JUDGMENT Deoki Nandan, J. - This is a plaintiffs second appeal in a suit for specific performance of a contract to reconvey the property in suit which is in the nature of a house and a shop situate at Hamirpur. 2. The plaintiffs case was that they "borrowed a sum of Rs. 10,500/- from Jagat Prasad, defendant, since deceased and now represented by his heirs and legal representatives, and executed a sale-deed in his favour, of the property in suit on 31st May, 1960, and an agreement of re-conveyance was executed by Jagat Prasad on the 1st June, 1960, agreeing to reconvey the property in suit to the plaintiffs on payment of Rs. 10,500/- within five years. The property, however, continued to remain in their possession as before the sale. It was then alleged that Jagat Prasad was a very clever person and had given considerable amounts of money on loan and was given to harassing his debtors by all kinds of wrong methods; that many a time the plaintiffs asked Jagat Prasad to execute the sale-deed but he evaded doing so, whereupon the plaintiffs went to Jagat Prasad on 10th May, 1965, along with certain respectable persons and offered the money to Jagat Prasad but he said that he was not well and could not go to court; and although he was prepared to receive the money then and there he only promised to execute the sale-deed later on to which the plaintiffs did not agree and said that the money would be paid on execution of the sale-deed. It was then alleged that the second plaintiff who is the younger brother of the first plaintiff, and was originally impleaded as the second defendant pro forma, was imprisoned in Orai Jail under the Opium Act and could not, therefore, join in the filing of the suit which was filed on the 29th May, 1965. It was also alleged that the first plaintiff had again gone to Jagat Prasad on 18th May, 1965, with the whole amount of money along with certain respectable persons and even produced the money but Jagat Prasad had refused to receive the same and said that he could not go to court unless he became well and that he would also not receive the money. Under my orders dated 2nd May, 1979, the plaintiffs were permitted to amend their plaint by adding an allegation to the effect that they were, in pursuance of the conditions of the agreement depositing the sum of Rupees 10,500/- in court, and were and are ready and willing to perform the same. It was lastly alleged that a notice dated 25th May, 1965, was sent through counsel to Jagat Prasad but he did not give any reply from which it appeared that his intention was dishonest and he wanted to grab the property, hence the suit. 3. As noticed above, the suit was filed on 29th May, 1965, the date on which the plaint was presented. It was, however, stated in the plaint that although the court fees payable was Rs. 1,199/-, only the court-fees of Rs. 50/- was being paid that day. A tender for payment into court of the sum of Rs. 10,500/-, as the consideration for the sale, also accompanied the plaint. The plaintiffs had applied for time to make good the deficiency in court fees. The reason given for non-payment of the full court fees was that the first plaintiffs wife had suddenly suffered an abortion and she was admitted in the hospital and was ill and the said plaintiff was, therefore, unable to deposit the full court fees as a lot of money had been spent on her illness and she was even then not out of danger. It was also stated that the said plaintiff would deposit the full court fees on the reopening of the courts after the summer vacation. The application was duly supported by an affidavit dated 31st May, 1965, as required by the court, and the court, thereupon, granted time to deposit the court fees by 10th July, 1965. It was also stated that the said plaintiff would deposit the full court fees on the reopening of the courts after the summer vacation. The application was duly supported by an affidavit dated 31st May, 1965, as required by the court, and the court, thereupon, granted time to deposit the court fees by 10th July, 1965. On the 10th July, 1965, an application was made on behalf of the said plaintiff, saying that he had gone with the necessary money to purchase the court fees stamps from the Government treasury, but the treasury was unable to supply the court fees stamps that day because the Collector of the district was under orders of transfer; and the stamps of the requisite value could not be had from the stamp vendors; and since the 11th and 12th July, 1965, were holidays, and since it was possible that handing over of the charge by the Collector may also continue on the 13th July, 1965, it was prayed that the time for depositing the court fees may be extended up to 15th July, 1965. This application was also duly supported by the affidavit of first plaintiff and was allowed by the court by an order dated 10th July, 1965. The deficiency in court fees was, thereafter, made good on 15th July, 1965, within the time allowed by the court. The suit was ordered to be registered the same day and the tender for payment of Rupees 10,500/- into the court on account of the sale consideration appears to have been passed by the court on 17th July, 1965, and the amount of Rs. 10,500/-appears to have been duly deposited thereafter in due course. 