IMPORTANT POINT
Party not performing his part of contract cannot ask specific performance from the other party.

JUDGMENT : -

PRAFULLA C.PANT, J. –

1. These two appeals are directed against the common judgment and order dated 15th June, 2007 passed by the High Court of Andhra Pradesh in Appeal Suit Nos.2652 and 2052 of 1996.

2. We have heard learned counsel for the parties and perused the papers on record.

3. The factual matrix of the case is that respondent-Kalli Raja Rao (since dead) agreed to sell the property measuring an area of Ac.19.96 cents situated at Pulla village of Eluru Taluk for an amount of Rs.80,000/-(Rupees eighty thousand only) under the agreement of sale ( Ex.A/1) dated 10th May, 1980. The said agreement discloses that respondent-Kalli Raja Rao had taken a loan of Rs.20,000/-(Rupees twenty thousand only) from the State Bank of India, Eluru Branch, in the year 1969 and he could not repay the loan, as such, he intended to sell his land, and the present appellant-Telikicherla Sesibhushan agreed to repay the loan amount with interest due from Kalli Raja Rao, to the Bank. It appears that the appellant though made certain payments but failed to repay the entire loan amount with interest. Consequently, the Bank instituted a suit being O.S.No.208 of 1981 against the debtor for recovery of the amount before the Subordinate Judge, Eluru. Later, in the said suit the present appellant got himself impleaded as a party. The suit filed by the Bank for recovery of Rs.46,408.85 was decreed with interest on 31st December, 1986 and the same attained finality. Since the commitment made by the appellant was not fulfilled by him regarding the repayment of the loan amount, as such, Kalli Raja Rao filed suit being O.S. No.28 of 1985 before the Subordinate Judge, Eluru against the appellant for recovery of possession of land which he had delivered to him at the time of aforesaid agreement of sale. On this, the appellant appears to have filed O.S.No.37 of 1985 after a period of seven years of agreement against Kalli Raja Rao for specific performance of contract, before the Subordinate Judge, Eluru. Both the suits i.e. O.S.No.28 of 1985 and O.S.No.37 of 1985 were disposed of vide common judgment and order dated 12th June, 1996. The concluding part of the said judgment and order of the trial court reads as under:

“ 26. In the result, O.S.No.28/85 is dismissed. The court fee payable on the plaint in O.S.No.28/85 shall be collected from out of the estate of late Rajarao which will come into

the hands of his legal heirs, Plaintiffs 2 to 10. O.S.No.37/85 is partly allowed with the following conditions:-

1. The Defendants 2 to 10 shall deposit an amount of Rs.71,552-45 paise in the court within three months from today, and the plaintiff is entitled to withdraw the above amount to be deposited in the court.

2. The plaintiff shall surrender the possession of the plaint schedule properties of the Defendants 2 to 10 within one month from the date of deposit of Rs.71,552-45 paise to be made by the Defendants 2 to 10 in the Court.

In view of the relationship between the parties and in view of the present facts of the case, I am not inclined to make any order as to costs in both the suits.”

From the above quoted para it is clear that the suit filed by Kali Raja Rao was dismissed, and the suit filed by the appellant for specific performance of contract was not decreed but the amount paid by him towards repayment of loan was directed to be paid back to him. It appears that both the parties preferred appeals against the aforesaid judgment and decree passed by the trial court, and the same were disposed of together by the High Court with the following concluding paragraph:

“ 51. In the result, A.S. 2052 of 1996 is dismissed confirming the decree and judgment in O.S. 37 of 1985 of the trial Court. A.S.2652 of 1996 is allowed, and consequently O.S.28 of 1985 is decreed subject to fulfilling of conditions imposed in the decree in O.S.37 of 1985 the vendors are entitled to possession on deposit of amount as directed by the trial Court. The vendors are entitled to mesne