Judgment :- P. SHANMUGAM, J. 1. Plaintiff is the appellant. The suit was filed for specific performance of an agreement for sale dated 27.5.1978 (Ex.A.1). The suit was dismissed by the Sub-court and the appeal is against this judgment and decree. 2. The facts of the case are as follows: The plaintiff entered into an agreement for sale with the first defendant for the purchase of an extent of 38 cents of land with a building on 27.5.1978 for Rs. 6,00,000/-, with the payment of advance of Rs. 1,00,000/-. The sale was to be completed by 30.6.1979. A further total sum of Rs. 67,700/- was paid on nine different occasions with endorsements made ‘from June, 1978 to June, 1979’. The agreement itself provided for discharge of the liabilities of the vendors, which was estimated to be Rs. 3,50,00 0/-. While the plaintiff was always ready and willing to perform his part of the contract, the first defendant was seeking for extension of time and thereafter, when he repudiated the agreement, the above suit was filed, preceded by a suit notice. In the plaint, the appellant further pleaded that the time for performance of the contract was extended by correspondence upto 31.3.1980, though the plaintiff was ready to perform his part of the contract. On 29.3.1980, it was found that the first defendant was not ready and wanted a further extension of time till 30.6.1980 and also suggested, for the first time, that the plaintiff need not press the agreement. Thereafter, the plaintiff gave a notice dated 30.5.1980 calling upon the first defendant to give the exact amount due to his creditors so that the sum may be discharged directly. The first defendant replied that the contract had come to an end by 31.3.1980 and that he was free to sell the property to anyone. Contending that the first defendant had committed breach of the agreement by his letter dated 5.6.1980 and that he was trying to negotiate with third parties for selling the property, the plaintiff filed the above suit for specific performance by impleading the creditors listed in the agreement so that they can receive the payment of their dues. 3. The first defendant, in his written statement, denied even the existence of the agreement itself, but admitted that they were indebted to defendants 2 to 10. 3. The first defendant, in his written statement, denied even the existence of the agreement itself, but admitted that they were indebted to defendants 2 to 10. According to the first defendant, there was a prior sale agreement with one P.S. Subramaniam and the agreement was executed only for the purpose of borrowing money from time to time from the said P.S. Subramaniam. The agreement was not intended to be acted upon. It was only on this account that the agreement provided for refund of amounts received with interest at 15% in case of default and it does not provide for specific performance. The plaintiff was aware of the suits and execution proceedings filed and initiated by several creditors and several payments after the agreements were all made for the specific performance and for averting execution of sales brought in at the instance of defendants 1 to 5. Plaintiff did not make any attempt to offer the amount directly to the first defendant as he was not possessed of sufficient funds. According to him, the plaintiff had agreed to cancel the contract and to receive a solatium and therefore, he cannot take advantage of the conditional offer of extension of time contained in the letter of the first defendant. The plaintiff had kept quiet and took no steps against the proceedings initiated to bring the property for sale. It is further pleaded that it is only because of the failure of the plaintiff to pay to the creditors the amount mentioned in the agreement, he has been put to loss. It was pleaded that even assuming that the agreement was in law, a valid agreement to sell, having regard to the following facts, namely that — (i) the plaintiff was never in a position to perform the contract and was not ready and willing to perform it and made no offer of performance within the stipulated period; (ii) the property has greatly risen in value subsequently; (iii) the first defendant has been put to loss by the plaintiffs non-performance; (iv) the plaintiff has been guilty of gross laches; (v) the agreement itself provides only for the return of advance with interest; and The plaintiff will not be entitled in law or equity to the discretionary relief of specific performance. The defendant was prepared to refund the entire loss of Rs. 1,67,700/- without enforcing the forfeiture clause. 4. The defendant was prepared to refund the entire loss of Rs. 1,67,700/- without enforcing the forfeiture clause. 4. The seventh defendant, who is one of the creditors of the first defendant company, filed a written statement saying that they had to recover a sum of Rs. 31,736.38 from the first defendant and therefore, they instituted the suit O.S. No. 352 of 1977 in the Subcourt, Coimbatore. The suit was decreed on 7.7.1981. The suit property was attached in I.A. No. 575 of 1977 with effect from 27.4.1977. According to him, the alleged agreement dated 27.5.1978 is subsequent to the attachment and his rights cannot be defeated by the alleged agreement. The Coimbatore City Municipal Corporation, the tenth defendant, filed a written statement stating that the purchaser is bound to pay the taxes due to them. The eleventh defendant, who was impleaded subsequently and who was a court auction purchaser of the suit property, raised similar pleas as that of the first defendant, besides pleading that the suit agreement is hit by the doctrine of lis pendens since the plaintiff was aware of the sale of the property in court auction in O.S. No. 421 of 1976, a suit on mortgage. The property was under attachment on 7.5.1978, even prior to the alleged agreement and therefore, the agreement is unenforceable, invalid and not binding on the defendants. The eleventh defendant purchased the property in court auction on 26.8.1981 for Rs. 7,52,000/- and therefore, the purchaser under the mortgage decree will not be affected by the agreement at all. 5. A reply statement was filed by the plaintiff denying the allegation that the plaintiff had purchased the property from P.S. Subramaniam and he denied any such arrangement between P.S. Subramaniam and himself. He denied the lack of funds with him and also the further agreement to receive the solatium. It is specifically pleaded that the first defendant had induced the sixth defendant to execute his decree by bringing the property to sale and colluded with him to keep the auction a secret. The sixth defendant was advised to evade service of summons in the suit and proceed with the auction on 29.8.1981 