JUDGMENT S. Narain, J,. This appeal by the contesting defendants, namely defendants 2 to 4, arises out of a suit for specific performance of a contract for sale of a piece of land measuring 1 bigha 10 kat bas comprised in survey plot no. 510 of Khata no. 1 of village Maheshram, Police-station Pirpainti in the district of bhagalpur. The agreement to sell the land of which specific performance was sought is embodied in an unregistered document dated the 27th October, 1959 (Ext.1) executed by Syed Ahshan Mehdi, defendant no.1. 2. The case of the plaintiff Chandi Prasad Bhagat, briefly stated, is that syed Ahshan Mehdi, defendant no.1, executed this contract for sale on the 27th of October, 1959, agreeing to sell the suit land to the plaintiff for a consideration of Rs. 5,000/-, that a sum of Rs.2,000/- out of the aforesaid consideration money was paid by the plaintiff at the time of execution of the aforesaid agreement (Ext.1) and the plaintiff was put in possession of the land agreed to be sold, including the area on which a hat used to be held. The further case of the plaintiff is that the plaintiff was always ready and willing to perform the contract on his part and tendered the balance of the Consideration money to defendant no.1; but defendant no.1 refused to accept the Same on one pretext or the other and ultimately defendant no.1 fraudulently executed in respect of the said land a registered sale deed dated the 27th of June, 1960. in favour of defendants 2 to 5, defendants second party, who had full knowledge of the contract entered into between the plaintiff and defendant no. 1 in respect of the land. The plaintiff alleged that the sale deed in favour of the defendants second party was without consideration, fraudulent and collusive and the defendants second party tried to interfere with the same which led to a proceeding under section 144 of the Code of Criminal Procedure and hence the suit. 3. The suit was contested by defendants nos. 2 to 4 who filed a joint written statement. Defendant no.1 did not appear at all these defendants denied that defendant no. 1 contracted to sell the suit land to the plaintiff on the 27th of October, 1959; or received any part of the consideration money. 3. The suit was contested by defendants nos. 2 to 4 who filed a joint written statement. Defendant no.1 did not appear at all these defendants denied that defendant no. 1 contracted to sell the suit land to the plaintiff on the 27th of October, 1959; or received any part of the consideration money. They alleged that on the 16th of October 1959, itself, defendant no.1 had orally agreed to sell the suit properties for Rs. 5,000; to the defendants second party and, in pursuance of that agreement, executed a registered sale deed dated the 27th June, 1960 (Ext. B) for a consideration of Rs. 5,000/-. According to these defendants, the hat over the suit properties had been leased out to the plaintiff by defendant no. 1 for one year; the plaintiffs lease expired on the 30th of Asin 1367 Fasli and, thereafter these defendants obtained possession of the hat also. These defendants alleged that the alleged agreement to sell i. e. zarbeyana was forged, fraudulent and antedated and was brought into existence by the plaintiff in collusion with defendant no.1 and was also without consideration. These defendants further pleaded that they were bona fide purchaser in good faith for value without notice of the contract of sale, if any, in favour of the plaintiff. 4. The trial Court accepted the case of the plaintiff and decreed' the suit in the following terms, that the suit be decreed on contest against the contesting defendants and ex-parte against the rest with costs and pleader's fee and pleader's clerk's fee at the minimum contested scale. The plaintiff is directed to deposit the balance of the consideration amount within two weeks from the date of the judgment and defendant no.1 would execute a registered sale deed in favour of defendant no.1 within fifteen days of the deposit of the balance of the consideration money and, in case the deposit of the balance of the consideration money was made by the plaintiff and defendant no.1 did not execute the registered sale deed then the sale-deed would be executed through the process of the court. In case the plaintiff did not deposit the balance of the consideration money then the suit should stand dismissed without further order of Court. 5. Being aggrieved by the judgment of the trial Court, the contesting defendants filed an appeal. In case the plaintiff did not deposit the balance of the consideration money then the suit should stand dismissed without further order of Court. 