( 1 ) THIS is a plaintiffs' First Appeal against the judgment and decree passed by the additional District Judge Guna, whereby their suit for specific performance or in the alternative for return of earnest money was dismissed.

( 2 ) THE admitted facts of the case are that respondent No. 1, in his capacity as a karta of the Joint Hindu family consisting of respondents Nos. 1, 2 and 3, by an agreement dated 20-11-1951agreed to sell to the plaintiffs certain blocks from a garden commonly known as "tadaiyyawalli Bagia" situate at Ashoknagar for a total sum of Rs. 13001 /-and obtained an advance of Rs. 3200/- from them, It was stipulated in the agreement that the defendant will on payment of the balance of rs. 9801/-within 8 days by the plaintiffs execute a separate registered sale dead in favour of each of the plaintiffs. It was also agreed that in case of default the plaintiffs will be entitled to take legal proosedings for execution and registration of the sale deed. The defendants did not execute any sale deed in favour of the plaintiffs till 29-11-1951. Thereafter the plaintiffs served a notice on the defendants stating that they had come to know that the vendors were not the owners of the land agreed to be sold, but were only 'pucca krishaks' thereof. The vendors were, therefore, called upon to satisfy the plaintiffs about their title in respect of the land in question, The defendants not having complied with the terms of the notice the plaintiffs filed a suit on 3-4-1953 for refund of the advance money together with interest thereon, alleging that the land agreed to be sold in fact belonged to the State Government, and that the defendants were holding it only as "kashtkar mourusi'. That suit was decreed by the trial Court, but the decree was reversed on appeal by the District judge Guna on the ground that the contract was specifically enforceable, inasmuch as a 'pucca' tenant could sell his holding as provided for in Section 70 of the M. B. Land Revenue and Tenancy Act. It was further held that the period of 8 days stipulated in the agreement for execution of the sale deed was not of the essence of the contract. The contract could, therefore, be specifically enforced even after the stipulated period had expired. In pursuance of this decision the plaintiffs served a notice on defendant hukumchand on the 28th of October, 1958 calling upon him to execute sale-deeds in respect of the plots of land agreed to be sold to each of the plaintiffs. But the land had in the meanwhile been sold on 28-12-1956 to the respondents Nos. 5, 6 and 7 under a registered sale deed. Hence the present suit for specific performance of the contract dated the 20th of November, 1951, or in the alternative for refund of the advance money together with interest thereon.

( 3 ) THE suit was contested mainly on the grounds that it was barred by the provisions of Order 2 Rule 2 C. P. C. and that it was time-barred. Both of these contentions were upheld by the trial Court. The plaintiffs have, now come up in appeal against the judgment and decree passed by the Court of first instance.

( 4 ) I shall take up first the question of limitation. The learned counsel for the appellants contended that since time was not the essence of the contract in this case the date fixed in the agreement to sell could not be treated as the starting point for the period of limitation provided under Article 113 of the Limitation Act. He could not cite any authority in support of this proposition. The question whether time is the essence of the contract is, in my opinion, not at all relevant for determining whether the first or the second part of Column 3 in Article 113 applies to a particular case. Where time for performance of the contract is fixed, limitation forthwith begins to run as from that time, irrespective of the question of notice or refusal to perform. Authorities are uniform on the point that where a time is fixed for performance, the second part of Column 3 in Article 1

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