JUDGMENT
1. This appeal is directed against the judgment and decree of the Sub Court, Pathanamithitta in O.S. No. 47 of 1980. The suit was for specific performance of the agreement for sale.
2. The plaint averments may briefly be stated as follows : Plaini schedule item No. 1
and plaint schedule item No. II building, thereon belonged to the 1st defendant subject to the life-interest of the 2nd defendant. Defendants 1 and 2 executed an agreement evidenced by Ext. Al dated 17-10-1979 agreeing to sell the plaint schedule Item 1 for a sum of Rs. 16,750/- and also agreed to demolish and remove the building shown as item II in the plaint schedule Item 1, at the time of sale and hand over possession of the property to the plaintiff and received a sum of Rs. 3,000/-as advanced. The plaintiff was always ready and willing to pay the balance consideration and get the sale deed executed in his favour. The defendants refused to execute the sale deed on receipt of balance of consideration. In the circumstances the plaintiff issued a notice on 22-4-1980 to the defendants 1 and 2 calling upon them to receive the balance of consideration and execute the sale deed on or before 26-4-1980. As per the terms of the notice, he presented himself before the Sub-Registrar Office, Ranni, on 26-4-1980, but the defendnts did not turn up for executing the document. They sent a reply Ext. A2 dated 2-5-1980 stating that the property was attached in O.P. No. 20 of 1980 on the file of the Munsiff’s Court, Pathanemthitta, that therefore they were unable to execute the sale deed and that they were ready to execute the sale deed as soon as the matter was decided in their favour. On enquiry it was found that the 1st defendant’s wife filed the above O.P. which was re-numbered as O.A. No. 79 of 1981 for recovery of amount of maintenance and attachment of property was made to the extent of Rs. 3,600/-. In the circumstances, wife was impleaded in this suit as the 3rd defendant. The 3rd defendant had no right to recover any amount charged on the plaint property, and the right of the plaintiff would not be affected by the attachment. O.P. was filed at the instigation of the 1st defendant to defeat the interest of the plaintiff. The plaintiff issued another notice evidence by Ext. A8 dated 27-5-1980 stating that he was ready to take the sale deed with the attachment or pay the amount for which attachment was made an requested the defendants to execute the deed on 16-6-1980. But even then the defendants did not execute the document.
In these circumstances the suit was filed seeking a decree for specific performance of the agreement, directing the defendants 1 and 2 to execute the sale deed in favour of the plaintiff on receipt of the balance of consideration which the plaintiff deposited in Court or in default to get the document executed through Court,
3. In the written statement filed by defendants 1 and 2 they contended that though Ext. Al recites consideration as Rs. 16,750/-the actual consideration agreed upon by the parties was Rs. 30,000/- that in the agreement only a small amount was recited as consideration because of the confidence of the defendants in the plaintiff and that no amount was paid as advance as alleged in the plaint or recited in Ext. Al. It was also stated in the written statement that the plaintiff was not ready to obtain the sale deed up to the date of attachment made by the 3rd defendant, that according to the agreement the sale deed had to be obtained within a period of six months and that on account of the failure on the part of the plaintiff to get the document executed within the specified date on payment of consideration, the agreement became unenforceable. It was further averred that the 3rd defendant filed O.P. for maintenance and in view of the provisions contained in Section 22(1)(2) of the Specific Relief Act, the agreement became ineffective or inoperative and that in the circumstances the plaintiff was not entitled to any relief and that the suit was liable to be dismissed.
4. 3rd defendant filed another written statement contending that the sale agreement was brought into existence by fraud, that the 1st defendant did not provide maintenance for her and left her at her house on 25-3-1977, that she had no other means of livelihood and that it was in those circumstances that the O.P. was filed. She also averred that if at all any relief could be allowed, it could only be subject to the attachment made by her.
5. The Court below, on a consideration of the oral and documentary evidence in the case, came to the conclusion that the plaintiff was always willing and ready to pay the balance of consideration and get the document
executed, that the consideration fixed was only Rs. 16,750/- and not Rs. 30,000/- as alleged by defendants 1 and 2 and that the attachment made by the 3rd defendant did not affect the right of the plaintiff for specific performance of the contract and in that view of the matter, a decree was passed by the lower Court directing defendants I and 2 to execute a sale deed in favour of the plaintiff within one month from the date of the decree, giving previous intimation to the plaintiff regarding date of registration. The decree also provided that on failure of the defendants 1 and 2 to execute the deed the plaintiff can take necessary action through Court and get the sale deed executed.