5. Being aggrieved by the judgment of the trial Court, the contesting defendants filed an appeal. The learned 'Additional District Judge, who heard the appeal, held that the agreement to sell the properties, dated the 27th October, 1959 (Ext.1) was genuine and for consideration and the plaintiff respondent came in possession of the suit land, including that hat on the basis of the agreement (Ext. 1) and not as a lessee under defendant no. 1. He also held that the plaintiff was always willing to pay the balance of the consideration money payable by him and was, thus, at all times, willing and ready to perform the contract on his part. He further held that the sale deed (Ext. B) in favour of the defendants second party was genuine and for consideration. He however, held that the case of the defendants that defendant no.1 entered into an agreement with defendants second party on the 16th of October, 1959 to sell the land in suit to them was false. He further held that as the plaintiff was in possession of the suit land as purchaser under the agreement, the defendants second party must be deemed to have notice of interest which the plaintiff acquired under the agreement to sell the land and thus, negatived the case of defendants that they were bona fide purchaser for value without notice of a previous contract for sale In favour of the plaintiff. The learned Additional District Judge, accordingly, dismissed the appeal. 6. Mr. Kailash Roy, appearing on behalf of the appellants, has raised a number of contentions in support of this second appeal. I would first deal with the contention that the finding of the lower appellate court that the agreement (Ext. 1) was genuine and for consideration and that the plaintiff came in possession of the suit land on the basis of the agreement of sale and not as a lessee was vitiated by omission to consider the evidence of the defendants. Mr. Roy contends that the learned Additional District Judge has omitted to advert to the circumstances that agreement for sale was unregistered and that, therefore, very cogent proof was required in support of the agreement. Mr. Roy contends that the learned Additional District Judge has omitted to advert to the circumstances that agreement for sale was unregistered and that, therefore, very cogent proof was required in support of the agreement. In my opinion, it cannot be said that the court of appeal below was not aware that the agreement for sale 'Ext.1) was unregistered. In para 10 of its judgment, the Court of appeal below has referred to the fact that the agreement (Ext.1) was not a registered document. It is true that, while dealing with the evidence regarding the execution of Ext.1, the learned Additional District Judge has not specifically referred to the fact that the agreement was unregistered but that may not show that, while deciding-the question of the execution of Ext. 1 the learned Additional District Judge did not advert to the circumstance that the agreement was unregistered. The other circumstance, which according to Mr.Roy, was not considered by the learned Additional District Judge, was that it was highly improbable that, though more than half of the consideration money remained unpaid at the time of the execution of the agreement to sell (Ext. 1), defendant no. 1 delivered possession of the properties to the plaintiff. The learned Additional District Judge has not specifically considered this point, but there is nothing to show that this point was urged before him. Further, I did not think this is a strong circumstance against the genuiness of the agreement. It should be remembered that the signature of defendant no.1 on the agreement (Ext) was duly proved and defendant No.1 did not come forward to deny the same. Though defendant no.2 (D.W.6) deposed that the agreement for sale was forged and antedated he did not pledge his oath on the point that it did not contain the signature of defendant no. 1. The only forgery alleged in the evidence was that it was antedated. In these circumstances, the omission to consider the aforesaid alleged improbability does not, in my opinion, vitiate the finding of the lower appellate Court on the point. 7. The more difficult question is whether the finding on the point that the plaintiff was in possession of the hat as a lessee of defendant no. 1 is vitiated by omission to consider the positive evidence on behalf of the defendants. Mr. Rai contended the relevant evidence on the point was given by D. ws. 7. The more difficult question is whether the finding on the point that the plaintiff was in possession of the hat as a lessee of defendant no. 1 is vitiated by omission to consider the positive evidence on behalf of the defendants. Mr. Rai contended the relevant evidence on the point was given by D. ws. 2 to 7 and that the evidence has not been considered. The judgment of the learned Additional District Judge does not contain any discussion of the witnesses on the point of the lease in favour of the plaintiff. The judgment after reciting that the learned Subordinate Judge was justified in coming to the conclusion that the agreement (Ext. 1) was genuine and for consideration and was proved and that, by virtue of that termination, the plaintiff was put in possession stated" on the other' hand, there was no evidence on that part of the defence conclusively to prove that there was any Thika oral or otherwise in favour of the plaintiff on behalf of defendant no. 1 by virtue of which he Was allegedly in possession of the Hat." Admittedly, the trial court has dealt with the evidence of the witnesses on behalf of the defendants in detail and has given reasons for not accepting their tenancy. The lower appellate court has agreed with the views of the trial court. It is well settled that "it is not the duty of the appellate Court when it agrees with the view of the trial court either to re-state the effect of the evidence or to re-state the reasons given by the trial court. The expression of general agreement with reasons given by the court, decision of which is under appeal would ordinarily suffice." per J. C. Shah. J. (as he then was) who spoke for the Supreme Court in the case of GirijaMdini Devi and other Vs. Bijendra Narayan Choudhary. 