Judgment : 1. Suit is for Specific Performance of a sale agreement dated 31.3.1999. The brief facts involved are as follows. The plaintiff is an Educational Trust, established under the Registered Deed of Declaration dated 4.4.1975 executed by one Sevaliar T. Thomas, a Philanthrophist. Therefore, the trust was named after him as "Sevaliar T. Thomas T. Educational trust". The main object of the Trust was to establish educational institutions and various properties were vested with the Trust and 8 trustees were named. 2. In the year 1999, one Mrs. Elizebeth Thomas was the Managing Trustee cum Secretary and correspondent of the Trust. The defendant, M/s Union Carbide Employees Co-operative House Building Society Ltd., represented by the then President, agreed to sell an extent of 13 grounds and 1852 sq.ft of land in S.No.57/1 at Kodungaiyur village at Thandiarpet to the plaintiff Trust for establishing a School. 3. A sale agreement dated 31.3.1999 was executed by the defendant and the sale consideration was fixed at Rs.35,80,633/-. A sum of Rs.5,00,000/- was paid as advance and the plaintiff was put in possession in part performance of the agreement on 8.9.1999 and a further sum of Rs.5,00,000/- was also paid. 4. On taking possession, the plaintiff Trust put up a temporary construction and they have been running a school from June 1999. Though the balance amount has to be paid in 12 months, it was specifically agreed that the period of agreement will be extended and therefore, time was not the essence of the contract. 5. In the meantime, a suit came to be filed for framing of scheme for the Trust before this court. By a judgment and decree dated 5.12.2002 a scheme was framed for the administration of the Trust and a Board of 9 Trustees with a retired Judge as Chairman was appointed and a retired senior IAS Officer as the Executive Trustee. 6. On assuming charge, the Managing Trustee was writing to the defendants to perform their part of the contract. On 9.1.2004 the Trust expressed their readiness and willingness to pay the balance sale consideration and called upon the defendant to execute the sale deed. However, on 3.11.2004, the plaintiff received a letter from the defendant Society advising the plaintiff to pay the balance amount of Rs.25,80,633/- with interest at 18% p.a within 15 days failing which eviction proceedings will be initiated. 7. However, on 3.11.2004, the plaintiff received a letter from the defendant Society advising the plaintiff to pay the balance amount of Rs.25,80,633/- with interest at 18% p.a within 15 days failing which eviction proceedings will be initiated. 7. Since there is no condition in the original agreement to pay interest, the plaintiff was requesting the Defendant Society to accept the balance consideration and execute the sale deed. Inspite of several reminders sent stating the plaintiff's readiness and willingness the defendants society was not willing. Therefore, a lawyer's notice was issued on 24.7.2007 calling upon the defendant society to receive the balance amount. The said notice was returned “unserved”. On coming to know that the society was administered by a Special Officer, another notice dated 13.8.2007 was issued, for which there is no reply. Therefore, the present suit. 8. The plaintiff is always ready and willing to perform their part of the contract and pay the balance sale consideration and they are entitled for specific performance of the sale deed. 9. The brief averment made in the written statement is as follows: 10. The suit is not maintainable as it is barred by limitation. A sale agreement was executed on 31.3.1999 and the period of one year specified therein lapsed on 30.3.2000. The Plaintiff Trust was not properly constituted and had no valid right, financial resources and infrastructural facilities to establish and run a school. 11. Admittedly, this court has constituted the Trustees only on 5.2.2002. Though the sale agreement was executed on 31.3.1999, further payments were not made as per the agreement. The suit property was earmarked for a school and playground in the layout plan promoted by the defendants House Building Society. Since the plaintiffs Trust evinced interest in establishing such a school, an agreement was entered into. The plaintiff failed to honour their commitment and they are running only a nursery school and the quality of education is also not upto the mark. 12. In any event, time was the essence of the contract and the plaintiff was given time upto June 1999 for 50% of the payment of the sale consideration and the balance amount on or before 31.3.2000. The period of agreement was not extended by the defendant at any point of time. The defendant demanded the plaintiff to vacate the property and the only object of the plaintiff is to grab the land. 13. The period of agreement was not extended by the defendant at any point of time. The defendant demanded the plaintiff to vacate the property and the only object of the plaintiff is to grab the land. 13. As admitted by the plaintiff, only on 9.1.2004, the Trust offered the balance sale consideration after the lapse of agreement. The letter dated 3.11.2004 sent by the Special Officer has been misconceived and the letter is not binding on the defendant society. The value of the property has increased many fold during passing of time and appreciation of land value and therefore, the plaintiff cannot take advantage after a lapse of 15 years. 