JUDGMENT Deoki Nandan, J.
1. This is a defendant's second appeal from the decree of the Court of the IInd Additional District Judge, Varanasi in Civil Appeal No. 300 of 1969 arising from the decree of the Court of the 1st Additional Munsif Varanasi in Suit No. 79 of 1967. The matter relates to a house No. C--27/130 of Mohalla Jagatganj, Varanasi. The relief claimed in the suit was a decree for possession over the house by ejectment of defendants Nos. 1 to 4 with the declaration that the plaintiffs are the owners of the entire house, and for recovery of Rs. 360/- as mesne profits for three years before the institution of the suit and pen-dente lite and future at the rate of Rs. 10/-per month. The suit was instituted on 30th January, 1967. There are four plaintiffs namely, plaintiff No. 1 Smt. Chameli Devi, Plaintiff No. 2 Smt. Dharem Sheela, Plaintiff No. 3 Smt. Hiramani and plaintiff No. 4 Ganga and there are five defendants, namely defendant No. 1 Ekadashi, defendant No. 2 Ganesh, defendant No. 3 Smt. Khajanawa defendant No. 4 Ram Bachan and defendant No. 5 Mangroo. The first three plaintiffs are the daughters-in-law of the fifth defendant Mangroo and transferees of a 1/2 share in the house from Sukhdeo who is the nephew of the first defendant (brother's son of Ekadashi), having purchased the same on 11th November, 1963. The fourth plaintiff is a transferee of a 1/2 portion of the house from Mangroo, who had purchased it in execution of a money decree passed in his favour by the Court of Small Causes, Varanasi, in suit No. 534 of 1951 at. two auction sales, one for 1/4th share of Ekadashi, the first defendant, on 30th April, 1954 and the other for 1/4th share of Ganesh, the second defendant, on 28th April, 1955, in the proceedings for execution of the said decree of the Small Cause Court taken in the Court of Munsif City Varanasi.
2. Having got into possession of the 1/2 share of the house in the said execution proceedings, Mangroo agreed on 15th May, 1956 to sell that 1/2 share to Ekadashi, Ganesh and Smt. Khajanawa defendants Nos. 1, 2 and 3 for Rs. 800/-out of which Rs. 200/- were paid the same day and the balance of Rs. 600/- was agreed to be paid in monthly instalments by 15th May 1958. The agreement between the parties was that in case the amount was paid, Mangroo would transfer his 1/2 share in the house to Ekadashi, Ganesh and Smt. Khajanawa, but in case there was default the agreement shall be deemed to have been cancelled and Ekadashi, Ganesh and Smt. Khajanawa would not be entitled to refund of any part of the amount paid by them. A rent note agreeing to pay Rs. 5/- per month as rent for the 1/2 share portion of the house, was also said to have been executed by Ekadashi, Ganesh and Smt. Khajanawa in favour of Mangroo.
3. Although the present second appeal is directed only from the decree of the lower appellate court in Civil Appeal No. 300 of 1969 arising from suit No. 79 of 1967, the judgment of the lower appellate Court shows that there was another suit being suit No. 272 of 1966 of the Court of the City Munsif Varanasi that had been filed by Ekadashi against Mangaroo in which Ganga Prasad, Ganesh and Smt. Khajanawa were pro forma defendants, for specific performance of the agreement dated 15th May, 1956 for the sale of the 1/2 share in the house that was entered into as aforesaid by Mangaroo. A claim for the refund of the amount of Rs. 800/- was made in the alternative in that suit. Both the suits were tried together. The trial Court decreed Ekadashi's suit for specific performance on payment of Rs. 210/- which was found to be the balance of the consideration still due. The suit for ejectment and mesne profits was decreed in part, that is to say, in respect of the 1/2 share of plaintiffs Nos. 1, 2 and 3 that had been purchased by them from Sukhdeo. The decree for mesne profits was also passed at the rate of Rs. 5/- per month, that is 1/2 of the rate at which the mesne profits were claimed.
4. This led to the appeals in the District Court. Civil Appeal No. 299 of 1969 was by Mangaroo and another, and arose from Ekadashi's suit for specific performance. That appeal was allowed and the suit for specific performance was dismissed by the lower appellate Court. There is no second appeal in this Court from that decree. Civil Appeal No. 300 of 1969 was by Ganga in the suit for possession and mesne profits against Ekadashi and others (Suit No. 79 of 1967), That appeal was also allowed and in addition to the decree for 1/2 share purchased by plaintiffs Nos. 1 to 3 from Sukhdeo, a decree for possession has been passed also in respect of the 1/2 share purchased by Ganga, the fourth plaintiff from Mangaroo, the fifth defendant, and it has been declared that Ganga is the owner of 1/2 share in the house and entitled to get "formal possession over his share as also damages for the use and occupation from defendants Nos. 1 to 3 at the same rate of Rs. 5/- per month allowed to plaintiffs Nos. 1 to 3. The present second appeal is directed against this part of the decree in favour of Ganga, the fourth plaintiff. It may be here clarified that since Ekadashi, the appellant in this Court did not appeal in the District Court from the trial Court's decree in favour of the first three plaintiffs, Smt. Chameli, Smt. Dharam Sheela and Smt. Hiramani Devi in respect of the 1/2 share purchased by them from Sukhdeo, the trial Court's decree in their favour has become final and the only part of the decree in Suit No. 79 of 1967 now in question is the modification made by the lower appellate Court in favour of the fourth plaintiff Ganga in Civil Appeal No. 300 of 1969.
