JUDGMENT Hon’ble Sanjay Misra, J.—This is a second appeal under Section 100 CPC filed against judgement and decree dated 4.4.1979 passed by the II Addl. District Judge, Etawah in Civil Appeal No. 87 of 1975, whereby the first appellate Court has set aside the judgement and decree dated 20.8.1975 passed by the trial Court in Suit No. 32 of 1974 (Maharaj Singh and others v. Jauhari and others) but has decreed the suit for refund of the amount. 2. The facts of this case are that the plaintiff-appellants filed a suit for specific performance of the agreement of sale dated 31.12.1973 relating to agricultural land and in the alternative, prayed for refund of the advance given to the defendant No. 1 namely Jauhari. The plot in question was No. 354 Kha measuring 1.75 acres situate in village Bahadurpur Lahaia, Pargana & District Etawah owned by the defendant No. 1, Jauhari. The agreement of sale stipulated that upon paying the balance amount the sale-deed would be executed within 5 months and the agreement of sale was duly registered. The plaintiffs allege that earlier he had purchased a part of the plot in question from the defendant No. 1. According to the plaintiffs, the defendant resiled from his contract and although the plaintiff asked the defendant No. 1 to execute the sale-deed, he avoided the same and got another suit filed by his wife relating to the property in question. The plaintiffs filed objections in that suit. In May, 1974 a notice was served on the defendant No. 1 fixing 29.5.1974 for execution of the sale-deed and its registration before the Sub-Registrar. The plaintiffs state that they were present before the Sub-Registrar on 29.5.1974 with money but the defendant did not come and plaintiffs came to know that he was negotiating with other persons for the land in question. The plaintiffs’ case is that alongwith agreement of sale the defendant No. 1 gave possession of the land to the plaintiffs and on the date when the instant suit was filed the defendant No. 1 executed a sale-deed of the land in question in favour of his wife alongwith the defendant No. 3. The plaintiffs allege that the defendant Nos. The plaintiffs’ case is that alongwith agreement of sale the defendant No. 1 gave possession of the land to the plaintiffs and on the date when the instant suit was filed the defendant No. 1 executed a sale-deed of the land in question in favour of his wife alongwith the defendant No. 3. The plaintiffs allege that the defendant Nos. 2 and 3 had full knowledge about the agreement of sale dated 31.12.1973 and the sale-deed obtained by them from defendant No. 1 namely Jauhari was a transaction to defeat the plaintiffs claim for execution of the sale-deed. 3. The defendant No. 1, Jauhari did not contest the suit but his purchasers namely defendant No. 2 his wife and defendant No. 3 contested the suit. These subsequent purchasers set up the case that Jauhari never agreed to sell the disputed land nor he executed the agreement of sale nor he received any money in advance from the plaintiffs. It was alleged that the defendant Nos. 2 and 3 purchased the land from defendant No. 1 for a consideration of Rs. 18,000/- and such contract was recorded between the defendant No. 1 and defendant Nos. 2 and 3 in the agreement of sale dated 23.6.1973. It was the aforesaid agreement of sale that was got executed by the defendant Nos. 2 and 3 by way of filing the suit. It has been stated by the defendant Nos. 2 and 3 that the plaintiffs have full knowledge of the agreement of sale dated 23.6.1973 and therefore, the agreement of sale obtained by the plaintiffs from defendant No. 1 on 31.12.1973 could not be decreed for specific performance or even for refund. They claimed that the agreement of sale obtained by the plaintiffs was in effect a fraudulent document. The defendant Nos. 2 and 3 claim to be bona fide purchasers for value hence, no decree can be passed in favour of the plaintiffs. 4. On the aforesaid pleadings, the trial Court framed the necessary issues. On issue No. 1 as to whether the agreement of sale dated 31.12.1973 gave any rights to the plaintiffs was decided by the trial Court where it held that the plaintiffs paid Rs. 12,000/- to the defendant No. 1 as consideration for executing the sale-deed in pursuance of the agreement of sale dated 31.12.1973. On issue No. 1 as to whether the agreement of sale dated 31.12.1973 gave any rights to the plaintiffs was decided by the trial Court where it held that the plaintiffs paid Rs. 12,000/- to the defendant No. 1 as consideration for executing the sale-deed in pursuance of the agreement of sale dated 31.12.1973. A finding was recorded that the plaintiffs were always ready and willing to perform their part of the contract, they were present at the office of the Sub-Registrar on the date with the money and therefore, the defendant No. 1 was required to execute the sale-deed and hence decreed the suit against all the three respondents. 