AMMINI Vs. BINU J. NALPATHANJIL AND ORS.

JUDGEMENT

(1.) THE second appeal is against the judgment and decree in A.S. No. 41 of 2015 on the file of the Additional District Judge -I, Mavelikkara. The matter came up before the lower appellate court from an order passed by the executing court on E.A. No. 181 of 2014 in E.P. No. 252 of 2012 in O.S. No. 3 of 2012. The suit was one for specific performance of an agreement. The appellant filed a petition under Section Order 21 Rule 99 and Rule 104 CPC r/w Section 47 CPC.

(2.) HEARD the learned counsel for the appellant and learned counsel for the contesting respondent.The specific questions of law put forward by the appellant are thus:

(3.) THE relevant facts admitted by both sides are as follows: The contesting respondent obtained a decree for specific performance of a contract against the other respondent in this proceedings. Pursuant to the decree, a sale deed was also executed in the name of the contesting respondent through the intervention of the trial court. When that property was sought to be taken delivery of, the appellant resisted and came forward with a petition under Order 21 Rule 99 and Rule 104 CPC and also under Section 47 CPC. That matter was considered by the trial court at length. The contention raised by the appellant in the petition is that she was put in possession of the property by the second respondent in this appeal by virtue of an agreement to sell after receiving more than Rs. 4 lakhs towards the consideration. It is her case that she keeps possession of the property in part performance of the contract and she is entitled to get the protection under Section 53A of Transfer of Property Act (in short 'the TP Act'). Executing court noticed that no agreement was produced by the appellant to substantiate her contention. More over, the agreement alleged to have been executed by the second respondent in this appeal in favour of the appellant was in the year 2011. Admittedly, it was not a registered agreement to assign. On account of the amendment to Section 53A of TP Act and section 17 of the Registration Act, the appellant is legally precluded from claiming any right under Section 53A of TP Act by raising a claim that she was put in possession and keeps the same by virtue of part performance. This contention was repelled by the executing court. The matter was taken up to the lower appellate court. The lower appellate court dismissed the appeal mainly for two reasons. Firstly, the appellant could not have taken recourse to a proceeding under Order 21 Rule 99 CPC before she was dispossessed from the property. Second reason stated by the lower appellate court is that as the application itself was not maintainable and the appeal was also incompetent.