8. Mr: K. D. Chatterjee. The expression of general agreement with reasons given by the court, decision of which is under appeal would ordinarily suffice." per J. C. Shah. J. (as he then was) who spoke for the Supreme Court in the case of GirijaMdini Devi and other Vs. Bijendra Narayan Choudhary. 8. Mr: K. D. Chatterjee. appearing on behalf of the respondents, contends that the expression there was no cogent evidence on the part of the defendants conclusively to prove that there was any thika shows that the learned Additional District Judge, was aware of the evidence of the defence witnesses on point and had applied his mind to that evidence and, in view of the detailed reason given by the trial court in support of the conclusion with which the learned Additional District Judge also agrees, he merely indicated his finding on the point. On the other hand, Mr. Kailash Rai contends that the learned Additional Judge does not anywhere say that he is in agreement with the reasons given by the learned Subordinate Judge for not accepting the evidence of the defendants witnesses on the point of the lease in favour of the plaintiff and that the decision of the appellate Court is not supported by the principle laid down by Shah. J., which has been quoted above. I am inclined to agree with Shri Chatterjee that on the fact and in the circumstances of this case, regard being specially had to the fact that the appellate Court accepted the evidence regarding the genuiness of Ext. 1 and the evidence regarding the plaintiff coming in possession on the basis of Ext, 1. the expression in the judgment that "there was no evidence conclusively to prove" etc was sufficient. 9. Shri Chatterjee also invited me to consider the evidence of the defendants on the point and hold that the finding was not vitiated by any error. 1 and the evidence regarding the plaintiff coming in possession on the basis of Ext, 1. the expression in the judgment that "there was no evidence conclusively to prove" etc was sufficient. 9. Shri Chatterjee also invited me to consider the evidence of the defendants on the point and hold that the finding was not vitiated by any error. This Court, no doubt, has power under section 103 of the Civil Procedure Code in such a case to examine the evidence for itself and the learned Counsel for the parties took me through the relevant evidence and I examined it and, in my opinion, there would hale been no justification for the appellate court to have interfered with the finding of the trial court that the evidence adduced on behalf of the defendants second party that the haat was not leased out to the plaintiff was not at all satisfactory and was inconsistent and unreliable. 10. According to the case of the defendants, formerly. the haat had been leased out to Bankey Bihari (D. W. 5) and after expiry of the lease, it was leased out to the plaintiff for a year. On their case, there was a registered deed of lease executed in favour of Bankey Bihari No such registered deed was admittedly executed by defendant no.1 when leasing out the haat to the plaintiff. A 'hukumnama' is alleged to have been granted by' defendant no. l. Neither defendant no.1 or the person who has scribed the hukumnama has been examined. There is' no documentary evidence at all in support of the case of the lease. The evidence is only oral Among the witnesses, the evidence of D. Ws 2 and 4 is not of much use because, admittedly, they were not present at the time of the execution. Further, they are the contesting defendants nos. 2 and 4, respectively. The evidence of D.Ws 3 and 5 is in consistent regarding the presence of Bankey Bihari at the time of the grant of the lease to the plaintiff. According to D. W; 3 who claims to have collected the tolls of the hat, the lease was granted at The darwaja of Bankey Bihari. He was there when defendant no. 1 and his father came there and be was asked to fetch Chandi Babu, the plaintiff, and then the hukumnama was written and the plaintiff paid Rs. According to D. W; 3 who claims to have collected the tolls of the hat, the lease was granted at The darwaja of Bankey Bihari. He was there when defendant no. 1 and his father came there and be was asked to fetch Chandi Babu, the plaintiff, and then the hukumnama was written and the plaintiff paid Rs. 100/- to defendant no. 1. He went on to say "at that time, only defendant no, 1, his father and plaintiff were present. His evidence is contradicted by the evidence of D. W. 5. further D. W. 3 admitted that he was illiterate and also that he did not get the accounts regarding the collection of tolls written but by another person. There is nothing to show that there was any relationship of special trust and confidence between D. W. 3 and the plain tiff. In these