and the first defendant arranged for the auction sale in favour of one P.K. Unni, a close friend of the first defendant. The sixth defendant was advised to evade service of summons in the suit and proceed with the auction on 29.8.1981 and the first defendant arranged for the auction sale in favour of one P.K. Unni, a close friend of the first defendant. Accidentally coming to know of the sale, he filed E.A. No. 970 of 1981 in E.P.R. No. 89 of 1980 in O.S. No. 429 of 1977 to set aside the sale after depositing a sum of Rs. 84,745/-, being the decree amount and 5% solatium to the auction purchaser. The said application was opposed not only by the decree holder, but also by the first defendant, all of them having conspired to sabotage the present suit. He also pleaded that the first defendant had induced the second defendant to execute his decree by bringing the property to sale and the copy of the written statement was given to the plaintiffs advocate only at the hearing on 25.8.1981 and it was then too late to communicate to the plaintiff to arrange for stoppage of the sale which was to be held on the next day. Again, it was the same P.K. Unni who also bid at this sale at the instance of the first defendant. Plaintiff had filed E.A. No. 2058 of 1981 in E.P.R. No. 189 of 1981 in O.S. No. 85 of 1978 under Order 21, Rule 89, C.P.C. to set aside the sale after depositing Rs. 1,33,343/- to cover the decree amount and 5% solatium to the purchaser. This petition was also opposed by the first defendant. He pleaded that this amount should go in reduction of the sale price in the suit. 6. It is seen that E.A. No. 2058 of 1981 was dismissed by the execution court by order dated 7.5.1981 holding that the agreement holder has no locus standi, and in any event, it was hit by lis pendens. It was also held that the deposit was made beyond 30 days as provided for under Order 21, Rule 92, C.P.C. and hence, the application was filed out of time and therefore, was not maintainable. The plaintiff filed an appeal before this Court in C.M.A. No. 421 of 1983 against the order of the execution court. It was also held that the deposit was made beyond 30 days as provided for under Order 21, Rule 92, C.P.C. and hence, the application was filed out of time and therefore, was not maintainable. The plaintiff filed an appeal before this Court in C.M.A. No. 421 of 1983 against the order of the execution court. By a judgment dated 13.6.1984,(See: Nirmala Industries, Uthagamandalam v. Srinivasa Perumal Financing Corporation (1987) 100 L.W. 225) the Division Bench held that the plaintiff, agreement holder, has locus standi to maintain the execution application and that the sale agreement entered into pending the mortgage suit will not deprive the applicant of the right for setting aside the sale. However, on the question of limitation, the matter was referred to a Full Bench. Thereafter, in the light of the decision of the Supreme Court in Basavantappa v. Gangadhar Narayan Dharwadkar & Another (A.I.R. 1987 S.C. 53) holding that 60 days period under Article 127 of the Limitation Act would prevail over 30 days mentioned in Order 21, Rule 92, C.P.C. for maintaining the deposit under Rule 89, the C.M.A. was allowed (reported in 1987 {II} M.L.J. 3 = 100 L.W. 225) and the execution of the sale was set aside. The Bench held that points numbers 1 and 2 had already been held in favour of the appellant herein and in view of the decision of the Supreme Court, the third point is also held in favour of the appellant. Consequently, the amount deposited by the appellant in the executing court was accepted and the sale was ordered to be set aside. The request for leave to appeal was dismissed stating that since the decision on all the three points rests with the provisions contained in the C.P.C. and the Limitation Act, no question of legal importance requires to be decided by the Supreme Court. As against this judgment, the eleventh defendant, auction purchaser, filed S.L.P. No. 4050 of 1987. By an order dated 22.9.1988, the Supreme Court issued the notice only on the question confined to the period of limitation within which the money was to be deposited and the application for setting aside the sale was to be filed. As against this judgment, the eleventh defendant, auction purchaser, filed S.L.P. No. 4050 of 1987. By an order dated 22.9.1988, the Supreme Court issued the notice only on the question confined to the period of limitation within which the money was to be deposited and the application for setting aside the sale was to be filed. By a judgment dated 20.2.1980 [ 1990 (2) S.C.C. 378 (See: Unni, P.K. v. Nirmala Industries 1990 1 L.W. 364 (S.C.)], the Honourable Supreme Court held that under Order 21, Rule 92, C.P.C, the deposit had to be made within 30 days though the period of limitation for filing the application under Order 21, Rule 89, C.P.C. would be 60 days under Article 127 of the Limitation Act. The Supreme Court expressly over-ruled the judgment in Basavantappas case (A.I.R. 1987 53) and with the result, on the question of limitation, the judgment of the High Court was set aside and the appeal was allowed to that extent. Consequently, the plaintiffs application under Order 21, Rule 89, C.P.C. was dismissed. The plaintiff thereafter filed an application E.A. No. 1000 of 1990 under Order 39, Rule 5, C.P.C. before the Subcourt in the mortgage suit requesting the deposit already made to be taken note of. The E.A. was dismissed on 30.4.1981 as barred by time and res judicata. 7. With the above facts pleaded, the parties went for a trial. The first defendant, though filed a written statement, remained ex parte. The second defendant pleaded that he is not a necessary party, but is entitled for the mortgage amount from the court auction sale. Defendants 3, 4, 8 and 9 remained ex parte. Defendants 5 to 7, creditors, were exonerated on payment. The the tenth defendant namely the Coimbatore City Municipal Corporation claimed charge for tax arrears against the plaintiff on his purchase. The eleventh defendant, court auction purchaser, alone resisted the suit for specific performance and possession. 