(1) This appeal raises an interesting question of law namely whether the person who has obtained property on the basis of a contract of sale can maintain a suit against an auction purchaser of the same property. The material facts briefly stated are as follows;
(2) The suit property (i.e survey Nos. 162 and 177) (half share) originally belonged to defendant No. 3 and two others. On 12-4-1949 defendant No. 3 and two others entered into an agreement for selling the said property to the plaintiff for a sum of Rs. 1,600/- Part of the sale price i.e. Rs. 585/- was paid on the date of agreement and the plaintiff was put in possession of the property. In the month of May, 1949, defendant No. 2 obtained a decree against defendant No. 3 In execution of the said decree, the land in suit was sold in auction and purchased by Deft. No. 1, Deft. No. 1 started proceedings for recovering possession of the property on the basis of the sale certificate. The plaintiff obstructed the delivery of possession. proceedings were started by the auction purchaser for removing the obstruction under Rule 99 of order 21 of the Code of Civil Procedure. After summary enquiry, the Court came to the conclusion that the plaintiff was not entitled to continue in possession. The Court therefore directed him to remove his obstruction. On 2-4-52, the plaintiff filed a suit under Rule 103 of order 21 of the C. P. C. contending that he was a transferee under a contract of sale; that he was in possession of the property by virtue of that contract of sale; and that therefore he was entitled to protect his possession under Section 53A of the Transfer of Property Act.
(3) Deft. No. 3 did not appear and the suit proceeded ex parte against her. Defts. 1 and 2 contended that the plaintiff cannot maintain any action for the enforcement of his claim under Section 53A of the T. P. Act. The trial Court dismissed the plaintiff's suit. The plaintiff went in appeal to the District Court. The District Court allowed the appeal and decreed the plaintiff's claim. It is against that judgment the defendants Nos. 1 and 2 have now come up in appeal.
(4) Mr. Guttal for defts. 1 and 2 urged two contentions before me. Firstly that the plaintiff who bases his claim on the doctrine of part performance of the contract, embodied in Section 53A cannot maintain an action for protecting his possession. At best he can use the part performance of the contract as a shield. He can never use it as a weapon of offence. Secondly it is argued that neither the judgment creditor (deft. 2) nor the the auction purchaser (deft. No. 1) could be said to be claiming under defendant No. 3, the judgment debtor. It is only the transferor or persons claiming under him who are debarred from proceeding to evict the transferee claiming under a contract of sale. Mr. Guttal contended that since the auction purchaser could not be said to have derived title from the judgment debtos, the bar imposed by Section 53A cannot apply to him.
(5) On the other hand Mr. Pathak maintains that a suit under Rule 103 of Order 21` of the C. P. C. is in the nature of a defensive action. Therefore when the plaintiff maintains an action under Rule 103, he is resisting, insubstance, the claim of the auction purchaser to evict him on the basis of the auction sale. In regard to the second point, Mr. Pathak argues that in a broader sense the auction purchaser must be treated as claiming from the transferor within the meaning of that expression in Section 53A of the T. P. Act.
(6) Before considering the authorities cited, it is necessary to refer to the provisions of Section 53A of the T. P. Act itself. The first para of that section runs thus:-
'Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee being already in possession, continue in possession in part performance of the contract and has done some act in furtherance of that contract'.
(7) It is not disputed that there is a valid contract of transfer. Not ir is disputed that the transferee is in possession on the basis of that contract. The 3rd para of Section 53A provides; 'and the transferee has performed or is willing to perform his part of the contract.'
(8) The transferee has expressed his willingness to perform his part of the contract in the course of his deposition. It is conceded that the plaintiff's suit for specific performance was barred by limitation at the time of the suit. It is however, well settled that even if the plaintiff's remedy for specific performance is barred by limitation he has still the right to invoke the protection of S. 53-A of the T. P. Act. the 4th para is relevant and runs thus:
'Then , notwithstanding that the contract though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor of any person claiming under him shall eb debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract.'
(9) Then there is a proviso: 'Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.'
