S.K. Mal Lodha, J.
1. The objector-appellant has filed this appeal under Order XXI, Rule 58 (4), C. P. C. against the judgment dated Aug. 10, 1982 of the Additional District Judge, Sirohi, by which his ob-jection under Order XXI, Rule 58. C. P. C. was dismissed.
2. A few facts may be noticed first. Kapoor Chand was the original decree-holder, who is now represented by his legal representative Smt. Saku Bai, widow of Gandhi Dhanraj and is respondent No. 1. The original decree-holder Kapoor Chand obtained a decree against Ummedmal and Keshri Mal. In execution of the decree, dated Oct. 15, 1973, the house in question was attached on Oct. 21, 1973. The objector-appellant filed objection on Mar. 14, 1975 under Order XXI, Rule 58. C. P. C. as it existed then. The objection was rejected on July 1, 1978 on the ground of unnecessary delay. An appeal was filed in this Court, which was registered as Section B. Civil Misc. Appeal No. 89 of 1978. This Court, in view of the concession made by the learned counsel appearing for the decree-holder, allowed the appeal and the order rejecting the objection under Order XXI, Rule 58 was set aside, and the case was sent back to the learned Additional District Judge, Sirohi with a direction to decide the claim afresh on the basis of the evidence, which is already on record keeping in view the provisions of Order XXI, Rule 58, C. P. C. which then existed at the time of preferring the objection and after giving an opportunity of being heard to the objector, decree-holder and the judgment-debtors. The learned Additional District Judge by his order dated Aug. 10, 1982 dismissed the objection on merits. Being dissatisfied with the aforesaid order, the objector has filed this appeal under Order XXI, Rule 58 (4), C. P. C. as aforesaid.
3. Show cause notice was issued to the respondents. In pursuance of that, Mr. L. Rule Mehta, has appeared on behalf of respondent No. 1 and nobody has appeared on behalf of the judgment-debtors-respondents.
4. I have heard the learned counsel for the parties.
5. Mr. L. R. Mehta, learned counsel for respondent No. 1 has raised a preliminary objection that this appeal under Order XXI, Rule 58, C. P. C. is not maintainable as the objection was filed on Mar. 14. 1975, prior to the coming into force of the Civil Procedure Code (Amendment) Act (No. 104 of 1976) by which the provisions of Order XXI, Rule 58, C. P. C. have been amended and that this Court by its order dated Jan. 7, 1981 had sent the case back to the learned Additional District Judge, Sirohi to decide the objection afresh on the basis of the evidence, which is already on record in the light of the provisions of Order XXI, Rule 58, C. P. C. which then existed at the time of preferring the objection. Mr. L. R. Mehta has placed reliance on Syndicate Bank v. Rallies India Ltd, AIR 1979 Delhi 40 in which it was held that where a claim petition was made before the Civil Procedure Code (Amendment) Act (No. 104 of 1976) and was dismissed after the Act came into force, the remedy of the objector is only to file a suit under Order XXI. Rule 63, C. P. C. as existed then and not to file appeal by resort to the new amended Rule 58 of Order XXI. C. P. C. in the case on hand, the claim petition was filed on Mar 14, 1975. The Civil Procedure Code (Amendment) Act (No. 104 of 1976) came into force from Feb. 1, 1977. The objection after remand was decided by the learned Additional District Judge on Aug. 10, 1982. In these circumstances, the appeal filed under Order XXI, Rule 58, C. P. C. against the order dated Aug. 10. 1982 dismissing the objection of the objector, is not competent. I respectfully follow the view taken in Syndicate Bank's case and hold that, this appeal is not maintainable.
6. Learned counsel for the objector appellant also did not oppose the preliminary objection raised on behalf of respondent No. 1. He, however, submitted that the appeal filed by the objector may be treated as revision under Section 115, C. P. C. and it may be heard and disposed of as a revision. To this, Mr. L. R. Mehta, learned counsel for the respondent submitted that as the remedy of suit under Order XXI, Rule 63, C. P. C. as it existed at the time of filing the objection, is available to the objector, the revision against the order dated Aug. 10, 1982 should not be entertained. I have given due consideration to the arguments of the learned counsel for the parties. So far as this Court is concerned, the view taken is that where the executing court dismisses an objection or claim under Order XXI, Rule 58. C. P. C. under a misapprehension of law as well as facts and fails to determine the real issue in the case, the High Court can interfere in revision and set aside the order. Reference may be made to Radha Kishan v. Firm J. Prasad S. Prasad, AIR 1966 Raj 219. Similar view was also taken in Amarchand v. I.-T. Commr.. AIR 1955 Assam 234 and Abdur Rahmani Bai v. Fatima Bee, AIR 1960 Andh Pra 492.