8. The learned Subordinate Judge framed six issues and the plaintiff/appellant was permitted to mark 38 documents, Exs.A.1 to A.38 and examine P.Ws. 1, 2 and 3. On behalf of the defendants, three orders of the Honourable Supreme Court were marked and none examined on the side of the defendants. The learned Judge, after considering the matter in detail, held that the sale agreement is true and valid and found that the advance of Rs. 1, 2 and 3. On behalf of the defendants, three orders of the Honourable Supreme Court were marked and none examined on the side of the defendants. The learned Judge, after considering the matter in detail, held that the sale agreement is true and valid and found that the advance of Rs. 1,00,000/- and a further payment of Rs. 67,700/-had been made as per the admitted endorsements. He has also found that the appellant had means and had been ready and willing to perform his part of the contract and that the suit is not bad for non-joinder of parties. However, the learned Judge chose to dismiss the suit on the ground that the default clause in the sale agreement for refund of the advance with interest will bar specific relief. He also held that the suit agreement will not bind the eleventh defendant, auction purchaser, since the court sale will relate back to the date of mortgage and inasmuch as the court auction sale has been confirmed by the Supreme Court, the appellant cannot claim specific performance against the eleventh defendant and consequently dismissed the suit with a direction to refund a sum of Rs. 1,67,700/- with 12% interest. 9. In the appeal, Mr. T.R. Mani, learned senior counsel appearing on behalf of the appellant assailed the judgment of the court below and the reasoning contained thereunder for having found all the issues in favour of the plaintiff and refusing the relief on unsound reasoning. According to him, the eleventh defendant, who had purchased the property during the pendency of the present suit, must yield to the right of the appellant to get specific performance of the agreement. The court auction sale in favour of the eleventh defendant squarely falls under Section 52 of the Transfer of Property Act and therefore, his rights are subordinate to the rights available to the appellant under Ex.A.1. The findings of the Division Bench of this court in C.M.A. No. 421 of 1983 that the court auction sale would be affected by lis pendens is binding on the parties. He further pleaded that the suit to enforce the mortgage is only a suit for money and the question of bringing the hypotheca would arise only if the mortgagor fails to pay the money as directed in the preliminary decree. He further pleaded that the suit to enforce the mortgage is only a suit for money and the question of bringing the hypotheca would arise only if the mortgagor fails to pay the money as directed in the preliminary decree. According to him, the Supreme Court set aside the judgment of the High Court only on the limited question of limitation and the appeal was allowed to that extent only and therefore, the auction purchasers right is subject to the rights of the appellant as per the agreement of sale and prayed for a decree. 10. Mr. G. Subramaniam, learned senior counsel arguing on behalf of the eleventh respondent submitted that the appellant had full knowledge of the encumbrance over the property and therefore, the agreement Ex.A.1 is ex facie void agreement and is hit by lis pendens. According to him, the appellant has not come to the court with clean hands and therefore, he is not entitled for equitable relief. The efficacy of the judgment of the Division Bench was set aside and the finality had been reached and therefore, the findings cannot be of any assistance to the appellant. He submits that the preexisting mortgage rights are protected and have an over-riding effect. 11. We have heard the counsel in extenso and considered the matter carefully. 12. The fact that the appellant had entered into a sale agreement with the first respondent in relation to the suit property of an extent of 38 cents of land at Dr. Nanjappa Road, Coimbatore for a sale consideration of Rs. 6,00,000/- cannot be in dispute. The further fact that the appellant had paid a sum of Rs. 1,00,000/- as advance and a further sum of Rs. 67,700/- on various dates as per the endorsement towards the sale consideration also cannot be in dispute. The sale was to be completed by 30.6.1979. The first respondent, by his communications Exs.A.11, A.12 and A.13, had requested for extension of time upto 31.3.1980, which is also not disputed. The appellant had examined himself and marked documents in support of his case that he is entitled for a decree of specific performance of the agreement for sale. There is no contra evidence and none have been examined in opposition to the evidence on behalf of the appellant. The appellant had examined himself and marked documents in support of his case that he is entitled for a decree of specific performance of the agreement for sale. There is no contra evidence and none have been examined in opposition to the evidence on behalf of the appellant. The trial court, after considering these documents, found that the sale agreement is true, valid and not incohate and that a sum of Rs. 1,00,000/- had been advanced on the date of the agreement and that a further sum of Rs. 67,700/-has also been paid from time to time on the account of the vendor to meet his pressing liabilities and that the appellant was, at all material times, ready and willing to perform his part of the contract and that the appellant had the necessary means and resources to fulfill his part of the contract as specifically raised by the appellant in his grounds of appeal, which is not controverted. Excepting the eleventh respondent, there is no appearance on behalf of the remaining respondents. 13. The agreement, Ex.A.1 itself provides that out of the balance sale consideration namely Rs. 5,00,000/-, the appellant shall pay and discharge the liabilities of the vendors, namely the parties set out in the agreement, amounting to Rs. 3,50,000/-. The fact that the appellant had paid several amounts on various dates subsequently amounting to Rs. 67,700/- for which endorsements were made in Ex.A.1 agreement is conceded. Therefore, the trial court, having found so, has declined to grant the relief on the ground that the default clause in the sale agreement will bar the specific relief. Having regard to the terms of the contract and other attending circumstances, the default clause providing for payment of 15% with the return of advance money is not an option given to the first respondent. As a matter of fact, this point is not seriously opposed by the learned counsel for the eleventh respondent in this appeal. The clause for repayment of advance with interest at 15% per annum was provided in case the appellant found the first respondents title defective and on the first respondent failing to convey full title free of all encumbrances and defects, whereupon the appellant is entitled for refund of the advance with interest. The clause for repayment of advance with interest at 15% per annum was provided in case the appellant found the first respondents title defective and on the first respondent failing to convey full title free of all encumbrances and defects, whereupon the appellant is entitled for refund of the advance with interest. Therefore, there is actually no default clause as against the appellant and in any event, it does not exclude the right of the appellant to seek for specific performance. Learned senior counsel for the eleventh respondent does not seriously oppose this point. 