JUDGMENT :

1. This is defendant's second appeal arising from a suit for specific performance of contract decreed ex parte. Original Suit No. 101 of 1992 was instituted on 02.07.1992 before the Court of the Civil Judge, Mirzapur (now redesignated as Civil Judge, Senior Division) by the respondents, claiming relief of specific performance of contract. They sought specific performance of a registered agreement to sell dated 14.06.1990 said to be executed by the defendant-appellant in their favour, covenanting to sell immovable property as detailed at the foot of the plaint, for a valuable sale consideration of Rs. 65,000/-. The aforesaid registered agreement to sell is hereinafter referred to as 'the suit agreement'. The property that is subject matter of the suit under reference, is hereinafter be referred to as 'the suit property'. The appellant is hereinafter referred to as 'the defendant', whereas the respondents are referred to as 'the plaintiffs'.

2. It was the plaintiffs' case that at the time of execution and registration of the suit agreement, a sum of Rs. 30,000/- was paid in cash, leaving a balance sale consideration of Rs. 35,000/-. The plaintiff claimed to have requested the defendant a number of times over to execute the sale deed as covenanted, but the defendant was elusive. The plaintiff claimed to have called upon the defendant through notices to come forward on 03.01.1992, 24.03.1992 and 07.04.1992 to execute a sale deed in terms of the suit agreement but the defendant did nothing more than to re-assure the plaintiffs. The plaintiffs have averred in the plaint that they are ready with the balance sale consideration of Rs. 35,000/-to pay it over to the defendant and secure execution of the sale deed from the date of the suit agreement; the plaintiffs' claimed to have always been ready and still ready to perform their part of the suit agreement. Alleging breach of the suit agreement by the defendant, the suit giving rise to present appeal was brought as above detailed.

3. It appears that the plaintiffs put in appearance and sought time to file a written statement but in the absence of a written statement being filed, the suit was directed to proceed ex parte vide order dated 24.01.1995, passed by the learned Additional Civil Judge (Senior Division), Mirzapur. The suit was decreed ex parte by the learned Trial Judge vide judgment and decree dated 27.02.1996 ordering the plaintiff to execute a registered sale deed in favour of the defendant's within two months of the decree, in the terms covenanted in the suit agreement, conveying to the defendants, the suit property.

4. The defendant brought an application dated 13.09.1996 under order IX Rule 13 Code of Civil Procedure seeking to set aside the ex parte decree dated 27.02.1996, passed by the learned Trial Judge. The application was supported by an affidavit. Objections were filed to the said application on behalf of the plaintiffs. The Trial Judge by his order dated 20.02.1998, rejected the defendant's application to set aside the ex parte decree.

5. Aggrieved by the rejection of this application to set aside, as aforesaid, the defendant preferred an appeal under Order XLI Rule 1 (r) to the District Judge, Mirzapur that was numbered on his file as Misc. Civil Appeal No. 31 of 1998. The appeal aforesaid, which came up for determination before the learned Additional District Judge, Court No. 3, Mirzapur was dismissed vide judgment and order dated 24.04.2002, affirming the Trial Court. The defendant assailed the orders of the two Courts, refusing to set aside the ex parte decree before this Court by means of Writ Petition No. 29092 of 2002. This Court while declining to interfere with the said orders, vide an order dated 06.05.2003, held as follows:-

“The suit filed against the petitioner has been decreed exparte by the Additional Civil Judge, Senior Division, Mirzapur. Even assuming for the sake of arguments that the suit has been decided exparte, yet the order by which the