(10) The first question that arises for consideration is what is the nature of the claim put forward by the transferee under S. 53-A of the T. P. Act. In Prabhodkumar Das v. Dantmara Tea Co., Ltd. their Lordships of the Privy Council held that S. 53-A confers no right of action ona transferee in possession under an unregistered contract of sale and that the right conferred by S. 53-A is a right available only to a defendant to protect his possession. The section imposes a statutory bar on the transferor. It does not confer any active title on the transferee. This view was followed by the Bombay High Court in Ramrao Nilkant v. Purnanand Saraswatiswami : AIR1940Bom281 . The principle laid down by the Privy Council in Prabhodkumar's case has been followed by other High Courts in India and is now well settled. There is, however, a sharp conflict of opinion as to whether a suit instituted under Rule 103 of order 21 of the C. P. C. is in the nature of a defensive action or not. In other words the question for consideration is whether such a suit based as it is on the doctrine of part performance is maintainable. The Privy Council specifically stated that S. 53-A does not confer any title on the transferee. It also stated that it does not confer any right of action on a transferee in possession and the only right available to him is to protect his possession as a defendant.
(11) The Allahabad High Court had occasion to consider the scope of the Privy Council decision. The facts were as follows : AIR1939All611 .
(12) The plaintiff was a lessee of certain properties under a deed of lease which was duly registered but was not signed by either the lessor or lessee in accordance with the provisions of S. 107 of the T. P. Act. Nevertheless, the plaintiff had obtained possession of the subjects leased. While the plaintiff was thus enjoying the possession defendants demolished part of the property. Plaintiff brought a suit for injunction restraining the defendant from interfering with any of the rights of the plaintiff as lessee of those properties. It was contended by the plaintiff that as he had entered into possession of the properties in terms of the lease executed in his favour and was willing to perform his part of the contract of the lease though it was not completed in accordance with law the defendants were not entitled to eject him otherwise than by due process of law. Upon a question whether plaintiff could rely upon the provision of S. 53-A
Held that 'it was defendants who were seeking to enforce their rights under the contract of lease. The plaintiff was only seeking to debar them from doing so and was therefore nothing in the terms of S. 53-A which disentitled the plaintiff from maintaining the suit'. The learned Judges observed that the case before the Privy Council was different from the case on their hands because there (in Prabhodkumar case , the transferee sought a direct relief in support of his title.
(13 and 14) The Allahabad view was followed by the Chief Court of Oudh in . In that case a suit was brought by the plaintiff under Order 21, Rule 103 of the Civil Procedure Code, in the following Circumstances:
(15) Mr. Firdos Jehan's husband, Sheikh Habibullah, was the tenant of a house in Lucknow which was owned by Dr. Mohamed Yunus, a sub-assistant surgeon in Gonda. In 1936 Dr. Yunus sued Habibullah for ejectment and arrears of rent. In may 1936 a compromise decree was passed according to which Habibullah was to vacate the house by 31st August. He did not vacate and on 17th September Dr. Yunus applied for execution of his decree for ejectment. At this stage, Mt. Firdos Jehan who was living with her husband in the house, appeared on the scene. Her story was that she came to know Dr. Yunus wanted to sell the house and she got into touch with Dr. Yunus through one Hakim & negotiations were started for purchase of the house. It was eventually agreed that Mt. Firdos Jehan should buy the house for Rs. 7,800. Rs. 500 was paid to Dr. Yunus as earnest money and the receipt was obtained. She continued in possession under the contract of sale . Dr. Yunus thereafter sold the house to a man named Eves Malli on 30th September. He did not inform Eves about the previous agreement. Mt. Firdos having failed in the resistance proceedings, filed a suit under O. 21, Rule 103 of the C. P. C. It was contended that the suit was not maintainable inasmuch as it ws based under S. 53-A and S. 53-A could only be used by way of defence. This contention was negatived and it was held that although it is a settled law that S. 53-A is available by way of defence only , that principle is not applicable to a suit brought by a vendee under O. 21, R. 103 because the vendee in substance is merely seeking to protect the rights to which he is entitled under S. 53-A.