5. On issue No. 3 the trial Court found that the defendant No. 1 had not agreed to sell the land in question to the defendant Nos. 2 and 3 on 23.6.1973 and had not received any amount from the defendant Nos. 2 and 3 as advance. The trial Court further recorded that the defendant Nos. 2 and 3 were not bona fide transferees since they had full knowledge of the agreement between the plaintiffs and defendant No. 1 and even then they went ahead and got the sale-deed dated 31.5.1974 executed in their favour. The trial Court recorded a finding that the discretionary relief of specific performance was to be given to the plaintiffs and that the plaintiffs were in possession of the land in question. The Trial Court decreed the suit for specific performance. 6. The defendant Nos. 2 and 3 feeling aggrieved against the decree of specific performance granted by the trial Court, preferred a Civil Appeal No. 87 of 1975. The first appellate Court proceeded to hold that money given by the plaintiffs to the defendant No. 1 was in pursuance of the execution of a pro-note by the defendant No. 1 and hence it could not be held that it was an advance given by the plaintiffs for consideration of the land in question. It also found that the plaintiffs have taken the thumb impression of the defendant No. 1 on the printed form of pro-note and receipt, which indicated that the money was not an advance as price of the land in terms of the agreement. It also found that the plaintiffs have taken the thumb impression of the defendant No. 1 on the printed form of pro-note and receipt, which indicated that the money was not an advance as price of the land in terms of the agreement. The first appellate Court found that the plaintiffs had not come with clean hands and wanted to grab the property of the defendant No. 1, who is otherwise under the physical control of the plaintiffs since he is living in the property in question. The first appellate Court did not approve the conduct of the plaintiffs and took into consideration that the defendant No. 1 had never agreed to sell the standing trees, Tindwari, well and Persian wheel. The first appellate Court recorded a finding that the plaintiffs were not ready to pay the consideration for getting the sale-deed executed and hence cannot be entitled for a decree of specific performance. It also found that notice dated 24.5.1974 sent by the plaintiffs to the defendant No. 1 was never delivered to the defendant No. 1 and said fact was admitted by the plaintiffs who stated that the defendant No. 1 had ran away and was not present in the village. The first appellate Court, therefore, found that the date i.e. 29.5.1974 fixed for being present in the office of the Sub-Registrar was not in the knowledge of the defendant No. 1 and hence no benefit can be drawn by the plaintiffs. It, therefore, held that the defendant Nos. 2 and 3 were bona fide purchasers for value and no relief can be granted to the plaintiffs against the defendant Nos. 2 and 3. The first appellate Court dismissed the suit for specific performance and decreed it for recovery of Rs. 12,000/- from the defendant No. 1. 7. At the time when this second appeal was admitted the following four substantial questions of law had been framed : 1. Whether, the finding of the lower appellate Court that the agreement to sell is not genuine is vitiated in law? 2. Whether, the sale of the property by defendant No. 1 to defendant Nos. 2 and 3, while it was attached in Suit No. 19 of 1974 was void? 3. Whether, the finding of the lower appellate Court that the defendant Nos. 2. Whether, the sale of the property by defendant No. 1 to defendant Nos. 2 and 3, while it was attached in Suit No. 19 of 1974 was void? 3. Whether, the finding of the lower appellate Court that the defendant Nos. 2 and 3 were bona fide transferees for value without notice of agreement to sell is vitiated in law? 4. Whether, the finding of the lower appellate Court that the plaintiffs had failed to satisfy the requirements of Section 16 of the Specific Relief Act is erroneous in law?” 8. It appears that during the pendency of this second appeal, the respondent No. 2, Ranbeer Singh had died and his heirs and legal representatives were brought on record, whereas upon the death of defendant No. 1 namely Jauhari, the respondent No. 3, who was his wife and also vendee being already on record was substituted. The plaintiff appellant No. 1 also appears to have died during the pendency of this appeal and his heirs and legal representatives were brought on record. 