14. One of the main points raised against the appellant was that the court auction sale in favour of the eleventh defendant has been confirmed by the Supreme Court and hence, the relief sought for cannot be granted as against the eleventh defendant. The second respondent herein filed a suit O.S. No. 85 of 1978 on the file of the Subcourt, Coimbatore for enforcement of the mortgage by deposit of title deeds against the first respondent company on 23.1.1978. About four months later, the appellant entered into the suit agreement for sale. The suit for specific performance was filed in the circumstances set out above on 27.5.1978. In the meanwhile, a preliminary decree in the mortgage suit for Rs. 32,900/- was passed on 9.2.1980. The suit agreement itself provided that out of the balance sale consideration, the appellant shall pay and discharge the liabilities of the parties set out thereunder and the second respondent, plaintiff in O.S. No. 85 of 1978 was the first party therein. In the plaint itself, the appellant has stated that the creditors listed in the agreement are impleaded in the suit so that they can receive the payment of their dues from the sale price, which will be deposited into court by the appellant. It is further stated as follows: “As the plaintiff understands, some of the creditors are actually bringing the suit property for sale in execution of their decrees. The presence of the creditors in this suit has become necessary so that they may be paid their amounts due without the property being sold in execution of the pending suit.” 15. It is further stated as follows: “As the plaintiff understands, some of the creditors are actually bringing the suit property for sale in execution of their decrees. The presence of the creditors in this suit has become necessary so that they may be paid their amounts due without the property being sold in execution of the pending suit.” 15. The second respondent entered appearance in the suit and after taking time twice on 4.3.1981 and 16.4.1981 for filing written statement, when the suit was posted for 29.6.1981, filed execution petition in E.P. No. 199 of 1981 and brought the hypotheca for sale. The auction sale was held on 26.8.1981 and the eleventh respondent herein was the successful bidder therein. The execution petition stood posted to 31.10.1981 for confirmation of the sale. In the meanwhile, the appellant herein filed E.A. No. 2058 of 1981 under Order 21, Rule 89, C.P.C. for setting aside the sale on deposit. He submitted in his application that the court auction sale had been collusively brought about by the decree holder, auction purchaser and judgment debtor. The said application was dismissed by the execution court on 7.5.1983 on the ground that the appellant/agreement holder has no locus standi to file the application and that the sale agreement is vitiated by the doctrine of lis pendens and that the deposit was made beyond 30 days as required under Order 21, Rule 92, C.P.C. The appellant filed C.M.A. No. 421 of 1983 before this court and this court, in the judgment reported in 1987 (II) M.L.J. 3 = 100 L.W. 225, allowed the appeal and set aside the sale. 16. At this stage, it is necessary to refer to the decision of the Division Bench of this court. Three questions were framed for consideration before the Division Bench, which are as follows: (i) Whether an agreement for sale of the equity of redemption by a mortgagor during the pendency of a suit by the mortgagee for enforcement of the mortgage, will be hit by the doctrine of lis pendens? (ii) Whether the holder of an agreement of sale can file an application under Or. 21, R. 89, C.P.C. for setting aside the sale on deposit on the basis he is a person claiming interest in the property sold, and (iii) Whether the period of limitation for filing an application under Or. (ii) Whether the holder of an agreement of sale can file an application under Or. 21, R. 89, C.P.C. for setting aside the sale on deposit on the basis he is a person claiming interest in the property sold, and (iii) Whether the period of limitation for filing an application under Or. 21, R. 89, C.P.C. is governed by Art. 127 of the Limitation Act, or by Or. 21, R. 92(2), C.P.C.?” The Division Bench, after considering the first question elaborately, held that transfer pendente lite is not per se void or illegal, but it will not affect the rights of a party to a suit under any decree or order which may be made in the pending suit or proceeding. It was found that the appellant himself offered to redeem the mortgage of agreement of sale entered into with the mortgagor. It is only if the confirmation had taken place the court auction purchaser can plead that the agreement of sale entered into pendente lite cannot affect the rights of the court auction purchaser. After referring to a number of rulings on this question, the Division Bench held as follows: “Accordingly, we find under question No. 1 that though the contract of sale had been entered into by the appellant pendente lite, yet, he is not precluded in law either on account of the rule lis pendens or on account of the provision of Section 52 of the Transfer of Property Act, from filing an application under Or. 21, R. 89 of the Code to safeguard his interest under the agreement of sale.” On the second question whether the appellant is a person claiming interest in the property, the Division bench, after an elaborate consideration, found as follows: “On account of the preponderance of decisions in favour of the appellants contentions, R. 89 of the Code, we have no hesitation in answering the second question also in favour of the appellant.” The Division Bench, on the third question, found as follows: “In the result, while rendering our findings in questions 1 and 2 in favour of the appellant, and the third question also in a like manner, we feel constrained to refer the third question for consideration by a Full Bench, since the earlier ruling of Division Bench on this question is in conflict with our view, and in our opinion, requires reconsideration.” 