7. The question that, therefore, emerges for consideration is whether any one of the conditions mentioned in Clauses (a), (b) or (c) in Section 115(1), C. P. C. is satisfied in the present case. Learned counsel for the appellant is right and justified in saying that it is only Clause (c) of Section 115(1), C. P. C. which is applicable to the case. In these circumstances it is to be considered whether the learned Additional District Judge has committed any illegality or material irregularity in exercise of his jurisdiction when he dismissed the objector's petition under Order XXI, Rule 58, C. P. C. so as to call for interference in revision. This has necessitated the examination of the contentions raised on behalf of the objector and the decree-holder relating to the merits of the case.
8. Here a few facts deserve recall. The judgment-debtor-respondents agreed to sell the house in question for Rupees 22,000/- on Oct. 18, 1972 to the objector and the latter paid them Rupees 10,000/- on that day. An agreement to sell signed by both the judgment-debtors was executed in favour of the objector on Oct. 19, 1972. An agreement of tenancy was also said to have been entered into between the judgment-debtors and the objector on the same day. The agreement of tenancy is signed by the objector as well as both the judgment-debtors. The certified copies of the agreement to sell and the agreement of tenancy were placed for my perusal by the learned counsel for the decree-holder-respondent, No. 1. The agreementto sell, amongst others, contains the following stipulations :
'5. The sale-deed shall be executed on or before 22nd day of Nov. 1973.'
'7. The seller shall deliver the possession of the property to the purchasers on the execution of the sale-deed.' The case of the objector is that the house in dispute was attached on Oct. 21, 1973 and at the time of attachment the judgment-debtors-respondents had no interest left in it and as such the attachment being illegal should be set aside. In support of the objection, AW 1 Juhar Mal and AW 2 Jewan Mal were examined. The decree-holder examined NAW 1 Dhanraj. NAW 2 Rajendra Kumar and NAW 3 Ummed Mal. It was submitted before the learned Additional District Judge that as the agreement to sell was executed in his favour on Oct. 18, 1972 and the judgment-debtors-respondents had also executed the agreement of tenancy on the same date, the objector will be considered to be in possession of the house in dispute and that his possession was in lieu of part performance of the contract as envisaged by Section 53A of the Transfer of Property Act (No IV of 1882) (for short 'the T. P. Act'). This was refuted on behalf of the decree-holder in view of Section 54 of the T P. Act. The learned Addl. District Judge, on examination of the evidence on record, came to the following conclusions :
1. that from the statement of AW 1 Juharmal it appears that the agreement to sell was not executed and the Roker Bahi was not maintained in a regular manner, but they seem to be fishy documents;
(2) that the house in dispute continues to be in the possession of judgment-debtors only until the decision of the objection petition on Aug. 19, 1982, that it was so on the date of attachment and that until the sale deed is executed in pursuance of the agreement to sell, no interest has passed in favour of the objector in view of Section 54 of the T. P. Act;
(3) that Section 53A of the T. P. Act merely gives a right to file a suit for specific performance of contract and nothing more.
9. Order XXI, Rule 59. C. P. C., as it existed at the time of filing the objection is as under :
'R. 59 Evidence to be adduced byclaimant. The claimant or objector mustadduce evidence to show that at thedate of the attachment he had some interest. in, or was possessed of, the property attached.'
As seated above, the learned Additional District, Judge on a consideration of the evidence found that from the statement of AW 1 Juharmal. It appears that the agreement to sell was not executed and the Roker Bahi was not maintained in a regular manner, and the same ary fishy documents. This finding having been arrived at after appreciating the evidence cannot be disturbed in revision under Section 115. C. P. C. The agreement to sell does not create any right in favour of the objector as is clear from Section 54 of the T. P. Act, which says that a contract for the sale of immovable property does not itself create any right or charge on such property and that it is a contract for the sale of immovable property showing that a sale of such property shall take place on terms settled between the parties. Thus, no interest was created in favour of the objector by the agreement to sell. Now, the question is that when no interest was created in favour of the objector and the ownership vested in the judgment-debtors, can it be said that by executing the rent-note (Agreement of tenancy) in favour of the objector, the possession was that of the objector within the meaning of Order XXI, Rule 59, C. P. C. as it existed then.
10. Material portion of Section 40 of the T. P. Act is as under :
'40. Burden of obligation imposing restriction on use of land.................................................... or
Or of obligation annexed to ownership, but not. amounting to interest or easement.
Where, a third person is entitled to the benefit of art obligation arising out of contract and annexed to the ownership of immovable property but not amounting to an interest therein or easement thereon.
