GOPALA GOWDA, J. ( 1 ) RESPONDENT No. 1 though served has remained unrepresented. Service on 2nd respondent is held sufficient. ( 2 ) THE appellants are the Legal Representatives of the deceased Plaintiff and respondents were the defendants in thetrial Court. For the sake of convenience the parties are referred to as per their rank in the Trial Court. ( 3 ) THE plaintiff filed the suit in O. S. No. 66/81 for specific performance of the agreement dated 22. 1. 1980 executed by defendants 1 and 2 in respect of the suit Schedule property or for refund of the advance amount-paid, (the deceased plaintiff is herein after referred to as plaintiff ). The agreement for sale contained certain terms and conditions. However, the suit schedule property was sold in favour of the 3rd defendant on 6. 4. 1981. Hence the plaintiff filed the suit. The defendants resisted the suit. Defendants 2 and 3 filed written statement and the same was adopted by the first defendant. Defendants contended that plaintiff had consented of sale of the suit schedule property in favour of the 3rd defendant. It was contended that the plaintiff is not entitled for the relief as he failed to perform his part of the contract. Defendants prayed for dismissal of the suit. On the basis of the pleadings, the Trial Court framed issues. Both the parties led evidence by examining witnesses and producing documents. On appreciation of the material evidence on record, the Trial Court by its judgment dated 26. 10. 1984 decreed the suit directing defendants 1 and 2 to execute sale deed in favour of the plaintiff pursuant to the agreement dated 22. 1. 1980. A direction was issued to 3rd defendant to join defendants 1 and 2 in the execution of the sale deed. Aggrieved by the same, the 3rd defendant filed appeal in R. A. No. 153/89. During the pendency of the said appeal, the 3rd defendant sold the suit schedule property in favour of 4th respondent and hence she was impleaded in the appeal. Upon consideration of the appeal the first-appellate Court by its judgment dated 9. 10,1998 allowed the appeal and modified the judgment and decree of the Trial Court directing the first defendant to refund the amount of Rs. 14. G46/- with interest to the deceased plaintiff aggrieved by the same, this second appeal is filed by the deceased plaintiff. Upon consideration of the appeal the first-appellate Court by its judgment dated 9. 10,1998 allowed the appeal and modified the judgment and decree of the Trial Court directing the first defendant to refund the amount of Rs. 14. G46/- with interest to the deceased plaintiff aggrieved by the same, this second appeal is filed by the deceased plaintiff. ( 4 ) THIS appeal was admitted to consider the following substantial questions of law:- (a) Whether the lower appellate Tribunal was justified in setting aside the judgment and decree of the Trial Court in the absence of an appeal being filed by Defendant No. 1 who is the owner of the suit schedule property? (b) Whether the lower appellate Court was justified in allowing the appeal filed by defendant No. 3 who had lost his interest in the suit schedule property as he had sold the same to the respondent no. 4 during the pendency of the appeal? ( 5 ) DURING the course of arguments, the following substantial question of law was framed for consideration:- whether the judgment and decree of the first appellate Court modifying the judgment and decree of the Trial Court is based on legal evidence? ( 6 ) DURING the pendency of this appeal, the plaintiff died and his legal representatives - came on record to prosecute the appeal. ( 7 ) HEARD the learned Counsel for the parties and perused the judgments and decrees of the Courts below and answer the first substantial question of law No-1 with reference to the rival contentions urged on behalf of the parties. ( 8 ) THE contention of Mr. K. N, Patii, learned Counsel for defendants 3 and 4 is that his clients being bone fide purchasers of the property, their interest shall be protected cannot be accepted. The 3rd defendant purchased the property without the consent of the plaintiff is the finding of the Trial Court in answer to the contentions issue. The 4th respondent in turn purchased the same from 3rd defendant when these proceedings are pending before the first appellate Court. She ought not to have purchased the property when the matter is subjudice. She has stepped into the shoes of 3rd defendant pendente lite and he cannot seek equity in this Appeal. The 4th respondent in turn purchased the same from 3rd defendant when these proceedings