9. Sri K.K.Dubey, learned counsel appears on behalf of the respondent Nos. 2/1, 2/2 and 2/3 whereas Sri R.K.Porwal, learned counsel appears for the respondent Nos. 2/5 to 2/7. As such upon notice being served, the heirs and legal representatives of the deceased respondent No. 2 are duly represented and the minors are represented by their mother. 10. Sri Ashutosh Srivastava for the plaintiff-appellants and Sri K.K.Dubey alongwith Sri R.K.Purwar have been heard at length. 11. On the pleadings of the parties the Courts below have recorded findings of facts and in the absence of such findings of facts being perverse this Court in a Second Appeal cannot enter into the prohibited arena of re-appreciation of evidence. 12. The First Appellate Court has found that the agreement of sale is not a genuine document. The agreement of sale is admittedly a registered document and has been proved by the oral testimony of the marginal witness PW-2 as also the scribe PW-3. The Trial Court found the agreement of sale to be a genuine document. The First Appellate Court in its finding has not been able to refer any evidence to indicate that the agreement of sale was not genuine. The evidence led by the plaintiffs fully proved the execution and registration of agreement of sale. The Trial Court found the agreement of sale to be a genuine document. The First Appellate Court in its finding has not been able to refer any evidence to indicate that the agreement of sale was not genuine. The evidence led by the plaintiffs fully proved the execution and registration of agreement of sale. This fact finds support from the entry made in the pro-note (Exhibit-8) wherein it has been written that the plaintiffs have given a loan of Rs.10,000/- to the defendant No. 1 which is by way of advance. When the pro-note and receipt contemplate the money mentioned therein as an advance and a pronote is always executed as ‘I owe you’ it would be a precautionary measure hence, no further conclusion can be arrived at to hold that the money was not paid. The balance of Rs.2000/- was paid before the Sub Registrar and therefore Rs.12000/- mentioned as advance has been paid by the plaintiffs to the defendant No. 1. The defendant No. 1 has not appeared as a witness and has not contested the suit. His wife and her co-purchaser contested the suit and defended the sale-deed dated 31.5.1974 obtained by them from the defendant No. 1 and, therefore, the evidence of the defendant No. 1 regarding the agreement of sale in favour of the plaintiffs was a vital evidence which has been kept away from the Court. Under such circumstances, an adverse inference can always be drawn. Hence, when the advance of Rs.12,000/- out of the sale consideration has been paid to the defendant No. 1, the plaintiffs are entitled to seek specific performance of the agreement of sale. There is further no evidence on record to show that the agreement of sale was obtained by the plaintiffs fraudulently and hence, the finding of the First Appellate Court upsetting the decree of Trial Court being based on no evidence is perverse and requires to be set aside. 13. The defendant No. 3 wife of defendant No. 1 filed a suit against her husband for grant of maintenance. The Trial Court passed an order attaching plot No. 354-Kha under Order 39 Rule 7 C.P.C. and restrained the defendant No. 1 from alienating the same. The attachment order dated 10.1.1974 is available as Exhibit-12. 13. The defendant No. 3 wife of defendant No. 1 filed a suit against her husband for grant of maintenance. The Trial Court passed an order attaching plot No. 354-Kha under Order 39 Rule 7 C.P.C. and restrained the defendant No. 1 from alienating the same. The attachment order dated 10.1.1974 is available as Exhibit-12. This order remained operative till the suit was ultimately dismissed as withdrawn which was after 31.5.1974 i.e. the date when defendant No. 1 executed the sale-deed in favour of defendant Nos. 2 and 3. When a property has been attached under Order 39 Rule 7 C.P.C., any transfer of property so attached which is contrary to the order of attachment will be void and therefore, the transfer made by defendant No. 1 to defendant Nos. 2 and 3 on 31.5.1974 would be a contract in contravention of the attachment the order dated 