(16) A similar case arouse before the Andhra Pradesh High Court in AIR 1957 Andh Pra 854 and the Division Bench comprising Subbarao C. J. and Vishwanatha Sastri, J held 'Section 53-A does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintiff. Under the section no title passes to a transferee. He cannot file a suit for a declaration of his title to the property or seek to recover possession of the same on the basis of any title conferred to him.'
'But, If the conditions laid down in the section are complied with, it enables the transferee to defend his possession if the transferor seeks to enforce his rights against the property. This statutory right he can avail himself both as a plaintiff and as a deft. provided he is using his right as a shield and not as a sword. Or to put it in other words, he cannot seek to enforce his title but he can resist the attack made by a transferor.'
(17 and 18) this decision was reiterated by the same Court in AIR 1957 AP 859 in the case of Akram Mea v. Secunderabad Municipality.
(19) The Madras High Court in the case of Ettaparambath Pakkirichi Umma v. Kakprath Kalandan, : AIR1954Mad702 have also taken the view that in respect of suits filed under R. 63 of rule 103, it cannot be said that the plaintiff is using S. 53-A as a weapon of offence. At page 703, Ramaswami J. observes; 'The only exception in form, though not in substance, is in cases under the C. P. C., O. 21, R. 63 or R. 103. In such cases the plaintiff will not be necessarily debarred from the benefit of the rule because where by the nature of the case, as disclosed by the pleading or otherwise, it is apparent that the transferee comes to the Court to defend his possession against invasion of it by the transferor, he is entitled to invoke the doctrine of part performance. The mere position of a party in the heading of a suit would not determine whether he is or is not entitled to the benefits of the section. Since the object of a suit under O. 21, R. 103, C. P. C. would be to protect possession and the capacity in which the plaintiff comes to the court is in reality a defence and the suit would in reality be part of the same proceedings as those in which the transferee's rights are attacked, the plaintiff can take advantage of S. 53-A.'
(20) Although there is direct ruling of the Bombay High Court on this question this Court has discussed the scope of the provisions of R. 103 of O. 21, C. P. C. in a number of decisions. In the case of Ramalaxmi v. bank of Baroda Ltd., : AIR1953Bom50 , the division bench observed:
'A suit under O. 21, R. 103 is evidently for the purpose of establishing the right which the plaintiff claims to the present possession of the property . . . . . . . . . The question is what is the plaintiff's claim to the present possession of the property and not whether he is the sole owner of the property'
(21) It is thus clear that the only right which the plaintiff puts forwards in a suit under O. 21, r. 103 C. P. C. is the right to maintain his present possession. The suit, therefore is essentially for the purpose of preserving that right. The objective is to maintain his possession undisturbed.
(22) As against this preponderance of authorities Mr. Guttal relied upon the solitary ruling of the Orissa High Court : AIR1952Ori143 Padmalabha Panda v. Appalanarasamma. The decision was taken by a division bench comprising Ray, C. J. and jagannadhadas J. They were considering the nature of the suit under O. 21, R. 63, C. P. C. on the basis of S. 53-A of the T. P. Act. The learned Judges posed the question whether it is open to the transferee under a contract of sale to bring a suit based on S. 53-A. The learned Judges observed:-
'The section can never be availed of as founding a cause of action; and it cannot, therefore, be urged that what is available to the transferee as a defence in a suit in ejectment by the transferee is available to him as a weapon of attack in an action which takes rise from an invasion of the transferee's rights under the contract. Moreover, a suit by the transferee against an attaching creditor of the transferor under O. 21, R. 63, C. P. C. is not one between him and the transferor or anybody claiming under the transferor. Hence the transferee as a plaintiff cannot avail himself of the benefits of the doctrine of part performance of contract for sale as against an invasion on his rights by attaching creditor of the transferor.'
(23) The learned Judges repelled the argument that the action under O. 21, R. 63 is in the nature of a defensive action by pointing out that 'if this was permissible it would amount to creating an enforceable right or title to immovable property by means of an unregistered contract deed and thus to reduce to nullity the effect of s. 49 of the Indian Registration Act.
