This appeal is preferred against the decree and judgment of the learned District Judge of South Arcot dismissing the appellant’s suit for specific performance of an agreement, dated 3rd August, 1946 for sale of immovable properties, or in the alternative for recovery of damages and the price advanced by the appellant under the agreement.

The admitted facts are the following. The properties in suit belonged to respondents 1 and 2 who are members of an unidivided Hindu family. The first respondent executed a mortgage over these properties in 1923 in favour of one Manjini Gounder for Rs. 2,500. The mortgagee obtained a decree on this mortgage in O.S. No. 20 of 1937 on the file of the District Court, South Arcot, for sale of the mortgaged properties and assigned his decree to one Muthuvenkatapathi Reddi who brought the properties to sale and the properties were sold to several auction purchasers. Thereupon the second respondent filed M.P. No. 302 of 1944 under Order 21, rule 90, Civil Procedure Code, to set aside the sale. That was dismissed on 10th July, 1945 and the sale was confirmed on 12th July, 1945. The matter was brought up to High Court in C.M.A. No. 447 o