JUDGMENT B.K. Rathi, J.
1. This appeal was admitted on 30.9.2002 and on that date, the execution of the sale deed was also stayed till further orders. The respondent-opposite parties have applied for vacation of the stay order. It is contended that a caveat was filed in this case but by mistake of the office, It was not reported. Therefore, the appeal was admitted and stay order was granted after hearing the counsel for the appellant and counsel for the respondent could not be heard. It is further contended that the suit was filed for specific performance of contract of sale, which was decreed by the trial court, and the first appellate court has maintained the decree and there are two concurrent findings.
2. I have heard Sri B. D. Mandhyan, learned counsel for the appellant and Sri R. P. Goel, learned Sr. Advocate for the respondents.
3. The first argument of the learned counsel for the respondents is that the appeal was admitted on the substantial question of law, "whether the plaintiffs were ready and willing to perform their part of the contract". Shri R. P. Goel, learned Sr. Advocate has argued that this is not a substantial question of law and in support of the argument has referred to the decision of the Apex Court in Veerayee Ammal v. Sent Ammal, 2002 (1) AWC 97 (SC) : AIR 2001 SC 2920. In that case, the substantial question of law framed was "whether in the circumstances of the case, the plaintiff has established that she has been ready and willing to perform her part of contract". In para 10, it was observed that :
"The question of law formulated as substantial question of law in the instant case cannot, in any way, be termed to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not clothe the High Court to assume the jurisdiction by terming the question as substantial question of law."
It is, therefore, contended that this question could not be considered and the appeal cannot be allowed on this ground.
4. The second argument of the learned counsel is that the judgment of the appellate court show that this question was not raised before the appellate court. That, therefore, this question cannot be raised in the second appeal as has been held in Vijay Prakash v. Gurmit Singh, 1977 (UP) RCC 168.
5. The third argument of the learned counsel is that the agreement was executed on 22.11.1978 agreeing to sell the land for Rs. 78,000 Rs. 15,000 was paid in advance and Rs. 63,000 was to be paid at the time of execution of the sale deed. That Rs. 58,000 has also been paid on 10.9.1979. That, therefore, the substantial sale consideration has been paid more than 22 years before. Hence, the appellant is enjoying the land and also utilising the sale consideration since last about 22 years. That, therefore, there is no balance of convenience in his favour. The balance of convenience is in favour of the respondents who have paid practically the entire sale consideration about 22 years before. That the second appeal is not likely to be heard in the next coming 20 years.
6. Replying the arguments, the learned counsel for the appellant has alleged that according to the agreement, the sale deed was to be executed by 15.6.1979. Srichand respondent who has examined himself on oath has clearly stated that he had no money to get the sale deed executed till 15.6.1979. That, therefore, the respondents were unable to perform their part of the contract by that date. It has also been contended that Srichand plaintiff got the money for purchase of the land by the sale of his land. That the respondents sold their land in the year 1980, 1981 and 1982 respectively by different sale deeds. That, therefore, they had no money on 15.6.1979.
7. That there was also no question of payment of Rs. 58,000 on 10.9.1979. It has been argued that the respondents had no money and, therefore, could not have paid Rs. 58,000 on 10.9.1979 and could not have got the sale deed executed. That respondent No. 1 was kidnapped regarding which an F.I.R. was also lodged and receipt was got written from him forcibly.
8. The learned counsel for the appellant has also referred to the decision of the Apex Court in Moot Chand Yadau v. R. B. Sugar Co. Ltd., 1983 AWC 121. It was held that during the pendency of the appeal, the operation of an order having serious civil consequences must be suspended, more so when the appeal is admitted.
9. This decision is of no help to the appellant. There is no question of serious civil consequences. There is no law that if an appeal is admitted, it is necessary that the operation of the order of decree should be stayed.
10. In this case, there are concurrent findings of both the Courts below regarding payment of Rs. 58,000. This finding of fact cannot be reversed in second appeal.
11. Considering the entire facts and circumstances, the stay order dated 30.9.2002 is vacated.