5. Two points were urged before me by the learned counsel for the appellant, first that the auction sale of l/4th share each of Ekadashi and Ganesh by the Court of the Munsif City, Varanasi made on 30th April, 1954 and 28th April, 1955 were void and non est in law, inasmuch as immoveable property could not be sold in execution of a decree for money passed by the Small Cause Court, with the result that Mangaroo and his transferee Ganga never had any title to the property and could not maintain the suit for possession and secondly in the alternative the case of tenancy set up by Mangaroo having been negatived in an earlier litigation, the possession of Ekadashi, Ganesh and Smt. Khajanawa was relatable only to the agreement for sale in their favour which was in writing and the said defendants having been in possession of the 1/2 share in part performance of the contract and having paid a substantial part of the consideration and having been willing to pay the balance, their possession was protected by Section 53A of the Transfer of Property Act and the suit was in either of the matter liable to be dismissed.
6. Now so far as the first point is concerned, the matter seems to be concluded by the decision of a Full Bench of this Court in Ram Lochan v. Mahadeo Prasad Singh (AIR 1970 All 544) which has been affirmed and approved by the Supreme Court in Mahadeo Prasad Singh v. Ram Lochan (1980 All LJ 1019) : (AIR 1981 SC 416). The execution proceedings in which the share was purchased by Mangaroo were initiated before the amendment of Section 42 of the Civil P. C. by U. P. Act No, 24 of 1954 that is, before 30th November, 1954. As held by the Full Bench in Ram Lochan's case, the law applicable was the law in force on the date when the execution proceedings were commenced and it is indisputable and indeed not disputed before me that as on the date when the execution proceedings were commenced in the present case, the court executing a decree sent to it had the same powers in executing it as if it had been passed by itself under Section 42 of the Civil P. C. as it stood before the said amendment by U. P. Act No. 24 of 1954 in Uttar Pradesh. The First point raised by the learned counsel for the appellant, therefore, fails and it cannot be said that Mangaroo did not acquire a good title to a 1/2 share in the property purchased by him in the proceedings for execution of the decree of the Small Cause Court against Ekadashi, that were taken In the Court of the City Munsif Varanasi.
7. On the second point that was raised in the alternative, the trial Court held that the possession of Ekadashi could not be said to be that of a tenant. The lower appellate court has on this point observed that the finding of the trial court that Ganga's suit was barred by Section 11 of the Civil P. C. could not be sustained because the argument of the learned counsel for Ganga, who was the appellant before it, was that the theory of tenancy has been given up and the present suit which had been brought on other grounds could not be said to be barred by principle of res judicata. The result is that while according to the trial court Ganga was precluded from contending that Ekadashi was his tenant in view of the dismissal of the earlier suit for rent, according to the lower appellate court his theory of tenancy had been given up on behalf of Ganga. In either view the possession of Ekadashi could not be said to be that of a tenant, and inasmuch as he had continued to remain in possession of the house even after the court sale in favour of Mangaroo, and after the execution of the agreement to sell by Mangaroo in his favour on 15th May, 1956 and had paid Rs. 200/- in part performance of that agreement on that day and further sums although not the full amount, in pursuance of that agreement, it appears to me that the possession of Ekadashi, Ganesh and Smt. Khajanawa was clearly protected by Section 53A of the Transfer of Property Act, it being observable that although their suit for specific performance has failed in the first appellate court and they did not file any second appeal therefrom, the fact that they had filed the suit shows that they were willing to perform the remaining part, namely, to pay the balance of the price required to be paid by them under the contract.
8. Mr. Sankatha Rai, for the plaintiff-respondent referred me to the law declared by the Supreme Court in Nathulal v. Phool Chand (AIR 1970 SC 546) which laid it down in paragraph 9, at page 548, that the four conditions necessary for making out the defence of pert performance to an action in ejectment by the owner are :
"(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee being already in possession continues in possession in part performance of the contract (3) that the transferee has done some act in furtherance of the contract and, (4) that the transferee has performed or is willing to perform his part of the contract."
