itself decisive in considering whether or not specific performance should be granted. It also appears that In some contracts there is a stipulation to pay a certain sum of money in the event of default in performance. The general rule is that If a thing being agreed upon to be done, though there is a penalty annexed to secure Its performance, yet the very thing itself must be done. Normally, such a stipulation is inserted in order to emphasize the execution or due performance of the contrast. Merely that there is such a stipulation, the party committing default cannot exercise option of paying the penalty and avoiding specific performance of the contract. That is the reason that the Legislature in Section 23 of the Specific Reliefs Act cast a duty on the Court to interpret the intention of the parties and for that, to evaluate the terms of the contract and other circumstances present in the case, if we examine the terms of the contract before us, the most important fact to be borne in mind is that along with execution of the contract the Defendant Appellant accepted part payment of the sale price and also delivered possession of the land under sale. Delivery of possession in pursuance of agreement to sell is a very important fact underlying the intention of the parties to the contract. We can, therefore, say that the intention of the Defendant was to execute the sale-deed in favour of the Plaintiff after obtaining 'sanad' . It appears to us that if the 'sanad' would have been granted to the Defendant Appellant he would have got the sale deed registered then and there. The specific performance was, therefore, not possible till the Defendant paid
