A. K. Mathur, J. - (1.)This appeal is directed against an order passed by learned single Judge of the High Court of Karnataka at Bangalore in Regular Second Appeal No. 68 of 1994 whereby learned single Judge by his order dated October 17, 1997 has allowed the second appeal of the defendant No.1 and set aside the order passed by the trial court and the first appellate court and dismissed the suit filed by the plaintiff for specific performance but decreed the suit of the plaintiff for the alternative relief for refund of the purchase money of Rs. 15,000/- with future interest and the court costs from Defendant No.1. Aggrieved against this order the Special Leave Petition was filed by the plaintiff.
(2.)Brief facts for disposal of this appeal are that the Defendant No.1 was the owner of the suit property which is a house bearing HDMC No. 715 comprised in CTS No. 1529/16-C situated at Hubli. Defendant No.1 agreed to sell the suit property to the plaintiff on March 13, 1981 for a sum of Rs. 15,500/- and received an advance of Rs. 2,000/- and executed an agreement for sale agreeing to execute the sale deed within two months after obtaining necessary permission. The plaintiff assisted the Defendant No.1 in obtaining necessary permission from the competent authority. But Defendant No.1 after getting necessary permission for sale failed to execute the sale deed accepting the balance consideration money of Rs. 13,500/- from the plaintiff. Defendant No.1 took the plaintiff to the Sub-Registrars Office on February 23, 1982 and persuaded him to purchase the stamp paper but Defendant No.1 escaped from the Office of the Sub-Registrar when the sale deed was about to be registered. The plaintiff was ready and willing to perform his part of the contract according to the terms and conditions of the agreement of sale on March 13, 1981. In spite of requests by the plaintiff, Defendant No.1 did not execute the registered sale deed receiving the balance amount. Hence, the suit was filed for specific performance of the agreement by the plaintiff and in the alternative the plaintiff also prayed if the court were to come to the conclusion that specific performance cannot be granted then a decree for refund of the earnest money including the cost of registration and damages to the plaintiff should be awarded. The plaint was subsequently amended on account of the new facts coming to the light that Defendant No.1 has executed another agreement for sale in favour of Defendant No.2 on March 8, 1982. The plaintiff got a news item published in Vishwavani daily on March 24, 1982 about the earlier transactions between himself and Defendant No.1 with respect to the suit property. But defendant Nos. 1 and 2 with an intention to defeat and defraud the plaintiff filed another collusive suit being O.S. No. 101 of 1983 before the Munsif, Hubli and obtained a compromise decree. By virtue of the said compromise decree Defendant No.2 obtained the sale deed from Defendant No.1 in respect of the suit property. Therefore, the plaintiff amended the plaint and impleaded Defendant No.2 and prayed that the collusive decree obtained by Defendant Nos. 1 and 2 is illegal, void and not binding on the plaintiff. It was further prayed that Defendant No.2 was also bound to execute the sale deed along with Defendant No.1 and hand over possession of the suit property.
(3.)A written statement was filed by Defendant No.1. He denied the allegation in the plaint but subsequently Defendant No.1 did not contest the suit. Defendant No.2 i.e. the subsequent purchaser was impleaded as a party by amendment of the plaint carried on November 21, 1986 and assisted the suit by filing the written statement. He denied the allegation about the agreement of sale executed in favour of the plaintiff. It was also pointed out that he was a tenant in the suit premises under Defendant No.1 since long time. It was contended that Defendant No.1 agreed to sell the suit property and entered into an agreement for sale on March 8, 1982. It was further contended that Defendant No.2 was not aware of the previous transaction between the Plaintiff and Defendant No.1. Since Defendant No.1 avoided to execute the sale deed, therefore, he filed the suit i.e. O.S. No. 101 of 1983 for specific performance which was decreed by the compromise and Defendant No.1 subsequently executed the sale deed in his favour. It was pointed out that Defendant No.1 did not reveal previous transaction between himself and the plaintiff to him. It was further pointed out that he was a bona fide purchaser for the value of the suit property. It was contended by Defendant No.2 that the sale between the plaintiff and Defendant No.1 was not binding on him.