circumstances, the accounts of tolls collected. by him must be required by the plaintiff from (D. W. 3) and he was not in a position to render accounts of the lease, Further, in examination-in-chief, D. W. 3 had first stated that he learnt of the fact that Chandi Babu had taken thika from Chandi Babu himself and, thereafter, he stated that he was present at the time of the grant of the lease. If actually he was present at the time of the thika, as his evidence, is there was no point in his saying that he learnt of it from Chandi Babu. In these circumstances, if the trial court disbelieved his evidence, the appellate court would not be justified in placing reliance on his testimoney. So far as D. W. 6 Bankey Bihari is concerned, admittedly, Harihar, defendant no.2, had supported his case in a proceeding under section 145 of the Code of Criminal Procedure by affirming an affidavit on his behalf and, therefore, he has reasons to be obliged to Harihar defendant no. 2. In 145 proceeding also, he had affirmed an affidavit on behalf of defendant no. 2. Admittedly, he contested an election with one Ramsewilk. Though he denied that the plaintiff worked for Ramsewak in that election he admitted the existence of the party factions in the village. For the reasons given above, his evidence is not that of an independent witness' and may not be sufficient to establish the case of the lease. 2. Admittedly, he contested an election with one Ramsewilk. Though he denied that the plaintiff worked for Ramsewak in that election he admitted the existence of the party factions in the village. For the reasons given above, his evidence is not that of an independent witness' and may not be sufficient to establish the case of the lease. In these circumstances, if the trial Court refused to accept their evidence as reliable, the appellate Court, in my opinion, would not be justified in interfering with this finding of the trial Court. 11. It must be remembered that there was positive evidence of execution of Ext. 1. The Signature of defendant no. 1, it was not specifically denied in evidence. It was only as' sorted that the agreement (Ext. 1) was antedated. It must be presumed that Ext. 1 was executed on the date it purports to have been executed. Of course, the presumption can be -rebutted, but my attention has not been drawn to any material on the basis of which that presumption can be held to have been rebutted. Under the terms of agreement (Ext.1). the plaintiff obtained possession of suit properties. In these circumstances, the case of the plaintiff that be bad obtained possession under Ext.1 was supported by documentary evidence and in support of the case of the defendants that be took possession as lessees, as I have shown above, is of unsatisfactory character. In these circumstances, in my opinion, the finding of the Court of appeal below that Ext.1 was genuine for consideration, that is to say not antedated and for consideration and the plaintiff came in possession under Ext.1 and not be virtue of the lease cannot be assailed. 12. Mr. Kailash Roy further contended that the finding of the Courts below that the defendant second party were not bonafice purchasers for, value without notice is erroneous, in law. He pointed out that there was no evidence that these defendants had actual notice of the prior contract of sale in favour of the plaintiff. The finding only is that, as the plaintiff was in possession under the agreement, the defendants second party must be deemed to have notice of such title of the plaintiff. He pointed out that there was no evidence that these defendants had actual notice of the prior contract of sale in favour of the plaintiff. The finding only is that, as the plaintiff was in possession under the agreement, the defendants second party must be deemed to have notice of such title of the plaintiff. Shri Roy contends that Explanation 2 to section 3 of the Transfer of Property Act, 1882 relied upon by the learned Additional District Judge bas no application because explanation 2 incorporates notice of the title of the person in actual possession and the plaintiff acquired no title to the property by virtue of the agreement for sale. This argument is controverted by Mr. Chatterjee. But in my opinion it is not necessary for the purposes of this case to go into that question because the decision of the learned subordinate Judge that the actual possession of the plaintiff over the suit property is fully supported by illustration 3 to clause (b) of section 27 of the Specific Relief Act, 1877 which covers this case" Clause (b) of section 27 of the Specific Relief Act, provides that except as otherwise provided, specific performance of a contract may be enforced against "any person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract." The third illustration to clause (b) rum; thus--. "A contract to sell land to D for Rs. 5.000. B takes possession of the land. Afterwards A sells it to C for Rs. 6,000. C makes no inquiry of B relating to his interest in the land. B" possession is sufficient to affect C with notice of his interest, and he may enforce specific performance of the contract against C". In the present case, the learned Additional District Judge has found that the plaintiff was in possession of the entire suit property, including the haat lands on the date of the saledeed in favour of the defendants second party and that the defendants second party made no enquiry from "the plaintiff relating to his interest in the land. Therefore, in terms of the illustration, the plaintiff's possession is sufficient to affect the subsequent purchaser with notice of his interest and the plaintiff may enforce specific performance of the contract against the defendants second party. Therefore, in terms of the illustration, the plaintiff's possession is sufficient to affect the subsequent purchaser with notice of his interest and the plaintiff may enforce specific performance of the contract against the defendants second party. 