- (1.) THIS is an Execution First Appeal which has been filed by the judgment-debtor and the circumstances in which it arises are stated below:
(2.) ON the 11th October 1940, the property in respect of which execution of a decree for the specific performance of a contract of sale is claimed was sold by Swami Badalgiri to Lala Lahori ram Sahgal with the condition that, if within four years and a half Badalgiri would pay the price, namely, Rs. 6000/-, the purchaser would execute a deed in his favour reconveying the property in question. On the 18th of November, 1944, Badalgiri brought, on the basis of the above contract, a suit for the specific performance of that contract of sale. It was decreed on the 28th of july 1945 and in order to facilitate an understanding of the case we are quoting below the operative portion of this decree as translated by the learned second civil Judge of Saharanpur: "the plaintiff's suit for specific performance is decreed and the defendant is ordered to execute a deed in favour of the plaintiff re-conveying the properties in question to the plaintiff after receiving Rs. 6000/- from the latter within two months of this date. If the defendant does not execute this deed within the time allowed, the plaintiff will be entitled to have the sale deed executed through Court in execution department. . . . . . " Thereafter on the 17th of September 1945, a notice was given by the decree-holder, Badalgiri, demanding execution of the decree and intimating that he would be present in Hardwar on the 27th of September 1945 with the requisite sum of Rs. 6000/- and that Lahori Ram should be ready to execute the sale-deed before the Sub-Registrar on that date. On the 26th of September 1945, Lahori Ram replied that he would be present on the 27th and meet him at Hardwar. On the 27th of September, 1945. Lahori Ram went, as required, to Hardwar and remained at the sub-Registrar's of/ice till 4 p. m. but Badalgiri did not turn up. Lahori Ram did not execute any deed as the condition precedent to its execution was not fulfilled by Badalgiri who, as has been said before, was absent on that date. Badalgiri's case is that he did attend the Sub-Registrar's office but this is not borne out by any evidence in this case and has not been believed by the learned Judge. On the 26th of October 1945, Badalgiri transferred the decree to the respondent in the suit viz. Prabhu Dayal and the latter's name was thereafter entered as the transferee of the decree. On the 7th July 1947, Prabhu Dayal deposited the sum of Rs. 6000/-in court which had been agreed upon by the parties for the reconveyance of the property and on the 10th July 1947, Prabhu Dayal filed the application out of which this appeal arises for its execution.
(3.) THE defence of Lahori Ram was that, according to the decree of the llth October 1940, money should have been paid within two months and that it was on the fulfilment of that condition that he was bound to execute the decree for specific performance. He, therefore, pleaded that there had been no failure on his part to execute it, he having been present at the Sub-Registrar's office. The decree-holder having failed to pay the sum of Rs. 6,000/- to get the sale deed executed in his favour within a period of two months provided by the decree when he was ready and willing to execute it. had no right left to obtain the sale-deed by putting the decree in execution.;