Judgment :- 1. O.S. 612 of 1981, on the file of District Munsifs Court, Tiruchi, was filed by appellant for specific performance of an agreement for sale. Third defendant in that case has filed O.S. 1677 of 1982, on the file of the same Court, for redemption, and the mortgagee is none other than the plaintiff in O.S. 612 of 1981. 2. Schedule property is the same in both the cases, and it originally belonged to defendants 1 and 2 in O.S. No. 612 of 1981. They had executed an ‘Othi’ in favour of plaintiff in O.S. 612 of 1981, and he is in possession. It is the case of the plaintiff therein that on 27-11-1977, defendants 1 and 2 who are the owners entered into an agreement for sale, agreeing to convey the plaint property for Rs. 14,000/-. Out of the sale consideration of Rs. 14,000/, Rs. 5,500/-, which is the mortgage amount, and also another sum of Rs. 1,500/- for alleged improvements effected by the plaintiff were agreed to be adjusted, and the balance amount of Rs. 7,000/- was to be paid by plaintiff for getting the sale deed. Even on 27-11-1977, the parties agreed to have the sale deed executed within two or three days. On the next day, defendants 1 and 2 sent word through a common mediator to have the sale deed executed on the expiry of the term of the mortgage, i.e., on 12-9-1981. In the meanwhile, defendants 1 and 2 have sold the property to third defendant. It is the case of the plaintiff that the sale in favour of the third defendant is not valid and he is not a bona fide purchaser for value. The suit was, therefore, filed for specific performance of the oral agreement for sale. 3. The trial Court disbelieved the case of the plaintiff and dismissed the suit. The matter was taken in Appeal without success. It is against the said judgment, Second Appeal No. 1609 of 1989 has been filed. 4. While narrating the facts, I have already said that defendants 1 and 2 had executed an ‘othi’ in favour of plaintiff. After purchasing the property, third defendant filed O.S. 1677 of 1981 for redemption. That was allowed. Appeal preferred by plaintiff as A.S. No. 191 of 1987 on the file of 1st Additional District Judge, Tiruchy, failed. 4. While narrating the facts, I have already said that defendants 1 and 2 had executed an ‘othi’ in favour of plaintiff. After purchasing the property, third defendant filed O.S. 1677 of 1981 for redemption. That was allowed. Appeal preferred by plaintiff as A.S. No. 191 of 1987 on the file of 1st Additional District Judge, Tiruchy, failed. It is against the concurrent judgment, S.A. 1609 of 1989 has been filed. 5. At the time of admission of the Second Appeals, the following common questions of law were raised for consideration: — “1. Whether it is open to the 1st defendant to deny the plaint allegation in her evidence without filing the written statement? 2. Whether the Courts below are correct in taking into consideration the evidence of D.W.1, the 1st defendant, especially when she failed to file a written statement, and 3. Whether the lower Appellate Court is observing that the non-examination of the plaintiff is fatal to his case, when P.W.1, his father “has appeared as Power Agent of the plaintiff with personal knowledge about the suit agreement.” 6. Learned Senior counsel for the appellant submitted that in the suit for redemption, nothing will survive if the dismissal of the suit for specific performance is found to be correct, since the only defence is the oral agreement for sale. 7. Both the Courts below disbelieved the evidence of the plaintiff, and the findings were rendered merely on the appreciation of facts. Learned Senior Counsel also did not seriously urge that any specific question of law arises on the appreciation of evidence. The argument that was put forward was, that the first defendant who is the owner, has not filed any written statement. But, in spite of the same, she was examined as D.W.1, and her evidence had been accepted. The argument is, any evidence that is not covered by necessary pleading, should not be accepted. Since the first defendant has not filed any written statement, her evidence has to be eschewed. I do not think there is any merit in this contention. Defendants 1 and 2 who are the owners of the property have already alienated the property in favour of 3rd defendant. Third defendant has filed a written statement, and the purpose of examination of 1st defendant was only to support the case of the third defendant. I do not think there is any merit in this contention. Defendants 1 and 2 who are the owners of the property have already alienated the property in favour of 3rd defendant. Third defendant has filed a written statement, and the purpose of examination of 1st defendant was only to support the case of the third defendant. 1st defendant by herself is not claiming any relief in the suit since she has already parted with her right over the property. Again, under S. 55 of the Transfer of Property Act, there is an obligation on the part of the seller to support the title of the purchaser. It is only for that purpose, the first defendant is examined. The question of pleading will arise only if the party claims relief in the suit. Again, third defendant is legally entitled to adduce any evidence and even an ex parte defendant could be examined to support the case. The argument is without arty basis. Question Nos. 1 and 2 are, therefore, found against the appellant. 8. Question No. 3 is regarding the evidence of P.W.1, the father of the plaintiff, who also happened to be the Power of Attorney. In a suit for specific performance, readiness and willingness is to be proved by plaintiff. How far the plaintiff is ready to take the sale deed is a matter which requires better proof. P.W.1 does not say anything about the readiness and willingness to take the sale deed, even though there is an averment in the plaint about it. When the plaintiff has not spoken about his readiness, the non-examination is fatal to the suit. Further, this is not a case where the plaintiff is unable to adduce evidence. Even though he is a crippled or physically handicapped, P.W.1 himself has admitted that he is doing business, and that he is in a position to talk freely, and he is also able to manage himself. Further, P.W.1 admitted while he was in the box that he will examine the plaintiff on commission. Thereafter, plaintiff was not examined. The readiness and willingness in a suit for specific performance is a mental state and the best person to speak about that mental state is the person who wants specific performance. The defendant also will have an opportunity to cross-examine the plaintiff. Thereafter, plaintiff was not examined. The readiness and willingness in a suit for specific performance is a mental state and the best person to speak about that mental state is the person who wants specific performance. The defendant also will have an opportunity to cross-examine the plaintiff. It is true that in civil cases, decisions are taken on the basis of probabilities. If better evidence is available, perhaps the non-examination of the plaintiff may not be a ground to dismiss the suit. But, as found by the Courts below, the evidence is vague and could not be believed. In that way, the non-examination of the plaintiff is fatal. Question No. 3 is also found against the appellant. 