14. Based on the above averments, the following issues were framed: 1. Whether the agreement of sale entered with the defendant is valid in law? 2. Whether the suit is barred by limitation? 3. Whether the plaintiffs are ready and willing to perform its part of contract? 4. Whether the contention of the plaintiff that the period of contract was extended is correct? 5. Whether the defendant is entitled for the interest for the delayed payment? 6. To what other relief the plaintiffs are entitled for? 15. One L. Palamalai, the Trustee of the plaintiff was examined as P.W.1 and Exs.P.1 to P.10 were marked. On the side of the defendant, one S. Rajendran was examined as DW1 and Mr. A.R. Gopal was examined as D.W.2 and Exs.D.1 to D.6 were marked. 16. Issues 1, 2 and 4: The execution of the agreement dated 31.3.1999 for the sale of suit property of 13 grounds 1852 sq.ft for a consideration of Rs.35,80,633/- is admitted. The payment of Rs.5,00,000/- on the date of agreement and further payment of Rs.5,00,000/- on 8.9.99 are also admitted. 17. The learned counsel for the defendants would submit that the defendant is a Cooperative Society, governed under the provisions of The Tamil Nadu Cooperative Societies Act, 1983 and the Rules therein. The learned counsel would rely on Rule 78(3) which prohibits any disposal or sale of property acquired by the Society without prior sanction of the General Body and the Registrar. The learned counsel pointed out that in the absence of specific sanction from the General Body and from the Registrar of Societies, the sale agreement is invalid. 18. On the other hand the learned counsel for the plaintiff relied on the proviso to Rule 78 (3). The learned counsel pointed out that in the absence of specific sanction from the General Body and from the Registrar of Societies, the sale agreement is invalid. 18. On the other hand the learned counsel for the plaintiff relied on the proviso to Rule 78 (3). The learned counsel submitted that if the Society is a Housing Society and the object is purchase and sale of immovable property, the sale agreement and the sale is valid. 19. Heard the rival submission of the respective counsels. 20. Rule 78(3) and proviso read as follows; 78. Investment of Funds in immovable properties:- (1).... (2) ... (3) No Society shall dispose of any immovable property (other than a property purchased at a sale held in execution on of a decree by the Society or by the Financing Banks to which the Society is affiliated) for recovery of any sum due to the Society acquired by the Society without the prior sanction of the General Body and the Registrar: Provided that a housing Society or a Society the object of which is to purchase and sell immovable property, may dispose of such immovable property without the sanction of the General Body and the Registrar.” 21. Obviously, the defendant is a Housing Society. The object itself is purchase and sale of immovable property. It is also not in dispute that the suit property was earmarked for establishment of a school and a playground and therefore, the agreement entered by the defendants is not vitiated under Rule 78 (3) of The Tamil Nadu Cooperative Societies Rules, 1988. 22. clause 5 of the agreement would stipulate that the vendors have agreed to deliver the vacant possession to the purchasers on condition that the purchaser shall pay a further sum not less than 50% of the total price before June 1999 and the balance sale consideration shall be paid by the purchasers to the vendors before expiry of 12 months from the date of agreement. 23. Clause – 6 would stipulate that the period of agreement will be extended for a further period, if necessary, after mutual discussion between the vendor and the purchasers. 24. However, a payment of Rs.5,00,000/- alone was made on 8.9.99, but it is admitted that the plaintiff Trust is in possession of the property and running a school. 25. 23. Clause – 6 would stipulate that the period of agreement will be extended for a further period, if necessary, after mutual discussion between the vendor and the purchasers. 24. However, a payment of Rs.5,00,000/- alone was made on 8.9.99, but it is admitted that the plaintiff Trust is in possession of the property and running a school. 