JUDGMENT:

This appeal is filed against the judgment and decree dated 10.04.2024 in A.S.No.32 of 2021 on the file of Principal District Judge at Nalgonda in which the judgment and decree dated 08.03.2021 in O.S.No.213 of 2012 passed by the learned Senior Civil Judge, Nalgonda was confirmed. 2. The suit vide O.S.No.213 of 2012 was filed for Specific performance of unregistered sale deed dated 03.10.2011 by respondent/plaintiff against the appellant/defendant. The trial Court examined P.Ws.1 and 2 and marked Exs.A1 to A5 on behalf of the plaintiff and got examined D.Ws.1 to 5 on behalf of the defendant and got marked Exs.B1 to B6. Considering the oral and documentary evidence on record, the trial Court decreed the suit in favour of plaintiff. Aggrieved by the said Judgment and decree, defendant therein preferred an appeal before the first appellate Court, and the same was dismissed by confirming the Judgment of the trial Court. Aggrieved by the concurrent findings of both the Courts, defendant before the trial Court preferred the present appeal.

3. The learned Counsel for the appellant raised the following substantial questions of law:

a) Whether, the Judgment of the Lower Appellate court confirming the Judgment of the Trial Court, whereby the suit for specific performance has been decreed, is valid and sustainable?

b) Whether the Courts below have failed to see that the case of the plaintiff cannot be accepted since the subject property is under mortgage with a bank and that the plaintiff never pleaded that he is prepared to purchase the same and will clear the mortgage debt?

c) Whether the appreciation of evidence by the Courts below, regarding the property being under mortgage and that the Plaintiff failed to explain the delay of 6 months in issuing the legal notice, is valid and sustainable?

d) Whether the Courts below are justified in decreeing the suit though the Plaintiff did not adduce any evidence in support of his readiness and willingness to pay the balance sale consideration?

e) Whether the Courts below are justified in believing the Ex.A2 merely because the Defendant has admitted her signature on it though the Plaintiff failed to prove the contents of the said document?

f) Whether the Courts below are justified in decreeing the suit when the relief of specific performance is discretionary in nature and the Court is not bound to grant the same despite the facts being proved by the Plaintiff, more particularly keeping in view the circumstances of the case?

g) Whether the suit is maintainable without impleading the Punjab National Bank as a party to it since the subject property is under Mortgage with the Bank and the Bank has right of foreclosure under Section 67 of the Transfer of Property Act?

4. Heard both sides. Perused the record.

5. For the sake of convenience, the parties herein are referred as ‘plaintiff’ and ‘defendant’ as arrayed before the trial Court.

6. Learned counsel for appellant contended that the suit property is under mortgage with Punjab National Bank. Plaintiff failed to explain the delay of issuance of legal notice. In the order passed by the first appellate Court, it was observed that the defendant stated that the plaintiff fabricated the document and filed the false suit.

7. The Section 100 of the C.P.C reads as follows: 1) Save as otherwise expressly provided in the body of this code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

2) An appeal may lie under this section from an appellate decree passed exparte.

3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

5) The appeal shall be heard on the