day, therefore, the defendant agreed to execute the regular sale-deed and an agreement to sell was executed by them on 22.06.1972 itself and got attested by the Tehsildar, Jaitaran. The plaintiff alleged himself to have always been ready and willing to perform his part of the agreement but the defendants were seeking to retract out of the contract and were not prepared to execute the sale-deed and were entering into quarrels, therefore, this suit for specific performance was submitted. The plaintiff prayed for a decree of specific performance for execution of the sale-deed from the defendants regarding the land in dispute. The plaint aforesaid was presented by the plaintiff on 30.06.1975 stating that the suit was within limitation because for summer vacations of the Court from 01.06.1975 to 29.06.1975.

6. The defendants in the written statement totally denied having ever entered into any agreement with the plaintiff or receiving any amount from him or getting the agreement executed and attested. In the additional submissions, the defendants alleged that they had dealings and good relations with Nathmal S/o Pannalal. According to the defendants, later on, there were disputes with the said Nathmal regarding the amount due for which, said Nathmal got prepared two pro-notes, one in his own name and other in the name of Indrachand and filed civil suits which were p