17. Thereafter, the matter came up before the Division Bench, and the Division Bench, in view of the decision of the Supreme Court in Basavantappa v. Gangadhar [ 1986 (4) S.C.C. 273 ], answered the third point also in favour of the appellant and consequently, the amount deposited by the appellant was accented and the sale held on 20.8.1984 was ordered to be set aside. As against this judgment, the respondents sought leave to appeal to the Supreme Court, and the Division Bench held as follows: “Since the decision on all the three points rests on the provisions contained in the Code of Civil Procedure and Limitation Act and the reported decision cited above, there is no question of legal importance that requires to be decided by the Supreme Court. Under the circumstances, the leave prayed for is refused.” Thereafter, the Petition for Special Leave to Appeal (Civil) No. 4050 of 1987 was admitted on 22.9.1988 and the order of the Honourable Supreme Court is as follows: “ORDER: Issue notice only on the question confined to the period of limitation within which the money was to be deposited and the application for setting aside the sale was to be filed. Since in our opinion, the decision in Vasavantappa v. Gangadhar Narayan Dhorwedkar & Anr. reported in 1986 (4) S.C.C. 273 requires re-consideration, we are of the opinion that the notice be made returnable before a Bench consisting of three Honble Judges. Meanwhile the status-quo as regards the property in dispute will continue.” Civil Appeal No. 1308 of 1990 was allowed and the Honourable Supreme Court, in P.K. Unni v. Nirmala Industries (A.I.R. 1990 S.C. 933 = 1990 1 L.W. 364), held that under Order 21, Rule 92, C.P.C., deposit should be made within 30 days though the period of limitation for filing the application under Order 21, Rule 89, C.P.C. would be 60 days under Article 127 of the Limitation Act. Their Lordships expressly over-ruled the decision in Basavantappa v. Gangadhar (A.I.R. 1987 S.C. 53). Their Lordships held as follows: “On the question of limitation, the judgment of the High Court is set aside, and the appeal is allowed to that extent.” It is relevant to note that this decision has since been over-ruled by a five Judge Bench in Dadi Jagannadham v. Jammulu Ramulu (A.I.R. 2001 S.C. 2699 = 2001 3 L.W. 596). Their Lordships held as follows: “On the question of limitation, the judgment of the High Court is set aside, and the appeal is allowed to that extent.” It is relevant to note that this decision has since been over-ruled by a five Judge Bench in Dadi Jagannadham v. Jammulu Ramulu (A.I.R. 2001 S.C. 2699 = 2001 3 L.W. 596). Their Lordships held that the view expressed in P.K. Unnis case that Order 21, Rule 92(2), C.P.C. provides a period of limitation for making the deposit is not correct. 18. At this stage, the points that arise for consideration are: (i) whether the findings rendered by the Division Bench in 1987 (II) M.L.J. 3 = 100 L.W. 225 on the two questions are binding on the eleventh respondent and the question is res judicata against the respondents? and (ii) whether the right of redemption is available to the appellant or it is extinguished and whether the court sale is subject to lis pendens? 19. We are to bear in mind that excepting respondents 2, 10 and 11, the other respondents remained ex parte after filing the written statement in the trial court and before this court, they did not enter appearance at all. So also, before the Division Bench [ 1987 (II) M.L.J. 3 = 100 L.W. 225], all the three issues were considered and decided in favour of the appellant. The further leave to appeal to the Supreme Court was confined only to the question of limitation. The findings by the Division Bench were clearly and specifically in favour of the appellant. Of these three points, on the third point of limitation alone, the Supreme Court issued notice and held against the appellant. The Supreme Court has declined to entertain leave as against the remaining two points and therefore, the judgment of the Division Bench on the other two points is binding on the respondents. 20. The eleventh defendant was a party to the appeal in C.M.A. No. 421 of 1983 before this Court and the primary question involved in that case, namely, whether the agreement for sale of the equity of redemption by mortgagor during the pendency of a suit by the mortgagee for enforcement of the mortgage will be hit by the doctrine of lis pendens, was held against him and has become final. Therefore, the submission that the questions arising for consideration in this appeal have been answered by the Division Bench has much force. The contention that the finality on merits stood destroyed by the decision of the Supreme Court on the question of limitation, cannot be sustained in this case. The Supreme Court in P.M.A. Metropolitan v. Moran Mar Marthoma (A.I.R. 1995 S.C. 2001) held that the rationale behind the contention that once the decree is maintained in appeal, the finality on merits also stood destroyed, is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the Trial Court on merits stands destroyed, since rendering any adjudication on merits is impliedly unnecessary. In the same judgment, their Lordships, in paragraph 15, while elaborating the principle of res judicata, in the context of that before case them, held as follows: — “The crucial issue that had been argued was whether the direction of this Court in Moran Mar Basselios (supra) ‘that the judgment of the Kerala High Court is set aside, the decree of the trial Court dismissing the suit must be restored’, resulting in restoring the decree and not the judgment, and therefore, any finding recorded in that suit could not operate as res judicata. In Satyadhyan Ghosal v. Sm. In Satyadhyan Ghosal v. Sm. Deorajin Debi (1960) 3 SCR 590 = ( AIR 1960 SC 941 ) this Court insisted on finality in the strict sense of the term and observed as under (para 13 of AIR): “The very fact that in future litigation it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation the decision must be final in the strict sense of the term.” This was affirmed by a Constitution Bench in The Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd. , 1963 Supp (2) SCR 127 = ( AIR 1963 SC 1128 ) and it was observed (para 12 of AIR): “It is well settled that in order to decide whether a decision in an earlier litigation operates as res judicata, the Court must look at the nature of the litigation, what were the issues raised therein and what was actually decided in it is indeed true that what becomes res judicata is the “matter” which is actually decided and not the reason which leads the Court to decide the ‘matter’”. These observations are well settled and reiterate established principle laid down by the Courts for the same, sound and general purpose for which the rule of res judicata has been accepted, acted, adhered and applied, dictated by wisdom of giving finality even at the cost of absolute justice.” Applying the above dictum, it has to be held that the findings were not interfered with and therefore, they are binding on the defendants. 