JUDGMENT :

Jahangir Jamshed Munir, J.

1. This second appeal by the defendant is directed against a judgment and decree of Shri Subodh Kumar, the then XIIth Additional District Judge, Allahabad, dated 31.8.1998 passed in Civil Appeal No. 139 of 1985, allowing the said appeal by the plaintiff and reversing an original decree of Shri B.B. Singh, the then Munsif (East), Allahabad, passed in Original Suit No. 572 of 1983, dismissing the plaintiff-respondent's suit for specific performance of contract and alternate relief for refund of earnest money with interest.

2. The facts giving rise to this appeal are these: that the plaintiff-respondent, Ajayab Lal, who shall hereinafter be referred to as the plaintiff, instituted Original Suit No. 572 of 1983 with averments to the effect that Ram Nihor, defendant-appellant No. 1, since deceased, and now represented before this Court by his heirs and legal representatives, appellants Nos. 1/1 to 1/5, was the owner of the property as detailed at the foot of the plaint. The original defendant-appellant, Ram Nihor will hereinafter be referred to as the defendant, and for the sake of convenience, would be construed to bear reference to his five heirs and legal representatives, now on record in his stead. It was averred by the plaintiff that the defendant executed a registered agreement to sell, dated 2.7.1980 in favour of the defendant agreeing to convey property as detailed at the foot of the plaint (for short the suit property) for a total sale consideration of Rs. 8060/-. It was further pleaded that at the time of execution of the suit agreement, the defendant accepted by way of earnest, a sum of Rs. 1800/-, leaving a residue of Rs. 6260/- that the plaintiff covenanted to pay the defendant at the time of execution of the sale-deed. It was further specifically pleaded that the suit agreement carried a term that the sale-deed would be executed upto 2.2.1981.

3. It was averred further that in accordance with the terms of the suit agreement, the plaintiff always remained ready and willing to get a sale-deed executed, and that he requested the defendant a number of times, verbally, to execute a conveyance as contracted. It is then pleaded that on 24.1.1982, he caused a notice to be sent to the plaintiff to come forward and execute a sale-deed in terms of the suit agreement, accepting the balance of sale consideration, and for the purpose to appear in the office of the Sub-Registrar, Karchhana on 2.2.1981. It is averred that the defendant on the scheduled date did not appear to execute the agreed conveyance. It is pleaded that thereafter the plaintiff sent further notices, dated 30.3.1981 and 19.4.1982, calling upon the defendant to discharge his obligations in terms of the suit agreement, both of which were duly served upon the defendant. It is averred that despite service of these notices, the defendant did not come forward to fulfill his obligations. It is then pleaded that defendant Nos. 2 to 6 to this appeal, who shall hereinafter be referred to as the purchasers, despite knowledge of the suit agreement, got a registered sale-deed dated 3.8.1983, executed in their favour by the defendant.

4. The plaintiff has described the sale-deed as one executed by conspiracy between the defendant and the purchasers, which has no binding effect on the rights of the plaintiff. It was on the basis of these facts that the plaintiff instituted the present suit on 10.8.1983, seeking to enforce the suit agreement against the defendant and the purchasers, by way of relief of specific performance; in defeasance of the plaintiff not being found entitled to specific performance, alternate relief by way of refund of the earnest money of Rs. 1800/- together with interest at the rate of 2% per mensem was sought, payable for the period past, pendente lite and future. The defendant filed his written statement dated 20.12.1982, whereas purchasers filed a written statement together, also dated 20.12.1982, independent of the defen