JUDGMENT : Narendra Kumar Vyas, J. 1. This is defendant’s first appeal filed under Section 96 of the C.P.C. challenging the judgment and decree dated 31.08.2006 passed by the learned 11 th Additional District Judge, Raipur (C.G.) in Civil Suit No. 90-A/2004 by which the learned trial Court allowed the suit filed by the plaintiff and directed the defendant to execute the sale deed in favour of the plaintiff. 2. The parties are referred to as described in the civil suit before the learned trial Court. 3. The brief facts as reflected from the plaint’s averments are that:- 3.A)The plaintiff filed the civil suit for specific performance of the contract in respect of property namely Rice Mill known as Gurudev Rice Mill situated at Khasra No. 360/105 Area 1.54 Acre at village Tulsi, Bhatapara (hereinafter referred to as ‘the suit property’), agreement was executed on 20.03.2001 contending that the defendant owns the suit property and she has executed an agreement with the plaintiff on 20-3-2001 to sell the said rice mill along with land, house, pump, boiler and other complete equipment of the rice mill for sale consideration of Rupees five lakh rupees. It is also the case of the plaintiff that on 20-3-2001 i.e the date of execution of the agreement, the defendant received Rs 50,000/- from the plaintiff as advance amount out of the sale consideration of Rs 5,00,000/- through cheque and the defendant agreed to execute a registered sale deed of the entire rice mill in favour of the plaintiff by 15-7-2001. The plaintiff has also pleaded that he has paid the entire sale consideration on 22.03.2001 and a receipt of the same was also signed by the defendant. It has also been contended that if the plaintiff does not execute the sale deed in favour of the plaintiff by 15-7-2001, then the plaintiff will have the right to get it registered from the court. 3.B)It has been further contended that since the defendant has received the entire sale consideration of the suit property from the plaintiff she has handed over the original sale deed related to the land and also handed over the possession to the plaintiff. It has also been pleaded that the plaintiff was always ready and willing to execute the sale deed within the stipulated time period and the amount of the prescribed stamp duty was ready with the plaintiff. It has also been pleaded that the plaintiff was always ready and willing to execute the sale deed within the stipulated time period and the amount of the prescribed stamp duty was ready with the plaintiff. As such, the plaintiff contacted the defendant to register the sale deed before 15-7-2001, for which the defendant asked for time till July, 2002. Since the plaintiff had already paid the entire sale consideration and had also received possession of the rice mill, the plaintiff accepted the verbal request of the defendant. After this, the plaintiff continuously kept in touch with the defendant through his father, his hospital staff and himself and kept asking for registration of the sale deed, but the defendant did not show any interest in registering the sale deed and kept postponing it. 3.C)The plaintiff's further case is that in July 2002, the plaintiff went with his father and contacted the defendant and asked her to register the sale deed of the sold rice mill, but the defendant kept procrastinating for registration of the sale deed. Meanwhile, the plaintiff came to know that the defendant is trying to sell the rice mill to someone else, therefore, the plaintiff, through her advocate, published a general notice in the daily newspaper ‘Dainik Bhaskar’on 5-6-2002. 3.D)The plaintiff's further case is that the plaintiff through his advocate sent a registered notice dated 30-12-2002 to the defendant to the effect that the plaintiff is ready for registration of the sale deed and also mentioned in the notice about fixing the date for appearance of the plaintiff before the Registrar for registration of the sale deed which should be 7 days in advance, so that the plaintiff pays the necessary stamp duty, gets the sale deed typed and appears before the registration office Tilda on the date to be fixed by the defendant. The defendant refused to accept the notice dated 30- 12-2002 and on 6-1-2003 which has necessitated the plaintiff to file the suit for specific performance of contract. 4. The defendant filed his written statement denying the allegations made in the plaint mainly contending that :- 4.A)The plaintiff's father does money lending without license and Omprakash Joshi is his main worker. The plaintiff's father had sent a proposal to the defendant on 15-3-2001 to buy the suit property through Omprakash Joshi. 4. The defendant filed his written statement denying the allegations made in the plaint mainly contending that :- 4.A)The plaintiff's father does money lending without license and Omprakash Joshi is his main worker. The plaintiff's father had sent a proposal to the defendant on 15-3-2001 to buy the suit property through Omprakash Joshi. The defendant also wanted to sell the suit property at market price which was about fifteen lakh rupees whereas the plaintiff's father and the agent Joshi, valued suit property to the tune of five lakhs at the moment and agreed between them that after ascertaining the market value, a final contract will be executed. 