Section 19 (b) of the Specific Relief Act, 1963

It is this judgment and decree dated July 31, 2008 passed by the learned first appellate Court which is challenged in this appeal by all the defendants.

At the time of admission of the second appeal the Division Bench of this Court framed the following to substantial questions of law:

a) Whether the learned Courts below committed substantial error of law in passing a decree for specific performance of contract against the subsequent purchasers who acquired title before institution of the suit by overlooking the fact that he was added at least five years after the institution of the suit by virtue of the order of remand and thus, the suit was patently barred by limitation?

b) Whether the learned Courts below committed substantial error of law in holding that the subsequent purchasers were not bonafide purchasers for value without notice by not at all discussing the substantive pieces of evidence adduced by the parties in this behalf?

When the appeal was taken up for hearing, considering the submissions made on behalf of the appellants and the respondent on April 15, 2016, this Court also framed the following third substantial question of law.

Whether in view of

Section 105(2) of the Code of Civil Procedure, 1908

the appellants can challenge the concurrent findings of both the learned Courts below, before remand, with regard to either the readiness and willingness of the plaintiff-respondent to perform his agreement or the agreement by the defendant no. 1 appellant to sell his 1/3rd share of the suit property to the plaintiff ?

Mr. Priyabrata Ghosh, learned counsel appearing for the appellants submitted that on July 07, 1988 the respondent filed the suit for specific performance of the agreement for sale against the appellant no. 1 as the sole defendant and when by the earlier judgment and order dated February 5, 1994 passed in Title Appeal No. 138 of 1989, the learned first appellate Court set aside the judgement and decree dated November 15, 1989 and remanded the suit to the learned trial Judge after more than five years, and thereafter on November 29, 1995 the said subsequent purchasers, Ananda Gopal Mondal, since deceased, being the predecessor of the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 were impleaded as the defendants in the said specific performance suit. Thus, according to him in view of the provisions contained in sub-Section (1) of

Section 21 of the Limitation Act, 1963

the suit as against the said subsequent purchasers, who all were necessary parties to the suit, were hopelessly barred by the laws of limitation. It was argued on behalf of the appellants that the belated impleadment of the predecessor of the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 on November 29, 1995 did not cure the defect of the maintainability of the suit and in fact the suit itself was not maintainable. Thus , according to Mr. Ghosh, the learned Courts below erred in law is not dismissing the entire suit.

Without prejudice to the above contention, Mr. Ghosh further submitted that in view of the provisions in

Section 16(c) of the Specific Relief Act, 1963

the plaintiff in a suit for specific performance must plead and prove that he has performed and has always been ready and willing to perform his part of the contract. He strenuously contended that in the present case, in his letter dated June 20, 1985 (Exbt.-“B”) the respondent expressly admitted his inability to pay the balance consideration to the appellant no. 1 and the contents of all the other letters of the appellant no. 1 to the respondent (Exbt. 2 series) considered by the learned Courts below in their respective judgements, also ex-facie disclose that in spite of repeated demands made by the appellant no. 1 in years of 1985, 1986 and 1987 the respondent was not at all ready and willing to perform the said agreement sale, as he lacked financial means to pay the balance consideration. Thus, he urged that the findings of both the learned Courts below that the respondent was ready and willing to perform his part of the obligation under the said agreement for sale to the appellant no. 1 is vitiated by perversity and consequently, the decree for specific performance passed by both the learned Courts below in favour of the respondent cannot be sustained in law. Mr. Ghosh also cited the decision of the Supreme Court in the case of

Ram Awadh vs. Achhaibar Dubey reported in AIR 2000 SC 860

and submitted that not only the appellant No. 1, the original defendant but also the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 as the subsequent purchasers are entitled to assail the decree for specific performance passed by the learned Courts below on the ground that the respondent was not ready and willing to perform the said agreement for sale. He strenuously contended that in the present case when the respondent was not ready and willing to perform his part of the said agreement for sale, the learned Courts below fell into an error of law in not exercising their discretion under

Section 20 of the Specific Relief Act, 1963

to reject the prayer of the respondent for specific performance of the said agreement for sale.

However, Mr. Partha Pratim Roy, learned counsel appearing for the respondent first submitted that in the instant case the appellant no. 1 executed the sale deed in favour of the predecessor of the appellant no. 2(a) to 2(d) and the appellant nos. 3 and 4 on July 5, 1988, the respondent filed the suit for specific performance on July 7, 1988 and the said deed of sale dated July 5, 1988 was registered on July 7, 1988. According to him, when the sale deed dated July 5, 1988 was registered after filing of the suit by the respondent, the transfer of a portion of the said properties in favour of the appellant nos. 3 and 4 and the predecessor of the appellant nos. 2(a) to 2(d), is hit by the principle of lis pendens under