Suit filed by assignee held maintainable.

1. The unsuccessful plaintiff before the trial Court has filed the above appeal.

.2. According to the appellant/plaintiff, the 1st defendant on 22. 1975 agreed to sell the suit property to the 2nd defendant free of all encumbrances for a consideration of Rs. 53, 000 and he received an advance of Rs. 2, 000. It was agreed that the balance of sale consideration should be paid by the 2nd defendant within six months. Accordingly an agreement was entered into between the parties. The 2nd defendant was always ready and willing to pay the balance of sale price and get the sale deed executed. He approached personally and through friends the 1st defendant to get the sale deed executed. The 2nd defendant also telegraphically contacted the 1st defendant to get the sale deed executed. Ultimately he caused a legal notice to the 1st defendant on 18. 1975 for the said purpose. But the 1st defendant did not send any reply. On 22. 1978 the 2nd defendant had assigned all his rights under the said agreement dated 22. 1975 in favour of the plaintiff for valuable consideration. So the plaintiff has become entitled to enforce the said sale agreement and he has been ready and willing to pay the balance of sale consideration and to get the sale deed executed. The 2nd defendant informed the 1st defendant about the said assignment, on 22. 1978. Since the 1st defendant did not execute the sale deed in spite of request, the plaintiff filed the suit for specific performance of the agreement dated 22. 1975.

3. The 1st defendant contested the suit by filing written statement. According to him, the plaintiff has no locus-standi to sustain the suit. The plaintiff being a tenant is trying to retain the suit property under the guise of the said assignment. The 1st defendant has denied the case of the plaintiff that time is not the essence of contract. At no point of time the 2nd defendant was ready with the funds -the balance of sale consideration. The 2nd defendant has come forward with the false case in his notice dated 18. 1975 as if the 1st defendant refused to receive the sum of Rs. 10, 000 as second advance. According to the 1st defendant, the assignment claimed by the plaintiff is false and invalid as the assignor himself has no existing right to assign so. The plaintiff was also not ready and willing to perform his part of the contract. The 2nd defendant remained absent and set ex-parte.

4. The trial Court though originally framed as many as nine issues, on 2. 1983 recast the issues. The trial Court after considering the pleadings, oral and documentary evidence found that since the 2nd defendant has not performed his part of the contract, he is not entitled to enforce the agreement, that knowing that the 2nd defendant cannot enforce the agreement, the plaintiff got the assignment from the 2nd defendant and so the plaintiff also cannot get it enforced and that there is no cause of action for the suit. On the basis of the abovesaid findings, the trial Court dismissed the suit.

5. It is not in dispute that the agreement Ex.A8 was executed by the 1st defendant, in favour of the 2nd defendant in respect of the suit property. The assignment Ex.A7 made in favour of the plaintiff by the 2nd defendant also is not in dispute. When the execution of Ex.A7 and Ex.A8 are not in dispute, I am not able to understand as to why the trial Court has framed an issue regarding the genuineness of the agreement and also about the said assignment. The main defence of the 1st defendant to avoid the sale is that the plaintiff and the 2nd defendant were not ready and willing to perform their part of the contract, and the assignment is not valid as the 2nd defendant has no power to assign the sale agreement in favour of the plaintiff.

.6. In Ex.A8 it is stated as follows:

.From the abovesaid recitals in the said agreement, it is clear that the 1st defendant had agreed to execute the sale deed in respect of the suit property in favour of the 2nd defendant or to