6. In this appeal, learned counsel for the appellants contended that the defendants in their written statement had raised a contention that the period stipulated in the agreement for performance of the contract was six months that the plaintiffs having failed to complete the contract within the stipulated period the agreement became unenforceable, but the Court below did not frame any issue on that aspect, nor did it record any finding on that aspect and that therefore the decree and judgment of the Court below are liable to be set aside. It is true that no issue was raised in regard to the above contention and there is no discussion about the contention in the judgment of the Court below. It is also true that it is the duty of the Court to frame necessary issues. But I am inclined to think that the above contention was not seriously urged before the lower Court. No argument is also seen advanced before the lower Court on that aspect. Further it is well settled that the time is not of the essence in respect of a contract for sale of an immovable property. Six months period fixed in Ext. Al expired on 17-4-1980 but the plaintiff sent notice to defendants directing them to execute the document on receipt of the balance of consideration only on 22-4-1980, that is to say five days after the date fixed for the completion of the transaction.
7. Plaintiff, as P.W. 1 has stated that from the date of the contract, the plaintiff was always willing and ready to pay the balance of
consideration and get the document executed. He also deposited the balance of consideration before Court. Plaintiff sent a notice dated 22-4-1980 directing the defendant to execute the document priot to 26-4-1980 on receipt of the consideration. Ext. A2 is the reply sent by the defendant to that notice. In Ext. A2 the defendants stated that they were unable to execute the document on account of the attachment of the property by the 3rd defendant in O.P. No. 2 of 1980 on the file of the Munsiff s Court, Pathanamthitta. He had no case in Ext. A2 that the plaintiff was not willing to complete the transaction before the expiry of six months stipulated in Ext. Al agreement and that therefore the contract became unenforceable. It is seen from reply that the defendants were not willing to execute the document and the attachment of the plaint schedule property by the 3rd defendant was put forward as an excuse. Therefore the contention of the Counsel for the appellant that the agreement became unenforceable by reason of the expiry of the period stipulated in Ext. Al, is untenable.
8. Plaintiff as P. W. 1 has further deposed that he was present in the Registrar’s Office on 24-6-1980. He also deposed that on 24-6-1980 also he went to the Sub Registry Office and he was; an attestor to Ext. A3 and Ext. A3 would show that he was present in the Sub Registry Office on 24-6-1980.
9. Another contention that has been raised by the learned counsel is that in view of the attachment, the contract became unenforceable. The lower Court has rightly rejected this contention. This question has been considered in the decisions in Kochuponchi Varughese v. Ouseph’Lonan (AIR 1952 TC 467); Veerappa Thevar v. G. S. Venkatarama Aiyar (AIR 1935 Mad 872) and Puna Chandra Bask v. Daulat Ali Mollah (AIR 1973 Cal 432). It was held in those decisions that an attachment made after a contract for specific performance does not affect a prior agreement to sell and attachment could only fasten the debtor’s right to the unpaid purchase money. I am in respectful agreement with the view expressed in the above decisions. In the circumstances, there
is no merit in this contention also.
10. The foregoing, discussion would show that the appeal is devoid of merit and it is accordingly dismissed. However, there will be no order as to costs.
11. The plaintiff has filed a cross appeal stating that the Court below went wrong in not granting a decree for costs. It is discretionary matter and I do not find any reason to interfere with the discretion exercised by the Court below. Accordingly I dismiss the cross appeal also.
Before parting with the case, I want to express my concern about the destruction of a part of the file by the trial Court, before the appeal was disposed of. As a matter of fact Ext. Al agreement itself was not in the file. However, certified copies of the depositions of P.W. 1 and D.W. 1 have been made available to me. In regard to the material recitals in Ext. A1 also there is no dispute. In the circumstances, I did not have any difficulty in disposing of the appeal on the basis of the available materials. However, it is necessary to enquire into the circumstances in which a part of the records in the case were destroyed before the appeal is disposed of and take appropriate action to avoid such instance in future.