10.1.1974. On 11.1.1974 the attachment order was given effect to. Consequently, the sale-deed executed by defendant No. 1 to defendant Nos. 2 and 3 during the period when the attachment was operative was clearly void. 14. The defendant Nos. 2 and 3 claim to be bona fide purchaser for value without notice. The defendant Nos. 1 and 3 are husband and wife. The agreement of sale in favour of the plaintiffs was a registered document. The defendant No. 1 filed a suit being Suit No. 294 of 1974. The defendant No. 3 also filed a suit No. 19 of 1974 against the defendant No. 1 for maintenance and had pleaded that defendant No. 1 is selling the property and has entered into agreement of sale with the plaintiffs. This evidence showed that defendant No. 3 had knowledge about the agreement of sale executed in favour of the plaintiffs and the defendant No. 3 did not appear in the witness box to support her case that she was bona fide purchaser for value from defendant No. 1 without notice of agreement of sale executed by defendant No. 1 in favour of plaintiffs. Consequently, it cannot be held that defendant Nos. 2 and 3 were bona fide purchasers for value without notice of agreement of sale. The evidence of defendant No. 1 was a very vital evidence and it has been kept away from the Court. 15. Consequently, it cannot be held that defendant Nos. 2 and 3 were bona fide purchasers for value without notice of agreement of sale. The evidence of defendant No. 1 was a very vital evidence and it has been kept away from the Court. 15. The findings of the Court below is that plaintiffs were always ready and willing to perform their part of the contract and they were present in the office of the Sub Registrar with money. These are the surroundings circumstances that indicate an agreement of sale was entered into and the defendant No. 1 was required to execute the sale-deed. The Trial Court did not frame any issue on this point nor there is any specific pleadings to such effect. The First Appellate Court appears to have misled itself on presumptions and has failed to take into account the clinching evidence which required decreeing the suit of the plaintiffs for specific performance. Therefore, such finding being not based on appreciation of evidence, cannot be made the basis of upsetting a decree of specific performance. Insofar as the subsequent sale-deed obtained by the defendant Nos. 2 and 3 is concerned, the same was clearly got executed with full knowledge of agreement of sale entered into between the plaintiffs and the defendant No. 1 and therefore, the decree of specific performance could not be denied. 16. The rise in price of the land in question with passage of time could be a consideration in favour of the defendant No. 1 but when the Trial Court had decreed the suit for specific performance such factor would not have relevance where the First Appellate Court had given a decree of refund. 17. It is settled law that grant of decree of specific performance lies in the discretion of the Court and while exercising such discretion the Court has to take into consideration, the circumstances of the case, the conduct of the parties and their respective interest under the contract. The discretion of the Court is to be exercised judiciously, if it is found that the contract is not equal and fair although it is not void. In the present case the defendant No. 1 who is the vendor of the plaintiffs has not contested the proceedings and has not presented himself. Therefore, insofar as the defendant Nos. The discretion of the Court is to be exercised judiciously, if it is found that the contract is not equal and fair although it is not void. In the present case the defendant No. 1 who is the vendor of the plaintiffs has not contested the proceedings and has not presented himself. Therefore, insofar as the defendant Nos. 2 and 3 are concerned under such circumstances discretion of the Court is not required to be exercised under Section 20 of the Act in their favour. The decree for refund on the ground that defendant Nos. 2 and 3 have got a sale-deed from defendant No. 1 could not have been passed it being not a relevant consideration between the plaintiffs and defendant Nos. 2 and 3. 18. Consequently, all the substantial question of law framed in this appeal are answered in favour of the plaintiff-appellants and therefore the judgment and decree of the First Appellate Court is set aside. The decree of the Trial Court for specific performance is affirmed and the plaintiffs suit is decreed. 19. The appeal is allowed. 20. There is no order as to costs. —————