21. The submission on behalf of the appellant is that O.S. No. 85 of 1978 on the file of the Sub Judge, Coimbatore was a suit for enforcing the mortgage and such a suit is primarily a suit for money. Therefore, there is no legal bar against the mortgagor entering into an agreement of sale and the question of lis pendens will not apply in such case. The purchaser shall step into the shoes of the mortgagor with all the rights of redemption. 22. Therefore, there is no legal bar against the mortgagor entering into an agreement of sale and the question of lis pendens will not apply in such case. The purchaser shall step into the shoes of the mortgagor with all the rights of redemption. 22. In Narandas Karsondas v. S.A. Kamat [ 1977 (3) S.C.C. 247 = (1977) 90 L.W. 113 S.N.], the Supreme Court held that the mortgagors right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. The mortgagors right of redemption is not lost just because the property was put to auction. The mortgagor has a right to redeem unless the sale of property was complete by registration in accordance with the provisions of the Registration Act. In that case, the auction purchaser paid the sum due, but before the sale was completed by registration etc., the mortgagor sought to exercise his right of redemption by tendering the amount due and it was held that the mortgagor has not lost his right of redemption and that the mortgagee is not acting as the agent of the mortgagor in selling the property. Their Lordships observed as follows: “Until the sale is completed by a registered instrument, the mortgagor can redeem the mortgage on payment of the requisite amount.” 23. A learned Judge of this court, in Meenakshivelu v. Kasthuri Shakunthala [I.L.R. (1967) 3 Madras 161], has taken the view that the mortgagors right to redeem the mortgage does not survive after exercise of power of sale. The argument similar to the one advanced in this case namely before the sale deed which was engrossed on stamp paper with the approval of the mortgagee could be executed and registered, the mortgagor can file a suit for redemption of the mortgage contending that the equity of redemption had not been extinguished as the sale deed had not been executed in favour of the purchaser. The learned counsel appearing on behalf of the mortgagor in that case placed considerable reliance upon the Division Bench decision of the Bombay High Court in Abraham Ezra v. Abdul Latif (I.L.R. 1944 Bombay 549) = (A.I.R. 1944 Bombay 156) in which it was held that till the agreement of sale in favour of the purchaser is completed by the execution and registration of the deed of sale, the relationship of mortgagor and mortgagee would subsist between the parties and that under Section 60 of the Transfer of Property Act, the mortgagor would have the right to redeem even if a contract has been entered into by the mortgagee to sell the property in the purported exercise of the power of sale. The learned Judge of this court, rejecting these contentions and disagreeing with the view of the Bombay High Court, held that the right of redemption of the mortgagee was no longer subsisting in an unqualified manner after the mortgagee had exercised his power of sale and a third party had purchased the same and had also paid the full purchase price, and ail that remained to be done was that the mortgagee had to execute a registered sale deed which had to be done on a duly stamped paper. The learned Judge there was dealing with a case of the bonafide exercise of power by the mortgagee and the complete payment made after the auction was held. The view of the Division Bench of the Bombay High Court in Abraham Ezra Isac Mansoor v. Abdul Latif Usman (A.I.R. 1944 Bombay 156), that till the sale is made by a registered instrument, the relationship of mortgagor and mortgagee would subsist between the parties under Section 60 of the Transfer of Property Act and therefore, the mortgagor has the right to redeem, was accepted in toto by The Supreme Court in Narandas v. Kamat [ 1977 (3) S.C.C. 247 = (1977) 90 L.W. 113 S.N.]. While entirely in agreement with the Bombay High Courts decision, the Supreme Court held that the decision of the Madras High Court in Meenakshivelus Case, which holds a contrary view, is wrong. 24. While entirely in agreement with the Bombay High Courts decision, the Supreme Court held that the decision of the Madras High Court in Meenakshivelus Case, which holds a contrary view, is wrong. 24. Mulla, in The Transfer of Property Act, 1882 - IX Edition - Page No. 794, while considering the effect of sale under Section 69 of the Transfer of Property Act, says as follows: “A contract for the sale of immovable property cannot extinguish the equity of redemption; it is only on the execution of the conveyance and registration of transfer of the mortgagors interest by a registered instrument that the mortgagors right of redemption will be extinguished. Until the sale is completed by registration, the mortgagor does not lose the right of redemption. The mortgagee when exercising the power of sale under Section 69, does not act as the agent of the mortgagor, but acts against him. Merely putting the property to auction does not extinguish the right of redemption.” From the above observations of the learned author, it is clear that unless and until the Court auction purchaser gets the sale confirmed, the mortgagors right of redemption will not be extinguished. 25. In Samarendru Nath Sinha v. Krishna Kumar (A.I.R. 1967 S.C. 1440), the Supreme Court held that the principle of lis pendens applies to court sales. Their Lordships have observed as follows: “An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property, such a right is based on the principle that he steps in the shoes of his predecessor-in-title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term “mortgagor” and therefore entitled to redeem. But under Section 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree of order has been obtained The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him.” 26. The said view was reiterated in the judgment in Kedarnath v. Sheonarain (A.I.R. 1970 S.C. 1717). Their Lordships, in this case, while approving the decision in Samarendranaths case , also held that attachment before judgment, of property, is ineffective as to the applicability of the doctrine of lis pendens. Their Lordships held as follows: “If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore, the attachment was ineffective against the doctrine.” 