4.B)It is also case of the defendant that the husband of the defendant had a long-standing dealings with the father of the plaintiff and since the plaintiff and his father were reputed doctors, on the basis of their credibility, the defendant signed the so-called "Ikrarnama" brought by Joshi on 20-3-2001 as an acknowledgment of the desire to sell. According to the defendant, the said agreement was written only as a temporary arrangement and in confirmation of the defendant's desire to sell the mill and the final and binding contract was decided to be executed after fixing the market value of the mill. Just two days after the execution of the above agreement dated 20-3-2001, due to disagreement on the market value of the mill, the plaintiff has taken back Rs. 50,000/- from the defendant through cheque and the agreement stood canceled. 4.C)It has been further contended by the defendant that after the above incident, Joshi again came to the defendant with a typed money receipt and stated that there is some financial transaction pending between Dr. Jeevanmal and the husband of the defendant. As a security for that transaction, payment of Rs. 4,50,000/- has been mentioned in the said receipt towards sale of the suit property. It has also been contended that the receipt has been signed due to threat and fear of dire consequences to her husband. It has also been contended that no money was given to her and prayed for dismissal of the suit. 5. Learned trial Court on the pleadings of the parties framed as many as5 issues. The plaintiff to substantiate his case has examined himself as PW-1, PW-2 Dr. It has also been contended that no money was given to her and prayed for dismissal of the suit. 5. Learned trial Court on the pleadings of the parties framed as many as5 issues. The plaintiff to substantiate his case has examined himself as PW-1, PW-2 Dr. P.E. Jeewanmal and PW-3 Aawatrai Mandhani and exhibited documents namely Ex.P1 - Ikrarnama, Ex.P2 – Money Receipt, Ex.P5 – paper publication, Ex.P6 – notice dated 30.12.2002, Ex.P7 – postal receipt, Ex.P8 – returned notice in envelop, Ex.P9C –copy of bank passbook, Ex.P10,11, 12 – Income tax return. 6. The defendant examined herself as DW-1, DW-2 Omprakash Tanwani and DW-3 Giri Kumar and exhibited documents namely Ex D1-D4 Electricity Bills, Ex D5 – Notice, Ex D6 – Postal Receipt, Ex D7 – Acknowledgment, Ex D8 – letter for disconnection of Electricity, Ex D9 – Notice, Ex D10 – postal receipt, Ex D11 – Acknowledgment, Ex D12 – certificate of posting, Ex D13 – complaint to Police. 7. The learned Trial Court on appreciation of oral and documentary evidence available on record decreed the suit with cost in favour of the plaintiff on 31.08.2006 directing the defendant to execute the sale deed in favour of the plaintiff with regard to the suit property and if defendant fails to execute the sale deed, the same shall be executed as per Order 21 Rule 34 of the C.P.C. This judgment and decree passed by learned Trial Court is being assailed in this first appeal by the defendant. 8. Learned counsel for the appellant vehemently criticized the judgment and decree passed by the learned trial Court and would submit that that learned trial Court has erred in believing the agreement to sale dated 20.03.2001 as signature of the appellant has been taken on the said document by adopting coercive method and this document has also not been proved in accordance with law. The respondent has also failed to prove that he has paid Rs. 50,000/- as advance to the appellant. The respondent has taken forceful possession of the suit property therefore, it cannot be said that the appellant has given physical possession of the suit premises on 15.07.2001 after taking Rs. The respondent has also failed to prove that he has paid Rs. 50,000/- as advance to the appellant. The respondent has taken forceful possession of the suit property therefore, it cannot be said that the appellant has given physical possession of the suit premises on 15.07.2001 after taking Rs. 4,50,000/-, therefore, the finding recorded by the learned trial Court suffers from illegality and perversity and on the basis of this perverse finding the judgment and decree has been passed which is liable to be set aside by this Court. 9. On the other hand, learned counsel for the respondent would submit that the judgment and decree passed by the learned trial Court is legal and justified and does not warrant interference by this Court. He would further submit that the plaintiff was ready and willing to perform his part of contract as he has already paid the entire sale consideration and defendant deliberately avoided execution of the sale deed. The learned trial Court on the basis of the evidence and materials on record has recorded its finding in paragraph 30 which cannot be found fault or suffers from perversity. Thus, he would pray for dismissal of the appeal. Learned counsel for the respondent to substantiate his contention would refer to judgments of the Hon'ble Supreme Court in the case of A.R. Madana Gopal and Others vs. Ramnath Publicvations Private Ltd. (2021) 11 SCC 200 , P. Ramasubbamma vs. V. Vijayaalakshmi and Others (2022) 7 SCC 384, Motilal Jain vs. Ramdasi Devi and Others (2000) 6 SCC 420 . 