25. It is admitted that a suit on the original side of this Court came to be filed in C.S.No.601 of 1987 by one of the then Trustees of the plaintiff, which was challenged on the appellate site in OSA No.49 of 1995. By a decree and judgment dated 5.12.2002, a scheme was framed, trustees were appointed which include a retired Judge of High Court Madras and a retired IAS officer. 26. On 20.11.2002, an endorsement seemed to have been made on the agreement extending the time for the performance of the agreement upto 31.12.2003. This endorsement was disputed by the defendant that the Special Officer who signed the agreement was not the Special Officer of the society at the relevant point of time. By a letter dated 9.1.2004 marked as Ex.P.5, the Managing Trustee had intimated to the Special Officer of the defendant that the balance amount of Rs.25,80,633/- is ready and expressed the plaintiff's readiness and willingness to complete the sale. By a letter dated 26.10.2004, the authorised Special Officer of the Defendant Society has admitted the sale agreement and the possession of the plaintiff, but termed the agreement as “lease cums sale agreement” and gave a final opportunity to the plaintiff to pay the balance consideration of Rs.25,80,633/- with interest at 18% and stipulated that the same has to be paid within 15 days from the date of receipt of notice, failing which, eviction proceedings will be taken. 27. This was followed by a notice dated 24.7.2007 which returned “unserved” to the defendant and followed by Ex.P.8 dated 13.8.2007 and the suit is filed. 28. Mr. V. Shanmugham, learned counsel for the plaintiff would submit that time is not the essence of the contract and the suit is not barred by limitation. The learned counsel would further submit that the sale agreement is admitted and the time was also extended by endorsement dated 20.11.2002 and also by a letter dated 26.10.2004. 28. Mr. V. Shanmugham, learned counsel for the plaintiff would submit that time is not the essence of the contract and the suit is not barred by limitation. The learned counsel would further submit that the sale agreement is admitted and the time was also extended by endorsement dated 20.11.2002 and also by a letter dated 26.10.2004. The learned counsel relied on various case laws for the preposition that the time is not the essence of the contract. 29. On the other hand, Mr. P. Anbarasan, learned counsel for the defendant would submit that the agreement has lapsed as early as 30.3.2000 and the plaintiff Trustee was not in a position to honour the terms of the contract as it was entangled in a scheme suit. The learned counsel would further submit that the endorsement dated 20.11.2002 is not a valid endorsement as the person who signed as a Special Officer was not in that capacity in the relevant point of time. The learned counsel also submitted that the endorsement states as if a sum of Rs.10,00,000/- was paid on the date of endorsement which is not true. 30. The learned counsel would further submit that Ex.P.6 cannot be taken as a letter extending the time and even assuming that the time was extended a specified time of 15 days alone was extended from the date of receipt of the letter and the plaintiff has not complied with the condition. The learned counsel also relied on various case laws for the preposition that the time is the essence of the contract. (i) 1997 (2) SCC 611 (T.L Muddukrishana and another vs Lalitha Ramachandra Rao (Smt) (ii) 1996 (8) SCC 367 (Tarlok Singh vs Vijay Kumar Sabharwal) (iii) 1999 (3) MLJ 47 (P.P. Srinivasa Battaachariar vs Paramasivam and others) (iv) AIR 1997 (SC) 1751 (K.S. Vidyanadam and others vs Vairavan) (v) 2012 (3) CTC 205 (K. Manoharan vs T. Janaki Ammal) (vi) 1995 (5) SCC 115 (N.P. Thirugnanam (dead) by Lrs vs Dr. R. Jagan Mohan Rao and others) 31. The issue whether the time was the essence of the contract has been settled by the courts by holding that the time is not the essence of the contract where the contract itself provides for extension of time. 32. R. Jagan Mohan Rao and others) 31. The issue whether the time was the essence of the contract has been settled by the courts by holding that the time is not the essence of the contract where the contract itself provides for extension of time. 32. Though clause-5 of the agreement stipulates a period of 12 months for completion of the contract, clause-6 will enable the parties to extend further time. The period of the contract expired on 30.3.2000. Prior to that, there was a payment on 8.9.99 under Ex.P.4 for a sum of Rs.5,00,000/-. Though possession was agreed to be delivered to the purchasers on condition of payment of 50% of sale consideration, it is admitted that the plaintiff trust has been in possession from 1999. From 2000, neither the plaintiff who is the agreement holder nor the defendant, the vendor, has taken any action either to implement the agreement or to rescind the same. 33. The Trust was entangled in a suit filed on the Original Side of this court which went upto Hon'ble Supreme Court and remanded back to this court for the purpose of settling the scheme. The judgment dated 5.12.2002 is marked as Ex.P.2. 