27. In Vedachari v. Narasimha Mudali (A.I.R. 1924 Madras 307 = (1924) 19 L.W. 28 ), a Division Bench of this court held that the doctrine of lis pendens applies as regards a suit for specific performance of agreements in selling immovable properties. Their Lordships observed as follows: “Following the ruling in Natilal Pal v. Preo Lall Mitra [(1911) 13 C.W.N. 226 = 3 I.C. 696 = 9 C.L.J. 96] and Jehar Lal Bhutra v. Bhupendra Nath Basu (A.I.R. 1922 Cal. 412 = 49 Cal. 495), we hold that the doctrine of lis pendens applies as regards suits for specific performance of agreements to sell immovable properties just as much as to suits for possession of immovable properties. 412 = 49 Cal. 495), we hold that the doctrine of lis pendens applies as regards suits for specific performance of agreements to sell immovable properties just as much as to suits for possession of immovable properties. As observed by Mookerjee, J., in the latter case, “The obvious reason for this is that if when the jurisdiction of the Court was once attached, it could be ousted by the transfer of the defendants interest, there would be no end to litigation and justice would be defeated.” That the principle underlying the doctrine applies to Court sales such as we have to deal with here, has also been held. The decision of the lower Appellate Court is therefore right; and the Civil Miscellaneous Second Appeal is dismissed with costs.” 27-A. In the light of the above, we are of the clear view that the right of redemption is not extinguished and is available to the appellant in the facts and circumstances of the case. We also hold that the court sale is subject to the doctrine of lis pendens. 28. In this case, it is seen that the appellant has specifically pleaded that the property was sought to be sold to him for discharge of liabilities including that of the second defendants and that in Ex.A.1 agreement, the name of the second defendant has been mentioned. In the reply statement of the appellant, he has pleaded that the first defendant had induced the sixth defendant to execute the decree by bringing the property for sale and colluded with him to keep the above a secret. It was the first defendant who arranged the auction of sale in favour of the eleventh defendant, a close friend of the first defendant. The appellant accidentally coming to know of this, filed the application for setting aside the sale by depositing the amount of Rs. 84,745/-, being the decree amount and 5% solatium to the auction purchaser. It is further averred that likewise, the first defendant induced the second defendant to execute the decree by bringing the property for sale. Though the second defendant has filed written statement, copy of which was given to the appellant only at the hearing on 25.08.1991 and that by that time, it was too late for him to communicate to stop the arrangement for sale on next day. Though the second defendant has filed written statement, copy of which was given to the appellant only at the hearing on 25.08.1991 and that by that time, it was too late for him to communicate to stop the arrangement for sale on next day. Again, it is the same eleventh defendant, Unni, who was the bidder on this sale at the instance of the first defendant. Immediately, the appellant deposited Rs. 1,33,343/- to cover the decree amount and 5% solatium. Curiously, the said petition was opposed by the first defendant and it so happened that there was a delay in making deposit and filing a petition to set aside the sale and the application was ultimately decided against the appellant. However, still the question that remains is whether the auction sale by the eleventh defendant is subject to the right of the appellant as per the agreement of sale and the said court sale should yield place to the right of the appellant, namely, to get the specific performance of the agreement Ex.A.1. 29. In V.P. Padmavathi v. B.C. Swaminatha Iyer (A.I.R. 1975 Madras 343 = (1975) 88 L.W. 371 ), a court sale was attacked as invalid on the ground that the plaintiff was only an alias and nominee for the mortgagee. The court held that if really the plaintiff was a nominee of the mortgagee, he does not stand on any different footing than the mortgagee himself. If the mortgagee cannot effect a valid sale in his favour by merely putting up his nominee, his position would not be different. The court observed as follows: “Therefore, if really the plaintiff is a nominee of the mortgagee, the sale would be ab initio void. It is not a mere improper or irregular exercise of the power of sale as sought to be made out by the plaintiff.” Considering the facts and circumstances of the case that a specific allegation made against the court auction purchaser that it was the first defendant who arranged for the court auction sale in favour of the eleventh defendant, a close friend of the first defendant on two occasions and that the first defendant induced the second defendant to execute the decree by bringing the property for sale, it has not been controverted and they have conveniently remained ex parte with no reply to this specific allegation. Considering the facts and circumstances of the case, it stands unrebutted and the sale, therefore, assuming to be true, can have no legal effect. 30. Mulla, in The Transfer of Property Act, 1882 - IX Edition - Page No. 393, while dealing with Section 52 of the Transfer of Property Act, has made the following observations: “(vi) Suit for specific performance - The rule of lis pendens is applicable to suits for specific performance of contracts to transfer immovable property. Section 52 of the Transfer of Property Act is not subject to Section 19(b) of the Special Relief Act which provides that specific performance of contract cannot be enforced against the transferee for value, who has paid his money in good faith, without notice of the original contract. The subsequent transferee, even though he may have obtained the transfer without notice of the original contract, cannot set up, against the agreement holder any right defeating the rule of lis pendens, which is founded upon public policy.” A learned single Judge of this court in B. Lakshmiammal v. S. Lakshmiammal (A.I.R. 1991 Madras 137), has held that it is settled law that the rule of lis pendens is applicable also to suits of specific performance of contract to transfer immovable property. 31. A Full Bench of the Allahabad High Court in Smti. Ram Peary & Others v. Gauri (A.I.R. 1978 Allahabad 318), has taken the view that the subsequent transfer after institution of the suit for specific performance is hit by lis pendens. The conveyance in favour of the subsequent purchaser will lead to the adjudication of rights against the vendor in a suit for specific performance of the contract. 