Decree restored by High Court in second appeal.

G. Ramanujam, J.

1. Legal Representatives of the first defendant in O.S. No. 291 of 1952 on the file of the District Munsiff, Erode who were unsuccessful in both the Courts below are the appellants herein.

2. The respondent herein filed the said suit for specific performance of an agreement of reconveyance. One Mariappan, Pajagopalan and Angappan had sold the property covered by that suit to the first defendant under a sale deed dated 19th February, 1946. On 20th February, 1946, the vendee, the first defendant, had executed an agreement of reconveyance in favour of the vendors, Maria ppan and others. The vendors had executed a mortgage of the right of reconveyance to the vendee. One Kuppayammal, the mother of the first defendant had filed a suit O. S No. 290 of 1949against Mariappan the third defendant and obtained a decree. In execution of that decree the second defendant had attached the said right to obtain reconveyance. In pursuance of that attachment that right was brought to sale and purchased by the first defendant on 16th April, 1952- The sale was confirmed. Since the other two vendors, Rajagopaian and Angappan were not parties to the said suit O. S No. 290 of 19 9, the first defendant, as a result of the Court-auction-purchase could obtain only 1/3rd right in the reconveyance, belonging to Mariappan. The plaintiff had obtained an assignment of the reconveyance from Raja, gopalan and Angappan urder a deed Exhibit 4 dated 5th October, 1951. Similarly, under Exhibit A-5 dated 11th February,]952, the plaintiff obtained an assignment of the said right from the third defendant but this was after the attachment was effected in O.S. No. 290 of 1949 and hence it is ineffective. It is in these circumstances the plaintiff filed the suit O.S. No. 291 of 1952 for specific performance of the agreement of reconveyance in respect of the entire suit property in tie alternative respect of 2/3rd share belonging to Raja, gopalan and Angappe.n and for recover of possession.

3. In the said suit, defendants 3 and 4 re mained ex parte and it was resisted only by defendants 1 and 2. The defence taken by them was that the plaintiff is not entitled to obtain a reconveyance without redeeming the mortgage over the right of reconveyance by payirg the proportionate share of his assignors, Angappan and Rajagopalan and that the plaintiff is entitled to reconveyance of the shareof Angap pan and Rajagopalan only on payment of Prorata share of the reconveyance a mount.

4. The trial Court passed a decree directing the first defendant to execute a deed of reconveyance of the suit property in favour of himself are the plaintiff on the plaintiff depositing a sum of Rs. 1,450 into Court within a period of one month. On appeal, the lower appellate Court took the view that the right to get a reconveyance from Angappan and Rajagopalan stood extinguished and that, the plaintift is not in any evert entitled to a reconveyance without redeeming the mortgage over the right of reconveyance or paying the proportionate share of his assignors, Angappan and Rajagopalan In that view the lower appellate Court reversed the decree of the the trial Court and is missed the suit.

5. The matter was taken in Second Appeal No. 262 of Ig56 to this Court. In the second appeal the plaintiff had no objection for a decree being passed subject to the plaintiff paying his vendors share of the mortgage money and on his complying with such equitable terms and conditions as may be imposed by the Court. This Court by its judgment dated'13th November, 1958, set aside the decree and judgment of the lower appellate Court and restored the decree and judgment of the trial Court subject to the following terms:

1. The trial Court do ascertain the exact amount payable to the first defendant under the decree in O.S. No. 290 of 1949 and 710 of 1948 on the file of the Court of the District Munsif, Erode upto date and the plaintiff has to pay 2/3rd of the same to the first defendant.

2. In respect of t