The High Court must follow the mandated procedure of framing a substantial question of law under Section 100 of the Civil Procedure Code before dealing with a second appeal.

ORDER

1. Leave granted.

2. Hukam Chand, the father of the respondents executed a registered agreement with the plaintiff-appellant to sell agricultural land for a sum of Rs 2,90,000 on 3-11-1988. Subsequently on 1-1-1993 Hukam Chand died. It is alleged that after the death of Hukam Chand, his sons who are the respondents herein refused to execute the sale deed in pursuance of agreement for sale. It is alleged that under such circumstances the plaintiff-

b appellant filed a suit for specific performance of agreement for sale before the Civil Judge, Kairana, Muzaffarnagar. The said suit was numbered as Suit No. 38 of 1993. The respondents also filed a suit for cancellation of registered agreement dated 3-11-1988 and the said suit was numbered as Suit No. 63 of 1993 before the Civil Judge, Kairana, Muzaffarnagar. Both the suits were consolidated and tried together. The Civil Judge partly decreed the suit of the plaintiff-appellant by granting alternative relief claimed by the plaintiff-appellant for refund of Rs 2,40,000 with interest. The relief for specific performance of the agreement for sale was refused. The suit filed by the respondent was also dismissed. The respondents herein filed an appeal before the District Judge. The District Judge in the said appeal decreed the suit of the plaintiff-appellant for specific performance of agreement for sale and set aside the decree of the trial court granting alternative relief for refund of the earnest money. Aggrieved, the respondents herein filed second appeal before the High Court against the judgment and decree of the first appellate court. When the second appeal came up for admission on 20-12-1999 the High Court directed to list the appeal for framing of question of law on 28-32000. However, the High Court granted interim order by staying the execution of the decree. It is against the said order granting interim relief the respondent in the second appeal has preferred this appeal. This Court, on a number of occasions, has repeatedly held that the High Court acquires jurisdiction to decide the second appeal or deal with the second appeal on merits only when it frames a substantial question of law as required to be framed under Section 100 of the Civil Procedure Code. In the present case, what we find is that the High Court granted interim order and thereafter fixed the matter for framing of question of law on a subsequent date. This was not the way to deal with the matter as contemplated under Section 100 CPC. The High Court is required to frame the question of law first and thereafter deal with the matter. Since the High Court dealt with the matter contrary to the mandate enshrined under Section 100 CPC, the impugned order deserves to be set aside.

3. For the aforesaid reasons, we set aside the order dated 20-12-1999 and send the matter back to the High Court. The High Court shall deal with the matter in the light of the legal position stated above.

4. The appeal is allowed but there shall be no order as to costs.