34. It is evident from paragraph 17 of the judgment that the Trust was running 8 Institutions which includes a Matriculation Girls School in the suit property and the value of the Assets as on 31.3.2000 was Rs.7.09 crores. Therefore, the Trust was not in a financial crunch, but entangled in a scheme suit. The then Chairman of the Trust has written a letter dated 9.1.2004, which is marked as Ex.P.5 intimating the Special Officer that the balance sale consideration is ready and has expressed the plaintiff's readiness and willingness. 35. In the said letter there is a reference of an earlier letter dated 17.7.2003. By a letter dated 26.10.2004 under Ex.P.6 the authorised Special Officer had acknowledged the execution of the sale agreement and also acknowledged three letters. The first letter is dated 24.7.2003 addressed by him to the Trust and the second letter is dated 14.8.2003 by the Advocate of the Trust to the Society and the third letter is dated 9.1.2004, which is Ex.P.5. The first letter is dated 24.7.2003 addressed by him to the Trust and the second letter is dated 14.8.2003 by the Advocate of the Trust to the Society and the third letter is dated 9.1.2004, which is Ex.P.5. The Special Officer would admit that the Trust has paid a sum of Rs.10,00,000/- against Rs.35,80,633/- and would further state for any belated payment the Society shall be settled with interest at the rate of 18% for the balance amount. 36. It is admitted that the Advocate of the Trust had informed the Special officer that the Trust need not to pay the interest as there is no such agreement. 37. It is further admitted that the Board has allowed the Trust to take the possession of the property even at the payment of advances and thereby admits the possession from 1999. However, the Special Officer has given a final opportunity to pay the balance amount with interest at 18% within 15 days and has also given a warning that failing which eviction proceedings will be initiated. 38. Even assuming that the endorsement dated 20.11.2002 is not binding on the society, the admission made in Ex.P.6 dated 26.10.2004 and the extension of time and further demand would show that the defendant had extended the time and the time is not the essence of the contract. 39. The suit was presented before this court on 28.9.2007 i.e., within three years from the date of Ex..P.6 i.e., dated 26.10.2004. The limitation under Article 54 of the Limitation Act for filing a suit for specific performance is three years from the date of agreement or from the date of refusal, in the present case, from the date of 26.10.2004, (Ex.P.6). Therefore, there is a valid agreement between the Trust and the Defendant and agreement has been extended by the authorised Special Officer of the defendant and the suit is not barred by the limitation. The issues are answered accordingly. 40. Issues 3, 5 and 6: As stated earlier, from 2000, both the agreement holder as well as the vendor have not taken any steps either to enforce the contract or rescind the contract. In any event, in a suit for specific performance, the plaintiff has to plead and prove their readiness and willingness to perform his/her part of contract. 41. In the present case, the plaintiff was put in possession even in the year 1999. In any event, in a suit for specific performance, the plaintiff has to plead and prove their readiness and willingness to perform his/her part of contract. 41. In the present case, the plaintiff was put in possession even in the year 1999. The said possession is also admitted. The property was also earmarked for establishing a School and it is also admitted that the plaintiff has established a School and the same is reflected in the judgment of this court. 42. As stated earlier, the Judgment of this court would show that the plaintiff Trust was not in a financial constraint, but was entangled in a scheme suit till the scheme was settled in the year 2002. From 2003, the plaintiff has been communicating to the defendants for the execution of the sale deed and more particularly, by a letter dated 9.1.2004, the plaintiff was ready with the balance consideration. However, after the lapse of almost 6 years, the defendants Society was not willing to receive the same consideration but demanded an interest at the rate of 18% on the balance sale consideration of 25,80,633/-. 