Modi, J.—This appeal by the defendants Shankerlal and another is directed against the judgment and decree of the District Judge, Bhilwara, upholding the judgment and decree of the Civil Judge;, Bhilwara, in a suit for refund of earnest money.

2. The material facts are these. On the 27th March, 1953, defendants Shankerlal and Arjunlal agreed to sell, and the plaintiffs to purchase the suit house for a sum of Rs. 12,000/- vide Ex. 1. The plaintiffs paid a sum of Rs. 700/- as earnest money then and there and the rest of the sale consideration was agreed to be paid at the time of the registration of the sale-deed, and it was further agreed between the parties that the sale would be completed within one month of the date of the agreement. The case of the plaintiffs as disclosed in the plaint was that the suit land originally belonged to one Bherunlal Gelda of Udaipur and the defendants had stated that they would settle the dispute with Bherunlal with respect to it and it was on this account that a months time was agreed to for the completion of the sale. But the defendants had failed to resolve their dispute with Bherunlal and had further failed to complete the sale. Consequently on the 27th April, 1953, exactly one month after the date of the aforesaid agreement, the plaintiffs, through their counsel Sri Yashwant Singh Nahar, served a notice (Ex.A-l) on the defendants to the effete that they were ready and willing to perform their part of the agreement but that the defendants had failed to execute the sale-deed, and, therefore, the plaintiffs called upon the defendants to return the earnest money of Rs. 700/- along with interest and damages in default whereof they further stated that they would have to take legal action against the defendants. The defendants sent a reply (Ex. A-3) on the 29th April, 1953, in which they completely repudiated the allegations made by the plaintiff in their notice and pointed out that the failure of the defendants to execute and complete the sale-deed was caused by the plaintiffs own default in as much as the latter had not paid their share of the stamp and registration charges as agreed and that the plaintiffs had also failed to give the draft sale-deed, and they further called upon the plaintiffs, (stating that on their side they had always been ready and willing to complete the sale), to give their share of the expenses within two days of the receipt of their letter and also complete the sale and it was further stated that in default thereof the plaintiffs would forfeit their earnest money as well as their right to have the sale completed because the defendants were not at all at fault so far as the completion of the sale was concerned. The plaintiffs sent a rejoinder (Ex A-2) to the aforesaid letter on the 1st May, 1953, again through their counsel Shri Yashwant Singh Nahar, wherein it was stated that the property which was the subject-matter of the contract for sale between the parties had originally belonged to Bherunlal Gelda of Udaipur, and that the defendants had, therefore, taken the months time in order to obtain a clear title from the said Bherunlal or to settle their dispute with him and thereafter the sale in favour of the plaintiffs, according to the agreement, was to be completed. It was further pointed out that the defendants had failed to obtain a proper conveyance from Bherunlal, and it was on this account that the defendants had failed to execute a proper sale-deed in favour of the plaintiffs in spite of the latter being ready and willing to pay the balance of the sale consideration and not on account of any default on the part of the plaintiffs. Reference was also made in this notice to the fact that the plaintiffs had received a notice from the said Bherunlal Gelda of Udaipur that the house was his and that the defendants had no right to sell the same to any body whatsoever. Consequently, the plaintiffs stated that the agreement dated the 27th March, 1953, had fallen through and w

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