A suit for specific performance of an agreement of sale is not premature if the defendant has refused to execute the sale deed after receiving a notice from the plaintiff.

( 1 ) THIS is a defendants second appeal arising out of a suit filed by the plaintiff-respondent raghubir Sineh for specific performance of an agreement of sale dated 5-9-1970 by virtue of which it was alleged that the appellant had agreed to sell to the plaintiff-respondent his Khata no. 15 area 8 Bighas 4 Biswas and 10 Biswansis for a sum of Rs. 16,000. The case of the plaintiff-respondent was that on 5th September, 1970 the appellant Malkhan Singh executed an agreement to sell the plots in dispute for a sum of Rs. 16,000, A sum of Rs. 11,000 was paid to the appellant as part payment of the agreed price. The appellant further agreed to execute the sale deed in respect of the disputed land on payment of balance consideration of Rs. 5,000 within a period of nine months. It was alleged by the plaintiff-respondent that in spite of several requests the appellant did not execute the sale deed and hence the plaintiff-respondent gave a notice on 6-5-1971 asking the appellant to execute the sale deed. This notice was refused by the appellant and as such the suit was filed on 2-6-1971.

( 2 ) THE defendant-appellant denied the execution of the agreement of sale D/- 5-9-70. He denied having recorded (received?) a sum of Rs. 11,000 as advance money. It was further alleged by him that the property was worth Rs. 26,000 and as such there was no question of agreeing to execute a sale deed for Rs. 16,000 only. In the additional pleas the case set up by the appellant was that the plaintiff-respondent Raghubir Singh and his father Munshi Singh and brother intended to purchase a tractor, and for the said purpose they took loan from the State Bank of india, in favour of Munshi Singh and the plaintiff-respondent and his father Munshi Singh and brother requested the appellant to accompany them to Iglas to attest the mortgage deed securing the aforesaid loan from the State Bank of India. The said mortgage deed was attested by the appellant on 8th September, 1970 and on that date the plaintiff-respondent, his father Munshi singh and brother obtained the appellants signatures on various papers including some stamp papers under the pretext of the attestation of the mortgage deed. In substance the defence was that the appellant never intended to agree to sell the property to the plaintiff-respondent when he put the signatures on the deed dated 5th September, 1970 but in fact, he intended to sign as an attesting witness to the mortgage deed.

( 3 ) IN the written statement no objection was taken by the appellant that the suit was premature or that it was barred by Section 16 of the Specific Relief Act. Only two questions were urged firstly whether there was any agreement dated 5-9-1970 and as to whether the appellant was paid Rs. 11,000. On both these questions the trial court recorded a finding of fact that the agreement was entered into by the appellant on 5-9-1970 and that he was paid a sum of Rs. 11,000. The suit was accordingly decreed by the trial court on 30th May, 1973. Against the said judgment an appeal was filed before the lower court. In the appeal only these questions were reiterated. The lower appellate court agreed with the finding recorded by the trial court and dismissed the appeal on 30th July, 1976. Aggrieved by the judgment dated 30th July, 1976, the present appeal has been filed in this Court,

( 4 ) LEARNED counsel for the appellant raised three contentions before me. His first contention is that the finding recorded by the lower appellate court in regard to the execution of the agreement is vitiated in law as the lower appellate court set up a new case. The appellant had never set up a case that the agree- ment was executed? on a blank paper. His case was that, in fact, the agreement was executed by the appellant but it was sought to be a surety deed and not an agreement of sale.

( 5 ) THE second submission of the learned counsel is that the suit is barred by Section 16 of the specific Relief Act and the third submis