9. Learned counsel for the appellant also submitted that originally the suit was decreed ex parte, and, on the application of the defendant, the same was set aside. It is his case that setting aside an ex parte decree was improper, for the reason that the person who filed the affidavit was not the person affected by the decision. Learned counsel submitted that even though the setting aside ex parte decree was not challenged, in filing the Appeal or Revision, the same could be attacked when a decree is passed in the case. Learned counsel submitted that the setting aside ex parte decree has affected the merits of the case, and even if the case has not been challenged earlier, the same could be taken as a ground of appeal herein. 10. On going through the memorandum of appeal and questions of law, I do not think such question was ever raised by the appellant either before the trial Court or in first appeal or before this Court. But, in spite of the same, being a question of law, I heard the learned counsel. 11. Section 105 of the Code of Civil Procedure reads thus: — “(1) 105. Other orders — (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter he precluded from disputing its correctness.” 12. In order to apply the provisions of Sec. 105, C.P.C., the applicant has to satisfy the Court that the proceedings under Order 9 Rule 13, C.P.C. and the order passed therein was an interlocutory order. If the order is final, the same could not be a ground of Appeal under Sec. 105, C.P.C. 13. In order to determine whether a particular order was interlocutory order or not, one has to see whether the order terminates the proceedings. If the order terminates the proceedings, then it becomes a final order. Otherwise, it remains to be an interlocutory order. If it is only an interlocutory order, the correctness of the same can be challenged in an appeal filed against the final order. It was so held in the decision reported in 1994 (2) ALT 411 (N. Subba Rao v. V. Sankara Sastry). The question whether an ex parte decree is liable to be set aside or not is a proceeding under O. 9 R. 13, C.P.C. It has no connection with the suit. The merits of the case are not considered. It is an independent proceeding, though it is filed as an interlocutory application to have the decree set aside. If the decree is set aside, that proceeding comes to an end, and thereafter it will have no connection with the decision of the case. Likewise, if the application is dismissed, then also, the same will not affect the decision of the case already rendered. By no stretch of imagination, an order under O. 9, R. 13, C.P.C. can be said as an interlocutory order in suit which affects the merits of the decision of the case. That apart, the decisions of the Courts are also mentioned in this regard. 14. In an earlier decision of the Bombay High Court reported in A.I.R. 1927 Bombay 455 (Dhondu Narayan v. Vaman Govind), their lordships held that ‘An order setting aside an ex parte decree cannot be challenged in an appeal from decree passed ultimately in the suit, as an erroneous order accepting an application to set aside an ex parte decree does not affect the decision on its merits’. 15. 15. A Full Bench of the Allahabad High Court in the decision reported in AIR 1931 Allahabad 294 (Full Bench) (Radha Mohan Datt v. Abbas Ali Biswass & others), held thus: — “Under S. 105 (1) the propriety of the order setting aside an ex parte decree cannot be set forth as a ground of objection in the memorandum of appeal from the decree ultimately passed in the suit, but any error, defect or irregularity in the said order affecting the decision of the case on merits may be set forth.” Further down, their lordships have held thus: — “The word ‘affect’ predicates that the error, defect or irregularity in the order has influenced the conclusion in such a way that an unjust result has been arrived at in the decision of the case on the merits and therefore the words “affecting the decision of the case” mean affecting the decision of the case on merits.” “An appeal against an order is not the same thing as advancing a ground of appeal about error, defect or irregularity in the said order.” 16. In AIR 1946 Madras 344 = 59 L.W. 139 (Venkata Narasimhan v. Nagojirao), the question arose under O. 21, read with S. 47, C.P.C., and it was held thus: — “Where the effect of the order is to prevent an enquiry into merits such an order would come within the scope of S. 105 as affecting the case on merits but where the orders do not affect the decision of the case on merits such orders would not come within the scope “of S. 105. An order setting aside the dismissal of an application to set aside sale for default cannot be questioned in the appeal against the final order, as it only reopens an enquiry and does not affect the decision of the case.” At that time, an order passed under O. 21, R. 47, C.P.C. was appealable. While considering the scope of Sec. 105, C.P.C., our High Court held as extracted above. 17. Similar is the case of another Division Bench judgment of the Allahabad High Court in A.I.R. 1962 Allahabad 107 (Malti Devi v. Hublal and others) wherein their lordships took the same view. 18. While considering the scope of Sec. 105, C.P.C., our High Court held as extracted above. 17. Similar is the case of another Division Bench judgment of the Allahabad High Court in A.I.R. 1962 Allahabad 107 (Malti Devi v. Hublal and others) wherein their lordships took the same view. 18. In view of this legal position, the contention of the learned counsel that he can challenge the order setting aside the ex parte decree when he has filed an appeal against the main decree be accepted 19. All the questions of law are, therefore, found against the appellant. 20. In the result, the second Appeals are dismissed with costs.