32. It is true that the suit O.S. No. 85 of 1978 was filed before the Subcourt, Coimbatore by the second respondent herein to enforce the mortgage. The first respondent entered into the suit agreement dated 27.5.1978 and it is stated in the agreement itself that it is for the purpose of discharge of the mortgage to the second defendant and debts to other creditors namely defendants 3 to 10. Before the court auction took place, the present suit for specific performance was filed on 24.11.1980. The first respondent entered into the suit agreement dated 27.5.1978 and it is stated in the agreement itself that it is for the purpose of discharge of the mortgage to the second defendant and debts to other creditors namely defendants 3 to 10. Before the court auction took place, the present suit for specific performance was filed on 24.11.1980. Though the appellant could not succeed in getting the court auction set aside, inasmuch as the second respondent has not succeeded in getting the sale confirmed, the court sale is subject to lis pendens namely the suit for specific performance filed by the appellant herein. The argument on behalf of the eleventh defendant, the court auction purchaser, is that the suit for specific performance is hit by lis pendens will have no force, since the mortgage decree obtained by the second respondent with the purchase of the right of redemption and that before the same was extinguished by confirmation of the sale, the suit for specific performance has been filed. Therefore, the court sale shall be subject to the present suit and the eleventh respondent is bound by the decree. The appellant shall step into the shoes of the mortgagor and his right to purchase the right of redemption is not extinguished by the court sale till it is complete. 33. Apart from the clear legal position set out by the Division Bench in C.M.A. No. 421 of 1983 as well as the settled law stated above, here is a case where the second respondent, who remains ex parte and who has not let in any evidence in opposition to the appellants case, acts in clear collusion with the eleventh respondent. The trial court ought to have considered this aspect while declining to grant the relief. The eleventh respondent was an auction purchaser in the suit filed by one Pichamuthu Gounder, the sixth defendant in O.S. No. 421 of 1976. The sale was stayed and subsequently set aside in C.M.A. No. 441 of 1981 and thereafter, full satisfaction was recorded and the E.P. was terminated. The eleventh respondent was also an auction purchaser in the present suit in E.P. No. 199 of 1981 dated 26.8.1981. The first defendant, in his written statement, has stated that the plaintiff/appellant never made any attempt to pay the amounts due to the several creditors mentioned in the agreement. The eleventh respondent was also an auction purchaser in the present suit in E.P. No. 199 of 1981 dated 26.8.1981. The first defendant, in his written statement, has stated that the plaintiff/appellant never made any attempt to pay the amounts due to the several creditors mentioned in the agreement. According to him, the plaintiff allowed the property to be sold in court auction on 28.1.1981 in the execution proceedings initiated by the sixth defendant. Thus, the case of the first respondent is that he was put to loss on the failure of the appellant to pay the creditors, the amounts due. In his reply statement dated 17.12.1981, the appellant has stated in paragraph 9 that the first defendant has suppressed his nefarious part in the happenings in filing of the subsequent suit. He had induced the sixth defendant to execute his decree by bringing the property to sale and colluded with him to keep the auction a secret. The sixth defendant was advised to evade service of the summons in the suit and proceed with the auction on 28.1.1981. It was the first defendant who arranged for the auction sale in favour of one P.K. Unni, a close friend of the first defendant. On accidentally hearing about the suit, the plaintiff filed E.A. No. 970 of 1981 in E.P.R. 89 of 1980 in O.S. No. 421 of 1977 under Order 21, Rule 89, C.P.C. to set aside the sale after depositing a sum of Rs. 84,745/-, being the decree amount and 5% solatium to the auction purchaser. The said application was opposed not only by the decree holder and the auction purchaser, but also by the first defendant, all of them having conspired to sabotage the present suit. It is further averred that the first defendant induced the second defendant to execute his decree by bringing the property to sale. A copy of the written statement filed by the second defendant was given to the plaintiffs advocate only on 25.8.1981 and it was then too late to communicate to the plaintiff to arrange for stoppage of the sale which was to be held on the next day. Again, it was the same Sri P.K. Unni who also bid at this sale at the instance of the first defendant. Again, it was the same Sri P.K. Unni who also bid at this sale at the instance of the first defendant. The appellant filed E.A. No. 2058 of 1981 in E.P.R. No. 189 of 1981 in O.S. No. 85 of 1978 under Order 21, Rule 89, C.P.C. to set aside the sale after depositing Rs. 1,33,343/- to cover the decree amount and 5% solatium to the purchaser. This petition was also opposed by the first defendant. Though the additional written statement was filed by the eleventh defendant, the specific allegation of collusion by the first, second and eleventh defendants has not been denied and there is no contra evidence before the court. 34. Therefore, from the facts of the case, it is clear that the first defendant is trying to commit fraud on the powers of the court by colluding with the decree holders, even though the amounts were in deposit, opposing the applications in execution and tried to take advantage of the situation. The appellant has clearly deposed in his evidence as to the steps taken by him to get the sale set aside and the same was not controverted. The eleventh defendant, assuming that he is a transferee for consideration, has clear notice of the pending legal proceedings. The trial court, after having found that the suit agreement is true and valid and that the first defendant has received an advance of a sum of Rs. 1,67,700/- and that the appellant was always ready and willing to perform his part of the contract with the necessary means, ought to have granted the decree for specific performance. The trial court has clearly failed to exercise the statutory discretion once it is held that the appellant satisfies the requirements in law. The Court action purchaser was fully aware of the pendency of the suit and that from the facts, it is clear that he had been acting at the instance of and collusion with the first respondent. 35. For all the above reasons, the appeal is allowed and the suit is decreed as prayed for with costs throughout.