4. The defence was that the plaintiffs were heavily indebted and were in need of money when they sold the property in suit to the defendant Jagat Prasad and although he had entered into possession of the property under the sale, he let it out to the plaintiff on rent. It was then alleged that a notice dated 28th May, 1965, was served by him on the plaintiffs to have-the property in suit reconveyed but the plaintiffs did not do the needful and evaded receiving the notice whereupon he sent a telegram to the first, plaintiff on the 31st May, 1965, and even asked him orally to be present in. It was then alleged that a notice dated 28th May, 1965, was served by him on the plaintiffs to have-the property in suit reconveyed but the plaintiffs did not do the needful and evaded receiving the notice whereupon he sent a telegram to the first, plaintiff on the 31st May, 1965, and even asked him orally to be present in. the office of the Sub-Registrar to have the property reconveyed on the 1st June, 1965. It was also alleged that Jagat Prasad went to the office of the-Sub-Registrar and waited for them there on the 1st June, 1965, but they did not turn up, whereupon he got his attendance recorded with the Sub-Registrar. It was pleaded that the plaintiffs had no money for having the property reconveyed within the time off five years fixed by the agreement; and that the time fixed having expired, the-plaintiffs had no right to have the property reconveyed. It was also pleaded that the suit was filed on deficient court fees in order to create evidence and time being of the essence of the contract, the plaintiffs had no right to leave the property in suit reconveyed to them. 5. The trial court framed the following issues: - 1. Whether the amount of Rupees 10,500.00 was tendered by the plaintiff within 5 years of the agreement? If not, its effect? 2. Whether the filing of the suit within 5 years of the date of agreement will amount to tender of the amount for re-conveyance and shall entitle the plaintiff for relief? 3. To what relief, if any, is the plaintiff entitled? 6. The trial court found that the-plaintiffs had sold certain land on the 7th and 8th July, 1965, for Rs. 13,300 and one of them had admitted in his cross-examination that he had to sell the land in order to raise the necessary funds and on this basis, it held that the plaintiffs failed to tender money within five years of the agreement for re-conveyance. 13,300 and one of them had admitted in his cross-examination that he had to sell the land in order to raise the necessary funds and on this basis, it held that the plaintiffs failed to tender money within five years of the agreement for re-conveyance. On issue No. 2, the trial court held that the plaintiffs did not have money enough even for paying the full court fees on the plaint, much-less for paying the amount of consideration for reconveyance; that the plaintiffs did not turn up to take the reconveyance on the 1st June, 1965, in- spite of notice by the defendant, and that, therefore, the filing of the suit within five years, did not amount to tender of the consideration payable for reconveyance and did not entitle the plaintiffs to relief. On the third issue, the trial court found that the question whether time is of the essence of the contract of reconveyance, depends upon the attendant facts and circumstance, but the point did not in its opinion arise in the present case, inasmuch as it had been found that the plaintiffs did not have money to pay for the reconveyance within the stipulated period of five years. With these findings the trial court dismissed the suit. 7. On appeal, the learned District Judge formulated the question whether the plaintiffs fulfilled the conditions of the agreement dated 1st June, 1960, and were entitled to reconveyance of the property sold by them to the defendant Jagat Prasad by the deed, Ext. A-8, as the main question arising for determination in the appeal. The learned District Judge held that the plaintiffs were not possessed of the necessary funds before the 8th July, 1965, and the plaintiffs had failed to tender the money required for the reconveyance within five years of the agreement. A-8, as the main question arising for determination in the appeal. The learned District Judge held that the plaintiffs were not possessed of the necessary funds before the 8th July, 1965, and the plaintiffs had failed to tender the money required for the reconveyance within five years of the agreement. The argument raised before him on behalf of the plaintiffs that it was not necessary for them to have actually tendered the money or to deposit the same in the court at the time of the institution of the suit or at any time before that, as they could have done so, when required by the court, was met by the learned District Judge by saying that- "the question is not so much of the tender or deposit of money by the plaintiffs in court at the time of the institution of the suit or before it," but the position was that- "the plaintiffs were not possessed of the requisite money either before the institution of the suit or at the time of" its institution or thereafter, and that they did not have the requisite money within the five years period stipulated by the agreement for reconveyance; and "the request made by the plaintiffs to the defendant for reconveyance without being possessed of the money or 'filing of the suit by them without being possessed of the same, does not fulfil the requirement of law. According to the lower appellate Court, the plaintiffs could not be said to have tendered the money within the five years period and, thus, were not entitled to reconveyance of the property under the agreement dated 1st June, 1960. The appeal was on these findings dismissed by the learned District Judge. 