Subba Rao, J.-This is an appeal against the decree and judgment of the Court of the District Judge of North Arcot in O.S. No 7 of 1945, a suit for specific performance of a contract of sale. The facts are rather complicated, but it is necessary to give a resume for a correct appreciation of the contentions of the parties. One B.S. Muniswamiappa filed O.S. No. 125 of 1920 on the file of the District Court of C. and M. Station, Bangalore, to enforce his money claims against one China Muniswami Goundar and obtained a decree therein. The suit properties were brought to sale in execution of the decree and the decree-holder himself purchased the properties and took possession on 5th May, 1924. Manicka Goundar the son of China Muniswami Goundar preferred a claim in regard to his share in the suit properties. As the claim was allowed, Muniswamiappa filed O.S. No. 12 of 1924 on the file of the Court of the Subordinate Judge of Vellore for a declaration that he was entitled to attach and bring the plaint properties to-sale in execution of his decree. To that suit Manicka Goundar and China Muniswami Goundar were made parties. The suit was decreed. Meanwhile one A.P. Varadaraja Mudaliar obtained a decree against Manicka Goundar and China Muniswami Goundar in C.S. No. 834 of 1922. In execution of that decree the suit properties were brought to sale in the year 1927. Defendants 1 and 2 who are the legal representatives of Muniswamiappa preferred a claim petition but that was dismissed and one Krishnamurthi Aiyar purchased, the properties in court sale. They filed O.S. No. 68 of 1929 on the file of the Court of the Subordinate Judge of Vellore for setting aside the claim order. The decree-holder Varadaraja Mudaliar, the auction purchaser Krishnamurthi Aiyar, the judgment-debtors, China Muniswami Goundar and, as Manicka Goundar died, his son Subramania Goundar were made parties. The Subordinate Judge of Vellore set aside the claim order and upheld the title of defendants 1 and 2. Exhibit P-4 is the said judgment dated 27th October, 1930. The auction-purchaser preferred an appeal A.S. No. 34 of 1931 on the file of the Court of the District Judge of North Arcot. The appeal was disposed of on 26th January, 1933, and the decree of the Subordinate Judge was set aside. Pending the appeal, on 17th December, 1931, there was a partition between defendants 1 and 2 whereunder the suit properties fell to the share of the first defendant. On 26th April, 1932, i.e., pending A.S. No. 34 of 1931, the first defendant and the plaintiff entered into an agreement dated 26th April, 1932, Under that agreement the first defendant agreed to sell the suit properties to the plaintiff for a sum of Rs. 5,500. The vendor received Rs. 3,100 in the manner mentioned in that document and he agreed to take the balance of Rs. 2,400 before the Sub-Registrar upon executing the sale deed on the disposal of the suit pending at that time. As the appeal was allowed Krishnamurthi Aiyar took possession of the property on 30th November, 1933, in execution of his decree after removal of the obstruction by the plaintiff. The first and second defendants preferred an appeal to the High Court against the decree in A.S. No. 34 of 1931, being S.A. No. 466 of 1933. As the title of the first defendant to suit property was negatived, the plaintiff filed O.S. No. 40 of 1935 for recovery of the amount advanced by him under Exhibit P-5. The first defendant contended that that suit was premature as S.A. No. 466 of 1933 was pending. The suit was dismissed on the ground that it was premature. S.A. No. 466 of 1933 was allowed on 4th April, 1938, and the decree in O.S. No. 68 of 1929 was restored. The result is that the title of the first defendant was affirmed. The first defendant thereupon filed a petition dated 21st October, 1940, for restitution of the properties from Krishnamurthi Aiyar but that was dismissed as the third defendant, the mother of Subramania Goundar, obstructed. Defendants 1 and 2 f

Click Here to Read the rest of this document