Such right or obligation may be enforced against a transferee with nottce thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands.'
A reading of Section 40 shows that a mere contract of sale, though it does not confer an interest in the subject-matter of the contract, still creates an obligation annexed to the ownership of the property which can be enforced by the promisee under the contract against a transferee with notice.
11. Section 53A of the T. P. Act deals with part-performance. The essentials of this section are : (1) that there should be a contract to transfer immovable property (2) that the contract must be for consideration (3) that it must be in writing signed by or on behalf of the transferor; (4) the terms can be ascertained from the writing; (5) that the transferee has taken possession or is already in possession of the property; (6) that he has done some act in furtherance of the contract; and (7) that he has performed or is willing to perform his part of the contract.
12. It is clear from the agreement to all that the possession was to be delivered to the objector on the execution of the sale-deed. On the same date, The rent-note (Agreement of Tenancy) was executed saying that the judgment-debtors have been put in possession of the property. In this connection, it will be useful to refer to the following portion of the rent-note ;
'.........the parties hereto of the secondparty (judgment-debtors) have put the party hereto of the one party (objector) in possession of the property referred to hereinabove and whereas the possession of the said property is with the party hereto of the one party (objector) and whereas the parties hereto of the second party (judgment-debtors) requested the party hereto of the one party (objector) to allow them the parties of the second part (judgment-debtors) to make use of the premises as tenants of thp party of the one part (objector) has agreed to do.........'
No interest was created in favour of the objector and it continued to vest, despite the agreement to sell in the judgment-debtors. The question of execution of the rent note has not altered the position. Considerable reliance was placed by Mr. P. R. Singhvi on Kanegolla Krishnananda Rao v. Manepalli Venkata Ramanjaneyulu, (1964) 1 Andh WR 300, wherein the view taken in Venkata Reddy v. Yallappa Chetty, AIR 1917 Mad 4 was followed, which was subsequently reiterated in Diravyana v. Veeranan Ambalam, AIR 1939 Mad 702. It was observed in Kanegolla Krishnananda Rao's case as under ;
'There is nothing in Order 21, Rule 56, Civil Procedure Code, which requires that aclaimant should have an interest in the attached immoveable property in the sense in which the expression 'interest' is used in Section 54, Transfer of Property Act. The existence of a valid and pre-existing contract in favour of the claimant for the sale of the property brought under attachment clothes him with suffi-cient right and interest to enable him to intervene in execution with a claim under Order 21, Rule 58, and also to institute a sun under Order 21, Rule 63. Furthermore, in the instant case, BC as partners were not only the successful bidders of the property but also paid a portion of the purchase money to the Municipality. They have, therefore, a charge on the property for this amount.'
In Avdinarayudu v. Mangamma, AIR' 1943 Mad 706, a learned single Judge while considering the expression 'claiming under the transferor' as used in Section 53A of the T. P. Act held that it is wide enough to include a judgment-creditor who has attached the property of the judgment-debetor in a possession of the proposed purchaser who has contracted to purchase it from the judgment-debtor.
13. Mr. L. R. Mehta learned counsel for the respondent No. 1 submits that the above view is not, in conformity with the interpretation of Section 53A of the T. P. Act Put by the Privy Council and this Court.
14. In Avdinarayudu v. Mangamma, AIR' 1943 Mad 706Prabodh. Kumar Das v. Dantmera Tea Co. Ltd., AIR 1940 PC 1, a question arose whether Section 53A of the T. P. Act confers any right of action on transferee in possession under an unregistered contract of sale. In this connection, it was observed as under :
'In their Lordships' opinion, the amendment of the law effected by the enactment of Section 53A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Mitter, J. in the High Court that 'the right conferred by Section 53A is a right available only to the defendant to protect his possession.'' They note that this was also the view of their late distinguished colleague, Sir Dinshah Mulla, as stated in Edn. 2 of his treatise on the Transfer of Property Act at P. 262. The section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Indeed, any other reading of it would make a serious inroad on thewhole scheme of the Transfer of Property Act.'
prabodh Kumar's case was relied on in Delhi Motor Co. v. U. A. Basrurkar, AIR 1968 SC 794, wherein it was holt! that Section 53A is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor, and that Section 53A is only meant to bring about a bar against enforcement or rights by lessor in. respect of property of which the lessee had already taken possession, but does not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease.
15. Bhandari. J., as he then was, in Motilal v. Jaswant Singh, 1963 Raj LW 320 : (AIR 1964 Raj 11) considered Order XXI, Rule 58, C. P. C. and Section 53A of the T. P. Act, in that case, Yenugu Acharya v. Ernaki Venkatasubba Rao, AIR 1957 Andh Pra 854 was noticed by the learned Judge wherein it was observed as under (at PP. 855, 56) :
'This section 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 terms of the section, the transferor is debarred from enforcing against the transferee only rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense, it is statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property.