8. Mr.V. K. S. Chowdhary, learned counsel for the appellants, urged that the entire approach of the two courts below was based on a misconception of the true legal position about time being of the essence of the contract. He urged that it is well, settled that ordinarily, time is not of the essence of a contract of sale of immoveable property. He relied on a recent decision given by me in Banno Bee v. Afrosia, AIR 1979 All 124 . There-could be no disputing the said position. The agreement in this case, Ext. He urged that it is well, settled that ordinarily, time is not of the essence of a contract of sale of immoveable property. He relied on a recent decision given by me in Banno Bee v. Afrosia, AIR 1979 All 124 . There-could be no disputing the said position. The agreement in this case, Ext. 2, provides that if Ram Prasad and Shiv Ram, the plaintiff-appellants, pay to Jagat Prasad, the defendant, since deceased, and now represented by the respondents, the sum of Rs. 10,500 within five years from the date of the agreement, then in that case, he, Jagat Prasad, would remove his possession from the property and make it over to the said' Ram Prasad and Shiv Ram and execute and get registered a sale deed of the same in their favour and that in.; case of breach of promise by Jagat Prasad, Ram Prasad, etc., will be entitled to sue for reconveyance in a-court of competent jurisdiction. The-consideration for this agreement was the sale of the property by Ram Prasad and Shiv Ram to Jagat Prasad. This agreement was executed on the 1st June, 1960, and duly registered on 2nd June, 1960. There is no clause in the agreement to the effect that it would' become void on the expiry of the period of five years in case the reconveyance was not taken within that period. In substance, the agreement was a part of the transaction of the sale, and but for the fact that the condition of reconveyance was contained in a separate deed, the transaction would have been a mortgage by conditional sale and if it were given that form, the plaintiffs would have been entitled to sue for-redemption within limitation at any time after the expiry of the term. It is well-known that on account of the long period of limitation prescribed by law for redemption of mortgages and the laws delays in India, the standard form adopted by money-lenders for advancing money on security of immovable property is to have it sold to them for the amount advanced with a separate agreement for reconveyance on repayment of the same. The limitation for a suit for specific performance of such an agreement of reconveyance starts from the date of expiry of the period within which the reconveyance may be had by the original seller on repayment of the price received by him at the original sale. If such an agreement of reconveyance cannot be enforced at all after the expiry of the period within which reconveyance must be had under the agreement, there could be no point in permitting such suits for reconveyance except in a case where it is proved that the original buyer had, in breach of the contract, refused or neglected to reconvey the property within the period fixed by the agreement; and this brings into play the rule of equity that time is not of the essence of a contract of sale of immoveable property unless it can be shown that either by the express terms of the contract, it was meant to be of the essence, or by subsequent action, it was made of the essence. Having read the agreement, Ext. 2, dated 1st June, 1960, I am of the opinion that there is nothing therein which may show that time was meant to be of the essence. The defendant did not, by any notice to the plaintiffs, or by any other action, make it of the essence. 9. Let us consider the facts, in this light of the law. The plaintiff served a notice dated 23rd May, 1865, which was delivered to the defendant on 25th May, 1965, about a week before the expiry of the term, requiring the latter to take the amount from the plaintiffs and re-transfer the 'mortgaged property to the plaintiffs. The defendant replied through counsel by a notice dated 28th May, 1965, saying that the defendant had no objection to executing the sale-deed provided the plaintiffs paid the price of the house along with the rents due from them. A copy of this reply is Ext. A-9. Although, it is said therein that the plaintiffs had not come with the money as alleged in their notice dated 25th May, 1965, yet it does not say that unless the amount of the price was paid along with the rent due, within the five years terms of the agreement of reconveyance, the agreement shall become void. A-9. Although, it is said therein that the plaintiffs had not come with the money as alleged in their notice dated 25th May, 1965, yet it does not say that unless the amount of the price was paid along with the rent due, within the five years terms of the agreement of reconveyance, the agreement shall become void. It is, therefore, evident that time was not made of the essence of the contract by the defendant even by his said reply. dated 28th May, 1965, Ext. A-9. 10. In the present case, the plaint was presented on 28th May, 1965. Facts relating to the presentation of the plaint on deficient court fees and the making good of the court fees on 15th July, 1965, have already been narrated herein above. It does appear that the plaintiffs did not have the requisite money when the first plaintiff presented the plaint on 29th May, 1965, either for paying the full court fees or for depositing the amount of Rs. 10,500 for which a tender form was submitted by the 1st plaintiff along with the plaint who alone had filed it. A postcard dated 2nd June, 1965, written by the plaintiff Ram Prasad to the defendant Jagat Prasad, Ext. A-l, is rather revealing. It shows that the said plaintiff had no intention of prosecuting the suit and all that he wanted was a little time. The letter, although couched in the most abject language which a debtor could use before