10. xxx 32. I have heard learned counsel for the parties and perused the record of the Court below with utmost satisfaction. 33. On pleadings of the parties, material placed on record the point to be determined by this Court is :- (i) Whether the trial Court was justified in directing for specific performance of contract in view of there being a dispute about the sale consideration between the plaintiff and defendant? 34. For determination of this point it is expedient for this Court to extract Section 20 of the Specific Relief Act, 1963 as it then stood i.e. prior to the 2018 amendment reads as under :- “20. Discretion as to decreeing specific performance. 34. For determination of this point it is expedient for this Court to extract Section 20 of the Specific Relief Act, 1963 as it then stood i.e. prior to the 2018 amendment reads as under :- “20. Discretion as to decreeing specific performance. (1)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; but 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. (2)The following are cases in which the court may properly exercise discretion not to decree specific performance:— (a)where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b)where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.—The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3)The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4)The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. 35. (4)The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. 35. From the records it is quite vivid that the defendant from very inception of the suit, particularly in her additional pleading has taken specific stand that she has signed the alleged agreement dated20.03.2001 temporarily with intention to sell the suit property but the final agreement would be executed after assessing the actual market value. She has also stated that her husband is having some financial transaction with the plaintiff’s father and the said receipt was given for security of outstanding amount of Rs. 4,50,000/- which has been wrongly mentioned in the receipt as sale consideration of the suit property. She has also stated that she has given the receipt on account of apprehension as the plaintiff has threatened her to give the said receipt with dire consequence to follow. The signature on the receipt has been given by her on account of fear. The said witness in her examination in chief has taken the same stand and even in the cross-examination nothing has been brought on record to dilute the stand taken by the defendant in her evidence. The defendant in her cross-examination has categorically deposed that she has not executed the agreement for sale of the suit property. Nothing was brought on record to dilute the averment and evidence recorded in her examination in chief. 36. From the record it is quite vivid that the plaintiff has relied upon the execution of the receipt on 22.03.2001 Ex.P/2 whereas the defendant has denied the existence of money receipt by taking stand that she has not received the amount and the said receipt was given towards security of some loan transaction between the plaintiff’s and her husband. In such circumstances, it is incumbent upon the plaintiff to examine two witnesses namely Om Prakash Joshi and Sadhelal before them, the receipt was said to have been written and the amount has been given by the plaintiff which have not been examined, therefore, the learned trial Court should have drawn an adverse inference as per Section 114(g) of the Indian Evidence Act, 1872 against the plaintiff for not examining the witnesses of the alleged receipt who can throw light on the issue of controversy. The issue of drawing an adverse inference is always subject matter of scrutiny and examination by the Hon’ble Surpeme Court and High Courts. The Hon’ble Supreme Court in case of Union of India vs. Ibrahim Uddin and Another { 2012 8 SCC 148 } has considered the circumstances of drawing and law on adverse inference and held in paragraph 12 as under :- Presumption under Section 114(g) of the Evidence Act : 12.Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6 ; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225 ; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136 ; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755 ; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413 ; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024 ; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813 ; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126 ). 