13. This conclusion is also supported by a number of decisions -In the case of Faxi brahim V. Faxi Gulam, it was held that if a purchaser of an immovable property knowing that his vendor is not to possession purchased the property without making any enquiry he must be taken to have notice of all the equities in favour of that one in possession. That decision was relied upon by a Full Bench of the Travancore-Cochia High Court' in Isabi Vs. Abdulla. Shri Roy contended that possession of person other than the land lord could only raise presumption of notice and the presumption has been rebutted because the defendants-second party had a bona fide belief that the plaintiff was in possession as a lessee. In my opinion, neither of these contentions are correct. The illustration to section 27 of the Specific Relief Act, says that possession is sufficient to affect the subsequent purchaser with notice of the interest of the person in possession and the person in possession may enforce specific performance of his contract against the subsequent purchaser. It does not say that this rule is subject to any qualification. Further, the illustration enacts a rule of constructive notice. The notice by which the subsequent purchaser is affected is not actual but constructive. The subsequent purchaser may not know of the earlier contract of sale but the law imputes to him such a notice. Constructive notice by its very natural raises a presumption of notice which is irrebuttable. The nature of constructive, notice was explained by Mears, C. J., speaking for a Bench of the Allahabad High Court, in the case of Ashic Bussa'in and others Vs. Chaturbhuj and another thus- "It was held in the case of Hewitt V. Loosemore (10) that constructive notice is knowledge which the court imputes to a person, from the circumstances of the case upon a legal presumption so strongly that it cannot be allowed to be rebutted, that the knowledge must exist though it may not have been formally communicated" So, the notice which the law imputes cannot be rebutted. 14. 14. Further, in the present case, on the findings before this Court, the plaintiff was in possession n at only of the haat land, but also of the other lands which were the subject matter of the agreement for sale (Ext.1). Failure of the defendants second party to make enquiry regarding the nature of the interest held by the plaintiff on the haat land can only be regarded as amounting either to willful abstention from enquiry or gross-negligence in not making inquiry. This contention of Mr. Ray must also fail. 15. Mr. Kailash Rai next contended that, in view of the finding that the plaintiff was not in possession since the initiation of the proceeding under section 144 of the Code of Criminal Procedure, no decree fur specific performance under which a person bound by the decree has not only to execute the deed of conveyance but also to deliver possession can be passed. He argues that defendant no.1 by delivering possession of the suit. Properties to the plaintiff had performed this part of his contract and having already performed this part of the contract he would not be directed to perform that part of the contract again. He urges that the remedy of the plaintiff against this wrongful dispossession was a suit for wrong possession on an averment that the plaintiff bad been wrongly dispossessed. That suit it is argued would be based on a cause of action distinct and separate from the cause of action for a suit for specific performance of the contract and a decree for recovery of, possession cannot be granted upon the original suit framed as a pure suit for specific performance of contract. In my opinion, this contention is completely misconceived. It is not disputed by Shri, Ray that, if the plaintiff had continued in possession which had been delivered to him in pursuance of the agreement for sale, he could have maintained a suit for specific performance and, if the other conditions are fulfilled, obtained a decree for specific performance. The Act, of dispossession by defendant no.1 or defendant no. 2 would be a wrongful Act, and it 'Will be a startling result that the defendants would be permitted to defeat a suit for specific performance to which otherwise they would not have any valid defence by taking advantage of his wrongful Act, of any other person claiming under the suit. 2 would be a wrongful Act, and it 'Will be a startling result that the defendants would