PADMALABHA PANDA Vs. APPALANARASAMMA

JUDGEMENT

(1.) The question, involved in this appeal, is whether a plaintiff can avail himself of the benefits of the doctrine of part performance of a contract for sale as against an invasion on his rights by an attaching creditor of the transferor (promisor.) He had objected to the attachment by advancing a claim in Order XXI, Rule 58, Civil Procedure Code. The claim having been rejected he brought the suit, out of which this Second Appeal arises.

(2.) The appeal was heard 'ex parte', and the learned Counsel, appearing on behalf of the appellant No. 1 obtained a decree for costs against them invite our attention to such authorities as could be cited by the respondent had he been represented before us.

(3.) The facts, in short, are that the disputed properties belonged to defendants 2 to 12. Defendant No. 1 obtained a decree for costs against them. After decree, passed on 2-9-1936, the aforesaid defendants separated amongst themselves and the disputed properties fell to the share of defendant No. 2. On 20th September 1937, the latter entered into an agreement for sale with the plaintiff with respect to the disputed properties. In this connexion, it has been found by both the Courts below, that the plaintiff got possession of the properties in partfulfilment of the contract and that he paid the consideration money while he was all along ready and willing to perform his part of the contract. In short, under the law, he is in the situation in which he could pray in aid the doctrine of part performance, as enacted in Section 53-A, Transfer of Property Act, had the transferor wanted to enforce any of his rights to the properties in a suit against him. After the unregistered agreement, defendant No. 1 executed the decree (in Execution Case No. 116/38) and brought the properties under attachment to which the plaintiff took exception unsuccessfully.