JUDGMENT
1. This appeal is directed against the judgment and decree dated 29th April, 1980 passed in Special Civil Suit No. 202 of 1977 by the learned Joint Civil Judge, Senior Division, Nasik. The suit was filed for specific performance of the agreement of sale (Exh. 26) of the suit property being City Survey Nos. 1936, 1537, 1545 and 1546, admeasuring 117-1 sq. meters, situated at Satana, District Nasik owned by defendant Nos. 1 to 4-appellants herein. It is the case of the plaintiffs that the appellants defendants contracted to sell the said house for Rs. 30,000/- to defendant No.5 Somnath Kachu Kharote and an amount was to be paid in the presence of Sub-Registrar at the time of registration of the sale deed. It is alleged that the appellants-defendants had agreed to execute and complete the sale deed in the name of any person as per the wish of the defendant No. 5 and defendant No. 5 had given Rs. 5000/- to the appellants – defendants Nos. 1 to 4 as earnest money, on 15th February, 1976. It reveals that on 14th October, 1976, the said defendant No. 5 had executed assignment deed (Exh. 3/2) in favour of the plaintiff-respondent No.1 herein on receiving Rs.5000/- from the plaintiff. In pursuance to the said agreement dated 14th October, 1976, the plaintiff-respondents Nos. 1 to 4, on 27th October, 1976, calling upon them to complete the sale deed on receiving the balance amount and to deliver the possession of the suit house to the plaintiffs. The appellants-defendants replied the notice on 3rd November, 1976 and denied such agreement of sale informing the plaintiff that they have not contracted to sale of the suit property to defendant No. 5 . Therefore, the suit was filed by the plaintiff. The appellants also filed their written statement and it has been contended by the defendants that there is a fraud committed by defendant No. 5 Somnath Kachu Kharote and plaintiff with a view to grab the property of the appellants-defendants. It has been contended that the plaintiff and his father were dealing in money lending business and this false case has been filed under the collusion by fabricating false documents and assignment deed by using stolen stamp papers.
2. The learned Judge, after framing the issues and recording the evidence, allowed the suit and passed a decree for specific performance.
3. Heard the learned counsel for appellants and the respondents. It has been contended that instead of exercising the discretionary power in favour of the defendants, the learned Judge has exercised inherent jurisdiction in favour of the defendants as the suit property is a house property wherein the appellants are staying. It has been brought in oral evidence that the plaintiff-respondent had already filed another suit being Reg. Civil Suit No.31/76 against the appellants Nos. 2 to 4 for recovery of the money and the same property has been ordered to be attached by the order of the trial Court. This fact has been supressed by the respondents-plaintiffs in the suit against the appellants-defendants. Therefore, the question is whether the Court is competent to pas a decree for specific performance, directing them to execute the sale deed of the suit property which is already under attachment by the order of the Court and if it is held in affirmative, then what would be the legal effect on the order of attachment passed in Suit No. 31/76.
4. In my view, the simple answer is, the Court cannot pass a decree for specific performance and direct the defendants to execute the sale-deed in favour of the plaintiff, so long the order of attachment before judgment is in force issued in another summary suit. In the instant case, admittedly, it has come in evidence that the suit property is under attachment by the order of the same Court in Suit No. 31/76 obtained by the same plaintiff. That fact has been suppressed by him before the Court and by the present suit, he succeed in obtaining the decree in his favour. This is not only fraud upon the appellants-defendants but it is a fraud upon the Court also and the Court could not be party to it. The court ought to have been conscious while exercising discretionary power of passing the decree for specific performance, directing the defendants to complete the sale in pursuance to the agreement of sale. The law of equity and balance of convenience are required to be considered in such cases. The learned counsel appearing on behalf of the respondents relied on certain authorities as under:–
AIR 1943 Nagpur 266;
AIR 1943 Bom 27;
AIR 1928 Privy Council 174;
AIR 1939 Bom 508;
(Full Bench).
5. Having considered the said authorities, in my opinion, all the above authorities are irrelevant and not applicable to the facts and circumstances of this case. The appeal is required to be allowed on the short point which goes to the root of the matter that no decree for specific performance directing to sale the suit property so long the attachment order is enforced against the defendants obtained by the same plaintiff in the summary suit.
6. In the result, appeal is allowed with costs. The judgment and decree dated 29th April, 1980 is set aside.
Appeal allowed.