Where the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor's claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he can enforce his right in respect of the property against the transferee. The utility of the section or the rights conferred thereunder should not be made to depend on the manoeuvring for positions in a Court of Law, otherwise a powerful transferor can always defect the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as a plaintiff. Doubtless, the right conveyedunder the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield.' The learned Judge did not adopt the view of the Andhra Pradesh High Court and held that the view taken in Padmanabha Panda v. Appalanarasamma, AIR 1952 Orissa 143 is sound. It was observed therein as under :
'Every action, more or less, presupposes some sort of invasion or interference with the plaintiffs right and every suit of a plaintiff, therefore, can bo said to he defensive. To accede to this contention would amount to a misuse of the statute by extending its application to cases outside its ambit.' The learned Judge observed in para 7 of the judgment as under :
'Leaving this aspect of the matter apart. I am of the view that on the construction of Section 53A the view taken by the Orissa High Court is sound. One has to stretch the plain meaning of the section in order to uphold the view that a particular plaintiff is really defending his right to the property as against transferor. It cannot be denied that if without filing an objection under Order 21, Rule 58, C. P. C. the transferee comes in a court of law to seek a declaration of the title of his property, he cannot, take advantage of Section 53A. In the position in any way different if he happens to file an objection under Order 21, Rule 58. C. P. C. and that objection is dismissed? Essentially in both the cases the transferee is seeking to get a decision of his rights in the property and it is a matter of no consequence if he comes after filing an objection petition under Order 21, Rule 58, C. P. C. Nor are the provisions of Section 53A to be construed differently in these two cases. Whatever be the nature of the cause of action, Section 53A is applicable only when the defendant seeks to debar the transferor from enforcing his right against the transferee in the property which he has transferred with consideration and has parted with possession but has not executed a registered document, in this view of the matter. I am of the opinion that the plaintiffs in this case cannot be granted advantage of Section 53A of the Transfer of Property Act.'
16. It is thus, clear that the right con-ferred by Section 53A is a right available to a defendant to protect his position and that it dues not create any title on thedefendant. It merely operates as a bar to the plaintiff asserting his title and it cannot be used as a weapon of attack. From this, it follows that the objector cannot avail of this right for enforcing his right to the property and on the basis of the agreement to sell he can only institute suit for specific performance of the contract. Similarly the objector cannot maintain the claim or objection under Order XXI, Rule 58, C. P. C. on the basis of the agreement to sell relying on the doctrine of part-performance. in view of the aforesaid decisions of the Supreme Court, Privy Council and this Court, I have not been able to persuade myself to subscribe to the view taken by the Madras High Court and the Andhra Pradesh High Court in the authorities referred to hereinabove. I respectfully dissent from them. It may be mentioned here at the risk of repetition that it was clearly stipulated in the agreement to sell (Ex. V) that the objector would be delivered possession of the property in dispute after the execution of the sale-deed. At the time of execution of the agreement to sell and also at the time of the rent-note (Ex. 2), it is not in dispute that the judgment-debtors were in actual possession of the property in dispu'e and they continued to be so thereafter. In view of the provisions of Order XXI, Rule 59, as existed than and Ss. 45, 53A and 54 of the T. P. Act, I am unable t agree with the learned counsel for the appellant that the objector (appellant) is entitled to maintain the objection petitioner under Order XXI, Rule 59, C. P. C. on the basis of the rent-note (Ex. 2) which was executed on the same date on which the agreement to sell was executed. The learned Additional District Judge found that the agreement to sell and Rokar Bahi are fishy documents. The view taken by him cannot be said to be under a misapprehension of law and it cannot be said that in investigating the objection the learned Additional District Judge has considered questions really extraneous to the issue. There has been no breach of any provisions of law. No illegality or material irregularity in exercise of jurisdiction has been committed by the learned Additional District Judge.
17. The learned Additional District Judge has mentioned in his order that prior to the objection petition being filed by the objector, the son and wife of theobjector had also filed objection which was rejected on Sept. 13, 1975 by the Additional District Judge, Sirohi.
18. Be that as it may, in view of the conclusion to which I have arrived at on the basis of the rent-note objection filed V by the objector under Order XXI, Rule 58, C. P, C. is not maintainable, the learned Additional District Judge, in my opinion, was right in rejecting the objection. The order of the learned Additional District Judge is upheld.
19. The appeal treated as revision is hereby dismissed summarily.