43. This was not acceptable to the plaintiff and the ultimatum was given to the plaintiff by the defendant which has culminated in filing the suit. Therefore, the plaintiff was ready and willing to perform their part of contract. However, this Court is also aware of the situation that over a period of time from 1999, till this date, the value of the land has increased into many folds and the plaintiff cannot take advantage over the defendants as the possession was given to the plaintiff in pursuant to the sale agreement. 44. In 1997 3 SCC 1 (K.S. Vidyanadam and others vs Viaravan) the Hon'ble Supreme Court has held “even though time is not the essence of contract for sale of immovable property, but it should be performed within a reasonable time, having regard to the terms of contract and if the property is located in an Urban Area continuing steep rise in price thereof would be a relevant factor for the Court to decide whether the delay or laches on the part of the plaintiff to perform his part of the contract would disentitle him the relief of specific performance” 45. In 2012 (5) SCC 712 (Narinderjit Singh vs North Star Estate Promoters Limited) the Hon'ble Supreme Court held “We are also inclined to agree with the lower appellate court that escalation in the price of the land cannot, by itself, be a ground for denying relief of specific performance. In K. Narendra v Riviera Apartments (P) Ltd, this Court interpreted Section 20 of the Act and laid down the following propositions: (SCC p.91, para 29) “ 29. Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant.” 46. In 2002 (5) SCC 481 , (Nirmal Anand vs Advent Corporation (P) Ltd and others) the Hon'ble Supreme Court was considering the escalation of price. However, one of the learned Judges who delivered the Judgment was of the view that the vendor should be compensated reasonably and held as follows. In Para 23 The Hon'ble Judge held as follows: “ 23. As against the total consideration of Rs.60,000/- agreed to under the suit agreement, a sum of Rs.35,000 has only been paid, as up to June 1969 and even thereafter there was no occasion to pay any part of the balance of consideration. Consequently, it would be not only unreasonable but too inequitable for courts to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question, preserved all along by Respondents 1 and 2 by keeping alive the issues pending with the authorities of the Government and the municipal body. Consequently, it would be not only unreasonable but too inequitable for courts to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question, preserved all along by Respondents 1 and 2 by keeping alive the issues pending with the authorities of the Government and the municipal body. Specific performance being an equitable relief, balance of equities have also to be struck taking into account all these relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor. Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into (sic consideration) the totality of circumstances of each case. The parties, while availing of the opportunities given by this Court to settle the matter, appear to have, so far as Respondents 1 and 2 were concerned, prepared to pay up to sixty lakhs as against the demand of the appellant to the tune of rupees one and a half crores, and subsequently, reduced upto Rs.120 lakhs. Seeking to place reliance upon the details of consideration found mentioned in the assignment deed dated 14.10.1004, it has been stated in the written submissions on behalf of the appellant that even a sum to the tune of Rs.1,81,63,534, if paid, will be of some recompense only. Keeping in view all these aspects, in my view, interests of justice would be better served, dictates of reason could be satisfied, and equities could, to some extent, be balanced only if as a condition for decreeing specific performance or allowing the plaintiff to avail of such relief, the appellant is directed to pay atleast a sum of rupees forty lakhs to Respondents 1 and 2, in addition to the amount already paid. The appellant shall be entitled to have a decree for specific performance, only subject to satisfaction /compliance with the said condition of further payment, as a compensatory measure for Respondents 1 and 2.” 47. However, the other learned Judge partly descenting, had held in para 40 of the judgment that, “40. The appellant shall be entitled to have a decree for specific performance, only subject to satisfaction /compliance with the said condition of further payment, as a compensatory measure for Respondents 1 and 2.” 