HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1026 OF 1985 JUDGMENT: The appeal is filed against the Judgment and decree in O.S.No.204 of 1981 on the file of the Subordinate Judge, Kakinada, decreeing the suit for specific performance of the Contract of sale. The defendants in the above suit are the appellants herein. 2. According to the case of the plaintiff, the plaint schedule property belonged to the 1st defendant and he agreed to sell the property for a consideration of Rs.16,000/-. On 10.07.1978 received Rs.12,000/- and executed an agreement. As per the agreement, on receipt of the balance sale consideration, possession has to be delivered as per measurements. But, the 1st defendant has been postponing the execution of the sale deed in spite of repeated demands and hence the suit. 3. The 1st defendant filed a written statement denying the agreement of sale and also the liability. It was also further pleaded that it is only a loan transaction but not a sale transaction and therefore, the suit for specific performance is not maintainable. 4. On the basis of the above pleadings, the following necessary issues have been framed by the trial Courts, for trial: 1) Whether the agreement of sale was nominally executed in the circumstances mentioned in the written statement? 2) To what relief? 5. On behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A.1 to A.3 were marked. On behalf of the defendants, DWs.1 and 2 were examined and marked Exs.B.1 and B.2. 6. After considering the evidence on record, the learned Subordinate Judge decreed the suit of the plaintiff. Aggrieved by the said judgment and decree the present appeal is filed. 7. The learned counsel for the respondents contends that the appeal itself is not pending since it was dismissed on 11.08.1997 and thereafter, A.S.M.P.No.14060 of 2003 was filed to condone the delay in representation of the application to set aside the order and delay was condoned and A.S.M.P.No.21086 of 2003 to set aside the order dated 11.08.1997 was ordered for notice and on 10.11.2003 none appeared and it was posted for dismissal on 11.11.2003 and on 11.11.2003 it was represented that the 1st respondent died and legal representatives are to be brought on record and on 24.11.2003 A.S.M.P.No.21086 of 2003 was dismissed. Subsequently, several applications were filed and the Court proceeded as if the appeal has been restored and pending. 8. As rightly contended by the counsel for the respondents, a perusal of the entire proceeding sheet shows that there is no order restoring the appeal to file after it was dismissed on 11.08.1997. All subsequent proceedings are by ignoring the above fact and even A.S.M.P.No.21086 of 2003, which was filed for conodnation of the delay and restoration, was also dismissed. Subsequent applications are only to restore the applications, which were dismissed earlier. Therefore, I have no hesitation in holding that the appeal was dismissed long time back i.e., on 11.08.1997 and there is no order of restoring it to file. Even otherwise, the evidence on record as assessed by the lower Court clearly goes to show that the plea of the appellants that it was a loan transaction is not true and that consideration was said to have been paid under the agreement voluntarily and the right of the plaintiff for specific performance was rightly decreed. 9. Therefore, for the above reasons, it is to be recorded that there are no further orders to be passed in this appeal as it was already dismissed on 11.08.1997 and there was no further order for restoration and hence the consideration of the appeal does not arise. _________________________ N.R.L. NAGESWARA RAO, J Date:08.09.2011 INL