IGNATIOUS Vs. DOMINIC

JUDGEMENT

(1.) Respondent herein filed a suit for specific performance of Ext.P1 agreement for sale dated 24/07/2002. Petitioner was the defendant. Ext.P2 is copy of the plaint. Petitioner was set ex parte, allegedly on account of the negligence of his advocate. Ext.P3 is copy of the judgment passed ex parte in favour of the respondent. Thereafter, by invoking S.28(3) of the Specific Relief Act, 1963 (in short, "the Act") read with Order XXI R.32 and S.151 of the Code of Civil Procedure, 1908 (in short, "the Code") the respondent filed Ext.P4 application for getting a sale deed executed through the Court as the petitioner did not obey the decree. It is further prayed by the respondent that the property be delivered to him, despite having a recital in Ext.P1 that possession of the property had been handed over to him. Then the petitioner, for the first time, entered the arena of litigation and questioned the executability of the decree. Ext.P5 is the objection filed by the petitioner. He contended that after introducing S.17(1A) to the Registration Act, 1908 (in short, "Registration Act") Ext.P1, an unregistered agreement to assign, cannot confer any right on the respondent to claim the benefit of S.53A of the Transfer of Property Act, 1882 (in short, "TP Act"). Further, Ext.P1 will not affect his rights in immovable property in view of Sec. 49 of the Registration Act. It is the grievance of the petitioner that none of these questions were considered by the Court below in the correct perspective when Ext.P6 order was passed, permitting the respondent to take symbolic delivery of the property. According to the petitioner, in the given situation, neither actual delivery nor symbolic delivery is possible by virtue of the legal hurdles.

(2.) Heard the learned counsel appearing for the contestants.

(3.) Petitioner's counsel vehemently contended that Ext.P2 suit for specific performance of contract, perpetual injunction and other reliefs should have been held not maintainable in law. Ext.P3 judgment is per se unsustainable. The execution proceedings, therefore, is also illegal. Challenge in this proceedings is against Ext.P6 order passed by the Trial Court on an application under S.28 of the Act requesting the Court to execute a document in favour of the respondent and also to put him in possession of the property.