9. As discussed above all the four conditions are satisfied in the present case. The other cases referred to by Mr. Sankatha Rai in this context were Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla & Sons, (AIR 1950 SC 1), B. P. Sinha v. Som Nath, (AIR 1971 All 297) and Technicians Studio Pvt. Ltd. v. Smt. Lila Ghosh, (AIR 1977 SC 2425). These cases do not advance the plaintiff-respondent's case any further on this point. In Thota China Subba Rao v. Mattapalli Raju (AIR 1950 FC 1) it was held that the transferee was not entitled to the benefit of Section 53A as he was never put into possession of the property. In Chaliagulla Ramachandrayya v. Boppana Satyanarayana (AIR 1964 SC 877) it was found that Section 53A had no applicability to the facts of that case. In Sobharam Jiwan v. Totaram Sitaram (AIR 1952 Nag 244), it was held by the learned single Judge of that Court that a false plea that a certain obligation under the contract has been discharged does not show unwillingness on the part of the transferee to abide strictly by the contract entered into him and the transferor. In the present case, however, it appears from the observation in the judgment of the two courts below that the finding in the suit for specific performance was that Ekadashi had to pay Rs. 210/- more under the contract and the suit was decreed by the trial court but the lower appellate Court found that Ekadeshi was not willing to perform his part of the contract as he never offered to pay the remaining amount to Mangaroo within a reasonable time even after the expiry of the stipulated period, and made false allegations about the payment of the remaining sale consideration which showed that he did not intend to fulfil his part of the contract and also that he did not come to court with clean hands. The suit for specific performance, however, appears to have been dismissed by the lower appellate court mainly on the ground that it was barred by limitation and the claim for refund of the amount paid could not be decreed because the agreement provided that in case of default the amounts already paid shall stand forfeited. It is true that while in a suit for specific performance of a contract a plaintiff has to aver and prove that he has always been ready and willing to perform his part under the contract sought to be specifically enforced but to be always ready and willing to perform one's part of the contract, is not identically the same thing as the willingness to perform one's part of the contract, required under the third clause of Section 53A. In the present case there cannot be any doubt that Ekadashi did perform a substantial part of the contract inasmuch as out of the sum of Rs. 800/- required to be paid by him only the amount of Rs. 210/- remained to be paid, and in view of the fact that he did file a suit for specific performance of the contract, it cannot be said that he was not willing to perform the remaining part of the contract to be performed by. him. Sobha Ram's case relied upon by the learned counsel is, therefore, distinguishable. The other case cited by the learned counsel for the plaintiff-respondent namely Pusaram Maniklal Izardar v. Devrao Gopalrao Mali (AIR 1947 Nag 188) is also distinguishable on the facts. However, since a defendant must, before he can take advantage of the provisions of Section 53A of the Transfer of Property Act, be willing to do his part under the contract, I would direct that before Ekadashi, the defendant-appellant and his. son Ganesh and wife Smt. Khajanawa are allowed the protection of the said provisions, they must deposit in court for the benefit of plaintiff No. 4, the sum of Rs. 210/- which has been found to be due against them by the trial Court, and in order to make the direction enforceable, I decree the suit for recovery of Rs. 210/- by Ganga, the fourth plaintiff, who was the first respondent in this Court and is now represented by his heirs and legal representatives, against the defendants Nos. 1, 2 and 3.
10. In the result the appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside in so far as they relate to suit No. 79 of 1967 and Civil Appeal No. 300 of 1969 arising therefrom and the decree of the trial Court for possession in favour of plaintiffs Nos. 1 to 3, who are respondents Nos. 6, 7 and 8 in this Court against the defendants Nos. 1 to 3, namely, the defendant-appellant Ekadashi, since deceased who is now represented by his heirs and legal representatives, and the respondents Nos. 2 and 3, for declaration of ownership over 1/2 share in the house in suit and for formal possession in respect thereof together with damages for the use and occupation at the rate of Rs. 5/- per month for three years before the suit and pendente lite and future at the same rate with proportionate costs is maintained. The claim of the fourth plaintiff Ganga, who was the first respondent in this Court and is now represented by his heirs and legal representatives, for possession over 1/2 share in the house in suit shall stand dismissed. Instead there shall be a decree for recovery of Rs. 210/- in favour of the legal representatives of the deceased fourth plaintiff Ganga, who was respondent No. 1 in this Court, against the defendant-appellant Ekadashi, who is also dead and is now represented by his heirs and legal representatives, as also against his son Ganesh and widow Smt. Khajanawa, defendant-respondents Nos. 2 and 3, but in the circumstances of the case I would direct that the said plaintiff-respondent Ganga and his legal representatives the defendant-appellant Ekadashi and his legal representatives, Ganesh, Smt. Khajanawa and Ram Bachan, defendant-respondents Nos. 2, 3 and 4 shall bear their own costs throughout.