(24) Thereafter the learned Judges referred to decisions of the various High Courts which had held that suit under Rule 63 or Rule 103 of the C. P. C. substantially is a defensive action, and observed;-
'While purporting to give effect to S. 53-A, T. P. Act, in effect they made use of the doctrine of part performance as the basis of an action on the analogy of the practice on the equity side in England.'
(25) With respect, I am unable to accept the view taken by the Orissa High Court for the simple reason that the learned Judges have not examined S. 53-A of the T. P. Act in the context of O. 21, R. 103 of the C. P. C. and have laid emphasis upon the provisions of s. 49 of the Indian Registration Act and S. 54 of the Transfer of Property Act which have relevance only on the question of the title. The transfer of immoveable properties the value of which is Rs. 100 or more can only be effected, by a registered instrument under S. 54 of the T. P. Act. S. 49 of the I. R. Act provides that documents which required compulsory registration are not admissible in evidence in any suit or proceedings for any purpose. The rigour of Section 49 of I. R. Act and S. 54 of the T. P. Act has been partially relieved by the provision of S. 53-A. In the case of a suit filed under R. 103 all that the plaintiff can claim is that he has a right to present possession of the property and the question of title is not relevant. In essence such a suit is defensive incharacter. I, therefore, prefer to follow the view taken by the Allahabad, Oudh, Madras and Andhra Pradesh High Courts to the view taken by the Orissa High Courts to the view taken by the Orissa High Court on this point.
(26) The next and more important point for consideration is whether the auction purchaser can be regarded as a person claiming under the transferor. I already cited all the relevant clauses of S. 53-A of the T. P. Act. The relevant portion of the 4th clause, on the interpretation of which the decision of this turns runs thus:-
'. . . . . . . . . . . The transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession.
(27) The short question for consideration is whether the auction purchaser in execution can be trated as a person claiming under the transferor within the meaning of that expression as used in 4th clause of S. 53-A. There was considerable controversy prior to the amendment of S. 47 in the C. P. C. as to whether the auction purchaser could be regarded as a representative either of the judgment creditor. The Bombay High Court had consistently taken the view that the auction purchaser is neither the representative of the judgment debtor nor of the judgment creditor. Section 47 provides that all questions arising between the parties to the suit in which the decree was passed or their representatives shall be determined by the Court executing the decree and not by a separate suit. The explanation to S. 47 before it was amended ran thus:-
'For the purpose of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed are parties to the suit.'
(28) In (1939) 42 Bom LR 1123, Hanmantagouda Nagangouda v. Shivappa Dundappa, this Court held:-
'A purchaser at an auction held by Court in execution of a decree who is a stranger is not a representative of either the judgment-debtor or the judgment-creditor.'
(29) This view followed earlier decisions of the Bomaby High Court in Gangadhar v. Balwant : AIR1940Bom210 and in Narasinhbhat v. Bandu Krishna : AIR1918Bom231 . The view taken by some of the other High Courts was to the contrary and it was held that the auction purchaser must be treated as a representative of the judgment-debtor . In order to put the matter beyond the pale of controversy the Legislature amended the explanation to S. 47 of the C. P. C. and substituted the following explanation by Act No. 66 of 1956:
'For the purposes of this section, a plaintiff whose suit has been dismissed, a deft. against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.'
(30) It is pertinent to note that the Legislature, by this explanation did not constitute the auction purchase as the representative of the judgment-debtor. On the other hand they chose the less controversial line by making the auction purchaser in execution as equivalent to a party to the suit. It is difficult, on general principles, to hold the auction purchaser as in any way the representatives of the judgment-debtor or a person claiming under the judgment-debtor. It is true that the auction purchase gets the right, title and interest of the judgment-debtor. But he does not get it by virtue of an act of parties. He does not get the title as a result of an agreement with the transferor. He does not obtain his right in accordance with the wishes of the transferor but contrary to his wishes. In the first place it is clear that the decree holder or the judgment-creditor makes a claim against the judgment-debtor and obtains a decree. After obtaining the decree he gets the property attached in execution. In so far as he proceeds to attach the property in execution he takes a step contrary to the interest of the judgment-debtor and against his consent. When the property is brought to sale, the judgment-creditor himself may purchase the property after securing permission of the Court or a third person may purchase the same. Whether it is the judgment-creditor or a third person who is purchasing the property, it is difficult to hold that either of them steps into the shoes of the judgment-debtor.