are pending before the first appellate Court. She ought not to have purchased the property when the matter is subjudice. She has stepped into the shoes of 3rd defendant pendente lite and he cannot seek equity in this Appeal. She is bound by the result of the litigation as held by the Privy council in PARMESHARI DIN vs RAM CHARAN and AIR 1957 bombay 117. ( 9 ) FURTHER, in view of the law laid down by this Court in the case reported in AIR 1963 Mys 127, the Appeal filed by the defendant no. 3 is maintainable as he was the purchaser of the property notwithstanding appeal not filed by the fourth respondent. This view is supported by the judgments of Allahabad High Court in the case reported in AIR 1976 ALL 121. ( 10 ) THE execution of Ex. P-4 agreement of sale dated 22-1-1980 by defendants 1 and 2 in favour of the plaintiff in respect of the suit schedule property is not in dispute. The defence of the defendants is that as per the term and condition of agreement of sale time was the essence of the contract and plaintiff failed to perform his part of the obligation. The sale consideration was Rs. 25,000/ -. Plaintiff paid an advance of Rs. 1,000/ -. As per the terms of the agreement, defendants 1 and 2 should obtain permission for the sale of the property from the competent Authority under the repealed Urban Land (Ceiling and Regulation) Act, 1976 - and inform the plaintiff. Thereafter the sale deed was to be executed by them within a month. Such permission was obtained by the defendants 1 and 2 under ex. P-3 dated 8-4-1980 and the first defendant informed this to the plaintiff under Ex. P-13 dated 24-6-1980. From that date, the sale deed was to be executed within a month provided the plaintiff performed his part of contract, namely, payment of balance sale consideration amount to the defendants 1 and 2. Much correspondence took place between the plaintiff and the defendants 1 and 2. Though the first defendant issued notice calling upon the plaintiff to get the sale deed registered, in his favour there was no resistance to the contrary. Plaintiff in all paid a sum of Rs. Much correspondence took place between the plaintiff and the defendants 1 and 2. Though the first defendant issued notice calling upon the plaintiff to get the sale deed registered, in his favour there was no resistance to the contrary. Plaintiff in all paid a sum of Rs. 15,000/- on different dates towards the sale consideration amount of the suit schedule property and the same was accepted by the first defendant. Considering all these factors, the Trial Court has held that the contract was kept alive till 6. 4. 1981. ( 11 ) CONSIDERING elaborately the material placed on record by the parties, the Trial Court held that defendants 1 and 2 committed breach of contract. It was also held that consent of the plaintiff was not obtained as required in law for sale of the suit schedule property by the defendants 1 and 2 having regard to the fact that plaintiff has been in possession of the suit schedule property as a tenant and there was an agreement of sale in his favour in favour of 3rd defendant. But the first appellate Court has reversed the judgment and Decree in the Regular Appeal filed by defendant No. 3 after setting aside the findings of the Trial Court by assigning its own reasons. The first Appellate Court has noted in paragraph 23 of its judgment that the father of first defendant was examined as DW-1 on behalf of the defendants before the Trial Court. It was rightly held that much value cannot be attached to his evidence, as he was not a party to the agreement however, the first appellate Court has failed to draw adverse inference against the defendants for not having entered the witness box to prove their case. Hence, the findings of the first appellate Court are contrary to the law laid down by the Apex Court in the cases reported in A. I. R 1999 SC 1441 and 1341. ( 12 ) IT is well settled principle of law that time is not the essence of contract in respect of sale of immovable property. This position of law is clearly enunciated by the Apex Court in the decisions reported in 200 (6) SCC 420, 2001 SAR (Civil) 48 and A. I. R 1977 SC 1005. ( 12 ) IT is well settled principle of law that time is not the essence of contract in respect of sale of immovable property. This position of law is clearly enunciated by the Apex Court in the decisions reported in 200 (6) SCC 420, 2001 SAR (Civil) 48 and A. I. R 1977 SC 1005. The plaintiff has categorically averred in the pleadings and adduced evidence to show that he was ready and willing to perform his part of the contract for sale of the suit schedule property in his favour. He paid a sum of Rs. 7000/ to the first defendant on 13. 