his creditor, does not seem to have the desired effect, and the plaintiffs being keen to have the property reconveyed at any cost, they girdled up their loins, raised the necessary funds by selling some other land belonging to them on the 7th and 8th July, 1965, paid the balance of the court fees of Rs. 1,145 on 15th July, 1965, and the plaint having been registered as a suit they pressed their tender for depositing the amount of Rupees 10,500 as the consideration to be paid by them for the reconveyance. The plaintiffs could, thus, be said to have in fact filed the suit, by presenting a duly stamped plaint capable of being acted upon, for the first time on 15th July, 1965. The plaintiffs could, thus, be said to have in fact filed the suit, by presenting a duly stamped plaint capable of being acted upon, for the first time on 15th July, 1965. It is only by the fiction of law created by the provision of Section 149 of the Code of Civil Procedure, that the plaint is deemed to have the same force and effect when it was first presented on the 29th May, 1965. The two courts below have, for the purpose of holding that the plaintiffs did not have ready money on the date of the suit, treated 29th May, 1965, as the date of the suit, because of the said fiction of law under Section 149. It can be said with some justification that the real date of the suit, in this case, was the 15th July, 1965 and 29th May, 1965, was only a notional date on account of the said fiction of law. If the fiction created by Section 149 is given its full force and effect, it must also be deemed that the full court fees had been paid in the first instance, that is, on the 29th May, 1965. It is, accordingly, not fair to the plaintiffs, to apply the fiction for the limited purpose of determining the date on which the suit was filed and not giving its benefit for other purposes. The present case is not one where the suit would have been barred by limitation or defective in any other manner if it had been originally filed on 15th July, 1965. Under the circumstance, I am of the opinion that the capacity of the plaintiffs and their readiness and willingness to perform their part of the contract, must be judged with reference to the 15th July, 1965, and not with reference to the 29th May, 1965. It is undisputed that the plaintiffs did have the capacity to pay the full amount of the sale-consideration on the 15th July, 1965, and they did demonstrably prove it by depositing the said amount in court on the tender submitted by them with the plaint. But all this was after the expiry of the five years fixed by the agreement of reconveyance. Time was not of the essence of the contract. The plaintiffs acted with all possible speed in bringing the suit. But all this was after the expiry of the five years fixed by the agreement of reconveyance. Time was not of the essence of the contract. The plaintiffs acted with all possible speed in bringing the suit. Indeed, the civil court must have been closed for summer vacation during the whole of the month of June and therefore, that period cannot be counted against the plaintiffs. 11. In the result, I find that the conclusions arrived at by both the courts below on the points raised before them are erroneous, and the error was caused by a misconception of law i that time was of the essence of the contract and, therefore, everything required to be done by the plaintiffs should have been done by them within five years from the date of the agreement of reconveyance, that is on or before the 1st June, 1965. 12. The appeal succeeds and is allowed. The judgment and decrees of the two courts below are set aside. The plaintiffs suit for specific performance of the agreement of reconveyance dated 1st June, 1960, Ext. 2 in respect of the property in suit is decreed with costs throughout. The plaintiffs had deposited the amount of Rs. 10,500 which was the amount of the consideration agreed to be paid for the reconveyance, in the trial court, in July, 1965, but it appears that the amount was attached by the court of Civil Judge, Hamirpur, for recovery of a decree for Rupees 7856.69 p. in suit No. 3 of 1965 in favour of the defendant against the plaintiffs, and from the documents available on the record of the execution case it appears that the sum of Rs. 7856.69 p. was paid over to the defendant-respondents in the present appeal. The plaintiffs must therefore deposit the amount of Rs. 7856.69 p. in the present case, which they should deposit in the trial court within three months from the date of this judgment failing which the suit shall stand dismissed with costs throughout. In case, the plaintiffs deposit the amount within the time allowed, the defendant-respondents shall reconvey the property in suit to the plaintiffs and put them in proprietary possession thereof, within one month thereafter, failing which the executing court shall execute a reconveyance in favour of the plaintiffs and put them in proprietary possession of the property in suit. In case, the plaintiffs deposit the amount within the time allowed, the defendant-respondents shall reconvey the property in suit to the plaintiffs and put them in proprietary possession thereof, within one month thereafter, failing which the executing court shall execute a reconveyance in favour of the plaintiffs and put them in proprietary possession of the property in suit. After the reconveyance has been executed and the plaintiffs put in proprietary possession of the property in suit, the amount of Rupees 10,500, after setting off the costs awarded to the plaintiffs, shall be paid over to the defendant-respondents and the amount of costs shall be repayable to the plaintiffs.