B.K.RATHI, J. - (1.) THIS appeal was admitted on 30.9.2002 and on that date, the execution of the sale deed was also stayed till further orders. The respondent -opposite parties have applied for vacation of the stay order. It is contended that a caveat was filed in this case but by mistake of the office, It was not reported. Therefore, the appeal was admitted and stay order was granted after hearing thecounsel for the appellant and counsel for the respondent could not be heard. It is further contended that the suit was filed for specific performance of contract of sale, which was decreed by the trial court, and the first appellate court has maintained the decree and there are two concurrent findings.
(2.) I have heard Sri B. D. Mandhyan, learned counsel for the appellant and Sri R. P. Goel, learned Sr. Advocate for the respondents. The first argument of the learned counsel for the respondents is that the appeal was admitted on the substantial question of law, 'whether the plaintiffs were ready and willing to perform their part of the contract'. Shri R. P. Goel, learned Sr. Advocate has argued that this is not a substantial question of law and in support of the argument has referred to the decision of the Apex Court in Veerayee Ammal v. Sent Ammal, 2002 (1) AWC 97 (SC) : AIR 2001 SC 2920. In that case, the substantial question of law framed was 'whether in the circumstances of the case, the plaintiff has established that she has been ready and willing to perform her part of contract'. In para 10, it was observed that : 'The question of law formulated as substantial question of law in the instant case cannot, in any way, be termed to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not clothe the High Court to assume the jurisdiction by terming the question as substantial question of law.' It is, therefore, contended that this question could not be considered and the appeal cannot be allowed on this ground.
(3.) THE second argument of the learned counsel is that the judgment of the appellate court show that this question was not raised before the appellate court. That, therefore, this question cannot be raised in the second appeal as has been held in Vijay Prakash v. Gurmit Singh, 1977 (UP) RCC 168.;