A.Lala, J. - (1.) The order of remand passed by the Additional District Judge, First Court, Suri, Birbhum is under challenge. In the order of remand, it is observed by the learned Court of appeal below that initially a payment has been made by the plaintiff-appellant to the defendant-respondent in the year 1971 and due to long lapse of time, such payment has become time barred to construe it as per consideration for getting a relief of specific performance of contract. The learned Judge disbelieved the distinguished ratio of the judgment reported in AIR 1994 SC 105 (Surya Narain Upadhayaya v. Ram Roop Pandey & Ors.) in coming to a conclusion to pay the balance sum of consideration under an order of the Court. I have gone through the issues framed by the learned trial Judge wherein it appears that one of the issues is as follows: Is the suit barred by limitation? However, from the recording of the judgment it appears that such issue was not agitated. Therefore, the same cannot be agitated at the time of appeal. Hence, the learned Court of appeal below proceeded in a wrong premises to that extent.
(2.) So far as the second point in respect of the ratio of the judgment reported in AIR 1994 SC 105 (supra) is concerned, I find that the Supreme Court held in passing a decree of specific performance, discretion should be properly exercised. It is further observed that the High Court took irrelevant consideration into account to refuse to grant the decree for relief of specific performance and ultimately held that a further sum will be allowed to be paid as a consideration money for the purpose of execution of the Sale Deed. Therefore, the observation of the learned Court that although the purchaser pleaded his readiness or willingness to perform his part of contract and deposited the balance of money in Court but has failed to pay sufficient Court fees it cannot be said to be a correct interpretation of the judgment. In any event, in the plaint the appellant has shown the readiness and willingness to pay the balance consideration. This was the subject-matter at that relevant point of time. The Court below was pleased to pass a decree to the extent. Therefore, the determination is not open for the learned first Appellate Court to proceed on the extraneous matter to upset such decree. Therefore, the order of remand appears to be absolutely bad in law and the same is liable to be set aside. Accordingly, the same is set aside. Therefore, the appeal stands allowed. Interim order, if any, stands confirmed. However, there will be no order as to costs.
(3.) Let the Lower Court Records be sent down to the Court below as expeditiously as possible preferably by 12th January, 2004 by a Special Messenger at the cost of the appellant which shall be paid by 22nd December, 2003.;