This appeal is preferred by the L.Rs., of original

defendant aggrieved by rejection of Civil Miscellaneous

Petition No.4/2014 filed under Order 9 rule 13 of CPC.

2.

The parties shall be referred as per their

status before the trial Court for the sake of convenience.

3.

Brief facts of the case are as under:

3.1

It is the case of the appellant that the original

defendant was the original owner of suit schedule

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property. The plaintiff in the original suit who is the

respondent in the present appeal filed a suit for the relief

of specific performance of contract against the original

defendant to enforce the contract dated 30.5.2012

wherein a sale agreement came to be executed by the

original defendant in favour of plaintiff for a total sale

consideration of Rs.10,00,000/-. The original defendant

had accepted Rs.8,50,000/- as earnest money as part of

sale consideration amount which was acknowledged by

issuing a receipt affixing his signature in favour of the

plaintiff. The balance amount of Rs.1,50,000/- was to be

paid at the time of registration of the sale deed. The time

was fixed for sale transaction on or before 30.5.2013

which was not done as on the date. The defendant went

on postponing the execution and performance of contract

on one or the other reason. Left with no other alternative

remedy, the plaintiff got issued a legal notice through his

counsel on 15.6.2013 calling upon the original defendant

to execute the registered sale deed pursuant to the

agreement of sale. But since the defendant refused to

receive the said notice and the plaintiff being willing and

ready to perform his part of contract by paying the

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balance sale consideration amount, got filed a suit for

specific performance of agreement of sale executed by

the defendant in his favour.

3.2

On service of summons, since the defendant

remained absent, the trial Court placed him ex-parte and

the matter was posted for evidence and after recording

the evidence, the trial Court after detailed analysis and

appreciation

of

material

evidence

both

oral

and

documentary, decreed the suit of plaintiff and directed

the defendant to execute the registered sale deed in

pursuance to the registered sale agreement dated

30.5.2012 by receiving the balance sale consideration

amount within a period of two months from the date of

order. The said judgment came to be rendered on

28.9.2013.

3.3

Pursuance to the judgment and decree passed

in favour of the plaintiff, he filed execution petition

bearing E.P.No.36/2013 on 4.1.2014 in which a Court

commissioner came to be appointed and the sale deed

came

to

be

executed

by

appointing

the

Court

commissioner. As the defendant/J.Dr. remained absent

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and

was

placed

exparte

even

in

the

execution

proceedings,

the

balance

sale

consideration

of

Rs.1,50,000/- came to be deposited by the plaintiff

before the executing Court. Thereafter possession was

taken over by the plaintiff and the plaintiff presently is in

possession of the land in question.

3.4

As the original defendant was placed exparte

in the original suit, a Civil Miscellaneous Petition

No.4/2014 came to be filed on 5.2.2014 to set aside the

order placing the defendant exparte and consequently to

set aside the judgment and decree passed against the

original defendant by placing him exparte. In the said

miscellaneous petition the defendant who was the

plaintiff before the trial Court filed his detailed statement

of objection and brought to the notice of the Court that

he has already executed the judgment and decree passed

in O.S.No.113/2013 and has taken possession of the land

in question by paying the balance sale consideration

amount and after recording evidence in the said

miscellaneous petition, the Civil Court dismissed the

miscellaneous

petition

preferred

by

the

original

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defendant. Aggrieved by the rejection of the said

miscellaneous petition filed by the original defendant and

his legal representatives, the present appeal is filed.

4.

Heard the learned counsel S