3. 1981 as per the document Ex. P49, on 16. 8. 1980 Rs. 2000/- and on 4. 10. 1980 rs. 3,000/- and on 4. 4. 1981 DW-1 told the plaintiff to keep the balance amount ready and that first defendant will come on 6. 4. 1981 for completing the sale. It is pertinent to note that in paragraph 5 of the deposition, D. W. 1 has admitted as under:-"the plaintiff told me to call the deft-1 from Bombay to be present on 6-4-1981. Accordingly I sent a telegram to the deft-1. I sent words to the plaintiff about the arrival of the deft-1 to belgaum. On 6-4-81 the deft-1 and deft-2 went - to the studio of plaintiff. At that time the plaintiff had kept ready the amount of rs. 2,000/- only and told that the balance will be taken from the shop of his uncle". From the above evidence of DW. 1 it is clear that plaintiff proved that he was ready and willing to perform his part of the contract to get the sale deed executed and registered in his favour in respect of the suit schedule property. Without cancelling the agreement executed in favour of the plaintiff, the defendants 1 and 2 have proceeded to execute and registered the sale deed in favour of 3rd defendant on 6-4-1981 as per Ex. P. 57 in respect of the suit schedule property without obtaining consent of the plaintiff as required under section 19 (b) of the Specific Relief Act. From the above said findings it is Clear that the defendants 1 and 2 have pre-determined to sell the suit schedule property in favour of 3rd defendant and they have even fixed the sale consideration amount after mutual deliberations prior to 6. 4. 1981. From the above said findings it is Clear that the defendants 1 and 2 have pre-determined to sell the suit schedule property in favour of 3rd defendant and they have even fixed the sale consideration amount after mutual deliberations prior to 6. 4. 1981. Such being the factual position, it has to be inferred that defendants 1 and 2 were not willing to perform their part of the contract on 6. 4. 1981, the day fixed for the said purpose. Though dw-1 stated that after the plaintiff pleaded his inability to mobilize the entire consideration amount, his consent was taken by 3rd defendant and the sale deed was executed in his favour. The admitted facts prove collusion of the defendants 1 and 2 with the defendant No. 3 to deprive the suit schedule property to be sold and sale deed to be executed in favour of the deceased plaintiff pursuant to the sale agreement. It is a theory set-up by defendants 1 and 2 to over-corne the lapse on their part. That is the reason for the first defendant to write the registered letter to the plaintiff on 8. 4. 1981 making allegations against him. It is a theory set-up by defendants 1 and 2 to over-corne the lapse on their part. That is the reason for the first defendant to write the registered letter to the plaintiff on 8. 4. 1981 making allegations against him. Hence, it has to be held that defendants 1 and 2 failed to perform their part of the contract to execute and Register the sale deed in favour of the plaintiff in respect of the suit schedule property and therefore the Trial Court has rightly appreciated the evidence on record properly and recorded its findings on all the contentious issues in favour of the plaintiff and granted the reliefs as prayed for by him, the said findings are in conformity with the law laid down by the Apex Court referred to supra and therefore the first Appellate Court was not right in setting aside the findings of the Trial Court recorded on the contentious issues in answer to the points formulated by it without proper appreciation of evidence on record and keeping in view the law laid down by the apex Court on the contentious issues it has wrongly held at para 34 in its judgment in answer to point No-2 holding that it has answered issues 3, 4 and 7 in the negative, the consideration of issues 5 and 6 do not arise because it has started the discussions stating that the settled proposition of law that the plaintiff cannot fall upon the weakness of the case of the defendants and held that said issues do not survive for consideration and therefore it has reversed the findings of the Trial Court on the said issues, which findings are not only vitiated on account of erroneous findings but also suffers from error in law. Therefore the judgment and decree of the first appellate court warrants interference. ( 13 ) THE finding of fact recorded by the Trial Court on