37. From the bare perusal of the money receipt it is quite vivid that two witness Om Prakash Joshi and Radhe Lal were present but the plaintiff has not taken any step for appearance of these witnesses who can throw light on the issues particularly in view of the fact that one party is claiming decree in the civil suit by realizing the existence of receipt Ex.P/2 whereas one party is denying the existence of the same. As such, though in such circumstances examination of these two witnesses is necessary but the plaintiff has chosen not to examine the witnesses of the receipt which definitely creates doubt over existence of money receipt. 38. As such, though in such circumstances examination of these two witnesses is necessary but the plaintiff has chosen not to examine the witnesses of the receipt which definitely creates doubt over existence of money receipt. 38. Even, the defendant from very beginning is taking plea of less sale consideration of the suit property mentioned in the agreement and also contents of the receipt as according to the defendant the sale consideration was on higher side and the said receipt was given as security towards loan which is payable by her husband. As such, the trial Court should have not grant discretionary decree of execution of specific performance of contract in favour of the plaintiff. The Hon’ble Supreme Court has also disentitled the party from execution of sale deed in pursuance of Section 20 of the Act as it then stood prior to amendment on the count that there is a dispute about the sale price of the suit property. The Hon’ble Supreme Court in case of Parswanath Saha vs. Bandhana Modak (DAS) and Anr. {2024 INSC 1022} has held as under :- 8. In K. Narendra v. Riviera Apartments (P) Ltd., reported in (1999) 5 SCC 77 this Court held as under: “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 recognized 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. The doctrine of comparative hardship has been thus statutorily recognized 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. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others (1996) 5 SCC 589 by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court. xxx xxx xxx 35. … Possession over a meagre part of the property was delivered by the appellant to the respondents, not simultaneously with the agreement but subsequently at some point of time. To that extent, the recital in the agreement and the averments made in the plaint filed by the respondents are false. On a major part of the property, the appellant has continued to remain in possession. As opposed to this, the respondents have neither pleaded nor brought material on record to hold that they have acted in such a way as to render inequitable the denial of specific performance and to hold that theirs would be a case of greater hardship over the hardship of the appellant. Upon an evaluation of the totality of the circumstances, we are of the opinion that the performance of the contract would involve such hardship on the appellant as he did not foresee while the non-performance would not involve such hardship on the respondents. The contract though valid at the time when it was entered, is engrossed into such circumstances that the performance thereof cannot be secured with precision. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents. …” (Emphasis supplied) 9. In Nirmala Anand v. Advent Corpn. (P) Ltd. & Ors., reported in (2002) 8 SCC 146 this Court held as under: “6. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents. …” (Emphasis supplied) 9. In Nirmala Anand v. Advent Corpn. (P) Ltd. & Ors., reported in (2002) 8 SCC 146 this Court held as under: “6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.” (Emphasis supplied) 10. In K. Prakash v. B.R. Sampath Kumar, reported in (2015) 1 SCC 597 this Court held as under: “18. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed. 19. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed. 19. However, the court may take notice of the fact that there has been an increase in the price of the property and considering the other facts and circumstances of the case, this Court while granting decree for specific performance can impose such condition which may to some extent compensate the defendant-owner of the property …” (Emphasis supplied) 11. In Nanjappan v. Ramasamy & Anr., reported in (2015) 14 SCC 341 , this Court held as under: “11. Under Section 20 of the Specific Relief Act, grant of specific performance of contract is discretionary. Though the decree for specific performance is discretionary, yet the court is not bound to grant such a relief merely because it is lawful to do so. But the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal and should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. The jurisdiction of decreeing specific performance is a discretion of the court and it depends upon facts and circumstances of each case. The court would take into consideration circumstances of each case, conduct of the parties, recitals in the sale agreement and the circumstances outside the contract have to be seen. 12. In Sardar Singh v. Krishna Devi [ (1994) 4 SCC 18 ], this Court observed that as the court has to see the totality of the circumstances, conduct of the parties and respective interests under the contract while granting/refusing such relief. 