be permitted to defeat a suit for specific performance to which otherwise they would not have any valid defence by taking advantage of his wrongful Act, of any other person claiming under the suit. No person can ordinarily be allowed to take advantage of his own wrong. The argument that, to obtain recovery of possession, certain other facts constituting a different cause of action would have to be pleaded, is also in my opinion, not correct. If a person sue, for specific performance of contract,- unless he is in possession of the subject matter of the contract, be is entitled upon a decree being granted to delivery of 'possession of the property by the vendor or the subsequent purchaser who is not a bona• fide purchaser without notice of his contract. The relief for recovery of possession is inherent in a suit for .specific performance where possession of the property contracted is not with the vendee. There is no question, therefore, of a different cause of action being necessary for a decree for recovery of possession. Further in the present case the defendants second party who claimed to be in possession and who may perhaps be assumed to be in possession did not claim to be in possession otherwise than in Exercise of their right under the registered sale deed dated the 27th of June, 1960 (Ext. 2). There is no foundation in their written statement for a plea of any right by adverse possession. In these circumstances, I do not see any objection in principle to granting the plaintiff a decree for specific performance either against defendant no.1 or the defendant second party. Mr. Kailash Ray was unable to cite any authority, even remotely, supporting the contention advanced by him. I would, therefore overrule this contention. 16. Mr. K. D. Chatterjee, appearing on behalf of the respondents made an oral prayer that, in exercise of the powers under Order 41, Rule 33 of the Civil Procedure Code, this court should modify the decree passed by the courts below by directing the defendants second party, the subsequent purchasers to join in the execution of the sale-deed directed to be executed by defendant no. I because that is the proper decree to be passed in a suit for specific performance of the nature. I because that is the proper decree to be passed in a suit for specific performance of the nature. That in a suit for specific performance of a contract for sale of land where the land contracted to be sold for has subsequently to the contract been sold to any other person, the proper decree to be passed is a decree directing the subsequent purchaser also to join the execution of the sale deed does not admit of any decree. In the case of Durga Prasad and another V. Deep Chand and others, the question of the proper form of a decree to be passed in such a case was considered by the Supreme Court and after considering the different types of decree which used to be passed in such a case, his Lordship Bose. J,. who spoke for the court in that case, held as follows ;- "In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all be does is to pass on his title to the plaintiff." Under Order 41. Rule 33 of the Civil Procedure Code. the appellate court bas power, to pass any decree and make any order which ought to have been passed" and 'the power may be exercised by the Court not withstanding that the appeal is and may be exercised in favour of all or any other respondents or the parties, although such respondents or parties may not have filed any appeal or objection." The fact, therefore, that the plaintiff has not flied any appeal or objection to the decree should not stand in the way of this Court in passing that decree which ought to have been passed. Mr. Roy does not contest that the decree should have contained a direction that defendants second party should also join in the conveyance to be executed by defendant no. 1. As a matter of fact, Mr. Ray himself very fairly drew attention to the aforesaid decision of the Supreme Court. He, however, contends that the fact that the plaintiff was out of possession was' an impediment in passing - any decree. 1. As a matter of fact, Mr. Ray himself very fairly drew attention to the aforesaid decision of the Supreme Court. He, however, contends that the fact that the plaintiff was out of possession was' an impediment in passing - any decree. I have already held that circumstance is not a legal impediment. In the circumstances, therefore, the interest of justice requires that the decree passed by the trial Court which has been affirmed in appeal should be modified by directing the defendants second party to join the execution of the sale deed in plaintiff's favour to be executed by defendant no.1 in accordance with the terms of the contract entered into between them. 17. The question still remains as to the person to whom the balance of the consideration money which under the terms of the decree the plaintiff must deposit should be paid. The decree passed is, unfortunately, silent on the point. It does not expressly say what is to be done with the aforesaid money when it is paid in court. A clear direction regarding the person to whom the money was to be paid should have been contained in the decree. The question, therefore, is