the relevant contentious issues that the property had been sold in favour of 3rd defendant on 6-4-1981 and the registered letter dated 8-4-1981 written by the first defendant to the plaintiff would clearly indicate that the first defendant executed the sale deed in favour of the 3rd defendant and thereafter wrote the registered letter to the plaintiff. Nothing prevented defendants 1 and 2 to return the amount received from the plaintiff on 6-4-1981 itself when they received sale consideration amount from 3rd defendant and executed the sale deed. If the plaintiff had consented for the execution of sale deed in favour of 3rd defendant nothing prevented to obtain his consent witness to the sale deed. Defendants 1 and 2 have not done this. Two days after the registration of sale deed in favour of 3rd defendant, the first defendant wrote registered letter to the plaintiff. The above said undisputed facts upon which the findings recorded by the Trial Court would show that defendants 1 and 2 adopted dubious method to perform their part of the contract under the agreement of sale. The first appellate Court failed to take note the conduct of the defendants in answer to the points and it has miserably failed to consider and appreciate the evidence on record and the findings recorded by the trial Court are supported with valid and cogent reasons. From the said findings it would go to show that the first defendant never gave importance to the time fixed for completing the transaction. On several occasions he accepted the amounts paid by the plaintiff. The payment of amounts by plaintiff from time to time and acceptance of the same by defendants 1 and 2 implies that plaintiff was ready and willing to perform his part of the contract by virtue of payment of substantial portion of sale consideration. On the other hand the conduct of defendant 1 and 2 proved that they were not ready and willing to perform their part of the contract. ( 14 ) DURING the pendency of the appeal the property in question was sold by the 3rd Defendant in favour of the 4th respondent herein, which amounts to Lis-pendency and opposed to Section 52 of the transfer of Property Act. The first appellate Court wrongly recorded a finding on fact on reappreciation of facts and evidence on record at paragraph 37 of its judgment rejecting the contention of the plaintiff holding that sale of the property does not affect his right. The same is untenable in law. The first appellate Court wrongly recorded a finding on fact on reappreciation of facts and evidence on record at paragraph 37 of its judgment rejecting the contention of the plaintiff holding that sale of the property does not affect his right. The same is untenable in law. Eventhough the first respondent is not transposed as one of the appellants nor he filed Regular Appeal, since there is transfer of property in favour of the 4th respondent, she had interest in it and had right to question the findings of the Trial Court under order 41 Rule 33 C. P. C. Inspite of the fact that there not being an appeal filed by 4th respondent, her interest could have been defended in the case. Hence the second substantial question of law does not arise; the right of 4th respondent to defend her case is not lost before the first appellate Court. Since the sale of the property is during the pendency of the Regular Appeal it is hit by Section 52 of t. P. Act, this important aspect of the case has not been considered by the first Appellate Court. Hence, the findings of the first appellate court are set aside. Hence, the additional substantial question of law framed during the course of arguments is answered in the negative. ( 15 ) FOR the foregoing reasons the substantial question of law No. 1 would not arise in this Appeal but the second substantial question of law would arise and the same is answered in favour of the deceased plaintiff. ( 16 ) IN the result, the appeal is allowed. The judgment and decree of the first appellate Court are set aside. The judgment and decree of the Trial Court are restored with the modification that defendant no. 1 to 3 and respondent No. 4 in this Appeal shall execute the sale deed jointly in favour of the LRs. of the deceased plaintiff who are the Appellants herein within forty days of receipt of a copy of this judgment after receiving the balance sale consideration amount, failing which the Trial Court shall appoint the Court Commissioner to see that the sale deed is executed and registered in favour of the lrs of the deceased plaintiff who are the Appellants herein. --- *** --- .