- (1.) POONAM Srivastav, J. Heard Sri S. D. Kautilya, learned Counsel for the appellant and Sri Anurag Khanna, learned Counsel for the contesting respondent.
(2.) THIS is defendant's second appeal arising out of suit for specific performance of an agreement to sell. The plaintiffs suit was decreed and the appeal filed by the defendant/appellant was dismissed. Facts giving rise to the dispute are that an agreement was executed between the plaintiff and defendant on 28. 2. 1989 for sale of the disputed property. Rs. 9,000/-was paid towards earnest money and pe riod for executing the sale deed was three years. Subsequent thereon another agree ment to sale was executed between the same parties for the same property on 9. 8. 1989 on the same terms and conditions but money paid at the time of execution of registration of the deed was Rs. 4,000/ -. The plaintiff claimed to have paid Rs. 37,000/- to the defendant in cash on 1. 8. 1989 and this fact was also mentioned in the second agreement to sell dated 9. 8. 1989. Total advanced amount paid was Rs. 50,000/ -. The sale deed was not executed within the stipulated period of three years as such the suit was instituted on 24. 8. 1992, the same was decreed ex-parte on 8. 12. 1998. An application to recall the ex parte decree was moved on 14. 12. 1998. Execution was stayed subject to the condition that the defendant deposits security within a period of one month. The plaintiff filed an objection to the recall application on 10. 12. 2004. The appellant, however, failed to deposit security as such interim order was not operative. Regular appeal filed before the District Judge, Muzaffar Nagar, was allowed and remanded to the Trial Court. Once again suit was decreed on 24. 5. 2007. Against which civil appeal No. 64 of 2007 was preferred, which was dismissed. The appellant is subsequent pur chaser from Smt. Anwari. It is admitted that Smt. Anwari is still in occupation de spite the fact that he paid Rs. 70,000/ -. She had no right to execute the sale deed in fa vour of Mustafa since there was already a decree for execution of the sale deed in the suit for specific performance and the sale deed in favour of Mustafa was executed only to evade the decree. The present ap pellant stepped into shoes of Smt, Anwari. He cannot claim any benefit from the plaintiff whatsoever.
(3.) LEARNED Counsel for the appellant has raised a number of substantial ques tions of law, which mainly revolve around payment of Rs. 37,000/- in respect of which there is no receipt and also suit could not be decreed on the basis of subsequent agreement to sale. Reliance has been placed by the Counsel for the appellant on the two decisions; Md. Ziaul Hague v. Calcutta Vya-Pratisthan, AIR 1966 Cal. 605 Ganesh Shet v. Dr. C. S. G. K Setty and others, AIR 1998 SC 2216. The Court below framed as many as 10 issues. Sri Anurag Khanna, learned Counsel for the contesting respondent has disputed each and every argument ad vanced on behalf of the appellant and has placed judgment where findings of fact have been recorded that Rs. 50,000/- was paid as earnest money regarding payment of money and also Smt. Anwari has affixed thumb impression, which has not been de nied. Pleadings regarding fraud by the plaintiff have also not been accepted by the two Courts below.;