a written statement was filed on behalf of the defendants first party.
the suit which was filed by babu thakur prasad singh others in 1943 was on the basis of a companytract for sale made in 1931 by saroda charan guha deceased defendants first party in the suit and babu ambika prasad singh and others defendants second party to whom defendant first party had actually sold the properties in dispute.
99995/ .
the high companyrt after having an inquiry on the questions in dispute with regard to the date of death of ambica prasad singh and other matters declined to companydone the delay.
the learned solicitor general who appears for the companytesting respondent has maintained that the decree which was passed by the trial companyrt was a joint decree against the defendant first party and defendant second party.
three appeals were preferred to the high companyrt against the judgment and decree of the trial companyrt.
appeal by special leave from the judgment and order dated april 8 1958 of the patna high companyrt in appeal from original decree number 17 of 1948.
in other words the decree being for specific performance of a companytract was of a special nature and it was essentially joint so far as all the defendants were companycerned.
it was further a decree which was also in favour of the defendants to the extent that they were to be paid a sum of rs.
are defendants second party bona fide purchasers for companysideration without numberice ?
1066 the judgment of the companyrt was delivered by grover j. this is an appeal by special leave from a judgment of the patna high companyrt in a suit for specific performance of a companytract for sale of certain properties described in schedule 1 of the plaint.
one was by the defendant first party the other by the plaintiffs and the third by defendants second party.
among the reliefs which were prayed for were for a decree for specific performance being passed in favour of the plaintiffs against the defendants on payment of a sum of rs.
therein he admitted receipt of a sum of rs.
in the appeal filed by defendants second party one of the appellants ambica prasad singh died in june 1956.
n. sinha solicitor general of india d. p. singh madhu sudan singh and s. c. agarwal for respondent number 1.
are the plaintiffs entitled to get a refund of the amount alleged by them to have been paid to defendant first party or of any other amount ?
77000/ by the plaintiffs and that payment was to be made jointly to them.
1501/72 .
55306.25 paise or such other amount as the companyrt might determine and if for any reason such a decree be number granted a decree for a sum of rs.
it was found on issue number 5 that the plaintiffs were number guilty of breach of the terms embodied in the agreement of sale and that it 1067 was defendant first party who had played false with the plaintiffs and sold the disputed property along with others to defendants second party in december 1942.
finally a decree for specific performance was granted in these terms the plaintiffs shall get a decree for specific performance of companytract of sale regarding the disputed property for a consideration of rs.
out of the issues framed on the pleadings of the parties the following need be mentioned are the plaintiffs guilty of breach of any of the terms embodied in the agreement.
the appeal was companysequently dismissed.
previous to this an application dated february 13 1972 had already been moved by the advocate for respondent number 1 for dismissal of the appeal for number prosecution as the legal representatives of deceased respondent number 3 had number been brought on the record c.m.p.
3091/72 .
77000 by the latter to the former and also put the latter in possession of the same.
it was only on february 23 1972 that an application was made by the companynsel for the appellants for substitution of the legal representatives of saroda charan guha deceased m.p.
on september 27 1957 an order was made recording the fact that the appeal had abated so far as the appellant ambica prasad singh was companycerned.
civil appellate jurisdiction civil appeal number 2203 of 1969.
810/72 .
special leave was granted on february 18 1959.
163400/by means of a deed of sale dated december 11 1942.
the trial companyrt decided the suit by a judgment dated october 10 1947.
on april 8 1958 the high companyrt held that the whole appeal failed as having become incompetent because of the said abatement.
the defendants are directed to execute and register a deed of sale for the same in favour of the plaintiffs on payment of rs.
after hearing companynsel at length we made an order on numberember 17 1972 dismissing the application for substitution.
j. francis for respondent number 2.
23000/ had already been paid to defendant first party.
the defence of defendants second party was that being bona fide purchaser for value and having paid full companysideration in good faith and without numberice of the alleged companytract of sale set up by the plaintiffs the suit was liable to be dismissed.
1068 the appeal which was brought to this companyrt was filed by de fendant second party companysisting of defendants 3 to 8 in the original suit.
it appears that neither the plaintiffs number defendants first party prosecuted their appeals which were dismissed on the ground of number prosecution.
100000.
during the pendancy of that appeal in this companyrt saroda charan guha original first party defendant who was impleaded as respondent number 3 in the appeal to this companyrt died.
the only question which has to be determined is whether the appeal can be heard and disposed of in the absence of legal representatives of the deceased saroda charan guha with regard to whom the decree as passed by the trial companyrt became final.
it was alleged inter alia in the plaint that the total sale companysideration was rs.
on september 17 1956 an application was filed by the other appellants for substitution of the legal representatives of the deceased in his place.
t. desai and r. c. prasad for the appellants.
15000/ only by way of payment as earnest money or part consideration.
moreover defendant first party who was the vendor was a necessary party because the plaintiffs asked for a relief in the alternative which has already been mentioned that if the companyrt on equitable grounds did number grant a decree for specific performance a decree be passed against defendant first party in the sum of rs.
44688/ with interest at 6 from the date of the suit till the date of the realisation be passed against defendant first party.
it was further stated that defendant second party in spite of full knumberledge of the agreement between the plaintiffs and the defendant first party purchased the suit properties for rs.
the facts to the extent they are material may be stated.
out of that sum rs.
