The Court may refuse specific performance under the Specific Relief Act if the circumstances give the plaintiff an unfair advantage over the defendant and if there is a delay in enforcing the claim.

Beasley, C.J.

1. This is an appeal by the plaintiff against the judgment of the principal Subordinate Judge of Nellore dismissing his suit. His claim in the suit was to compel the defendant to execute and register at his (the plaintiffs) cost a release deed in respect of the suit lands releasing the same from a mortgage in the defendants favour dated September 14, 1920. This mortgage was executed by one Kali Chetty Narayana Reddy. The lands comprised in this mortgage and other properties were sold in Court auction en December 3. 1924, and were purchased by the plaintiff subject to the defendants mortgage. The plaintiffs case was that he entered into the agreements of sale with third parties with respect of some of the lands to the knowledge and with the consent of the defendant who agreed that the plaintiff should pay him the prices stipulated under the agreements of sale and to release from his mortgage the lands agreed to be sold. Accordingly amounts paid by purchasers were duly paid to the defendant on February 17, 1926, November 15, 1926, and February 14, 1927, and at the same time under Exs. A-1, A-2 and A-3 he acknowledged the receipt of the money and agreed to execute a release deed in respect of the properties sold whenever the plaintiff required. By the date of Ex. A-3, i.e., February 14, 1927. sums aggregating to Rs. 6,000 of which Rs. 1,500 was by a promissory note the remainder being cash, had been paid. The plaintiff, however, did not call upon the defendant to execute the release deed in respect of the properties sold for nearly three years. Then he filed the suit under appeal. The defendant set up the defence that there was an oral agreement that the release deed was only to be given when the entire mortgage debt had been discharged and that whenever thereafter the plaintiff called upon him to execute the release deed he was under an obligation to do so but not before. It is clear that Exs. A-1 and A-2 which are unregistered cannot be admitted in evidence at all and that only Ex. A-3 is admissible. That document, however, refers to the previous transactions of February 17, 1926, (Ex. A-1) and November 15, 1926, (Ex. A-2). In Ex. A-3 which acknowledges the receipt of Rs. 600 for the sale of certain property comprised in the mortgage, it is stated by the defendant:

I shall execute at your cost a deed of relinquishment of right in your favour whenever desired by you and get the same registered, and after referring to Exs. A-1 and A-2, he states:

Therefore, I shall whenever desired by you and at your cost, execute in the same manner a deed of relinquishment of right in your favour, even in respect of those lands mentioned in that document and get it registered.

2. It is clear that the oral arrangement set up by the defendant cannot be admitted under Section 92, Evidence Act, unless it is a separate oral agreement constituting a condition precedent to the attaching of any obligation under the contract It is contended that it is such an oral agreement and, therefore, comes under proviso (3) to Section 92. In our view, that contention must fail. The contract is to execute a deed of release "whenever desired by you" and not "whenever desired by you after the mortgage has been discharged." The oral agreement pleaded is directly contradictory to the terms of the contract itself. Had the case rested there, then the plaintiff would have been entitled to succeed; but under Section 22, Specific Relief Act, the Court may exercise its discretion and not decree specific performance where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant. The learned Subordinate Judge was of the opinion that the discretionary relief should be refused to the plaintiff on that ground and also because of the delay by the plaintiff in enforcing his claim. Mere delay itself is no ground for refusing relief but when it raises the presumption of an abandonment of the plaintiff