(31) On this point strong reliance was placed by Mr. Pathak on the decision by King J. in AIR 1943 Mad 706. The facts of the case were that the decree holder had certain property allegedly belonging to his judgment-debtors attached. Deft. No. 4 intervened with a claim petition in which it was asserted that defendants 1 and 2 had contracted to sell the property to her and had duly put her in possession. There was thus, what was in effect a plea under S. 53A of the T. P. Act. The district Munsiff dismissed the claim. An appeal was preferred in the District Court and the learned District Judge allowed the plaintiff's claim. Then a second appeal was preferred before the Madras High Court which was decided by King J. sitting singly. The main question that came up for consideration was whether the judgment-creditor could be regarded as claiming under the judgment-debtor. After conceding that the interest of the judgment-debtors and that of the judgment-creditor are distinctly adverse and also after conceding that the judgment-creditor cannot be called a legal representative of the judgment-debtor at the stage in which he is proceeding to attach the judgment-debtor's property, the learned Judge proceeded to consider the eventuality of the property having been sold in auction and on that basis posed the question whether the auction purchaser can be regarded as claiming under the transferor. At page 702 the learned Judge asserted in some what categorical terms 'it can now no longer be denied that the auction purchase is the legal representative of the judgment-debotr'. This statement is justified on the basis of the view that prevailed in the Madras High Court viz that the auction purchaser is a representative of the Judgment-debtor under Section 47 of the C. P. C. (Vide AIR 1941 Mad 161 (FB)). According to the learned Judge, as soon as the sale is held the rights of the judgment-creditor revive with irresistible force. The learned Judge then proceeded to observe:-
'In these circumstances I prefer to hold that the expression 'claiming under the transferor' is wide enough in s. 53A to include a judgment-creditor in the situation in which the appellant in this appeal now stands'
(32_ With respect, I cannot accept the view taken by King J. The learned Judge took up the hypothetical case of the proceedings culminating in the sale of the property and on that assumption considered the position of the auction purchase. On the analogy of the position of the auction purchaser, the learned Judge held that the judgment creditor also will be included in the expression 'claiming under the transferor'. This view is based on the assumption that the auction purchase is the legal representative of the judgment-debtor, a position which has never been accepted in this Court.
(33) The Orissa High Court had occasion to consider this aspect of the matter in the very case to which reference has already been made by me AIR 1952 Ori 148. I have already set out the facts of the case and it is not necessary to repeat them At para 30, the learned Judges observed:-
'There is another reason equally fatal to the plaintiff's suit. His suit is not one between him and the transferor or anybody claiming under him (the transferor). the attaching creditor derives nothing from the judgment-debtors by way of any right to purchase or charge upon the property. He wants to attach the property against the will and consent of the judgment-debtors.'
(34) After citing the relevant passage from the judgment of King J. in AIR 1943 Mad 706, the learned Judge proceeded to observe:
'With great respect, I cannot place myself in the same position as his Lordship, King J. At the time of attachment, the attaching creditor's purchase,and the sale following it, would be mere expectation. I shall not be understood to accept, without reservation, the view that an auction purchaser in execution of a money decree is in general, a representative of the judgment debtor.'
(35) In my opinion the auction purchase is not a person claiming under the transferor within the meaning of that expression in para 4 of s. 53-A of the T. P.Act. The result, therefore, is that the appeal succeeds.
(36) Appeal allowed. The decree of the appellate court is set aside and that of the trial Court is restored. There will be no orders as to costs.
(37) Appeal allowed.