47. However, the other learned Judge partly descenting, had held in para 40 of the judgment that, “40. Escalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay any additional amount to the defendant and compensate him. It would depend on the facts and circumstances of each case. 46. Requiring the appellant to pay further sum of Rs.40 lakhs would/may amount to frustrating the agreement itself as the appellant may not be in a position to pay the sum of Rs.40 lakhs. Respective counsel for the parties had quoted the figure of a particular sum which could be paid to the appellant in lieu of avoiding the decree of specific performance. The appellant had not made an offer to pay any additional sum over and above the quoted price to sell by way of compensation. It does not indicate the financial position of the appellant to pay the additional sum of Rs.40 lakhs. With due respect, in my view, it would be unfair to grant the decree of specific performance by one hand and take it back by the other”. 48. However, the principle, that the escalation of price during the period may be a relevant factor for the consideration either to refuse to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him, governs and binds this Court. Such discretion would depend upon the facts and circumstances of each case also. 49. In 1999, when the sale price was fixed for 13 grounds of land to establish a school it was only Rs.35,80,633/-. As stated earlier, the plaintiff Trust was put on possession and is running a School. Possession is a relevant factor which weighs in favour of the plaintiff. However, the Court is also concerned about the escalation of price on the date of filing of the suit which is in the year 2007. 50. It is admitted that the property was earmarked for establishment of a School. Possession is a relevant factor which weighs in favour of the plaintiff. However, the Court is also concerned about the escalation of price on the date of filing of the suit which is in the year 2007. 50. It is admitted that the property was earmarked for establishment of a School. By G.O.Ms.No.48 dated 21.7.2004 the Department of Education would stipulate the requirement of minimum land area for approval of Higher Secondary School is only six grounds in Corporation limits. This requirement is reiterated in G.O.Ms.No.54 dated 05.03.2013. 51. Since the property is situate within the Chennai District and within the Chennai Corporation limit, the area required for the school is only 6 grounds. 52. In 2007, the guideline value of Sembiam Registration District was Rs.19,20,000/- per ground as per the information available in the website. Even assuming that this was the market value in 2007, when the suit was filed, the value of 6 grounds would be Rs.1,20,00,000/-. But this value cannot be taken into consideration as the sale price is a consensus between two parties. The demand of the defendant for the payment of balance amount was with 18% interest and if that is to be calculated from the 2000, i.e., the date fixed for the completion of the contract till the filing of the suit for eight years, the interest payable would have been 37,16,112/- on the balance of Rs.25,80,633/-. The total payable would have been Rs.62,96,745/- and the suit is pending for the last six years and the interest for the six years would be Rs.27,87,084/-, thus a total sum of Rs. Rs.90,83,829/-. 53. Affidavits have been filed by the members of the Society objecting transfer of the valuable property of 13 grounds at the rate of Rs.35,80,633/- when the market rate is more than Rs.3 crores. The escalation of price and the fact that the plaintiff Trust was entangled in a scheme suit which made them to delay the completion of the contract cannot be ignored. Therefore, the defendants which is the Society should not be put to loss and they have to be compensated reasonably. The escalation of price and the fact that the plaintiff Trust was entangled in a scheme suit which made them to delay the completion of the contract cannot be ignored. Therefore, the defendants which is the Society should not be put to loss and they have to be compensated reasonably. Therefore, following the principle that equity be balanced, this court is of the view that conveying of 6 grounds of the land at the total sale consideration of Rs.90,83,829/-(less Rs.10,00,000/- already paid) will be an equitable relief for both the parties concerned as this Court has to strike a balance to meet the ends of justice. This court is conscious about the fact that the above said amount was calculated on the sale consideration of 13 grounds, but considering the escalation of price, this court imposes such condition for decreeing specific performance and allowing the plaintiff to avail of such relief. The issues are decided accordingly. 54. In the result, the suit is decreed directing the plaintiff to deposit Rs.80,83,829/- within a period of three months from the date of decree and on such deposit, the defendants are directed to execute a sale deed for 6 grounds only from the schedule of property including the portion which is in the possession of the plaintiff, failing which, the court shall execute such sale deed. No costs.