13. First sale agreement was executed on 30.9.1987 about twenty seven years ago. The property is situated in Coimbatore City and over these years, value of property in Coimbatore City would have considerably increased. In Saradamani Kandaplan vs. Rajalakshmi & Ors., (2011) 12 SCC 18 , this Court has held that the value of the property escalate in the urban areas very fast and it would not be equitable to grant specific performance after a lapse of long period of time. In the instant case, first agreement was executed on 30.9.1987 i.e. twenty seven years ago. In the instant case, first agreement was executed on 30.9.1987 i.e. twenty seven years ago. In view of passage of time and escalation of value of the property, grant of specific relief of performance would give an unfair advantage to the respondents-plaintiffs whereas the performance of the contract would involve great hardship to the appellant-defendant and his family members.” (Emphasis supplied) 12. In Ferrodous Estates (Pvt.) Ltd. v. P. Gopirathnam (Dead) & Ors., reported in 2020 INSC 586, this Court held as under: “28. … Section 20, as it then stood, makes it clear that the jurisdiction to decree specific performance is discretionary; but that this discretion is not arbitrary but has to be exercised soundly and reasonably, guided by judicial principles, and capable of correction by a court of appeal - see section 20(1). Section 20(2) speaks of cases in which the court may properly exercise discretion not to decree specific performance. Significantly, under clause (a) of sub-section (2), what is to be seen is the terms of the contract or the conduct of the parties at the time of entering into the contract. Even “other circumstances under which the contract was entered into” refers only to circumstances that prevailed at the time of entering into the contract. It is only then that this exception kicks in - and this is when the plaintiff gets an unfair advantage over the defendant. Equally, under clause (b) of subsection (2), the hardship involved is again at the time of entering into the contract which is clear from the expression “which he did not foresee”. This is made clear beyond doubt by Explanation II of section 20 which states that the only exception to the hardship principle contained in clause (b) of sub-section (2) is where hardship results from an act of the plaintiff subsequent to the contract. In this case also, the act cannot be an act of a third party or of the court - the act must only be the act of the plaintiff. Clause (c) of sub- section (2) again refers to the defendant entering into the contract under circumstances which makes it inequitable to enforce specific performance. Here again, the point of time at which this is to be judged is the time of entering into the contract.” (Emphasis supplied) 39. Clause (c) of sub- section (2) again refers to the defendant entering into the contract under circumstances which makes it inequitable to enforce specific performance. Here again, the point of time at which this is to be judged is the time of entering into the contract.” (Emphasis supplied) 39. The plaintiff to substantiate his stand has taken a plea that the suit property has been handed over by the defendant which again rebutted by the defendant in her written statement as well as in her evidence that the said documents of the property were given to the plaintiff for ascertaining market price of the suit property for execution of the agreement. This has not been countered by the plaintiff through his evidence therefore, the finding recorded by the trial Court that the plaintiff is in lawful possession of the suit also suffers from perversity and illegality. Considering the entire facts projected by the party there is a serious dispute about the sale consideration, value of the suit property, payment of sale consideration, therefore, in such circumstances, it cannot be said that the plaintiff was ready and willing to perform his part of contract. 40. The judgment referred to by the respondent in case of P. Ramasubbamma (supra) distinguishable on the fact that in the present case there is dispute about contents of the receipt regarding full and final payment of sale consideration which the plaintiff has failed to clarify by recording cogent evidence. Whereas in the judgment there was clear admission regarding execution of agreement as well as receipt of substantial advance sale consideration. Similarly, in case of Motilal Jain (supra) and A.R. MadanaGopal (supra) are also distinguishable from the facts of the case. 41. From the above stated discussion and the considering the legal position, I am of the view that the learned trial Court should have not granted decree of specific performance of the contract. Thus, the judgment and decree dated 31.08.2006 is liable to be set aside, and accordingly, it is set aside. 42. Accordingly this first appeal is allowed. 43. A decree be drawn up accordingly.