what should be the direction on the point which should be incorporated in the decree. Mr. Roy contends that, on the findings, the defendants, second party had paid Rs. 5000/- the price of the land sold by defendant no.1 and, in these circumstances, if it is directed that the balance of the consideration money be paid to defendant no. 1, defendant no. 1 who was at fault in contracting with the plaintiff and defendants second party for the same land would be paid twice over for the same property and the defendants second party would have to institute a suit for recovery of the consideration money paid by them, to the refund of which, they are, undoubtedly, entitled. If the direction is made that the money would be paid to them, that would not be unjust and would obviate further and necessary litigation. Defendant no. 1 has not appeared in the suit and the plaintiff is not concerned with the question as to whom the money, he shall deposit as a condition precedent to the decree shall be paid. 18. Defendant no. 1 has not appeared in the suit and the plaintiff is not concerned with the question as to whom the money, he shall deposit as a condition precedent to the decree shall be paid. 18. The question regarding the person to whom the money deposited by the plaintiff should be ordered to be paid in such a case was considered by the Supreme Court in the case referred to above Dealing with the question, Bose, J., observed as follows :- ". . . . We do not think it would be right to lay down that in ever) case the balance of the purchase money should be paid to the subsequent transferee up to the extent of the consideration paid by horn. There may be equities between the vendor and the subsequent transferee which would make that improper so unless they fight the question out as between themselves and it is decided as an issue in the case, the normal rule should be to require that the money be paid to the vendor. But the circumstances here are peculiar . . . . ". After holding that the circumstances in that case were peculiar, their Lordships of the Supreme Court in that case directed payment of the balance of the purchase money to the subsequent transferee up to the extent of consideration paid by him. Mr. Roy relies upon the circumstances that the defendant did not choose to appear in the litigation which shows that defendant no.1 was not interested in the balance of the purchase money to be deposited by the plaintiff and that there is nothing on the facts and in the circumstances of this case which would disentitle defendants second party from claiming refund of the consideration money paid by them and that, therefore, the direction should be that the balance of the purchase money deposited by the plaintiff should be paid to them in the Supreme Court case referred to above, a direction to pay the balance of the purchase money to defendant second party was made after giving an opportunity to the Custodian representing the vendor to be heard in the matter. In my opinion, it would not be just and proper to give a direction that the aforesaid money should be paid to the defendants second party without affording defendant no.1 a specific opportunity of showing how defendant no.1 could have defended a suit by the defendants second party for refund of the consideration money paid by them. It is true that defendant no.1 has not appeared in the appeal, but he may not have chosen to appear under the impression that he was alone being asked to execute a sale deed and he would be entitled to the balance of the purchase money to be deposited by the plaintiff. I think therefore, the proper order to be passed in such a case would be to remit the case for decision of the question as to the person who would be entitled, whether defendant no.1 or defendants second party, to the balance of the purchase money deposited by the plaintiff, to the trial Court. The trial Court would afford an opportunity to defendant no.1 to show how he could have defended the suit by the defendants second party for refund of the consideration money raid by them. If defendant no.1 is able to show any circumstances which disentitles defen1ants second party from claiming refund of the consideration money paid by them to defendant no.1, the Court would direct that defendant no.1 would be entitled to withdraw the balance of the purchase money deposited by the plaintiff. But, if defendant no.1 is not able to establish this, the Court would direct that the defendants second party should be paid the balance of the purchase money deposited by the plaintiff. The decree passed by the Court below will, therefore, be specified to this extent that the defendants second party could be directed to join in the conveyance so as to pass on the title which resides in them to the plaintiff and that the question as to whether defendant no. 1 or defendants second party would be entitled to the balance of the purchase money deposited by the plaintiff, should be decided by the trial Court in the light of the observations made and the directions given above. 19. With the aforesaid modification, the appeal is dismissed. But, in the circumstances of the case, there will be no order as to costs. Appeal dismissed.