ORDER

1. Present Misc. Appeal has been preferred u/O. 43 Rule 1(r) of CPC challenging the order dated 1.9.2023 passed by 9th District Judge, Gwalior (M.P.) in RCS A No.202/2023 whereby, the application filed by appellants/plaintiffs under Order 39 Rule 1 & 2 of CPC has been rejected.

2. Precisely stated facts of the case are that appellants/plaintiffs instituted the suit for specific performance of agreement along with declaration and injunction in respect to the property/house situated at Plot No.52-C, Jawahar Colony, Lashkar, Gwalior (M.P.). During the pendency of trial, appellants/plaintiffs filed an application under Order 39 Rule 1 & 2 of CPC which was dismissed by impugned order. Hence, the present appeal is filed.

3. Learned counsel for the appellants argued that the order impugned is perverse, illegal and against the settled principles of law. It is further argued that defendants/respondents No.2 and 3 in order to defeat the rights of plaintiffs denied the execution of agreement whereas appellants have duly executed the agreement dated 7.4.2017 with defendant No.1 and are always shown their readiness and willingness for performance of the agreement. It is further argued that defendants No.2 & 3 after knowing the fact that agreement has been executed between plaintiffs and defendant no.1 got the sale-deed executed in their favour. Thus, no such valid sale deed was ever executed. It has been alleged by the defendant No.1 that agreement between the plaintiffs and defendant No.1 was not the agreement to sale but the security for loan, however, recitals of agreement does not support the contention of defendant No.1. It is further argued that defendant no.1 in the newspaper on 24.8. 2017 got the public notice of rebuttal published that no agreement had ever been executed between plaintiffs and defendant no.1, but after two days i.e. on 26.8.2017 she herself extended the agreement between her and plaintiffs thus that notice of rebuttal published in newspaper was having no value. Prima-facie case, balance of convenience and issue of irreparable loss are in favour of plaintiffs/appellants. Hence, the present appeal be allowed and the order passed by court below be set aside.

4. On the other hand, learned counsel for the respondents vehemently opposed the appeal filed by appellants/plaintiffs and argued that learned trial Court has rightly passed impugned order by rejecting the application under Order 39 Rule 1 & 2 of CPC as the appellants have failed to prove prima-facie case, balance of convenience and irreparable loss in their favour, therefore, prayed for dismissal of present appeal.

5. Heard learned counsel for the parties, consider the arguments and perused the materials available on record.

6. Defendant No.1 – Meera Tomar was the owner of the suit property is not in dispute. The material available on record reveals that plaintiffs/appellants entered into an agreement for suit property with defendant No.1 – Meera Tomar on 7.4.2017. The record further indicates that defendant no.1 – Meera Tomar executed an agreement to sale on 14.10.2016 with defendant No.2 – Vijay Singh Tomar. The time for execution of said agreement dated 14.10.2016 was four months, however, the sale-deed executed by defendant no.1 – Meera Tomar in favour of defendant No.2 – Vijay Singh Tomar is after expiry of four months i.e. on 22.11.2022. As per arguments of learned counsel for the respondents, the time of four months was extended for further three years, therefore, sale-deed is proved to be executed within the period which was extended. On perusal of copy of agreement to sale executed by defendant No.1- Meera Tomar in favour of defendant No.2 – Vijay Singh Tomar indicates that it contains handwritten note on the back side of page No.2 of agreement. According to this note, period of execution of sale-deed has been extended up to 14.02.2022, however, no seal or signature of Notary is there on the handwritten note. Therefore, prima- facie the fact that peri