1. The defendant purchased at Court auction certain property sold in execution of a decree obtained against plaintiff by a third party. The plaintiff thereafter agreed with the defendant that, on payment of Rs. 100 within a specified date, the defendant would apply to the Court to have the sale set aside, taking credit for the deposit made under Order XXI, Rule 89 of the Code of Civil Procedure.
2. The defendant, though he received the amount of Rs. 100, did not perform his part of the contract and get the sale set aside. The plaintiff has now been given a decree for specific performance on the footing that the contract to have the sale set aside was tantamount to a contract to reconvey the land to him.
3. It is argued (1) that there was no enforceable contract as, owing to the money not having been deposited in time, it became impossible to perform the contract, (2) that damages would have been. an adequate remedy for non-performance.
4. We think that the defendant having agreed to take certain action with regard to the suit property which would have had the effect of restoring it to plaintiff's possession, and having instead placed obstacles in the way of the plaintiff getting back his land cannot take advantage of his own conduct and plead that the contract was void on account of impossibility of performance; and that the transaction being in substance an agreement to re-sell the property, to which the defendant had only an imperfect title pending the confirmation of the Court sale, the defendant can be compelled to make good the contract out of the interest he subsequently obtained. (Vide Section 18 (a), Specific Relief Act). Further the plaintiff's undertaking to pay Rs. 100 at once for which he was indebted to defendant was, in our opinion, a good consideration for the contract.
5. The whole purpose of the contract being that plaintiff should regain possession of his own land which he had lost in consequence of the Court proceedings, we do not consider that this is a case in which money compensation would have been an adequate relief.
6. The second appeal is dismissed with costs.